EXHIBIT 1(a)
[Form of Underwriting Agreement (for Debt Securities and Warrants)]
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 principal amount of its securities identified in
Schedule I hereto (the "[Debt] Securities"), to be issued under an indenture,
dated as of _________________ (the "Indenture"), between the Company and
______________________, as trustee (the "Trustee"). [The Company also proposes
to issue warrants (the "Warrants") to purchase the aggregate principal amount
listed in Schedule I hereto of the debt securities identified in Schedule I
hereto (the "Warrant Securities"). The Warrants, if any, are to be issued
pursuant to the Warrant Agreement listed in Schedule I hereto (the "Warrant
Agreement") between the Company and the Warrant Agent listed in Schedule I
hereto (the "Warrant Agent"). The Debt Securities and the Warrants, if any, are
hereinafter referred to as the "Purchased Securities". The Purchased Securities
and the Warrant Securities 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, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the Trust Indenture Act of
1939, as amended (the "Trust Indenture 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; on the Effective Date and
on the Closing Date, the Indenture did or will comply in all material
respects with the requirements of the Trust Indenture Act and the rules
thereunder; 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 (i) that part of the Registration
Statement that constitutes the Statement of Eligibility and Qualifica
tion (Form T-1) under the Trust Indenture Act of the Trustee or any
other trustee or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection
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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.
"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.
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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.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I hereto
the principal amount of the [Purchased] Securities set forth opposite such
Underwriter's name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of [Purchased] Securities pursuant to delayed delivery
arrangements, the respective principal amounts of [Purchased] Securities to be
purchased by the Underwriters shall be as set forth in Schedule II hereto less
the respective amounts of Contract Securities (as defined below) determined as
provided below. Securities to be purchased by the Underwriters are herein
sometimes called the "Underwriters' Securities" and Securities to be purchased
pursuant to Delayed Delivery Contracts as hereinafter provided are herein called
"Contract Securities".
(b) If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase [Purchased] Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Schedule III hereto but with such changes therein
as the Company may authorize or approve. The Underwriters will endeavor to make
such arrangements and, as compensation therefor, the Company will pay to the
Representatives, for the account of the Underwriters, on the Closing Date, the
percentage set forth in Schedule I hereto of the principal amount of the
[Purchased] Securities for which Delayed Delivery Contracts are made. Delayed
Delivery Contracts are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged by
the Underwriters have been approved by the Company but, except as the Company
may otherwise agree, each such Delayed Delivery Contract must be for not less
than the minimum principal
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amount of [Purchased] Securities set forth in Schedule I hereto and the
aggregate principal amount of Contract Securities may not exceed the maximum
aggregate principal amount set forth in Schedule I hereto. The Underwriters will
not have any responsibility in respect of the validity or performance of Delayed
Delivery Contracts. The principal amount of [Purchased] Securities to be
purchased by each Underwriter as set forth in Schedule II hereto shall be
reduced by an amount which shall bear the same proportion to the total principal
amount of Contract Securities as the principal amount of [Purchased] Securities
set forth opposite the name of such Underwriter bears to the aggregate principal
amount set forth in Schedule II hereto, except to the extent that you determine
that such reduction shall be otherwise than in such proportion and so advise the
Company in writing; provided, however, that the total principal amount of
[Purchased] Securities to be purchased by all Underwriters shall be the
aggregate principal amount set forth in Schedule II hereto less the aggregate
principal amount of Contract Securities.
3. Delivery and Payment.
(a) Delivery of and payment for the Underwriters' Securities 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 Underwriters' Securities being herein called the "Closing Date").
Delivery of the Underwriters' 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 Underwriters'
Securities shall be made at the offices of [▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇]. Certificates for the Underwriters' 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 Underwriters' 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
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
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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 offering 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 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
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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 debt securities issued or
guaranteed by the Company, that have a maturity in excess of one year
from the date of issue and that are substantially similar to the
Securities (other than the Securities).
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of 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
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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 [Purchased] Securities conform in all
material respects to the description thereof contained in the
Final Prospectus under the caption "[Description of
Securities]";
(iii) this Agreement, any Delayed Delivery Contracts,
the Indenture, the Debt Securities [the warrants and the
Warrant Agreement] have been duly authorized, executed and
delivered by the Company, and the terms of the Securities have
been established in conformity with the provisions of the
Indenture [or the Warrant Agreement, as the case my be];
[(iv) authorization for the listing of the [Debt]
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 [Purchased] Securities with such
securities exchange and such counsel has no reason to believe
that the [Purchased] 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;
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(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 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 the 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 [Purchased] Securities by the Underwriters; and
(viii) neither the issue and sale of the Securities,
nor compliance by the Company with the provisions of the
[Purchased] Securities, the Indenture, [the Warrant
Agreement,] this Agreement or any Delayed Delivery Contracts,
nor the consummation by the Company of any of the transactions
therein contemplated nor the fulfillment by the Company of the
terms thereof 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
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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 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 Indenture has been duly qualified under the
Trust Indenture Act; the [Debt] Securities [and the Warrants]
have been duly authenticated, issued and delivered; the
Indenture [, the Warrant Agreement] [and] [,] the Debt
Securities [and the Warrants] constitute valid and legally
binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles; [and the
Warrant Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and issued and delivered pursuant to the
Warrant Agreement, will constitute valid and legally binding
obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar
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laws of general applicability relating to or affecting
creditors' rights and to general equity principles]; 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, the Trust Indenture 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, or as to the statement of the eligibility
and qualification of the Trustee or any other trustee under
the Indenture.
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 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
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contained in the Registration Statement or Final Prospectus, or as to
the statement of the eligibility and qualification of the Trustee or
any other trustee under the Indenture.
(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
(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
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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 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
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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 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.
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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.
(j) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
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 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
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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 (A) 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, or (B) contained in the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or any
other Trustee; or (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 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.
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(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 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
-17-
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 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
-18-
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 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.
-19-
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.
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:
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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.
-21-
SCHEDULE I
Underwriting Agreement dated ____________ __,_____
Registration Statement No. 333-______
Representative(s) (including address for notices) :
Title, Purchase Price and Description of Debt Securities:
Title:
Principal amount:
Price to public (include accrued
interest or amortization, if any):
Purchase price to Underwriters (including
accrued interest or amortization, if any):
Maturity:
Denominations:
Sinking fund provisions:
Redemption provisions:
Interest rate:
Interest payment dates:
Other provisions:
Title and Description of Warrants (if any):
Title:
Warrant Agreement:
Warrant Agent:
Aggregate number:
Exercise Date:
Principal amount of Warrant
Securities issuable per Warrant:
Redemption provisions:
Other provisions:
Title and Description of Warrant Securities (if any):
Title:
Principal amount:
Price to public (include accrued
interest or amortization, if any):
Purchase price to Underwriters (including
accrued interest or amortization, if any):
Maturity:
Denominations:
Sinking fund provisions:
Redemption provisions:
Interest rate:
Interest payment dates:
Other provisions:
Closing Date, Time and Location:
Method of Payment:
Type of Offering:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal
amount of all contracts: $
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:
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
------------ ----------------
$
-----------------
Total...................................... $
=================
SCHEDULE III
Delayed Delivery Contract
[Date]
[Insert name and address
of lead Representative]
Ladies and Gentleman:
The undersigned hereby agrees to purchase from AmSouth Bancorporation,
a Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned, on ___________, 19__ (the "Delivery Date"), $___________ principal
amount of the Company's [Title of Securities] (the "Securities") offered by the
Company's Prospectus dated ___________, 19__, and related Prospectus Supplement
dated ___________, 19__, receipt of a copy of which is hereby acknowledged, at a
purchase price of ___% of the principal amount thereof, plus [accrued interest]
[amortization of original issue discount], if any, thereon from ___________,
19__, to the date of payment and delivery, and on the further terms and
conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 a.m., New York time, on the Delivery Date to or upon the
order of the Company by wire transfer payable in same day funds, at your office
or at such other place as shall be agreed between the Company and the
undersigned, upon delivery to the under signed of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither the undersigned nor the Company shall incur any liability by reason
of the failure thereof) that (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not prohibited on the
date hereof, shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject, and (2) the Company, on or
before the Delivery Date, shall have sold to certain underwriters
(the "Underwriters") such principal amount of the Securities as is to be sold to
them pursuant to the Underwriting Agreement referred to in the Prospectus and
Prospectus Supplement mentioned above. Promptly after completion of such sale to
the Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect. The obligation of the undersigned
to take delivery of and make payment for the Securities, and the obligation of
the Company to cause the Securities to be sold and delivered, shall not be
affected by the failure of any purchaser to take delivery of and make payment
for the Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other and any purported
assignment without such consent shall be void.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
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This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
..................................
(Name of Purchaser)
By................................
(Signature and Title of Officer)
..................................
(Address)
Accepted:
AMSOUTH BANCORPORATION
By........................
(Authorized Signature)
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