EXHIBIT 4(N)
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[DEBT] [PREFERRED STOCK] [COMMON STOCK] WARRANT AGREEMENT
dated as of ________ __, ____
between
AMSOUTH BANCORPORATION
and
[NAME OF WARRANT AGENT], as Warrant Agent
___________________________
[Debt] [Preferred Stock] [Common Stock] Warrants
Expiring ________ __, ____
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TABLE OF CONTENTS
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Page
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PARTIES............................................................................................. 1
RECITALS............................................................................................ 1
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION,
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DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES
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SECTION 1.01. Issuance of Warrants................................................................. 2
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates................................. 2
SECTION 1.03. Exchange and Transfer of Warrant Certificates........................................ 3
SECTION 1.04. Lost, Stolen, Mutilated or Destroyed Warrant Certificates............................ 4
SECTION 1.05. Cancellation of Warrant Certificates................................................. 5
SECTION 1.06. Treatment of Holders of Warrant Certificates......................................... 5
ARTICLE II
EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS
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SECTION 2.01. Exercise Price....................................................................... 5
SECTION 2.02. Duration of Warrants................................................................. 5
SECTION 2.03. Exercise of Warrants................................................................. 6
SECTION 2.03. Adjustment Under Certain Circumstances............................................... 7
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF
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HOLDERS OF WARRANTS
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SECTION 3.01. No Rights as Holders of Warrant Securities Conferred by Warrants
or Warrant Certificates........................................................................ 8
SECTION 3.02. Holder of Warrant May Enforce Rights................................................. 8
ARTICLE IV
CONCERNING THE WARRANT AGENT
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SECTION 4.01. Warrant Agent....................................................................... 8
SECTION 4.02. Limitations on Warrant Agent's Obligations.......................................... 8
SECTION 4.03. Compliance With Applicable Laws..................................................... 10
SECTION 4.04. Resignation and Appointment of Successor............................................ 10
ARTICLE V
MISCELLANEOUS
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SECTION 5.01. Amendments.......................................................................... 12
SECTION 5.02. Merger, Consolidation, Sale, Transfer or Conveyance................................. 12
SECTION 5.03. Notices and Demands to the Company and Warrant Agent................................ 13
SECTION 5.04. Addresses........................................................................... 13
SECTION 5.05. APPLICABLE LAW...................................................................... 13
SECTION 5.06. Delivery of Prospectus.............................................................. 14
SECTION 5.07. Obtaining of Governmental Approvals................................................. 14
SECTION 5.08. Payment of Taxes.................................................................... 14
SECTION 5.09. Benefits of Warrant Agreement....................................................... 14
SECTION 5.10. Headings............................................................................ 14
SECTION 5.11. Severability........................................................................ 14
SECTION 5.12. Counterparts........................................................................ 14
SECTION 5.13. Definitions......................................................................... 15
SECTION 5.14. Inspection of Agreement............................................................. 15
EXHIBITS
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EXHIBIT A Form of Warrant Certificate
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FORM OF [DEBT] [PREFERRED STOCK]
[COMMON STOCK] WARRANT AGREEMENT
[DEBT] [PREFERRED STOCK] [COMMON STOCK] WARRANT AGREEMENT, dated as of
________ __, ____ (as modified, amended or supplemented, this "Agreement"),
between AMSOUTH BANCORPORATION, a Delaware corporation (the "Company") and [NAME
OF WARRANT AGENT], a _________________, as Warrant Agent (the "Warrant Agent").
W I T N E S S E T H:
- - - - - - - - - -
[If offer consists of Debt Securities with Warrants AND/OR Warrants to
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Purchase Debt Securities - WHEREAS, the Company has entered into an Indenture,
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dated as of ________ __, ____ (the "Senior Indenture"), between the Company and
[name of trustee], a ____________________, as trustee, providing for the
issuance from time to time of its unsecured senior debentures, notes or other
evidences of indebtedness, and an Indenture, dated as of _________ __, ____ (the
"Subordinated Indenture", and together with the Senior Indenture, the
"Indentures"), between the Company and [name of trustee], a ___________, as
trustee (together with the trustee under the Senior Indenture, the "Trustees"),
providing for the issuance from time to time of its unsecured subordinated
debentures, notes or other evidences of indebtedness (together with the
securities issuable under the Senior Indenture, the "Debt Securities"), to be
issued in one or more series as provided in each Indenture; and]
[If offer consists of Securities with Warrants - WHEREAS, the Company
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proposes to sell [title of Securities being Offered] (the "Offered Securities")
together with warrants (each, a "Warrant") representing the right to purchase
[title of Securities purchasable upon exercise of Warrants] (the "Warrant
Securities"), such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the "Warrant Certificates"; and]
[If offer consists of Warrants alone - WHEREAS, the Company proposes
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to sell warrant certificates evidencing one or more warrants (each, a "Warrant")
representing the right to purchase [title of Securities purchasable upon
exercise of Warrants] (the "Warrant Securities"), such warrant certificates and
other warrant certificates issued pursuant to this Agreement being herein called
the "Warrant Certificates"; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, transfer, exchange, exercise and cancellation of the Warrants, and the
Company wishes to set forth in this Agreement, among other things, the
provisions of the Warrants, the form of the Warrant Certificates evidencing the
Warrants and the terms and conditions upon which the Warrants may be issued,
transferred, exchanged, exercised and canceled;
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NOW, THEREFORE, in consideration of the premises, the parties hereto
hereby agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION,
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DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES
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SECTION 1.01. Issuance of Warrants. Each Warrant shall represent the
right, subject to the provisions contained herein and therein, to purchase
[________] Warrant Securities [in the aggregate principal amount of $_____] at
the Exercise Price set forth in Section 2.01. [If Securities and Warrants are
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to be offered together - Warrants shall be issued in units with the Offered
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Securities [and shall not be separately transferable [before ________ __, ____
(the "Detachment Date")]]. [Warrants shall be issued as a separate security and
shall be transferable from and after the date of issuance.] [Each Warrant
Certificate included in such a unit shall evidence [_______] Warrants for each
[$_____ principal amount of] [_______] Offered Securities included in such
unit.]
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates.
(a) Warrant Certificates evidencing Warrants to purchase not more
than [$_______ in aggregate principal amount] [____] of Warrant Securities
(except as provided in Sections 1.03, 1.04 and 2.03(e)) may be executed by the
Company and delivered to the Warrant Agent upon the execution of this Warrant
Agreement or from time to time thereafter.
(b) Each Warrant Certificate, whenever issued, shall be in registered
form substantially in the form set forth in Exhibit A hereto, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Agreement. Each Warrant Certificate shall be
printed, lithographed, typewritten, mimeographed or engraved on steel engraved
borders or otherwise reproduced in any other manner as may be approved by the
officers executing the same (such execution to be conclusive evidence of such
approval) and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may approve (such
execution to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto, or
with any regulation of any stock exchange on which the Warrants [, the Offered
Securities] or the Warrant Securities may be listed, or to conform to usage.
Each Warrant Certificate shall be signed on behalf of the Company by its
Chairman of the Board, Vice Chairman of the Board, President or any Vice
President, and by its Secretary or any of its Assistant Secretaries, under its
corporate seal. The signature of any such officer on any Warrant Certificate
may be manual or facsimile. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates. Each
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Warrant Certificate, when so signed on behalf of the Company, shall be delivered
to the Warrant Agent together with an order for the countersignature and
delivery of such Warrants.
(c) The Warrant Agent shall, upon receipt of any Warrant Certificate
duly executed on behalf of the Company, countersign such Warrant Certificate and
deliver such Warrant Certificate to or upon the order of the Company. Each
Warrant Certificate shall be dated as of the date of its countersignature.
Subsequent to the original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate is
issued in exchange or substitution for one or more previously countersigned
Warrant Certificates, or upon the partial exercise of Warrants evidenced by a
Warrant Certificate, as hereinafter provided.
(d) No Warrant Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced thereby may be exercised, unless such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that such Warrant Certificate has been duly issued under the
terms of this Agreement.
(e) If any officer of the Company who has signed any Warrant
Certificate either manually or by facsimile signature shall cease to be such
officer before such Warrant Certificate shall have been countersigned and
delivered by the Warrant Agent, such Warrant Certificate nevertheless may be
countersigned and delivered as though the person who signed such Warrant
Certificate had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company as specified in this Section 1.02, regardless of whether
at the date of the execution of this Agreement any such person was such officer.
(f) The terms "holder", "holder of Warrants" and "holder of Warrant
Certificates" as used herein shall mean any person in whose name any Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose [If Securities and Warrants that are not immediately
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detachable are offered or, prior to the Detachment Date, the person in whose
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name the Offered Security to which such Warrant Certificate was initially
attached is registered upon the register relating to such Offered Securities. At
all times prior to the Detachment Date, the Company will, or will cause the
registrar of the Offered Securities to, make available to the Warrant Agent such
information as to holders of the Offered Securities as may be necessary to keep
the Warrant Agent's records current].
SECTION 1.03. Exchange and Transfer of Warrant Certificates.
(a) [[If Securities and Warrants that are not immediately detachable
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are offered - Prior to the Detachment Date, a] [A] Warrant Certificate may be
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exchanged or transferred only together with the Offered Security to which such
Warrant Certificate is attached, and only
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for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. Furthermore, [on or prior to the Detachment Date,] each
transfer of an Offered Security on the register relating to such Offered
Securities shall operate also to transfer the Warrants to which such Offered
Security was initially attached. [From and after the Detachment Date, the above
provisions shall be of no further force and effect and a]] [If Securities and
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Warrants that are immediately detachable are offered - A] Warrant Certificate
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may be transferred at the option of the holder thereof upon surrender of such
Warrant Certificate at the corporate trust office of the Warrant Agent, properly
endorsed or accompanied by appropriate instruments of transfer and written
instructions for transfer, all in form satisfactory to the Company and the
Warrant Agent. Upon any such registration of transfer, the Company shall
execute, and the Warrant Agent shall countersign and deliver, as provided in
Section 1.02, in the name of the designated transferee a new Warrant Certificate
or Warrant Certificates of any authorized denomination evidencing in the
aggregate a like number of unexercised Warrants.
(b) [If Securities and Warrants that are not immediately detachable
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are offered - After the Detachment Date, upon] [Upon] surrender at the corporate
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trust office of the Warrant Agent, properly endorsed or accompanied by
appropriate instruments of transfer and written instructions for such exchange,
all in form satisfactory to the Company and the Warrant Agent, a Warrant
Certificate of one denomination may be exchanged for Warrant Certificates in any
other authorized denominations; provided, however, that such Warrant
Certificates evidence the same aggregate number of Warrants as the Warrant
Certificates so surrendered.
(c) The Warrant Agent shall keep, at its corporate trust office,
books in which, subject to such reasonable regulations as it may prescribe, it
shall register Warrant Certificates in accordance with Section 1.02 and
transfers, exchanges, exercises and cancellations of outstanding Warrant
Certificates. Whenever any Warrant Certificates are surrendered for transfer or
exchange in accordance with this Section 1.03, an authorized officer of the
Warrant Agent shall manually countersign and deliver the Warrant Certificates
which the holder making the transfer or exchange is entitled to receive.
(d) No service charge shall be made for any transfer or exchange of
Warrant Certificates, but the Company may require payment of a sum sufficient to
cover any stamp or other tax or other governmental charge that may be imposed in
connection with any such transfer or exchange.
SECTION 1.04. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Company and the Warrant Agent of evidence
satisfactory to them of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity satisfactory to them and,
in the case of mutilation, upon surrender of such Warrant Certificate to the
Warrant Agent for cancellation, then, in the absence of notice to the Company or
the Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for the mutilated
Warrant Certificate, or in lieu of the lost, stolen or destroyed Warrant
Certificate, a new Warrant Certificate of the same tenor and
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for a like number of Warrants. No service charge shall be made for any
replacement of Warrant Certificates, but the Company may require the payment of
a sum sufficient to cover any stamp or other tax or other governmental charge
that may be imposed in connection with any such exchange. Every substitute
Warrant Certificate executed and delivered pursuant to this Section 1.04 in lieu
of any lost, stolen or destroyed Warrant Certificate shall constitute an
additional contractual obligation of the Company, whether or not the lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. To the extent permitted under applicable law, the
provisions of this Section 1.04 are exclusive with respect to the replacement of
mutilated, lost, stolen or destroyed Warrant Certificates and shall preclude any
and all other rights or remedies.
SECTION 1.05. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered to the Warrant Agent for transfer, exchange or exercise
of the Warrants evidenced thereby shall be promptly canceled by the Warrant
Agent and shall not be reissued and, except as expressly permitted by this
Agreement, no Warrant Certificate shall be issued hereunder in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of canceled Warrant Certificates in a manner satisfactory to the
Company. Any Warrant Certificate surrendered to the Company for transfer,
exchange or exercise of the Warrants evidenced thereby shall be promptly
delivered to the Warrant Agent and such transfer, exchange or exercise shall not
be effective until such Warrant Certificate has been received by the Warrant
Agent.
SECTION 1.06. Treatment of Holders of Warrant Certificates. Every
holder of Warrants, by accepting a Warrant Certificate evidencing such Warrants,
consents and agrees with the Company, the Warrant Agent and with every
subsequent holder of such Warrants that until the Warrant Certificate is
transferred on the books of the Warrant Agent, the Company and the Warrant Agent
may treat the registered holder of such Warrant Certificate as the absolute
owner of the Warrants evidenced thereby for any purpose and as the person
entitled to exercise the rights attaching to the Warrants evidenced thereby, any
notice to the contrary notwithstanding.
ARTICLE II
EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS
-------------------------------------------------
SECTION 2.01. Exercise Price. The exercise price of each Warrant
shall be $________ (the "Exercise Price") [modify as appropriate to reflect
terms of offered warrants].
SECTION 2.02. Duration of Warrants. [Subject to the limitations set
forth in Section 2.03, each Warrant may be exercised in whole but not in part on
any Business Day (as defined in Section 2.03) occurring during the period (the
"Exercise Period") commencing on [its date of issuance] [_________ __, ____] and
ending at 5:00 P.M., New York time, on __________ __, ____ (the "Expiration
Date"). Each Warrant remaining unexercised after
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5:00 P.M., New York time, on the Expiration Date shall become void, and all
rights of the holder of such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants.
(a) A holder may exercise a Warrant by delivering, not later than
5:00 P.M., New York time, on any Business Day (the "Exercise Date") to the
Warrant Agent at its corporate trust department (i) the Warrant Certificate
evidencing the Warrants to be exercised, properly completed (including the
information specified on the reverse thereof) and duly executed by the holder
thereof and (ii) the Exercise Price for each Warrant to be exercised in lawful
money of the United States of America by certified or official bank check or by
bank wire transfer in immediately available funds. If either the Warrant
Certificate evidencing the Warrants to be exercised, properly completed and duly
executed as aforesaid, or the Exercise Price therefor, in the proper amount and
in the specified funds, is received by the Warrant Agent after 5:00 P.M., New
York time, on the specified Exercise Date, the Warrants will be deemed to be
received and exercised on the Business Day next succeeding the Exercise Date. If
the date specified as the Exercise Date is not a Business Day, the Warrants will
be deemed to be received and exercised on the next succeeding day which is a
Business Day. If the Warrants are received or deemed to be received after the
Expiration Date, the exercise thereof will be null and void and any funds
delivered to the Warrant Agent will be returned to the holder as soon as
practicable. In no event will interest accrue on funds deposited with the
Warrant Agent in respect of an exercise or attempted exercise of Warrants. The
validity of any exercise of Warrants will be determined by the Warrant Agent in
its sole discretion and such determination will be final and binding upon the
holder of Warrants and the Company. Neither the Company nor the Warrant Agent
shall have any obligation to inform a holder of Warrants of the invalidity of
any exercise of Warrants. The Warrant Agent shall deposit all funds received by
it in payment of the Exercise Price in the account of the Company maintained
with the Warrant Agent for such purpose and shall advise the Company by
telephone at the end of each day on which funds for the exercise of the Warrants
are received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephonic advice to the Company in writing. As used
herein, the term "Business Day" means any day which is not a Saturday or Sunday
and is not a legal holiday or a day on which banking institutions generally are
authorized or obligated by law or regulation to close in the principal place of
business of the Warrant Agent.
(b) The Warrant Agent shall, by 11:00 A.M., New York time, on the
Business Day following the Exercise Date of any Warrant, advise the Company and
the [Trustee under the Indenture applicable to] [the transfer agent and
registrar in respect of] the Warrant Securities issuable upon such exercise as
to the number of Warrants exercised in accordance with the terms and conditions
of this Agreement, the instructions of each holder of such Warrants with respect
to delivery of the Warrant Securities issuable upon such exercise, and the
delivery of Warrant Certificates evidencing the balance, if any, of the Warrants
remaining after such exercise, and such other information as the Company or such
[Trustee] [,] [transfer agent and registrar] shall reasonably require.
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(c) The Company shall, by 5:00 P.M., New York time, on the third
Business Day next succeeding the Exercise Date of any Warrant, execute, issue
and deliver to the Warrant Agent, [pursuant to the Indenture applicable to the
Warrant Securities, the Warrant Securities, duly authenticated by the Trustee of
such Indenture and in authorized denominations] [the Warrant Securities] to
which such holder is entitled, in fully registered form, registered in such name
or names as may be directed by such holder. Upon receipt of such Warrant
Securities, the Warrant Agent shall, by 5:00 P.M., New York time, on the fifth
Business Day next succeeding such Exercise Date, transmit such Warrant
Securities, to or upon the order of the holder of the Warrant, together with, or
preceded by the prospectus referred to in Section 5.06 hereof. The Company
agrees that it will provide such information and documents to the Warrant Agent
as may be necessary for the Warrant Agent to fulfill its obligations hereunder.
(d) The accrual of [interest] [dividends], if any, on the Warrant
Securities issued upon the valid exercise of any Warrant will be governed by the
terms of the applicable [Indenture] [certificate of designations] and such
Warrant Securities. From and after the issuance of such Warrant Securities, the
former holder of the Warrants exercised will be entitled to the benefits of the
[Indenture] [certificate of designations] under which such Warrant Securities
are issued and such former holder's right to receive payments of [principal of
(and premium, if any) and interest, if any, on] [dividends and any other amounts
payable in respect of] the Warrant Securities shall be governed by, and shall be
subject to, the terms and provisions of such [Indenture] [certificate of
designations] and the Warrant Securities.
(e) If fewer than all of the Warrants evidenced by a Warrant
Certificate are exercised, a new Warrant Certificate for the number of Warrants
remaining unexercised shall be executed by the Company and countersigned by the
Warrant Agent as provided in Section 1.02 hereof, and delivered to the holder of
such Warrants at the address specified on the books of the Warrant Agent or as
otherwise specified by such holder.
(f) The Company shall not be required to pay any stamp or other tax
or other governmental charge required to be paid in connection with any transfer
involved in the issuance of the Warrant Securities. If any such transfer is
involved, the Company shall not be required to issue or deliver any Warrant
Securities until such tax or other charge shall have been paid or it has been
established to the Company's satisfaction that no such tax or other charge is
due.
[If Warrants for Common Stock are offered - SECTION 2.03. Adjustment
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Under Certain Circumstances. The Exercise Price and the number of Warrant
Securities purchasable upon the exercise of each Warrant shall be subject to
adjustment upon (i) the issuance of a stock dividend to the holders of the
outstanding shares of Warrant Securities or a combination, subdivision or
reclassification of the Warrant Securities; (ii) the issuance of rights,
warrants or options to all holders of the Warrant Securities entitling the
holders thereof to purchase Warrant Securities for an aggregate consideration
per share less than the current market price per share of the Warrant
Securities; or (iii) any distribution by the Company to the holders of the
Warrant Securities of evidences of indebtedness of the Company or of assets
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(excluding cash dividends or distributions payable out of consolidated earnings
and earned surplus and dividends or distributions referred to in (i) above);
provided that no such adjustment in the number of Warrant Securities purchasable
upon exercise of the Warrants will be required until cumulative adjustments
require an adjustment of at least 1% of such number. All such adjustments will
be made at the discretion and on the order of the Company. No fractional shares
will be issued upon exercise of Warrants, but the Company will pay the cash
value of any fractional shares otherwise issuable.]
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF
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HOLDERS OF WARRANTS
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SECTION 3.01. No Rights as Holders of Warrant Securities Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of any
Warrant Securities, including, without limitation, [the right to receive the
payments of principal of (and premium, if any) and interest, if any, on Debt
Securities purchasable upon such exercise or to enforce any of the covenants in
the Indenture] [the right to receive dividends, if any, or payments upon the
liquidation, dissolution or winding up of the Company or to exercise voting
rights, if any].
SECTION 3.02. Holder of Warrant May Enforce Rights. Notwithstanding
any of the provisions of this Agreement, any holder of any Warrant, without the
consent of the Warrant Agent or the holder of any other Warrant, may, on such
holder's own behalf and for such holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company to
enforce, or otherwise in respect of, such holder's right to exercise the
Warrants held by such holder in the manner provided in this Agreement.
ARTICLE IV
CONCERNING THE WARRANT AGENT
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SECTION 4.01. Warrant Agent. The Company hereby appoints [Name of
Warrant Agent] as Warrant Agent of the Company in respect of the Warrants upon
the terms and subject to the conditions herein set forth, and [Name of Warrant
Agent] hereby accepts such appointment. The Warrant Agent shall have the powers
and authority granted to and conferred upon it hereby and such further powers
and authority to act on behalf of the Company as the Company may hereafter grant
to or confer upon it.
SECTION 4.02. Limitations on Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of the
Warrant Certificates shall be subject:
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(a) Compensation and Indemnification. The Company agrees to pay the
Warrant Agent compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent
for all reasonable out-of-pocket expenses (including reasonable counsel
fees) incurred by the Warrant Agent in connection with the services
rendered by it hereunder. The Company also agrees to indemnify the Warrant
Agent for, and to hold it harmless against, any loss, liability or expense
incurred without negligence, bad faith or breach of this Agreement on the
part of the Warrant Agent, arising out of or in connection with its acting
as Warrant Agent hereunder.
(b) Agent for the Company. In acting in the capacity of Warrant
Agent under this Agreement, the Warrant Agent is acting solely as agent of
the Company and does not assume any obligation or relationship of agency or
trust with any of the owners or holders of the Warrants except as expressly
set forth herein.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it (which may be counsel to the Company), and the advice of such counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur
no liability for or in respect of any action taken or thing suffered by it
in reliance upon any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest
in, any Warrant, with the same rights that it or they would have were it
not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Company and may act on, or as a depositary, trustee or
agent for, any committee or body of holders of Warrants, Warrant Securities
or Offered Securities, or other securities or obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in this
Agreement shall be deemed to prevent the Warrant Agent from acting as
trustee under either Indenture.
(f) No Liability for Interest. The Warrant Agent shall not be under
any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement.
(g) No Liability for Invalidity. The Warrant Agent shall not be
under any responsibility with respect to the validity or sufficiency of
this Agreement or the execution and delivery hereof (except the due
execution and delivery hereof by the
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Warrant Agent) or with respect to the validity or execution of the Warrant
Certificates (except its countersignature thereon).
(h) No Responsibility for Recitals. The recitals contained herein
and in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon) shall be taken as the statements of the Company,
and the Warrant Agent assumes no responsibility hereby for the correctness
of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are specifically set forth herein and no
implied duties or obligations shall be read into this Agreement against the
Warrant Agent. The Warrant Agent shall not be under any obligation to take
any action hereunder which may tend to involve it in any expense or
liability, the payment of which within a reasonable time is not, in its
reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company
of any of the Warrant Certificates authenticated by the Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the issue and sale, or
exercise, of the Warrants. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the performance of
its covenants or agreements contained herein or in the Warrant Certificates
or in the case of the receipt of any written demand from a holder of a
Warrant with respect to such default, including, without limiting the
generality of the foregoing, any duty or responsibility to initiate or
attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 5.03 hereof, to make any demand upon the Company.
SECTION 4.03. Compliance With Applicable Laws. The Warrant Agent
agrees to comply with all applicable federal and state laws imposing obligations
on it in respect of the services rendered by it under this Agreement and in
connection with the Warrants, including (but not limited to) the provisions of
United States federal income tax laws regarding information reporting and backup
withholding. The Warrant Agent expressly assumes all liability for its failure
to comply with any such laws imposing obligations on it, including (but not
limited to) any liability for its failure to comply with any applicable
provisions of United States federal income tax laws regarding information
reporting and backup withholding.
SECTION 4.04. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders from time to
time of the Warrants, that there shall at all times be a Warrant Agent hereunder
until all the Warrants issued hereunder have been exercised or have expired in
accordance with their terms, which Warrant Agent shall be a bank or trust
company organized under the laws of the United States of America or one of the
states thereof, which is authorized under the laws of the jurisdiction of its
organization to exercise corporate trust powers, has a combined capital and
surplus of at least $50,000,000 and has an office or an agent's office in the
United States of America.
-10-
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which it desires such resignation to become effective; provided that such
date shall not be less than three months after the date on which such notice is
given, unless the Company agrees to accept such notice less than three months
prior to such date of effectiveness. The Company may remove the Warrant Agent
at any time by giving written notice to the Warrant Agent of such removal,
specifying the date on which it desires such removal to become effective. Such
resignation or removal shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be a bank or
trust company qualified as set forth in Section 4.04(a)) and the acceptance of
such appointment by such successor Warrant Agent. The obligation of the Company
under Section 4.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall cease to
be qualified as set forth in Section 4.04(a), or shall be removed, or shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or
shall file a petition seeking relief under any applicable Federal or State
bankruptcy or insolvency law or similar law, or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver,
conservator or custodian of all or any substantial part of its property, or
shall admit in writing its inability to pay or to meet its debts as they mature,
or if a receiver or custodian of it or of all or any substantial part of its
property shall be appointed, or if an order of any court shall be entered for
relief against it under the provisions of any applicable Federal or State
bankruptcy or similar law, or if any public officer shall have taken charge or
control of the Warrant Agent or of its property or affairs, for the purpose of
rehabilitation, conservation or liquidation, a successor Warrant Agent,
qualified as set forth in Section 4.04(a), shall be appointed by the Company by
an instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as herein provided of a successor Warrant Agent and acceptance by
the latter of such appointment, the Warrant Agent so superseded shall cease to
be Warrant Agent under this Agreement.
(d) Any successor Warrant Agent appointed under this Agreement shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent under
this Agreement, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent under this Agreement.
(e) Any corporation into which the Warrant Agent may be merged or
converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Warrant Agent shall be a party, or any corporation to which the
Warrant Agent shall sell or otherwise transfer all or substantially all the
assets and business of the Warrant Agent shall be the
-11-
successor Warrant Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties to this
Agreement, including, without limitation, any successor to the Warrant Agent
first named above, provided in each case, that any such resulting Warrant Agent
shall be qualified as set forth in Section 4.04(a).
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.01. Amendments.
(a) This Agreement and the Warrants may be amended by the parties
hereto by executing a supplemental warrant agreement (a "Supplemental
Agreement"), without the consent of the holder of any Warrant, for the purpose
of (i) curing any ambiguity, or curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement that are not
inconsistent with the provisions of this Agreement or the Warrant Certificates,
(ii) evidencing the succession of another corporation to the Company and the
assumption by any such successor of the covenants of the Company contained in
this Warrant Agreement and the Warrants, (iii) evidencing and providing for the
acceptance of appointment by a successor Warrant Agent with respect to the
Warrants, (iv) adding to the covenants of the Company for the benefit of the
holders of the Warrants or surrendering any right or power conferred upon the
Company under this Agreement, (v) amending this Agreement and the Warrants in
any manner that the Company may deem to be necessary or desirable and that will
not adversely affect the interests of the holders of such Warrants in any
material respect.
(b) The Company and the Warrant Agent may amend this Agreement and
the Warrants by executing a Supplemental Agreement with the consent of the
holders of not fewer than 66-2/3% in number of the unexercised Warrants affected
by such amendment, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the holders of the Warrants under this
Agreement; provided, however, that, without the consent of each holder affected
thereby, no such amendment may be made that (i) changes the Warrants so as to
reduce the [principal amount] [number] of Warrant Securities purchasable upon
exercise of the Warrants, (ii) shortens the period of time during which the
Warrants may be exercised, (iii) otherwise adversely affects the exercise rights
of the holders in any material respect, or (iv) reduces the number of
unexercised Warrants the consent of the holders of which is required for
amendment of this Agreement or the Warrants.
SECTION 5.02. Merger, Consolidation, Sale, Transfer or Conveyance.
The Company may consolidate or merge with or into any other corporation or sell,
lease, transfer or convey all or substantially all of its assets to any other
corporation; provided that (i) either (x) the Company is the continuing
corporation or (y) the corporation (if other than the Company) that is formed by
or results from any such consolidation or merger or that receives
-12-
such assets is a corporation organized and existing under the laws of the United
States of America or a state thereof and such corporation assumes the
obligations of the Company with respect to the performance and observance of all
of the covenants and conditions of this Agreement to be performed or observed by
the Company and (ii) the Company or such successor corporation, as the case may
be, must not immediately be in default under this Agreement. If at any time
there shall be any consolidation or merger or any sale, lease, transfer,
conveyance or other disposition of all or substantially all of the assets of the
Company, the successor or assuming corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
and in the Warrant Certificates as the Company; the Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and, in the
event of any such sale, lease, transfer, conveyance (other than by way of lease)
or other disposition, the Company as the predecessor corporation may thereupon
or at any time thereafter be dissolved, wound up or liquidated. Such successor
or assuming corporation thereupon may cause to be signed, and may issue either
in its own name or in the name of the Company, Warrant Certificates evidencing
the Warrants not theretofore exercised, in exchange and substitution for the
Warrant Certificates theretofore issued. Such Warrant Certificates shall in all
respects have the same legal rank and benefit under this Agreement as the
Warrant Certificates evidencing the Warrants theretofore issued in accordance
with the terms of this Agreement as though such new Warrant Certificates had
been issued at the date of the execution hereof. In case of any such merger or
consolidation or sale, lease, transfer, conveyance or other disposition of all
or substantially all of the assets of the Company, such changes in phraseology
and form (but not in substance) may be made in the new Warrant Certificates, as
may be appropriate.
SECTION 5.03. Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant, the Warrant Agent shall promptly forward such notice
or demand to the Company.
SECTION 5.04. Addresses. Any communications from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
__________________________, Attention: ________________________, and any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to AmSouth Bancorporation, 1400 AmSouth-Sonat
Tower, 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: General
Counsel (or such other address as shall be specified in writing by the Warrant
Agent or by the Company, as the case may be). The Company or the Warrant Agent
shall give notice to the holders of Warrants by mailing written notice by first
class mail, postage prepaid, to such holders as their names and addresses appear
in the books and records of the Warrant Agent [or, prior to the Detachment Date,
on the register of the Offered Securities].
SECTION 5.05. APPLICABLE LAW. THIS AGREEMENT AND EACH WARRANT ISSUED
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
-13-
SECTION 5.06. Delivery of Prospectus. The Company shall furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants and complying in all material
respects with the Securities Act of 1933, as amended (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant by the holder
thereof, the Warrant Agent shall deliver a Prospectus to such holder, prior to
or concurrently with the delivery of the Warrant Securities issued upon such
exercise.
SECTION 5.07. Obtaining of Governmental Approvals. The Company shall
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
state laws, which may be or become necessary or appropriate in connection with
the issuance, sale, transfer and delivery of the Warrants, the exercise of the
Warrants, the issuance, sale, transfer and delivery of the Warrant Securities to
be issued upon exercise of Warrants or upon the expiration of the period during
which the Warrants are exercisable.
SECTION 5.08. Payment of Taxes. The Company will pay all stamp and
other duties, if any, to which, under the laws of the United States of America,
this Agreement or the original issuance of the Warrants may be subject.
SECTION 5.09. Benefits of Warrant Agreement. Nothing in this
Agreement or the Warrant Certificates expressed or implied and nothing that may
be inferred from any of the provisions hereof or thereof is intended, or shall
be construed, to confer upon, or give to, any person or corporation other than
the Company, the Warrant Agent and their respective successors and assigns, and
the holders of the Warrants any right, remedy or claim under or by reason of
this Agreement or the Warrants or of any covenant, condition, stipulation,
promise or agreement hereof or thereof; and all covenants, conditions,
stipulations, promises and agreements contained in this Agreement or the Warrant
Certificates shall be for the sole and exclusive benefit of the Company and the
Warrant Agent and their respective successors and assigns and of the holders of
the Warrants.
SECTION 5.10. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 5.11. Severability. If any provision in this Agreement or in
the Warrant Certificates shall be or become invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions, or of such provisions in any other jurisdiction, shall not in any
way be affected or impaired thereby.
SECTION 5.12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
-14-
Section 5.13 Definitions. For all purposes of this Warrant
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation;
(b) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Warrant Agreement; and
(c) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Warrant Agreement as a whole and not to any
particular Article, Section or other subdivision.
SECTION 5.14. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent and at the office of the Company at 1400 AmSouth-
Sonat Tower, 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, for inspection
by any holder of Warrants. The Warrant Agent may require any such holder to
submit such holder's Warrant Certificate for inspection by it.
-15-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
AMSOUTH BANCORPORATION
By: _________________________
Name:
Title:
[SEAL]
Attest:
___________________________
[Assistant] Secretary
[WARRANT AGENT]
[SEAL] By: _________________________
Name:
Title:
Attest:
___________________________
[Assistant] Secretary
-16-
EXHIBIT A
---------
[FORM OF WARRANT CERTIFICATE]
[If Securities with Warrants that are not immediately detachable or Warrants
----------------------------------------------------------------------------
that are not immediately exercisable are offered - [PRIOR TO _______________,]
--------------------------------------------------
THIS WARRANT CERTIFICATE [(i) CANNOT BE TRANSFERRED OR EXCHANGED UNLESS ATTACHED
TO A [TITLE OF OFFERED SECURITY] AND (II)] CANNOT BE EXERCISED IN WHOLE OR IN
PART.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
Warrant Certificate evidencing
Warrants to Purchase
[Title of Warrant Securities]
as described herein.
AMSOUTH BANCORPORATION
No. ___________ CUSIP No. _____________
VOID AFTER [5:00 P.M.], NEW YORK TIME, ON _________, ___
This certifies that ________________________ or registered assigns is
the registered holder of [Insert number initially issued] warrants to purchase
certain securities (the "Warrants"). Each Warrant entitles the holder thereof,
subject to the provisions contained herein and in the Warrant Agreement referred
to below, to purchase from AmSouth Bancorporation, a Delaware corporation (the
"Company"), [$_________ principal amount] [______] of the Company's [Title of
Warrant Securities] (the "Warrant Securities"), [issued or to be issued under
the Indenture (as hereinafter defined)], at the Exercise Price set forth below.
The exercise price of each Warrant (the "Exercise Price") shall be $_________
[modify as appropriate to reflect the terms of the offered Warrants].
Subject to the terms of the Warrant Agreement, each Warrant evidenced
hereby may be exercised in whole but not in part at any time, as specified
herein, on any Business Day (as defined below) occurring during the period (the
"Exercise Period") commencing on [the date of issuance thereof]
[________________ __, ____] and ending at 5:00 P.M., New York time, on
____________ __, ____ (the "Expiration Date"). Each Warrant remaining
unexercised after 5:00 P.M., New York time, on the Expiration Date shall become
void, and all rights of the holder of this Warrant Certificate evidencing such
Warrant shall cease.
A-1
The holder of this Warrant Certificate may exercise any Warrant
evidenced hereby by delivering, not later than 5:00 P.M., New York time, on any
Business Day (the "Exercise Date") to [name of Warrant Agent] (the "Warrant
Agent", which term includes any successor warrant agent under the Warrant
Agreement described below) at its corporate trust department at _______, (i)
this Warrant Certificate, properly completed (including the information
specified on the reverse hereof) and duly executed by the holder hereof and (ii)
the Exercise Price for each Warrant to be exercised in lawful money of the
United States of America by certified or official bank check or by bank wire
transfer in immediately available funds. If either this Warrant Certificate,
properly completed and duly executed as aforesaid, or the Exercise Price
therefor, in the proper amount and in the specified funds, is received by the
Warrant Agent after 5:00 P.M., New York time, on the specified Exercise Date,
the Warrants will be deemed to be received and exercised on the Business Day
next succeeding the Exercise Date. If the date specified as the Exercise Date
is not a Business Day, the Warrants will be deemed to be received and exercised
on the next succeeding day which is a Business Day. If the Warrants to be
exercised are received or deemed to be received after the Expiration Date, the
exercise thereof will be null and void and any funds delivered to the Warrant
Agent will be returned to the holder as soon as practicable. In no event will
interest accrue on funds deposited with the Warrant Agent in respect of an
exercise or attempted exercise of Warrants. The validity of any exercise of
Warrants will be determined by the Warrant Agent in its sole discretion and such
determination will be final and binding upon the holder of the Warrants and the
Company. Neither the Warrant Agent nor the Company shall have any obligation to
inform a holder of Warrants of the invalidity of any exercise of Warrants. As
used herein, the term "Business Day" means any day which is not a Saturday or
Sunday and is not a legal holiday or a day on which banking institutions
generally are authorized or obligated by law or regulation to close in the
principal place of business of the Warrant Agent and the Company.
If fewer than all the Warrants evidenced hereby are exercised, the
Warrants evidenced by this Warrant Certificate may be exercised only in whole
numbers of Warrants. If fewer than all of the Warrants evidenced by a Warrant
Certificate are exercised, a new Warrant Certificate for the number of Warrants
remaining unexercised shall be executed by the Company and countersigned by the
Warrant Agent as provided in Section 1.02 of the Warrant Agreement, and
delivered to the holder of such Warrants at the address specified on the books
of the Warrant Agent or as otherwise specified by such registered holder.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement, dated as of ___________ __, ____ (the "Warrant Agreement"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file and can be inspected at the above-
mentioned office of the Warrant Agent and at the office of the Company at 1400
AmSouth-Sonat Tower, 0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
[If the Warrant Securities are Debt Securities - The Warrant
---------------------------------------------
Securities to be issued and delivered upon the exercise of the Warrants
evidenced by this Warrant Certificate will be issued under and in accordance
with the Indenture, dated as of _________ __, ____ (the
A-2
"Indenture"), between the Company and [name of trustee] _________________, as
trustee (together with any successor or successors as such trustee, the
"Trustee"), and will be subject to the terms and provisions contained in the
Warrant Securities and in the Indenture.] The accrual of [interest] [dividends],
if any, on the Warrant Securities issued upon the valid exercise of any Warrant
will be governed by the terms of the applicable [Indenture] [certificate of
designations] and such Warrant Securities. From and after the issuance of such
Warrant Securities, the former holder of the Warrants exercised will be entitled
to the benefits of the [Indenture] [certificate of designations] under which
such Warrant Securities are issued and such former holder's right to receive
payments of [principal of (and premium, if any) and interest, if any, on]
[dividends and any other amounts payable in respect of] the Warrant Securities
shall be governed by, and shall be subject to, the terms and provisions of such
[Indenture] [certificate of designations] and the Warrant Securities. Copies of
the [Indenture, including the form of the Warrant Securities,] [certificate of
designations] are on file at the corporate trust office of the Trustee.
[If Securities and Warrants that are not immediately detachable are
------------------------------------------------------------------
offered - Prior to the Detachment Date, this Warrant Certificate may be
-------
exchanged or transferred only together with the [title of Offered Security] (the
"Offered Security") to which this Warrant Certificate is attached, and only for
the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. Additionally, [on or prior to the Detachment Date,] each
transfer of such Offered Security on the register of the Offered Securities
shall operate also to transfer the Warrants to which such Offered Securities was
initially attached. [From and after the Detachment Date, the above provisions
shall be of no further force and effect and upon]] [If Offered Securities and
-------------------------
Warrants that are immediately detachable are offered - Upon] due presentment for
----------------------------------------------------
registration of transfer or exchange of this Warrant Certificate at the
corporate trust office of the Warrant Agent, the Company shall execute, and the
Warrant Agent shall countersign and deliver, as provided in Section 1.02 of the
Warrant Agreement, in the name of the designated transferee a new Warrant
Certificate of any authorized denomination evidencing in the aggregate a like
number of unexercised Warrants, subject to the limitations provided in the
Warrant Agreement.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
[the right to receive the payments of principal of (and premium, if any), and
interest, if any, on Debt Securities purchasable upon such exercise or to
enforce any of the covenants in the applicable Indenture] [the right to receive
dividends, if any, or payments upon the liquidation, dissolution or winding up
of the Company or to exercise voting rights, if any].
THIS WARRANT CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This Warrant Certificate shall not be entitled to any benefit under
the Warrant Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced hereby may be exercised, unless this Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated as of ________ __, ____
AMSOUTH BANCORPORATION
By: _________________________
Name:
Title:
[SEAL]
Attest:
_____________________________
[Assistant] Secretary
Countersigned on the date above written:
[NAME OF WARRANT AGENT],
as Warrant Agent
By: ___________________________
Authorized Signature
A-4
Instructions for Exercise of Warrant
------------------------------------
To exercise the Warrants evidenced hereby, the Warrant holder must, by
5:00 P.M., New York time, on the specified Exercise Date, deliver to the Warrant
Agent at its corporate trust department, a certified or official bank check or a
wire transfer in immediately available funds, in each case payable to the
Warrant Agent at Account No. ____, in an amount equal to the Exercise Price in
full for the Warrants exercised. In addition, the Warrant holder must provide
the information required below and deliver this Warrant Certificate to the
Warrant Agent at the address set forth below. This Warrant Certificate,
completed and duly executed, must be received by the Warrant Agent by 5:00 P.M.,
New York time, on the specified Exercise Date.
FORM OF ELECTION TO PURCHASE TO BE EXECUTED IF
WARRANT HOLDER DESIRES TO EXERCISE THE WARRANTS
EVIDENCED HEREBY
The undersigned hereby irrevocably elects to exercise, on __________,
____ (the "Exercise Date"), _____________ Warrants, evidenced by this Warrant
Certificate, to purchase, [$_____________ principal amount] [_________________]
of the [Title of Warrant Securities] (the "Warrant Securities") of AmSouth
Bancorporation, a Delaware corporation (the "Company"), and represents that on
or before the Exercise Date such holder has tendered payment for such Warrant
Securities by certified or official bank check or bank wire transfer in
immediately available funds to the order of the Company c/o [Name and address of
Warrant Agent], in the amount of $_____________ in accordance with the terms
hereof. The undersigned requests that said [principal amount of] [number of]
Warrant Securities be in fully registered form, in the authorized denominations,
registered in such names and delivered, all as specified in accordance with the
instructions set forth below.
If said [principal amount] [number] of Warrant Securities is less than
all of the Warrant Securities purchasable hereunder, the undersigned requests
that a new Warrant
A-5
Certificate evidencing the remaining balance of the Warrants evidenced hereby be
issued and delivered to the undersigned unless otherwise specified in the
instructions below.
Dated: ______________ __, ____
Name__________________________
(Please Print)
--------------------------
/ / / /- / / /- / / / / /
------------------------
(Insert Social Security
or Other Identifying
Number of Holder) Address_______________________
_______________________
Signature_____________________
This Warrant may only be exercised by presentation to the Warrant Agent at one
of the following locations:
By hand at
By mail at
The method of delivery of this Warrant Certificate is at the option and risk of
-------------------------------------------------------------------------------
the exercising holder and the delivery of this Warrant Certificate will be
--------------------------------------------------------------------------
deemed to be made only when actually received by the Warrant Agent. If delivery
--------------------------------------------------------------------------------
is by mail, registered mail with return receipt requested, properly insured, is
-------------------------------------------------------------------------------
recommended. In all cases, sufficient time should be allowed to assure timely
------------------------------------------------------------------------------
delivery.
--------
(Instructions as to form and delivery of Warrant Securities and/or Warrant
Certificates)
Name in which Warrant Securities
are to be registered if other than
in the name of the registered holder
of this Warrant Certificate:
______________________________
A-6
Address to which Warrant Securities
are to be mailed if other than address
of registered holder of this Warrant
Certificate as shown on the books of
the Warrant Agent:
______________________________
(Street Address)
______________________________
(City and State) (Zip Code)
Name in which Warrant Certificate
evidencing unexercised Warrants, if any,
are to be registered if other than in the
name of the registered holder of this
Warrant Certificate:
______________________________
Address to which certificate representing
unexercised Warrants, if any, are to be
mailed if other than address of registered
holder of this Warrant Certificate as
shown on the books of the Warrant Agent:
______________________________
(Street Address)
______________________________
(City and State) (Zip Code)
Dated:
______________________________
Signature
(Signature must conform in all respects
to the name of the holder as specified
on the face of this Warrant Certificate.
If Warrant Securities, or a Warrant
Certificate evidencing unexercised
Warrants, are to be issued in a name
other than that of the registered holder
hereof or are to be
A-7
delivered to an address other than the
address of such holder as shown on the books
of the Warrant Agent, the above signature
must be guaranteed by a member firm of a
registered national stock exchange, a member
of the National Association of Securities
Dealers, Inc. or by a commercial bank or
trust company having an office or
correspondent in the United States.
SIGNATURE GUARANTEE
-------------------
Name of Firm _________________
Address ______________________
Area Code
and Number ___________________
Authorized
Signature ____________________
Name _________________________
Title ________________________
Dated: ________________, 19__
A-8
ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF WARRANT HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY)
FOR VALUE RECEIVED _________________ hereby sells, assigns and
transfers unto
__________________________________ _______________________
(Please print name and address (Please insert social
including zip code) security or other
identifying number)
the rights represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ____________ Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
__________________________________
Signature
(Signature must conform in all respects to
the name of the holder as specified on the
face of this Warrant Certificate and must
bear a signature guarantee by a member firm
of a registered national securities exchange,
a member of the National Association of
Securities Dealers, Inc. or by a commercial
bank or trust company having an office or
correspondent in the United States)
SIGNATURE GUARANTEE
Name of Firm _________________
Address ______________________
Area Code
and Number ___________________
Authorized
Signature ____________________
Name _________________________
Title ________________________
Dated: ________________, 19__
A-9
