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November 2, 1995
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Union Planters Corporation, a Tennessee corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, the principal amount of securities identified in Schedule I
hereto (the "Securities"), to be issued under an indenture (the "Indenture")
dated as of October 15, 1993, between the Company and The First National Bank
of Chicago, as trustee (the "Trustee"). 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) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and, if the
offering of the Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933 (the "Act") and has filed
with the Securities and Exchange Commission (the "Commission")
registration statements (file numbers 33-50655 and 33-63791) (one or
both such registration statements being hereinafter the "registration
statement") on such Form, including a basic prospectus, for the
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, 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 and, although the
2
Basic Prospectus 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, the Basic
Prospectus includes all such information required by the Act and the
rules thereunder to be included therein as of the Effective Date. The
Company will next file with the Commission pursuant to Rules 415 and
424(b)(2) or (5) 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
contain 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 or,
to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution
Time, will be included or made therein. If the Rule 434 Delivery
Alternative is used, the Company will also file the Rule 434 Term
Sheet in accordance with Rule 434. As filed, such Rule 434 Term Sheet
shall contain all the information required by Rule 434, 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 or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you, prior
to the Execution Time, will be included or made therein. Upon your
request, but not without your agreement, the Company will also file a
Rule 462(b) Registration Statement in accordance with Rule 462(b).
(ii) The Company meets the requirements for the use of
Form S-3 under the Act and has filed with the Commission two
registration statements (the file numbers of which are 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, including a
Preliminary Final Prospectus, each of which has previously been
furnished to you. The Company will next file with the Commission
either (x) a final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b)(1) or (4), or (y) prior to the
effectiveness of such registration statement, an amendment to such
registration statement, including the form of final prospectus
supplement. In the case of clause (x), the Company has included in
such registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in the Final Prospectus with
respect to the Securities and the offering thereof. As filed, such
final prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information,
together with all other such 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
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3
to you prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein. If the Rule 434 Delivery Alternative is used, the Company
will also file the Rule 434 Term Sheet in accordance with Rule 434.
As filed, such Rule 434 Term Sheet shall contain all the information
required by Rule 434, 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 or,
to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein. Upon your request, but not without your agreement, the
Company will also file a Rule 462(b) Registration Statement in
accordance with Rule 462(b).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Final Prospectus (and any supplements
thereto) will, comply in all material respects with the applicable requirements
of the Act, the Securities Exchange Act of 1934 (the "Exchange Act") and the
Trust Indenture Act of 1939 (the "Trust Indenture Act") and the respective
rules thereunder; on the Effective Date, the Registration Statement did not or
will 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
Effective Date, the Final Prospectus, if not filed pursuant to Rule 424(b), did
not or will not, and on the date of any 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 which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the
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
inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean each
date that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective and each date after the date
hereof on which a document incorporated
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by reference in the Registration Statement is filed. "Execution Time" shall
mean the date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus referred to in
paragraph (a) above contained in the Registration Statement at the Effective
Date including, in the case of a Non-Delayed Offering, any Preliminary Final
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 the filing of the Final
Prospectus. "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 or, if, in the case of a
Non-Delayed Offering, no filing pursuant to Rule 424(b) is required, shall mean
the form of final prospectus relating to the Securities, including the Basic
Prospectus, included in the Registration Statement at the Effective Date. If
the Rule 434 Delivery Alternative is used, such term shall also include the
Basic Prospectus and the Rule 434 Term Sheet, taken together. "Registration
Statement" shall mean one or both of the registration statements referred to in
paragraph (a) above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended. Such term shall
include any Rule 430A Information and Rule 434 Information deemed to be
included therein at the Effective Date as provided by Rule 430A and Rule 434,
respectively. "Rule 415", "Rule 424", "Rule 430A", "Rule 434", "Rule 462(b)",
"Regulation S-X", and "Regulation S-K" refer to such rules or regulations under
the Act. "Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A. "Rule
434 Delivery Alternative" shall mean the delivery alternative permitted by Rule
434. "Rule 434 Information" shall mean any information to be included in a
Rule 434 Term Sheet. "Rule 434 Term Sheet" shall mean the term sheet or
abbreviated term sheet delivered by the Underwriters to investors and filed by
the Company with the Commission pursuant to Rule 434. "Rule 462(b)
Registration Statement" shall mean a registration statement and any amendments
thereto filed pursuant to Rule 462(b) relating to the final Delayed Offering
covered by the initial Registration Statement (file numbers 33-50655 and
33-63791). 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 on or
before the Effective Date of the Registration Statement 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 of the Registration Statement 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. A
"Non-Delayed Offering" shall mean an offering of
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5
securities which is intended to commence promptly after the effective date of a
registration statement, with the result that, pursuant to Rules 415 and 430A,
all information (other than Rule 430A Information) with respect to the
securities so offered must be included in such registration statement at the
effective date thereof. A "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. Whether the offering of the Securities is a Non-Delayed Offering or a
Delayed Offering shall be set forth in Schedule I hereto.
(d) The documents incorporated or deemed to be incorporated by
reference in the Final Prospectus (including any supplement thereto), at the
Effective Date, the Execution Time and the Closing Date or, if applicable, at
the time they hereafter are filed with the Commission, complied or when so
filed will comply, as the case may be, in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
(e) The independent accountants who audited the Company's
consolidated financial statements included or incorporated by reference in the
Registration Statement are independent accountants with respect to the Company
within the meaning of the Act and the applicable published rules and
regulations thereunder.
(f) The financial statements included or incorporated by reference
in the Registration Statement and the Final Prospectus present fairly the
consolidated financial position of the Company as of the dates indicated and
the consolidated results of their operations for the periods specified; except
as otherwise stated in the Registration Statement, said financial statements
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved, except for such
exceptions which, taken as a whole, are not material to the Company and the
subsidiaries considered as one enterprise; the unaudited consolidated pro forma
financial statements included or incorporated in the Registration Statement and
the Final Prospectus comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X and all the
pro forma adjustments have been properly applied to the historical amounts in
the compilation of such statements; and the supporting schedules included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein.
(g) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (B) there have been
no transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material with respect
to the Company and its subsidiaries considered as one enterprise and (C) except
for regular
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6
quarterly dividends, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(h) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Tennessee with
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement; the Company is
duly registered as a bank holding company under the Bank Holding Company Act of
1956, as amended (the "Bank Holding Company Act"), and as a savings and loan
holding company under the Home Owners' Loan Act of 1933, as amended (the
"HOLA"); and the Company is qualified as a foreign corporation in all
jurisdictions where it is required to be so qualified, except for any failures
to be so qualified which, taken as a whole, are not material to the Company and
its subsidiaries considered as one enterprise.
(i) Each subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in
the Registration Statement, except for any failures to be so incorporated,
validly existing or in good standing which, taken as a whole, are not material
to the Company and the subsidiaries considered as one enterprise; each such
subsidiary is qualified to do business as a foreign corporation in all
jurisdictions where it is required to be so qualified, except for any failures
to be so qualified which, taken as a whole, are not material to the Company and
its subsidiaries considered as one enterprise; all of the issued and
outstanding capital stock of each such subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable, subject to 12 U.S.C. Section
55, and is owned (except for director qualifying shares) by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right; and each of the
Company's banking subsidiaries is a member in good standing of the Bank
Insurance Fund or the Savings Association Insurance Fund, as the case may be,
of the Federal Deposit Insurance Corporation and is not a party to any
enforcement or supervisory agreement with its appropriate federal regulatory
agency.
(j) The authorized, issued and outstanding capital stock of the
Company set forth in the Company's most recent Annual Report on Form 10-K or
any subsequent filing by the Company with the Commission under the Exchange Act
is accurate as of the date indicated in such document; and the shares of issued
and outstanding Common Stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable.
(k) The Securities have been duly authorized for issuance and sale
to the Underwriters pursuant to this Agreement and, when issued, authenticated
and delivered by the Company to the Underwriters pursuant to the provisions of
this Agreement and of the Indenture against payment of the consideration
therefor in accordance with this Agreement, the Securities will be valid and
legally binding obligations of the Company
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7
enforceable in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors' rights or by general equity
principles, and will be entitled to the benefits of the Indenture; and the
Indenture and the Securities conform in all material respects to all statements
relating thereto contained in the Registration Statement and the Final
Prospectus.
(l) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which it or any of them is a party or by which it or any of them or their
properties may be bound, except for such defaults which, taken as a whole, are
not material to the Company and its subsidiaries considered as one enterprise;
and the execution and delivery of this Agreement, any Delayed Delivery Contract
(as defined), the Indenture, and the Securities by the Company, the filing of
the Registration Statement and the consummation of the transactions
contemplated herein and therein have been duly authorized by all necessary
corporate action and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, or result in any violation of the provisions of the charter or bylaws
of the Company or any applicable law, administrative regulation or
administrative or court decree binding on the Company or its subsidiaries.
(m) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company or any
of its subsidiaries, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), which would result in any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, or which could reasonably be expected to
materially and adversely affect the properties or assets thereof or which could
reasonably be expected to materially and adversely affect the consummation of
this Agreement; all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or of which any of their property is the
subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, are, considered in the
aggregate, not material; and there are no contracts or documents of the Company
or any of its subsidiaries which are required to be described in or filed or
incorporated by reference as exhibits to the Registration Statement by the Act
or by the regulations thereunder which have not been so described in, filed as
an exhibit to or incorporated by reference in the Registration Statement.
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(n) The Company and its subsidiaries own or possess all material
trademarks, service marks and trade names presently employed by them in
connection with the business now operated by them, and neither the Company nor
any subsidiary has received any notice of infringement of or conflict with
asserted rights of others with respect to any of the foregoing which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would materially adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(o) No labor dispute with employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent where the
consequences thereof would result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise.
(p) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the sale of
the Securities hereunder, except such as may be required under the Act, the
regulations thereunder, the Trust Indenture Act or state securities laws.
(q) The Company and its subsidiaries possess such certificates,
authorities, licenses or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by them where the failure to possess any of the foregoing would
materially and adversely affect the conduct of the business, operations,
financial condition or income of the Company and its subsidiaries considered as
one enterprise; the Company and its subsidiaries have conducted and are
conducting their business so as to comply in all material respects with all
applicable statutes and regulations; neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would materially and adversely affect the conduct of the business, operations,
financial condition or income of the Company and its subsidiaries considered as
one enterprise.
(r) This Agreement has been duly executed and delivered by the
Company.
(s) Except as otherwise stated in the Registration Statement and
the Final Prospectus, the Company and each of its subsidiaries has good and
marketable title, free and clear of all liens and encumbrances, to all of the
material properties and assets described in the Registration Statement and the
Final Prospectus as being owned by it or them except liens and encumbrances
which are not material in the aggregate and do not materially interfere with
the conduct of the business of the Company and its subsidiaries considered as
one enterprise, and, except as otherwise stated in the Registration Statement
and the Final Prospectus, has valid and binding leases to the real and/or
personal property described in the Registration Statement and the Final
Prospectus as under lease to them
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9
with such exceptions as do not materially interfere with the conduct of the
business of the Company and its subsidiaries considered as one enterprise.
(t) Any certificates signed by any officer of the Company and
delivered to you or to counsel for the Underwriters in connection with an
offering of Securities shall be deemed a representation and warranty by the
Company to each Underwriter participating in each such offering as to the
matters covered thereby.
2. Purchase and Sale. 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 Securities set forth opposite
such Underwriter's name in Schedule II hereto, except that, if Schedule I
hereto provides for the sale of Securities pursuant to delayed delivery
arrangements, the respective principal amounts of Securities to be purchased by
the Underwriters shall be as set forth in Schedule II hereto less the
respective amounts of Contract Securities 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".
If so provided in Schedule I hereto, the Underwriters are authorized
to solicit offers to purchase 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 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
amount 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 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 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 Securities to be purchased by all
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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. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives shall designate), 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 a wire transfer of same day funds.
Delivery of the Securities shall be made at such location as the
Representatives shall reasonably designate at least one business day in advance
of the Closing Date and payment for the Underwriters' Securities shall be made
at the office specified in Schedule I hereto. Certificates for the
Underwriters' Securities shall be registered in such names and in such
denominations as the Representatives may request not less than two full
business days in advance of the Closing Date.
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 PM on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final Prospectus or any
Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed amendment or
supplement or Rule 462(b) Registration Statement 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 tine
period prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. If the Rule 434 Delivery Alternative is used, the
Company will also cause the Rule 434 Term Sheet, properly completed, to be
filed with the Commission pursuant to Rule 434 within the time period
prescribed and will provide evidence satisfactory to the Representatives of
such timely filing. Upon your request, the Company will cause the Rule 462(b)
Registration Statement, properly completed, to be filed with the Commission
pursuant to Rule 462(b) and will provide evidence satisfactory to the
Representatives of such filing. The Company will promptly advise the
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11
Representatives (i) when the Registration Statement, if not effective at the
Execution Time, and any amendment thereto, shall have become effective, (ii)
when the Final Prospectus, any supplement thereto, any Rule 434 Term Sheet or
any Rule 462(b) Registration Statement shall have been filed with the
Commission pursuant to Rule 424(b) or Rule 462(b), as applicable, (iii) when,
prior to termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv) of any
request by the Commission for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any additional information, (v) 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 (vi) 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 (i)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 4, an amendment or supplement which will correct
such statement or omission or effect such compliance and (ii) supply any
supplemented Prospectus to you in such quantities as you may reasonably
request.
(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 and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, copies 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 documents relating to the
offering.
(e) The Company will arrange 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 required
for the distribution of the Securities, and will arrange for the determination
of the legality of the Securities for purchase by
- 11 -
12
institutional investors, provided that in connection therewith the Company will
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 date set forth on Schedule I hereto, 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 (other
than the Securities or any commercial paper issued by the Company).
(g) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198,
An Act Relating to Disclosure of Doing Business with Cuba, and the Company
further agrees that if it commences engaging in business with the government of
Cuba or with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the Commission or
with the Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the Prospectus, if
any, concerning the Company's business with Cuba or with any person or
affiliate located in Cuba changes in any material way, the Company will provide
the Department notice of such business or change, as appropriate, in a form
acceptable to the Department.
5. Conditions to the Obligations of 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) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i) 6:00
PM New York City time, on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 PM New York City time
on such date or (ii) 12:00 Noon on the business day following the day on which
the public offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final Prospectus, or
any supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, shall have been filed in the manner and
within the time period required by Rule 424(b) or if the filing of the Rule 434
Term Sheet is required pursuant to Rule 434, the Rule 434 Term Sheet will be
filed in the manner and within the time period required by Rule 434; 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.
- 12 -
13
(b) The Company shall have furnished to the Representatives the
opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, dated the Closing
Date, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Tennessee;
(ii) The Company is duly registered as a bank holding
company under the Bank Holding Company Act and as a savings and loan
holding company under HOLA, and has all requisite corporate power and
authority under its certificate of incorporation and the laws of the
United States and the State of Tennessee to conduct its business as
described in the Final Prospectus;
(iii) The Company has corporate power and authority to own,
lease and operate its material properties and to conduct its business
as described in the Final Prospectus;
(iv) The Company's authorized equity capitalization is as
set forth in the Final Prospectus as of the date or dates indicated
therein, the Securities conform to the description thereof contained
in the Final Prospectus; and, if the Securities are to be listed on
any securities exchange, authorization therefor 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) As to each subsidiary constituting 4% or more of the
assets of the Company as of such date (each such subsidiary being
hereinafter referred to as a "Significant Subsidiary"), such
subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority
to own, lease and operate its properties and to conduct its business
as described in the Final Prospectus and, to the best of their
knowledge and information, is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which the character or location of its properties or the nature or
conduct of its business requires such qualification except for any
failures to be so qualified or to be in good standing which, taken as
a whole, are not material to the Company and its subsidiaries
considered as one enterprise; as to all remaining subsidiaries of the
Company, to their best knowledge, they have no reason to believe that
each such subsidiary has not been duly incorporated and is not validly
existing in good standing under the laws of the jurisdiction of its
incorporation, does not have corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Final Prospectus, and
- 13 -
14
that such subsidiary is not qualified as a foreign corporation to
transact business and is not in good standing in each jurisdiction in
which the character or location of its properties or the nature or
conduct of its business requires such qualifications; all of the
issued and outstanding capital stock of each Significant Subsidiary
has been duly authorized and validly issued, is fully paid and
non-assessable, subject to 12 U.S.C. Section 55, and, to the best of
their knowledge and information, the stock of each subsidiary of the
Company is owned (except for director qualifying shares) by the
Company, directly or through subsidiaries, free and clear of any
security interest; and each banking subsidiary of the Company is a
member in good standing of the Banking Insurance Fund or the Savings
Association Insurance Fund, as the case may be, of the Federal Deposit
Insurance Corporation and, to their knowledge, is not a party to any
enforcement or supervisory agreement with each such subsidiary's
appropriate federal regulatory agency;
(vi) The Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms (subject,
as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect); and the
Securities are in the Form contemplated by the Indenture, have been
duly authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to this Agreement, in the case of the
Underwriters' Securities, or by the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of any Contract Securities,
will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture;
(vii) To the best knowledge of such counsel, 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;
(viii) The information (x) in the Basic Prospectus under
"Description of Securities" and "Certain Regulatory Considerations"
and in the Final Prospectus Supplement under the caption "Description
of Notes" and (y) in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994, under "Item 3. Legal
Proceedings" and under "Item 1. Business-Government Supervision and
Regulation of Financial Institutions", as amended or supplemented by
the Final Prospectus, to the extent that such information constitutes
matters of
- 14 -
15
law or legal conclusions, has been reviewed by them and fairly
summarizes the matters described therein;
(ix) The Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any Preliminary
Final 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) or if the Rule 434
Delivery Alternative was used, the required filing of the Rule 434
Term Sheet has been made in the manner and time period required by
Rule 434; to the best knowledge of such counsel, 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 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, the Exchange Act and the
Trust Indenture 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 the Final Prospectus includes 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, not misleading;
(x) This Agreement and any Delayed Delivery Contracts
have been duly authorized, executed and delivered by the Company;
(xi) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
of the transactions contemplated herein or in any Delayed Delivery
Contracts, 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 such other approvals (specified in such opinion) as
have been obtained;
(xii) Neither the execution and delivery of the Indenture,
the issue and sale of the Securities, nor the consummation of any
other of the transactions herein contemplated nor the fulfillment of
the terms hereof or of any Delayed Delivery Contracts will conflict
with, result in a breach or violation of, or constitute a default
under any law or the charter or by-laws of the Company or 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
bound or any judgment, order or decree 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;
- 15 -
16
(xiii) No holders of securities of the Company have rights
to the registration of such securities under the Registration
Statement; and
(xiv) The documents incorporated by reference into the
Final Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act
(other than the financial statements and the notes thereto, the
financial statement schedules and the financial, statistical,
accounting and pro forma data included therein, as to which no opinion
need be rendered), at the time they were filed with the Commission,
complied as to form in all material respects with the requirements of
the Exchange Act and the regulations thereunder.
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the State of Tennessee
or the United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they believe
to be reliable and who are satisfactory to counsel for the Underwriters and (B)
as to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to the
Final Prospectus in this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Representatives shall have received from ▇▇▇▇▇▇ & Bird,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Securities, any delayed Delivery
Contracts, the Indenture, the Registration Statement, the Final Prospectus
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters. In giving such opinions, ▇▇▇▇▇▇ & Bird may rely as to
matters of Tennessee law upon the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the 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
- 16 -
17
(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, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(e) At the Closing Date, Price Waterhouse LLP shall have furnished
to the Representatives a letter or letters, dated as of the Closing Date, in
form and substance satisfactory to the Representatives, to the effect that:
(i) they are independent accountants within the meaning
of the Act and the applicable published rules and regulations
thereunder;
(ii) in their opinion the consolidated financial
statements of the Company and its subsidiaries audited by them and
included or incorporated in the Registration Statement and the Final
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations thereunder with respect to
registration statements on Form S-3;
(iii) on the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting of:
(a) a reading of the minutes of the meetings of the shareholders and
directors of the Company since December 31, 1994 as set forth in the
minute books through a specified date not more than five business days
prior to the date of delivery of such letter; (b) performing the
procedures specified by the American Institute of Certified Public
Accountants (the "AICPA") for a review of interim financial
information as described in SAS No. 71, Interim Financial Information,
on the unaudited interim consolidated financial statements of the
Company and its consolidated subsidiaries as of and for the three- and
six-month periods ended June 30, 1995 and 1994 incorporated by
reference in the Registration Statement and the Final Prospectus and
reading the unaudited interim financial data for the period from the
date of the latest balance sheet incorporated by reference in the
Registration Statement and Final Prospectus to the date of the latest
available interim financial data; (c) performing the procedures
specified by the AICPA for a review of interim financial information
as described in SAS No. 71, Interim Financial Information, on the
unaudited consolidated balance sheet as of September 30, 1995 and the
unaudited consolidated statements of earnings, of cash flows and of
changes in shareholders' equity for the three- and nine-month periods
ended September 30, 1995 and 1994; and (d) making inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters regarding the specified items for which
representations are requested below; nothing has come to their
attention as a result of the foregoing procedures that caused them to
believe that:
- 17 -
18
(1) the unaudited interim consolidated financial
statements as of and for the three- and six-month periods
ended June 30, 1995 and 1994 included or incorporated in the
Registration Statement and the Final Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to
Form 10-Q and the published rules and regulations thereunder;
and
(2) (a) any material modifications should be made
to the unaudited interim consolidated financial statements as
of and for the three- and six-month periods ended June 30,
1995 and 1994, included or incorporated in the Registration
Statement and the Final Prospectus for them to be in
conformity with generally accepted accounting principles; and
(b) the unaudited amounts under the captions "Income Statement
Data" and "Balance Sheet Data" for the three- and nine-month
periods ended September 30, 1995 and 1994, as set forth in the
Final Prospectus under the heading "Recent Developments -
Third Quarter 1995 Operating Results" do not agree with the
amounts set forth in the unaudited interim consolidated
financial statements furnished us by the Company for those
same periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the
audited consolidated financial statements incorporated by
reference in the Registration Statement and the Final
Prospectus;
(3) (a) at the date of the latest available
interim financial data and at a specified date not more than
five business days prior to the date of the letter, there was
any change in the capital stock, increase in long-term debt or
any decreases in the consolidated total assets or
shareholders' equity of the Company and subsidiaries
consolidated as compared with amounts shown in the latest
consolidated balance sheet included or incorporated in the
Registration Statement and the Final Prospectus, or (b) for
the period from the date of the latest available financial
data to a specified date not more than five business days
prior to the date of the letter, there were any decreases, as
compared with the corresponding period in the preceding year,
in consolidated net interest income or in total or per share
amounts of net earnings of the Company and its subsidiaries
consolidated, except in all instances for changes or decreases
which the Registration Statement and Final Prospectus
discloses have occurred or may occur, or they shall state any
specific changes or decreases in such letter, in which latter
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.
(iv) certain information set forth under the captions "The
Company" and "Certain Regulatory Considerations" in the Basic
Prospectus; under the captions "The Company", "Recent Developments",
"Capitalization", and
- 18 -
19
"Summary of Consolidated Financial Data" in the Final Prospectus;
certain information included or incorporated in Items 1, 6 and 7 of
the Company's Annual Report on Form 10-K for the year ended December
31, 1994, incorporated in the Registration Statement and the Final
Prospectus; and certain information included in "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included in the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1995, incorporated in the Registration
Statement and the Final Prospectus which is expressed in dollars (or
percentages derived from such dollar amounts) and has been obtained
from accounting records which are subject to the internal controls of
the Company's accounting systems or which has been derived directly
from such accounting records by analysis or computation, is in
agreement which such records or computations made therefrom.
(v) on the basis of a reading of the unaudited
consolidated pro forma financial statements incorporated in the
Registration Statement and the Final Prospectus, inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters about (i) the basis for their determination of the
pro forma adjustments, and (ii) whether the unaudited consolidated pro
forma financial statements comply as to form in all material respects
with the applicable accounting requirements of Rule 11-02 of
Regulation S-X; and proving the arithmetic accuracy of the application
of the pro forma adjustments to the historical amounts in the
unaudited pro forma consolidated financial statements, nothing came to
their attention as a result of the procedures specified above which
caused them to believe that the pro forma consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X and
that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the Execution
Time, Price Waterhouse LLP shall have furnished to the Representatives a letter
or letters, dated as of the Execution Time, in form and substance satisfactory
to the Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive of any
amendment thereof) 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 (e) 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
- 19 -
20
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).
(g) 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) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change.
(h) 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.
(i) 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,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, 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.
The documents required to be delivered by this Section 5 shall be
delivered at the office of ▇▇▇▇▇▇ & Bird, counsel for the Underwriters, at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇., on the
Closing Date.
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.
- 20 -
21
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of 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 statements for the registration of the Securities as
originally filed or in any amendment thereof, or in the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, or in any amendment
thereof 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 the Company will 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 inclusion therein. 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 relating to such Underwriter 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. The Company acknowledges that the
statements set forth in the last paragraph of the cover page and under the
heading "Underwriting" and, if Schedule I hereto provides for sales of
Securities pursuant to delayed delivery arrangements, in the last sentence
under the heading "Delayed Delivery Arrangements" in any Preliminary Final
Prospectus and the Final Prospectus constitute the only information furnished
in writing by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(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 so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above
- 21 -
22
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses 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
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 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 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) In the event that 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
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23
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, 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 which 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 and each
director, officer, employee and agent of an Underwriter 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 shall be obligated severally to take
up and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all
the remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal 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. In the event of a default by any Underwriter as set forth in this
Section 8, 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.
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24
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) if there shall have been, since the Execution Time, or since the
respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there shall have
occurred any material adverse change in the financial markets in the United
States or any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other national or international
calamity or crisis the effect of which is such as to make it, in your judgment,
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in the Common Stock of the
Company shall have been suspended by the Commission, or if trading generally on
the New York Stock Exchange shall have been suspended, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for prices for
securities shall have been required, by said Exchange or by order of the
Commission or any other governmental authority, or if a banking moratorium
shall have been declared by federal, New York, or Tennessee authorities, or
(iv) if the rating assigned by any nationally recognized statistical rating
organization to any debt securities or preferred stock of the Company as of the
Executive Date shall have been lowered since that time or if any such rating
organization shall have publicly announced that it has placed any debt
securities or preferred stock of the Company on what is commonly termed a
"watch list" for possible downgrading.
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.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial Officer.
12. Successors. This Agreement will 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 8 hereof,
and no other person will have any right or obligation hereunder.
- 24 -
25
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
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,
Union Planters Corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.,
Chairman of the Board and
Chief Executive Officer
The foregoing Agreement is hereby
confirmed and accepted
as of the date specified in
Schedule I hereto.
Salomon Brothers Inc.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
By: Salomon Brothers Inc
By: /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------
Vice President
For themselves and the other several
Underwriters, if any, named in Schedule II
to the foregoing Agreement.
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26
SCHEDULE I
Underwriting Agreement dated November 2, 1995
Registration Statements Nos. 33-50655 and 33-63791
Representatives(s): Salomon Brothers Inc
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
Title, Purchase Price and Description of Securities:
Title: Union Planters Corporation 6 3/4% Subordinated Notes Due 2005
Principal amount: $100,000,000
Purchase price (including accrued interest
or amortization, if any): 98.758%
Sinking fund provisions: None
Redemption provisions: None
Other provisions: None
Closing Date, Time and Location: Nov. 7, 1995 at 10:00 AM at the offices of
▇▇▇▇▇▇ & Bird
Type of Offering: Delayed Offering
Delayed Delivery Arrangements: None
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
Date referred to in Section 4(f) after which the Company may
offer or sell debt securities issued or guaranteed by the Company
without the consent of the Representative(s): The later of the Closing Date or
the date of the termination of any trading restrictions with respect to the
Securities.
Modification of items to be covered by the letter from
Price Waterhouse LLP delivered pursuant to Section 5(e)
at the Execution Time: None
27
SCHEDULE II
Principal Amount of
Underwriters Securities to be Purchased
------------ --------------------------
Salomon Brothers Inc $ 50,000,000
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. 50,000,000
---------------------
Total $ 100,000,000
=====================
28
SCHEDULE III
Delayed Delivery Contract
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from _______________
Corporation (the "Company"), and the Company agrees to sell to the undersigned,
on ____________, 19___ (the "Delivery Date"), $_____________ principal amount
of the Company's ______________________________ (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 AM, New York City time, on the Delivery Date to or upon
the order of the Company in New York Clearing House (next day) funds, at your
office or at such other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned 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 party 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, 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, accompanied by a copy of the opinion of counsel
for the Company delivered to the Underwriters in connection
29
therewith. 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.
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 required 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.
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:
Corporation
----------------
By:
------------------------------
(Authorized Signature)
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