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EXHIBIT 1
[DEBT SECURITIES]
UNDERWRITING AGREEMENT
[TITLE OF SECURITY]
[MATURITY]
___________ __, 199_
SouthTrust Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
34th Floor, SouthTrust Tower
Birmingham, Alabama 35203
Ladies and Gentlemen:
We, acting as representatives (the "Representatives") of the
several underwriters named herein (the "Underwriters"), understand that
SouthTrust Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell [up to] an aggregate principal amount of $ _______________ of the
above-captioned ____________ (the "Underwritten Securities"). The terms of the
Underwritten Securities are set forth in the Registration Statement on Form S-3
(Registration No. 333-_______) and Basic Prospectus (as defined in the
provisions incorporated herein by reference), as supplemented by any Prospectus
Supplement relating to the Underwritten Securities dated subsequent to the date
of the Basic Prospectus (the Basic Prospectus and any such Prospectus Supplement
being hereinafter referred to as the "Prospectus").
All the provisions (including defined terms) contained in the
document entitled SouthTrust Corporation Underwriting Agreement Standard
Provisions (February 1997) (the "Standard Provisions") heretofore delivered by
the Underwriters, receipt of which is hereby acknowledged, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Underwriting Agreement (the "Agreement") to the same extent as if such
provisions had been set forth in full herein. The Delivery Date referred to in
Section 4 of the Standard Provisions shall be __________ __, 199_.
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Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase, severally and not jointly, the Underwritten
Securities at a price equal to ______% of their aggregate principal amount plus
accrued interest or accrued amortization of original issue discount, if any,
from ________ __, 199_, to the date of payment and delivery, in the amounts set
forth below opposite their names:
Principal Amount of Debt
Securities
Name To Be Purchased
---- ---------------
................................................................. $
.................................................................
.................................................................
Total........................... $
----------
The Underwriters will offer the Underwritten Securities for
sale upon the terms and conditions set forth in the Prospectus.
The Underwriters will pay for the Underwritten Securities at
the time and place and in the manner set forth in the provisions incorporated
herein by reference, except as amended herein.
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Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below and returning the
signed copy to us.
Very truly yours,
[LEAD MANAGER]
By
------------------------------------
Its
---------------------------------
Acting on behalf of itself and
the Underwriters named above
Accepted:
SOUTHTRUST CORPORATION
By
--------------------------
Its
-----------------------
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[EQUITY SECURITIES]
UNDERWRITING AGREEMENT
[TITLE OF SECURITY]
_________ __, 199_
SouthTrust Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
34th Floor, SouthTrust Tower
Birmingham, Alabama 35203
Ladies and Gentlemen:
We, acting as representatives (the "Representatives") of the
several underwriters named herein (the "Underwriters"), understand that
SouthTrust Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell ____________ shares of its ___________ stock, par value $ _____
per share, at a public offering price of $ _____ per share (the "Firm
Securities"). We further understand that the Company proposes to grant to the
Underwriters an option exercisable by the Representatives, to purchase up to
_________ additional shares of its common stock (the "Option Securities") at the
same price per share as determined for the Firm Securities. The Firm Securities
and the Option Securities are hereinafter referred to as the "Underwritten
Securities". The terms of the Underwritten Securities are set forth in the
Registration Statement on Form S-3 (Registration No. 333-_________) and Basic
Prospectus (as defined in the provisions incorporated herein by reference), as
supplemented by any Prospectus Supplement relating to the Underwritten
Securities dated subsequent to the date of the Basic Prospectus (the Basic
Prospectus and any such Prospectus Supplement being hereinafter referred to as
the "Prospectus").
All the provisions (including defined terms) contained in the
document entitled SouthTrust Corporation Underwriting Agreement Standard
Provisions (February 1997) (the "Standard Provisions") heretofore delivered by
the Underwriters, receipt of which is hereby acknowledged, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Underwriting Agreement (the "Agreement") to the same extent as if such
provisions had been set forth in full herein. The Delivery Date referred to in
Section 4 of the Standard Provisions shall be _______ __, 199_.
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Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase, severally and not jointly, the Firm Securities
at an aggregate purchase price of $ _______ , equal to ______% of their
aggregate public offering price, in the amounts set forth below opposite their
names:
Number of Shares
Name To Be Purchased
---- ---------------
...............................................................................
...............................................................................
...............................................................................
Total........................... Shares
-------------------------
The Company hereby grants the Underwriters an option to
purchase all or any portion of the Option Securities. The option to purchase the
Option Securities will expire 30 days after the date hereof, and may be
exercised, in whole or in part (but not more than once), only for the purpose of
covering over-allotments upon notice by the Representatives to the Company
setting forth the number of Option Securities as to which the several
Underwriters are exercising the option, and the time and date of payment and
delivery thereof. If the option is exercised as to all or any portion of the
Option Securities, the Option Securities as to which the option is exercised
shall be purchased by the Underwriters severally and not jointly, in proportion
to, as nearly as practicable, their respective Firm Securities underwriting
obligations as set forth above.
[During the period beginning on the date hereof and continuing
to and including the date 90 days after the date of the Prospectus, the Company
will not offer, sell, contract to sell or otherwise dispose of any shares of its
capital stock, or securities exchangeable or convertible or exercisable for its
capital stock (other than the Securities to be sold to the Underwriters) without
the prior written consent of the Representatives, except in connection with (i)
the exercise of conversion rights outstanding on the date hereof (ii) the
exercise of employee stock options outstanding on the date hereof or pursuant to
the Company's dividend reinvestment plan or other employee benefit plan existing
on the date hereof, and (iii) acquisitions by the Company.]
The Underwriters will offer the Underwritten Securities for
sale upon the terms and conditions set forth in the Prospectus.
The Underwriters will pay for the Underwritten Securities at
the time and place and in the manner set forth in the provisions incorporated
herein by reference, except as amended herein.
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Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below and returning the
signed copy to us.
Very truly yours,
[LEAD MANAGER]
By
-------------------------------------
Its
----------------------------------
Acting on behalf of itself and
the Underwriters named above
Accepted:
SOUTHTRUST CORPORATION
By
-----------------------------
Its
--------------------------
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SOUTHTRUST CORPORATION
Underwriting Agreement
Standard Provisions
(February 1997)
-----------------------
SOUTHTRUST CORPORATION, a Delaware corporation (the
"Company"), may from time to time enter into one or more underwriting agreements
that provide for the sale of its debt securities and convertible debt
securities, (together, the "Debt Securities"), common stock, par value $2.50 per
share (the "Common Stock") and/or preferred stock, par value $1.00 per share
(the "Preferred Stock"), registered under the registration statement referred to
in Paragraph 1(a) hereof (collectively, the "Securities"). Any Debt Securities
issued will be issued under either (i) a Senior Debt Indenture or (ii) a
Subordinate Debt Indenture (each an "Indenture"). The Indenture under which the
Debt Securities are issued and the Trustee thereunder will be identified in any
applicable Prospectus (as herein defined) and all references herein to
"Indenture" and "Trustee" shall be deemed to mean the Indenture (together with
any amendments or supplemental indentures thereto) and the Trustee so identified
in the Prospectus. The Debt Securities will have varying maturities, interest
rates, interest payment dates, redemption provisions, conversion provisions,
selling prices and other terms, with all such terms for any particular offering
to be determined at the time of sale. The Preferred Stock will be issued in one
or more series, which series may vary as to voting rights, dividends, optional
and mandatory redemption provisions, liquidation preference and conversion or
exchange provisions, if any, and any other terms, with all such terms for any
particular series or issue of the Preferred Stock being determined at the time
of issue. The standard provisions set forth herein may be incorporated by
reference in any underwriting agreement relating to an offering of the
Securities (an "Underwriting Agreement"). The Underwriting Agreement, including
the provisions incorporated therein by reference, is herein sometimes referred
to as "this Agreement." Unless otherwise deemed herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Securities
involved in any such offering are hereinafter referred to as the "Underwritten
Securities," the firms which agree to purchase the same are hereinafter referred
to as the "Underwriters" of such Underwritten Securities and the representatives
of the Underwriters named in the Underwriting Agreement are hereinafter referred
to as the "Managing Underwriters." The Underwritten Securities to be purchased
from the Company on the Delivery Date (as hereinafter defined) are called the
"Immediate Delivery Underwritten Securities."
1. The Company represents and warrants that:
(a) A registration statement on Form S-3 (Registration No.
333-________) with respect to the Securities, more particularly
described in the Underwriting Agreement into which the standard
provisions set forth herein are incorporated by reference, has been
prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has become
effective. As used in this Agreement, "Registration Statement" means
that registration statement, as amended or supplemented at the date of
this Agreement, including the material incorporated therein by
reference and exhibits and financial statements, and, in the event any
post-effective amendment thereto becomes effective prior to the
Delivery Date (as hereinafter defined), shall also mean such
registration statement as so amended; "Basic Prospectus" means the
prospectus (including
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all documents incorporated therein by reference) included in the
Registration Statement at the effective date; "Prospectus" means the
Basic Prospectus, together with any prospectus amendment or supplement
(each, a "Prospectus Supplement"), whether in preliminary or final form
(including in each case all documents incorporated therein by
reference), specifically relating to the Underwritten Securities, as
filed with, or mailed for filing to, the Commission pursuant to
paragraph (b) or (c) of Rule 424 of the Rules and Regulations (each
such Prospectus in preliminary form being hereinafter referred to as a
"Preliminary Prospectus"); and "effective date" of the Registration
Statement means each date on which the Registration Statement and any
post-effective amendment or amendments thereto (including the date of
filing of the Company's Annual Report on Form 10-K) became or become
effective. Any reference herein to the Registration Statement, a
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 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the effective
date of the Registration Statement, or the date of such Preliminary
Prospectus or the Prospectus, as the case may be; and any reference
herein to the terms "amend," "amendment" or "supplement" with respect
to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the effective date of the
Registration Statement, or the date of such Preliminary Prospectus or
the Prospectus, as the case may be, deemed to be incorporated therein
by reference. The Commission has not issued any order preventing or
suspending the use of the Prospectus.
(b) The Registration Statement and the Prospectus conform, and
each amendment or supplement to the Registration Statement or the
Prospectus prior to the termination of the offering of the Underwritten
Securities will conform, in all material respects with the requirements
of the Act and the Rules and Regulations and the Exchange Act, and the
rules and regulations of the Commission thereunder; and the
Registration Statement and the Prospectus do not, and any amendment or
supplement thereto prior to the termination of the offering of the
Underwritten Securities will not, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading
provided that this representation and warranty shall not apply to
statements or omissions made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
expressly for use therein.
(c) The documents filed with the Commission pursuant to the
Exchange Act and incorporated by reference into the Prospectus conform,
and any further documents so filed and incorporated by reference into
the Prospectus or any amendment or supplement to the Prospectus prior
to the termination of the offering of the Underwritten Securities, when
filed with the Commission pursuant to the Exchange Act, will conform,
with the applicable requirements of the Exchange Act and the rules and
regulations thereunder; and none of such documents contains or will,
when so filed, contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(d) The financial statements incorporated by reference in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and
the statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified;
said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved (it being understood
that the financial statements of the Company that appear in the
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Prospectus Supplement and any interim financial statements incorporated
by reference in the Prospectus Supplement are not audited). The
supporting schedules, if any, included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in or incorporated by
reference into the Registration Statement.
(e) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated in such documents or incorporated by reference
therein, (i) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (ii) no transactions have been
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise and (iii) except for quarterly dividends on the Common
Stock, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(f) The Company is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus 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 "1940 Act").
2. If the Prospectus or any Prospectus Supplement so provides,
the Underwriters may solicit offers to purchase Underwritten Securities by
institutional investors for delayed delivery pursuant to contracts substantially
in the form of Exhibit A, Exhibit B or Exhibit C attached hereto, with such
changes therein as the Company may approve (the "Delayed Delivery Contracts").
The Company shall have the right, in its sole discretion, to approve or
disapprove each such institutional investor.
The Company will pay to the Managing Underwriters for the
account of the Underwriters, contemporaneously with the purchase on the Delivery
Date by the Underwriters of the Immediate Delivery Underwritten Securities
pursuant to this Agreement, the compensation specified herein for arranging the
sale of Underwritten Securities pursuant to Delayed Delivery Contracts, which
shall be equal to a percentage of the aggregate principal amount of the
Underwritten Securities for which Delayed Delivery Contracts have been made (the
"Delayed Delivery Underwritten Securities"). The Underwriters shall have no
responsibility in respect of the validity or performance of the Delayed Delivery
Contracts.
3. The Company shall not be obligated to deliver any
Underwritten Securities except upon payment for all the Immediate Delivery
Underwritten Securities to be purchased hereunder as hereinafter provided.
4. The Immediate Delivery Underwritten Securities shall be
delivered in temporary or definitive form by the Company to the Managing
Underwriters for the account of the Underwriters, against payment of the
purchase price therefor by each Underwriter or on its behalf by certified or
official bank check or check payable in same-day funds, at 10:00 a.m., New York
City time, on the third business day following the date of this Agreement or at
such other time and date as the Managing Underwriters and the Company mutually
agree, such time and date herein called the "Delivery Date."
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5. The Company agrees:
(a) To furnish promptly to the Managing Underwriters and to
counsel for the Underwriters a copy of the Registration Statement and
the Prospectus, including all documents incorporated in the Prospectus
by reference and all consents and exhibits filed therewith;
(b) To furnish the Underwriters with copies of the Prospectus
(including the documents incorporated by reference therein) in such
quantities as the Managing Underwriters may reasonably request;
provided, however, that in case the Company is required to deliver
copies of the Prospectus to any Underwriter, other than pursuant to
subsection (f) of this Section 5, for use in connection with sales of
Underwritten Securities, at any time nine months or more after the date
of this Agreement, copies of such Prospectus will be furnished at the
expense of such Underwriter;
(c) To file promptly all reports and definitive proxy
statements or information statements required to be filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act during such period following the date of this Agreement as a
Prospectus is required to be delivered in connection with the offering
and sale of the Underwritten Securities;
(d) To advise the Managing Underwriters, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or any order preventing or suspending the use of the Prospectus,
of the suspension of the qualification of the Underwritten Securities
for offering or sale in any jurisdiction, and of any request by the
Commission for the amending or supplementing of the Registration
Statement or the Prospectus;
(e) Promptly from time to time to take such action as the
Managing Underwriters may reasonably request to qualify the
Underwritten Securities for offering and sale under the securities laws
of such jurisdictions as the Managing Underwriters may reasonably
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; provided, however, that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(f) Prior to the termination of the offering of the
Underwritten Securities, to notify the Managing Underwriters promptly
of any proposed amendment or supplement to the Registration Statement
or the Prospectus and furnish the Managing Underwriters with a copy for
their review prior to filing, and not to file any such amendment or
supplement which shall reasonably be disapproved by the Managing
Underwriters promptly after such notification; if at any time during
such period following the date of the Agreement a Prospectus Supplement
is required to be delivered in connection with the offering and sale of
the Underwritten Securities, 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 light of the
circumstances under which they were made, not misleading, or if for any
other reason it shall be necessary to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act or the
Exchange Act, to notify the Managing Underwriters and, upon the request
of the Managing Underwriters, to amend or supplement the Prospectus or
file such document and to notify the Managing Underwriter of the
effectiveness of such amendment or supplement and to prepare and
furnish,
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without charge to each Underwriter and to any dealer in securities, as
many copies as the Managing Underwriters may from time to time
reasonably request of a supplement to the Prospectus or any applicable
Prospectus Supplement which will correct such statement or omission or
effect such compliance;
(g) To make generally available to the holders of Underwritten
Securities as soon as practicable an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and Rule 158 thereunder and covering a period of at
least twelve consecutive months beginning after the effective date of
the Registration Statement;
(h) To pay or cause to be paid all expenses incident to the
performance of its obligations hereunder, including the printing and
filing of the Registration Statement as originally filed and of each
amendment thereto, the cost of all qualifications of the Underwritten
Securities under the securities laws of such jurisdictions as the
Managing Underwriters may have reasonably requested (including the fees
and disbursements of counsel to the Underwriters in connection with
such qualifications and in connection with legal investment surveys)
and the cost of printing this Agreement, any fees charged by securities
rating services for rating the Underwritten Securities, and any
incident to any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities;
(i) During the period prior to the earlier of the
Delivery Date and the date on which any price restrictions on
the sale of the Underwritten Securities are terminated, not to
offer or sell, or to cause any subsidiary to offer or sell, in
the United States, without the prior consent of the Managing
Underwriters, any securities which are substantially similar
to the Underwritten Securities to be delivered to the Managing
Underwriter on behalf of the Underwriters on the Delivery
Date.
6. The obligations of the Underwriters hereunder shall be
subject to the condition that all representations and warranties and other
statements on the part of the Company herein are, at and as of the Delivery
Date, true and correct, the condition that the Company shall have performed all
of its obligations hereunder theretofore to be performed and the following
additional conditions:
(a) At or before the Delivery Date, no stop order suspending
the effectiveness of the Registration Statement or any order directed
to any document incorporated by reference in the Prospectus or in any
amendment or supplement thereto shall have been issued, and prior to
that time no stop order proceeding shall have been initiated or
threatened by the Commission.
(b) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
Indenture (if the Underwritten Securities are Debt Securities), the
Underwritten Securities, the form of the Registration Statement, and
the Prospectus and all other legal matters relating to this Agreement
and the transactions contemplated hereby shall be reasonably
satisfactory in all respects to Stroock & Stroock & ▇▇▇▇▇ LLP, counsel
for the Underwriters, and the Company shall have furnished to such
counsel all documents and information that such counsel shall
reasonably request to enable them to pass upon such matters.
(c) Since the respective dates as of which information is
given in the Prospectus, there shall not have been any change (other
than changes resulting from the accretion of premium or amortization of
debt discount on long-term debt) in the
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consolidated long-term debt of the Company and its subsidiaries, any
change in the capital stock of the Company (except for increases in
outstanding capital stock which are not material), or any change, or
any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the effect of
which, in any such case, is in the judgment of the Managing
Underwriters so material and adverse as to make it impracticable or
advisable to proceed with the public offering or the delivery of the
Underwritten Securities on the terms and in the manner contemplated in
the Prospectus.
(d) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Rose & White LLP, counsel for the Company
(the "Company Counsel"), shall have furnished to the Managing
Underwriters their written opinion, dated the Delivery Date, in form
and substance satisfactory to the Managing Underwriters, to the effect
that:
(i) The Company is a duly organized and validly
existing corporation in good standing under the laws of the
State of Delaware; and SouthTrust Bank, National Association
(the "Bank") is a duly organized and validly existing national
banking association in good standing under the laws of the
United States; each of the Company and the Bank has the
corporate power and authority to own its properties and
conduct its business as described in the Prospectus; the
Company is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended;
(ii) The Underwritten Securities conform to the
description thereof contained in the Prospectus;
(iii) If the Underwritten Securities are Debt
Securities, (A) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under the
Trust Indenture Act of 1939 and constitutes the legal, valid
and binding agreement of the Company enforceable in accordance
with its terms (except as enforcement thereof may be limited
by applicable bankruptcy, insolvency or other similar laws
relating to or affecting the enforcement of creditors' rights
generally and by general principles of equity which may limit
the availability of specific remedies); and (B) the Immediate
Delivery Underwritten Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute
legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture, and the Delayed Delivery
Underwritten Securities, if any, have been validly authorized
and, when duly executed, authenticated, issued and delivered
to, and paid for by, the respective purchasers thereof under
the Delayed Delivery Contracts, the Delayed Delivery
Underwritten Securities will have been validly issued and will
be outstanding and legally binding obligations of the Company
entitled to the benefits of the Indenture;
(iv) If the Underwritten Securities are Preferred
Stock or Common Stock, (A) the Immediate Delivery Underwritten
Securities and all other outstanding shares of capital stock
of the Company have been duly authorized, validly issued and
are fully paid and nonassessable, and (B) the Delayed Delivery
Underwritten Securities, if any, and any Underwritten
Securities subject to an overallotment option set forth in the
Underwriting Agreement have been duly authorized and, when
paid for as contemplated in the Delayed Delivery Contracts, or
the Underwriting Agreement, as the case may be, will be
validly issued, fully paid and nonassessable.
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(v) Any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and
constitute valid and legally binding obligations of the
Company;
(vi) To the best knowledge of the Company Counsel
there is no pending or threatened action, suit or proceeding
against the Company or any of its subsidiaries of a character
required to be disclosed in the Registration Statement or the
Prospectus which is not adequately disclosed therein, or of
any contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement which
are not described or filed as required;
(vii) The Registration Statement is effective under
the Act, and, to the best knowledge of the Company Counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or threatened, and the Registration
Statement and the Prospectus (except for the financial
statements and financial data included therein as to which no
opinion need be expressed) comply as to form in all material
respects with the requirements of the Act and the Rules and
Regulations, and the documents incorporated by reference
therein (except for the financial statements and financial
data included therein as to which no opinion need be
expressed) comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
of the Commission thereunder;
(viii) This Agreement has been duly authorized,
executed and delivered by the Company and constitutes the
legal, valid and binding agreement of the Company enforceable
in accordance with its terms (except as enforcement thereof
may be limited by applicable bankruptcy, insolvency or other
similar laws relating to or affecting the enforcement of
creditors' rights generally and by general principles of
equity which may limit the availability of specific remedies);
(ix) No consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation by the Company of the transactions
contemplated in this Agreement, except such as have been
obtained under the Act and the Trust Indenture Act of 1939 and
such as may be required under the blue sky or similar laws of
any jurisdiction in connection with the purchase and
distribution of the Underwritten Securities by the
Underwriters;
(x) Neither the issue or sale of the Underwritten
Securities, nor the consummation of any other of the
transactions contemplated in this Agreement, nor the
fulfillment of the terms of this Agreement will conflict with,
result in a breach of or constitute a default under the terms
of the Restated Certificate of Incorporation or By-laws of the
Company or of any indenture or other agreement or instrument
known to the Company Counsel to which the Company is a party
or is bound, or any order or regulation known by the Company
Counsel to be applicable to the Company of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over the Company; and
(xi) Nothing has come to the attention of the
Company Counsel which gives it reason to believe that the
Registration Statement or any amendment thereto at the time it
became effective under the Act contained any untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus or
any supplement thereto contains any untrue statement of a
material fact or omits to state a material
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fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(e) The Company shall have furnished to the Managing
Underwriters on the Delivery Date a letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
addressed to the Underwriters and dated the Delivery Date, in form and
substance satisfactory to the Managing Underwriters,
(i) to the effect that:
(A) They are independent certified public
accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the
applicable published Rules and Regulations
thereunder;
(B) In their opinion, the financial
statements and schedule(s) examined by them and
incorporated by reference in the Prospectus comply as
to form in all material respects with the applicable
accounting requirements of the Act and the Exchange
Act and the published rules and regulations
thereunder;
(C) On the basis of limited procedures, not
constituting an audit, including a reading of the
unaudited financial statements referred to below, a
reading of the latest available interim financial
information of the Company and its subsidiaries,
inspection of the minute books of the Company since
the end of the Company's previous fiscal year,
inquiries of officials of the Company 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:
(1) the unaudited financial
statements incorporated by reference in the
Registration Statement do not comply in form
in all material respects with the applicable
accounting requirements of the Act and the
related published Rules and Regulations or
are not presented in conformity with
generally accepted accounting principles
applied on a basis substantially consistent
with that of the audited financial
statements of the Company and its
subsidiaries incorporated by reference in
the Registration Statement, or
(2) as of the date not more than
five days prior to the date of their letter,
there has been any increase or decrease of
more than 10 percent in the reserve for
possible loan losses or any decrease in
shareholders' equity of the Company and its
subsidiaries as compared with the comparable
amounts as of the end of the Company's most
recent fiscal period for which financial
statements (or an unaudited summary thereof)
are set forth or incorporated by reference
in the Prospectus, except as disclosed in
the Prospectus; and
(ii) discussing any such other financial information
contained in the Prospectus, or in any amendment or supplement
thereto prepared in connection with the Underwritten
Securities, as the Company and the Managing Underwriters may
agree upon.
-8-
15
(f) The Company shall (i) confirm that the representations and
warranties herein are true and correct as of the Delivery Date, and
(ii) furnish a certificate, as of the Delivery Date, of the Company as
to the accuracy of such representations and warranties of the Company
as of the Delivery Date, as to the performance by the Company of all of
its obligations hereunder to be performed at or prior to the Delivery
Date and as to the matters set forth in subsections (a) and (c) of
Section 6.
(g) In the event the Underwriters are granted an option and
exercise such option to purchase a certain number of shares of Common
Stock or Preferred Stock (the "Option Shares") and the closing date for
the Option Shares (the "Option Closing Date") determined by the
Representatives pursuant to the Underwriting Agreement is later than
the Delivery Date, the obligations of the several Underwriters to
purchase and pay for the Option Shares that they shall have
respectively agreed to purchase hereunder are subject to the accuracy
of the representations and warranties of the Company contained herein
as of the Option Closing Date, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(i) At any time before the Option Closing Date, no
stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been
instituted or threatened; and any required filing of the Final
Prospectus pursuant to Rule 424(b) under the Act shall have
been made within the proper time period.
(ii) At the Option Closing Date, the Representatives
shall have received, each dated the Delivery Date and relating
to the Option Shares:
(A) the favorable opinion of the Company
Counsel, in form and substance satisfactory to
counsel for the Underwriters, to the same effect as
the opinion required by Section 6(d);
(B) a letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, in
form and substance satisfactory to the Underwriters,
substantially the same in scope and substance as the
letter furnished to the Underwriters pursuant to
Section 6(e);
(C) a certificate, of a principal executive
officer of the Company to the same effect as the
certificate required by Section 6(f); and
(D) such other information, certificates and
documents as the Representatives may reasonably
request.
7. (a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including
information included in the Prospectus that was omitted from such
Registration Statement at the time it became effective but that was
deemed to be part of such Registration Statement at the time it became
effective pursuant to paragraph (b) of Rule 430A ("430A Information")
or pursuant to paragraph (d) of Rule 434 ("434 Information") of the
Rules and Regulations, if applicable, or the omission or alleged
omission therefrom
-9-
16
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 7(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriters), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid for under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule
434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) and that this
indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person
asserting such loss, claim, damage or liability purchased the
Underwritten Securities, or any person controlling such Underwriter, if
a copy of the Prospectus, as then supplemented or amended, was not sent
or given by or on behalf of the Company to such person by such
Underwriter and if the Prospectus (as amended or supplemented and as
required by law to have been delivered to such person at or prior to
the written confirmation of the sale of the Underwritten Securities to
such person) would have cured the defect giving rise to such losses,
liabilities, claims, damages or expenses.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
-10-
17
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 7(a) above, counsel to the
indemnified parties shall be selected by the Representatives, and, in
the case of parties indemnified pursuant to Section 7(b) above, counsel
to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of
any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also
be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under
this Section hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation,
proceeding 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 at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section
7(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior
to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section is for
any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein; then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Underwritten
Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering
of the Underwritten Securities pursuant to this Agreement shall be
deemed to be in the same respective
-11-
18
proportions as the total net proceeds from the offering of the
Underwritten Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover of
the Prospectus, bear to the aggregate public offering price of the
Underwritten Securities as set forth on such cover.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(f) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7 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 Section 7. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten 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 any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act of Section 20 of the
Exchange Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Firm Securities set forth opposite
their respective names above.
8. (a) If any Underwriter shall default in its obligation to
purchase the Underwritten Securities which it has agreed to purchase hereunder,
the non-defaulting Underwriters may in their discretion arrange for the
non-defaulting Underwriters or another party or parties to purchase such
Underwritten Securities on the terms contained herein. If within thirty-six (36)
hours after such default by any Underwriter, the non-defaulting Underwriters do
not arrange for the purchase of such Underwritten Securities, then the Company
shall be entitled to a further period of thirty-six (36) hours within which to
procure another party or parties satisfactory to the non-defaulting Underwriters
to purchase such Underwritten Securities on such terms. In the event that,
within the respective prescribed period, the non-defaulting Underwriters notify
the Company that the non-defaulting Underwriters have so arranged for the
purchase of
-12-
19
such Underwritten Securities, or the Company notifies the non-defaulting
Underwriters that it has so arranged for the purchase of such Underwritten
Securities, the non-defaulting Underwriters or the Company shall have the right
to postpone the Delivery Date for a period of not more than seven (7) 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 Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in the opinion of the Managing
Underwriters 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 Underwritten Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Underwritten Securities of a defaulting Underwriter or
Underwriters by the non-defaulting Underwriters or the Company or both
as provided in subsection (a) above, the aggregate principal amount of
Underwritten Securities which remains unpurchased does not exceed 10
percent of the aggregate principal amount of all the Underwritten
Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the Underwritten 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 Underwritten Securities which
such Underwriter agreed to purchase hereunder) of the Underwritten
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.
(c) If, after giving effect to any arrangements by the
non-defaulting Underwriters or the Company or both, as provided in
subsection (a) above, for the purchase of the Underwritten Securities
of a defaulting Underwriter or Underwriters, the aggregate principal
amount of Underwritten Securities which remains unpurchased exceeds 10
percent of the aggregate principal amount of all the Underwritten
Securities, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Underwritten 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 Company, except as
provided in Sections 9 and 10 hereof, but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
9. If this Agreement shall be terminated pursuant to Section
8(c) or Section 11 (other than pursuant to clause (a)(ii)) hereof, the Company
shall not then be under any liability to any Underwriter except as provided in
Section 5 and Section 7 hereof, but, if for any other reason the Company shall
fail to tender the Immediate Delivery Underwritten Securities (or any Option
Shares as to which the Underwriters have exercised their option) for delivery to
the Underwriters or the Underwriters shall decline to purchase the Immediate
Delivery Underwritten Securities, the Company will reimburse the Underwriters
for all out-of-pocket expenses, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Immediate Delivery Underwritten Securities (or such
Option Shares) and the solicitation of purchases of the Delayed Delivery
Underwritten Securities, and upon demand the Company shall pay the full amount
thereof to the Managing Underwriters, but the Company shall then be under no
further liability to any Underwriter except as provided in Section 5 and Section
7 hereof.
10. The respective indemnities, agreements, representations,
warranties, and other statements of the Company and the Underwriters, as set
forth in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and
-13-
20
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company, or any officer of the Company who signed the
Registration Statement or any director or controlling person of the Company, and
shall survive delivery of and payment for the Underwritten Securities.
11. (a) The Representative(s) may terminate this Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
occurred any calamity or crisis affecting the U.S. financial markets or any
outbreak of hostilities or escalation thereof or other calamity or crisis or
change or development involving a prospective change in national or
international political conditions, in each case the effect of which is such as
to make it, in the reasonable judgment of the Representatives, impracticable to
market the Underwritten Securities or to enforce contracts for the sale of the
Securities, or (ii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the Nasdaq National Market,
or if trading generally on the American Stock Exchange or the New York Stock
Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iii) if a banking moratorium has
been declared by either Federal or New York authorities, or (iv) if there has
been any decrease in the ratings of any of the securities of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) or if any such organization shall have publicly
announced that it has under surveillance or review its rating of any of the
Company's securities for possible downgrade.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 7
and 8 shall survive such termination and remain in full force and effect.
12. In all dealings hereunder, the Managing Underwriters 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 Managing Underwriters.
13. All statements, requests, notices and agreements 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
registered mail to the Managing Underwriters at their address furnished to the
Company and if to the Company, shall be sufficient in all respects if delivered
or sent by registered mail to the Company at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
14. This Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters and the Company, and to the extent provided in
Sections 7 and 9 hereof, the directors of the Company, the officers of the
Company who signed the Registration Statement and each person who controls any
Underwriter or the Company, and their respective personal representatives,
successors, and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any Underwritten
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
15. Time shall be of the essence of this Agreement.
16. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
-14-
21
17. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
-15-
22
[DEBT SECURITIES]
EXHIBIT A
SOUTHTRUST CORPORATION
Delayed Delivery Contract
___________, 19__
SouthTrust Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SouthTrust
Corporation, a Delaware corporation (the "Company"), and the Company hereby
agrees to sell to the undersigned ___________, $__________ principal amount of
the Company's above-captioned _____________ (the "Securities") offered by the
Company's prospectus dated _________ __, 199_, as supplemented by the prospectus
supplement dated _________ __, 199_ (collectively, the "Prospectus"), receipt of
a copy of which is hereby acknowledged, at a purchase price of __ % of the
principal amount thereof plus accrued interest or accrued amortization of
original issue discount, or both, as the case may be, from __________ 199_ to
the Delivery Date (as defined in the next paragraph) and on the further terms
and conditions set forth in this Delayed Delivery Contract (the "Contract").
Payment for and delivery of the securities to be purchased by
the undersigned shall be made on __________, 19__, herein called the "Delivery
Date".
At 10:00 a.m., New York City time, on the Delivery Date, the
Securities to be purchased by the undersigned hereunder will be delivered by the
Company to the undersigned, and the undersigned will accept delivery of such
Securities and will make payment to the Company of the purchase price therefor,
all at the principal office of the Company. Payment will be by certified or
official bank check or checks payable in New York Clearing House (next day)
funds. Securities will be delivered in temporary or definitive fully registered
form in such authorized denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than two full business days prior to the Delivery Date or,
if the undersigned fails to make a timely designation in the foregoing manner,
in the form of one fully registered certificate representing the Securities in
the above principal amount, registered in the name of the undersigned.
This Contract will terminate and be of no further force and
effect after
A-1
23
_______________ 199__, unless (i) on or before such date it shall have been
executed and delivered by both parties hereto and (ii) the Company shall have
(a) sold to the Underwriters named in the Prospectus the immediate Delivery
Underwritten Securities (as defined in the Underwriting Agreement referred to in
the Prospectus) and (b) mailed or delivered to the undersigned at its address
set forth below a notice to that effect, stating the date of the occurrence
thereof, accompanied by copies of the opinion of counsel for the Company
delivered to such Underwriters pursuant to Paragraph 6(d) of the Underwriting
Agreement.
The obligation of the undersigned to accept delivery of and
make payment for the Securities on the Delivery Date will be subject to the
condition that the Securities shall not on the Delivery Date be an investment
prohibited by the laws of the jurisdiction to which the undersigned is subject,
the undersigned hereby representing that such an investment is not so prohibited
on the date hereof.
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of any Delayed Delivery
Contract (as defined in said Underwriting Agreement) is in the Company's sole
discretion and, without limiting the foregoing, need not be on a first-come,
first-served basis. If this Contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance below and mail or deliver
one of the counterparts hereof to the undersigned at its address set forth
below.
This will become a binding contract between the Company and
the undersigned when such counterpart is so mailed or delivered.
Very truly yours,
[Name of Purchaser]
By
-------------------------------
Title
---------------------------
Address:
---------------------------------
---------------------------------
---------------------------------
Accepted as of
______________ 199_.
SOUTHTRUST CORPORATION
By
---------------------------
Title
------------------------
A-2
24
[PREFERRED STOCK]
EXHIBIT B
SOUTHTRUST CORPORATION
Delayed Delivery Contract
___________, 19__
SouthTrust Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SouthTrust
Corporation, a Delaware corporation (the "Company"), and the Company hereby
agrees to sell to the undersigned _____________________, __________ shares of
the Company's preferred stock, par value $1.00 per share (the "Securities"),
offered by the Company's prospectus dated _________ __, 199_, as supplemented by
the prospectus supplement dated _________ __, 199_ (collectively, the
"Prospectus"), receipt of a copy of which is hereby acknowledged, at a purchase
price of __ per share and on the further terms and conditions set forth in this
Delayed Delivery Contract (the "Contract").
Payment for and delivery of the securities to be purchased by
the undersigned shall be made on __________, 19__, herein called the "Delivery
Date".
At 10:00 a.m., New York City time, on the Delivery Date, the
Securities to be purchased by the undersigned hereunder will be delivered by the
Company to the undersigned, and the undersigned will accept delivery of such
Securities and will make payment to the Company of the purchase price therefor,
all at the principal office of the Company. Payment will be by certified or
official bank check or checks payable in New York Clearing House (next day)
funds. Securities will be delivered in such authorized denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than two full
business days prior to the Delivery Date or, if the undersigned fails to make a
timely designation in the foregoing manner, in the form of one fully registered
certificate representing the number of Securities set forth above, registered in
the name of the undersigned.
This Contract will terminate and be of no further force and
effect after _______________ 199__, unless (i) on or before such date it shall
have been executed and delivered by both parties hereto and (ii) the Company
shall have (a) sold to the Underwriters
B-1
25
named in the Prospectus the Immediate Delivery Underwritten Securities (as
defined in the Underwriting Agreement referred to in the Prospectus) and (b)
mailed or delivered to the undersigned at its address set forth below a notice
to that effect, stating the date of the occurrence thereof, accompanied by
copies of the opinion of counsel for the Company delivered to such Underwriters
pursuant to Paragraph 6(d) of the Underwriting Agreement.
The obligation of the undersigned to accept delivery of and
make payment for the Securities on the Delivery Date will be subject to the
condition that the Securities shall not on the Delivery Date be an investment
prohibited by the laws of the jurisdiction to which the undersigned is subject,
the undersigned hereby representing that such an investment is not so prohibited
on the date hereof.
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of any Delayed Delivery
Contract (as defined in said Underwriting Agreement) is in the Company's sole
discretion and, without limiting the foregoing, need not be on a first-come,
first-served basis. If this Contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance below and mail or deliver
one of the counterparts hereof to the undersigned at its address set forth
below.
This will become a binding contract between the Company and
the undersigned when such counterpart is so mailed or delivered.
Very truly yours,
[Name of Purchaser]
By
--------------------------------
Title
------------------------------
Address:
------------------------------------
------------------------------------
------------------------------------
Accepted as of
______________ 199_.
SOUTHTRUST CORPORATION
By
----------------------------
Title
-------------------------
B-2
26
[COMMON STOCK]
EXHIBIT C
SOUTHTRUST CORPORATION
Delayed Delivery Contract
___________, 19__
SouthTrust Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SouthTrust
Corporation, a Delaware corporation (the "Company"), and the Company hereby
agrees to sell to the undersigned ____________________, __________ shares of the
Company's common stock, par value $2.50 per share (the "Securities"), offered by
the Company's prospectus dated _________ __, 199_, as supplemented by the
prospectus supplement dated _________ __, 199_ (collectively, the "Prospectus"),
receipt of a copy of which is hereby acknowledged, at a purchase price of __ per
share and on the further terms and conditions set forth in this Delayed Delivery
Contract (the "Contract").
Payment for and delivery of the securities to be purchased by
the undersigned shall be made on __________, 19__, herein called the "Delivery
Date".
At 10:00 a.m., New York City time, on the Delivery Date, the
Securities to be purchased by the undersigned hereunder will be delivered by the
Company to the undersigned, and the undersigned will accept delivery of such
Securities and will make payment to the Company of the purchase price therefor,
all at the principal office of the Company. Payment will be by certified or
official bank check or checks payable in New York Clearing House (next day)
funds. Securities will be delivered in such authorized denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than two full
business days prior to the Delivery Date or, if the undersigned fails to make a
timely designation in the foregoing manner, in the form of one fully registered
certificate representing the above number of Securities, registered in the name
of the undersigned.
This Contract will terminate and be of no further force and
effect after _______________ 199__, unless (i) on or before such date it shall
have been executed and delivered by both parties hereto and (ii) the Company
shall have (a) sold to the Underwriters named in the Prospectus the Immediate
Delivery Underwritten Securities (as defined in the Underwriting Agreement
referred to in the Prospectus) and (b) mailed or delivered to the undersigned at
its address set forth below a notice to that effect, stating the date of the
occurrence thereof, accompanied by copies of the opinion of counsel for the
Company delivered to such
C-1
27
Underwriters pursuant to Paragraph 6(d) of the Underwriting Agreement.
The obligation of the undersigned to accept delivery of and
make payment for the Securities on the Delivery Date will be subject to the
condition that the Securities shall not on the Delivery Date be an investment
prohibited by the laws of the jurisdiction to which the undersigned is subject,
the undersigned hereby representing that such an investment is not so prohibited
on the date hereof.
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of any Delayed Delivery
Contract (as defined in said Underwriting Agreement) is in the Company's sole
discretion and, without limiting the foregoing, need not be on a first-come,
first-served basis. If this Contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance below and mail or deliver
one of the counterparts hereof to the undersigned at its address set forth
below.
This will become a binding contract between the Company and
the undersigned when such counterpart is so mailed or delivered.
Very truly yours,
[Name of Purchaser]
By
--------------------------------
Title
-----------------------------
Address:
----------------------------------
----------------------------------
----------------------------------
Accepted as of
______________ 199_.
SOUTHTRUST CORPORATION
By
-----------------------------
Title
--------------------------
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