EXHIBIT 1(b)
[Form of Underwriting Agreement (for Common Stock and Preferred Stock)]
AMSOUTH BANCORPORATION
Underwriting Agreement
[Date]
New York, New York
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
AmSouth Bancorporation, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the number of shares identified in Schedule I hereto of
[common stock, par value $1.00 per share (the "Common Stock"),] [[designation of
series of preferred], without par value (the "Preferred Stock"),] of the Company
(the "Firm Securities"). If so indicated on Schedule I hereto, the Company also
proposes to grant to the Underwriters an option to purchase up to the number of
additional shares of Common Stock, if any, identified in Schedule I hereto (the
"Optional Securities"). The Firm Securities and the Optional Securities, if any,
are hereinafter referred to as the "Securities". If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives", as used herein, shall each
be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof:
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securi ties and Exchange Commission (the "Commission") a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, and may have
used a Preliminary Final Prospectus (as defined below), each of which
has previously been furnished to you. Such registration statement, as
so amended, has become effective. The offering of the Securities is a
Delayed Offering (as defined below) and, although the Basic Prospectus
(as defined below) may not
include all the information with respect to the Securities and the
offering thereof required by the Act and the rules thereunder to be
included in the Final Prospectus (as defined below), the Basic
Prospectus includes all such information required by the Act and the
rules thereunder to be included therein as of the Effective Date (as
defined below). The Company will file with the Commission pursuant to
Rules 415 and 424(b) a final supplement to the form of prospectus
included in such registration statement relating to the Securities and
the offering thereof. As filed, such final prospectus supplement shall
include all required information with respect to the Securities and the
offering thereof and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time (as
defined below) or, to the extent not completed at the Execution Time,
shall contain only such additional information (beyond that contained
in the Basic Prospectus and any Preliminary Final Prospectus) and other
changes as the Company has advised you, prior to the Execution Time,
will be included or made therein.
(b) On the Effective Date, the Registration Statement did, and
when the Final Prospectus is first filed in accordance with Rule 424(b)
and on the Closing Date (as defined below), the Final Prospectus (and
any supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the respective rules
thereunder; on the Effective Date, the Registration Statement did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and on the date of filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration Statement
or the Final Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation of the
Registration Statement or any amendment thereto, or of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus or
any amendment or supplement thereto.
(c) The terms that follow, when used in this Agreement, shall
have the meanings indicated.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph (a) above contained in the Registration Statement at the
Effective Date.
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"Delayed Offering" shall mean an offering of securities
pursuant to Rule 415 which does not commence promptly after the
effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to
the securities so offered.
"Effective Date" shall mean each date that the Registration
Statement or any post-effective amendment or amendments thereto became
or become effective.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that is first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including incorporated documents,
exhibits and financial statements, as amended at the Execution Time
and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date, shall also mean such registration
statement as so amended.
"Rule 415", "Rule 424" and "Regulation S-K" refer to such
rules or regulation under the Act.
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed
under the Exchange Act or pursuant to Rule 411 under the Act, in each
case on or before the Effective Date or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein
by reference.
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2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, (a) the Company agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price per share set forth in Schedule
I hereto the number of Firm Securities set forth opposite such Underwriter's
name in Schedule II hereto, and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Securities as
provided below, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at
the purchase price per share set forth in Schedule I hereto, that portion of the
number of Optional Securities as to which such election shall have been
exercised (to be adjusted by you so as to eliminate fractional securities)
determined by multiplying such number of Optional Securities by a fraction the
numerator of which is the maximum number of Optional Securities that such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule II hereto and the denominator of which is the maximum
number of Optional Securities that all of the Underwriters are entitled to
purchase hereunder.
(b) The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Securities set forth in
Schedule I hereto, at the purchase price per share set forth in Schedule I
hereto, for the sole purpose of covering over-allotments in the sale of the Firm
Securities. Any such election to purchase Optional Securities may be exercised
only by written notice from you to the Company, given within a period of 30
calendar days after the date of this Agreement and setting forth the aggregate
number of Optional Securities to be purchased and the date on which such
Optional Securities are to be delivered, as determined by you but in no event
earlier than the First Closing Date (as defined below) or, unless you and the
Company otherwise agree in writing, earlier than two or later than ten business
days after the date of such notice.
3. Delivery and Payment.
(a) Delivery of and payment for the Firm Securities and the Optional
Securities (if the option provided for in Section 2(b) hereof shall have been
exercised on or before the third business day prior to the First Closing Date
(as defined below)) shall be made on the date and at the time specified in
Schedule I hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8 hereof (such date
and time of delivery and payment for the Securities being herein called the
"First Closing Date"). Delivery of and payment for the Optional Securities (if
the option provided for in Section 2(b) hereof shall have been exercised after
the third business day prior to the First Closing Date) shall be made on the
date and at the time specified in Schedule I hereto, which date and time may be
postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such
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date and time of delivery and payment for the Securities being herein called the
"Second Closing Date"). Each of the First Closing Date and the Second Closing
Date is referred to in this Agreement as a "Closing Date". Delivery of such
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same day funds to one or more accounts
specified in writing by the Company at least one business day in advance of the
Closing Date. Delivery of the Securities shall be made at the offices of
[▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇]. Certificates
for the Securities shall be registered in such names and in such denominations
as the Representatives may request not less than three full business days in
advance of the Closing Date.
(b) The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 p.m., New York time, on the business day prior to the applicable
Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment to the Registration
Statement or supplement (including the Final Prospectus or any
Preliminary Final Prospectus) to the Basic Prospectus unless the
Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company will
cause the Final Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed. The Company
will promptly advise the Representatives (i) when the Final Prospectus,
and any supplement thereto, shall have been filed with the Commission
pursuant to Rule 424(b), (ii) when, prior to termination of the offer
ing of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, and (v) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final
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Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it shall be necessary to amend the
Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder,
the Company promptly will prepare and file with the Commission, subject
to the second sentence of paragraph (a) of this Section 4, an amendment
or supplement that will correct such statement or omission or effect
such compliance, provided that any such amendment or supplement shall
be made at the expense of the requesting Underwriter if such
Underwriter's request for such amendment or supplement is received by
the Corporation 90 days or more following the Closing Date.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act
(including pursuant to Rule 158 under the Act).
(d) The Company will furnish to the Representatives, without
charge, a copy of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all such documents relating
to the offering.
[If applicable: (e) The Company will arrange, in cooperation
with the Underwriters, for the qualification of the Securities for sale
under the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as is
required for the distribution of the Securities and will arrange for
the determination of the legality of the Securities for purchase by
institutional investors, provided 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) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer,
sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any other shares of [Common
Stock] [Preferred Stock], or any securities convertible into, or
exchangeable for, shares of [Common Stock] [Preferred Stock]; provided,
however, that the Company may issue and sell [Common Stock] [Preferred
Stock] pursuant to any employee benefit or dividend reinvestment plan
of the Company in effect at the Execution Time and the Company may
issue [Common Stock]
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[Preferred Stock] issuable upon the conversion or exchange of
convertible or exchangeable securities or the exercise of rights,
options or warrants outstanding as of the Execution Time.
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Firm Securities or the Optional Securities,
as the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution Time
and the applicable Closing Date, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall
have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives
the opinion or opinions of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Assistant General
Counsel of the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated or
organized and is validly existing in good standing under the
laws of the State of Delaware, with full corporate power and
authority to own its properties and conduct its business as
described in the Final Prospectus, is duly qualified to do
business as a foreign corporation and is in good standing
under the laws of each jurisdiction where the ownership of its
properties or the character of its activities requires such
qualification, except to the extent that any failure to so
qualify would not have a material adverse effect on the
business, operations or financial condition of the Company and
its subsidiaries considered as a whole, and the Company is
duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended;
(ii) the Company's authorized equity capitalization
is as set forth in the Final Prospectus; the capital stock of
the Company conforms in all material respects to the
description thereof contained in the Final Prospectus; the
Securities have been duly and validly authorized and issued,
and are fully paid and nonassessable; the form of the
certificate for the [Common Stock] [Preferred Stock] complies
as to form in all material respects with the General
Corporation Law of the State of Delaware [and the requirements
of the New York Stock Exchange]; the holders of
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outstanding shares of capital stock of the Company are not
entitled to any preemptive or other rights to subscribe for
the Securities;
(iii) this Agreement has been duly authorized,
executed and delivered by the Company;
[(iv) authorization for the listing of the Securities
on the New York Stock Exchange has been given, subject to
official notice of issuance and evidence of satisfactory
distribution, or the Company has filed a preliminary listing
application and all required supporting documents with respect
to the Securities with such securities exchange and such
counsel has no reason to believe that the Securities will not
be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;]
(v) to the best of such counsel's knowledge, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required; and
the statements included or incorporated in the Final
Prospectus under the caption "Certain Regulatory
Considerations" [as supplemented under the caption "Recent
Developments" in the Final Prospectus,] and in the Company's
Annual Report on Form 10-K, incorporated by reference in the
Final Prospectus, under the caption "Supervision and
Regulation" or describing therein any legal proceedings or
material contracts or agreements relating to the Company or
any of its subsidiaries fairly summarize such matters;
(vi) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus and
the Final Prospectus, and any supplements thereto, pursuant to
Rule 424(b), has been made in the manner and within the time
period required by Rule 424(b); to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other than
the financial statements and other financial and statistical
information contained or incorporated therein as to which such
counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act
and the
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Exchange Act and the respective rules thereunder; and such
counsel has no reason to believe that at the Effective Date
the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that, at the date of the prospectus
supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time and at the
Closing Date, the Final Prospectus contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made misleading; provided
that such counsel need not express any opinion as to the
statement of eligibility and qualification of the Trustee or
any other trustee under the Indenture;
(vii) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated by this
Agreement except such as have been obtained under the Act and
such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters; and
(viii) neither the issue and sale of the Securities,
nor compliance by the Company with the provisions of this
Agreement, nor the consummation by the Company of any of the
transactions herein contemplated nor the fulfillment by the
Company of the terms hereof will conflict with, result in a
breach of, or constitute a default under (1) the charter or
by-laws of the Company, (2) the terms of any indenture or
other agreement or instrument known to such counsel and to
which the Company or any of its subsidiaries is a party, or by
which it is bound, (3) any law or regulation known to such
counsel to be applicable to the Company or any of its
subsidiaries, or (4) any order known to such counsel to be
applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or any
of its subsidiaries; provided that such counsel need not
express any opinion as to state securities laws.
In rendering such opinion or opinions, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of Alabama, the General Corporation Law of the State of
Delaware and the federal laws of the United States, to the extent
specified in such opinion, upon the opinion of other counsel of good
standing believed by such counsel to be reliable and who are
satisfactory to the Underwriters, (B) as to certain other matters, on
certificates of responsible officers of the Company, public officials
and others deemed by
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such counsel to be responsible, and (C) with respect to the opinions
set forth in paragraphs (vii), (viii)(1) and (viii)(3), on the opinion
of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ with respect to matters contained in such
opinion but only with respect to the Federal laws of the United States,
the laws of the State of New York and the General Corporation Law of
the State of Delaware, subject to all limitations and qualifications
set forth in such opinion. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date.
(c) The Company shall have furnished to the Representatives
the opinion or opinions of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Delaware;
(ii) the Company's authorized equity capitalization
is as set forth in the Final Prospectus, and the Securities
have been duly authorized and validly issued and, when issued
and delivered to and paid for by the Underwriters pursuant to
this Agreement, will be fully paid and non-assessable; and
(iii) the Registration Statement, as of the Effective
Date, and the Final Prospectus, as of the date of the
prospectus supplement relating to the Securities that is first
filed pursuant to Rule 424(b) after the Execution Time,
appeared on their face to be appropriately responsive, in all
material respects relevant to the offering of the Securities,
to the requirements of the Act and the applicable rules and
regulations of the Commission thereunder; provided that such
counsel need not express any opinion or belief as to the
financial statements or other financial data contained in the
Registration Statement or the Final Prospectus.
In rendering such opinion or opinions, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of New York, the General Corporation Law of the State of
Delaware and the federal laws of the United States, to the extent
specified in such opinion, upon the opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.,
and (B) as to certain other matters, on certificates of responsible
officers of the Company, public officials and others deemed by such
counsel to be responsible. References to the Final Prospectus in this
paragraph (c) include any supplements thereto at the Closing Date.
In addition, such counsel shall state that they have
participated in discussions with representatives of the Company,
representatives of the independent public accountants for the Company,
representatives of the
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Underwriters and counsel for the Underwriters at which the contents of
the Registration Statement and the Final Prospectus and related matters
were discussed, and, although such counsel have not independently
verified and assume no responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
the Final Prospectus, nothing that came to such counsel's attention in
the course of such procedures has caused such counsel to believe that,
insofar as relevant to the offering of the Securities, the Registration
Statement, as of the Effective Date, contained any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as of the date of the
prospectus supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, contained any untrue
statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
such counsel need not express any opinion or belief as to the financial
statements or other financial data contained in the Registration
Statement or Final Prospectus.
(d) The Representatives shall have received from counsel for
the Underwriters an opinion or opinions, dated the Closing Date, as to
the matters set forth in Section 5(c) above, and the Company shall have
furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate or certificates of the Company, signed by the President,
Senior Executive Vice President, Executive Vice President, Senior Vice
President or Vice President, and the Chief Financial Officer, Chief
Accounting Officer, Treasurer or Head of Corporate Finance of the
Company, dated the Closing Date, to the effect that the signers of such
certificate or certificates have examined the Registration Statement,
the Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
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(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, except as set
forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(f) At the Closing Date, Ernst & Young, L.L.P. shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the Representatives),
dated as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited consolidated
financial statements and financial statement schedules
included or incorporated in the Registration Statement and the
Final Prospectus and reported on by them comply in form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial information made available by the Company
and its subsidiaries; their limited review in accordance with
standards established by the American Institute of Certified
Public Accountants of the unaudited interim financial
statements as indicated in their reports incorporated in the
Registration Statement and the Final Prospectus; carrying out
certain specified procedures (but not an audit in accordance
with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and executive and
audit committees of the Company; and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as
to transactions and events subsequent to the date of the most
recent audited financial statements included or incorporated
in the Final Prospectus, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not comply in
form in all material respects with applicable
accounting requirements and with the published rules
and
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regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; or said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited consolidated
financial statements included or incorporated in the
Registration Statement and the Final Prospectus; or
(2) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, included or incorporated in the
Registration Statement and the Final Prospectus,
there were any changes, at a specified date not more
than five business days prior to the date of the
letter, in the long-term debt of the Company and its
subsidiaries or capital stock of the Company or any
decreases in the stockholders' equity of the Company
as compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated
in the Registration Statement and the Final
Prospectus, or for the period from the date of the
most recent financial statements included or
incorporated in the Registration Statement and the
Final Prospectus to such specified date there were
any decreases, as compared with the corresponding
period in the preceding year, in net interest income,
net interest income after provision for possible loan
losses, income before taxes or total or per share
amounts of net income of the Company and its
subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the
Representatives; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do
not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or
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statistical information derived from the general accounting
records of the Company and its subsidiaries) set forth in the
Registration Statement and the Final Prospectus and in Exhibit
12 to the Registration Statement, including the information
included or incorporated in Items 1, 2, 6, 7 and 11 of the
Company's Annual Report on Form 10-K, incorporated in the
Registration Statement and the Prospectus, and the information
included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (f)
include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereto) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (f) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) and no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
this Agreement and all obligations of the Underwriters hereunder may be canceled
at the Closing Date by the
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Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement as originally filed or in any amendment thereto, or
in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection with the preparation
thereof; (ii) the Company shall not be liable to any Underwriter (or any person
who controls any Underwriter) under this subsection (a) with respect to the
Basic Prospectus or any Preliminary Final Prospectus to the extent that (x) any
such loss, claim, damage or liability results from the fact that such
Underwriter sold Securities to a person as to whom there was not sent or given,
at or prior to the written confirmation of such sale, a copy of the Final
Prospectus (excluding documents incorporated by reference) or of the Final
Prospectus as then amended or supplemented (excluding documents incorporated by
reference) if the untrue statement or omission of a material fact contained in
the Basic Prospectus or any Preliminary Final Prospectus was
-15-
corrected in the Final Prospectus (or the Final Prospectus as amended or
supplemented), or (y) any such loss, claim, damage or liability of such
Underwriter was caused by a defect in the Final Prospectus (as then amended or
supplemented) delivered to such purchaser after the period referred to in
Section 4(b) of this Agreement and such defect would not have existed before the
expiration of such period. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information furnished to the Company by or on behalf of
such Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the failure to so notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action, or (iv) the indemnifying
-16-
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) If the indemnity provided in paragraph (a) or (b) of this Section 7
is unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriters agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by the Underwriters from the offering of
the Securities; provided, however, that in no case shall any Underwriter (except
as may be provided in any agreement among underwriters relating to the offering
of the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and of the
Underwriters in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions (before deducting expenses), in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information provided
by the Company or the Underwriters. The Company and the Underwriters agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation that does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 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 who controls an Underwriter within the meaning of
either the Act or the Exchange Act shall have the same rights to contribution as
such Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to
-17-
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities that the defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that if the aggregate amount of Securities that
the defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. If any Underwriter shall default as set forth in this Section 8 and
this Agreement shall not be terminated as a result of such default, the Closing
Date shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in the Company's Common Stock shall have been suspended by the Commission or the
New York Stock Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
by Federal or State authorities in New York or Alabama, or (iii) there shall
have occurred any outbreak or material escalation of hostilities involving the
United States, or the declaration by the United States of a national emergency
or war or other calamity or crisis, the effect of which on the financial markets
of the United States is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will
-18-
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 6 and 7 hereof
shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder must be in writing and shall
be effective only on receipt, and, if sent to the Representatives, must be
mailed, delivered or telecopied and confirmed to them, at the address specified
in Schedule I hereto; or, if sent to the Company, must be mailed, delivered or
telecopied and confirmed to it at: AmSouth Bancorporation, AmSouth-Sonat Tower,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel
(Telefax (▇▇▇) ▇▇▇-▇▇▇▇).
12. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14. Counterparts. This Agreement may be executed by any one or more of
the parties hereto and thereto in any number of counterparts, each of which
shall be deemed to be an original, but all such respective counterparts shall
together constitute one and the same instrument.
-19-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
AMSOUTH BANCORPORATION
By:_______________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[NAMES OF REPRESENTATIVES]
By: [NAME OF LEAD REPRESENTATIVE]
By:
------------------------------
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
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SCHEDULE I
Underwriting Agreement dated ____________ __,_____
Registration Statement No. 333-______
Representatives(s) (including address for notices):
Purchase Price per Share:
[Title and Description of Preferred Stock:]
Details of Over-Allotment Option:
Closing Date, Time and Location:
Method of Payment:
Type of Offering:
Modification of items to be covered by the letter from
Ernst & Young, L.L.P. delivered pursuant to Section 5(g)
at the Closing Date:
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SCHEDULE II
Number of
Optional Securities
Total Number of to be Purchased
Firm Securities if Maximum
Underwriters to be Purchased Option Exercised
------------ --------------- ----------------
---------- ----------
Total
========== ==========
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