DEPOSIT GUARANTY CORP.
UNDERWRITING AGREEMENT
Introductory. Deposit Guaranty Corp., a Mississippi
business corporation (the Company ), proposes to issue and
sell from time to time, (i) one or more series of its
unsecured debt securities, which may be either senior
debentures, notes, bonds, and/or other evidences of
indebtedness (the "Senior Debt Securities") or subordinated
debentures, notes, bonds, and/or other evidences of
indebtedness which may be convertible at the option of a
holder of the Corporation into Equity Securities (as
described herein) of the Corporation (the "Subordinated Debt
Securities" and, together with the Senior Debt Securities,
the "Debt Securities"), (ii) warrants to purchase Debt
Securities (the "Debt Warrants"), (iii) shares of Preferred
Stock, no par value (the "Preferred Stock"), which may be
convertible, at the option of the holder, into Common Stock
or any other class or series of Equity Securities of the
Corporation or convertible at the option of the Corporation
into Equity Securities or other debt securities of the
Corporation, (iv) shares of Preferred Stock represented by
depositary shares ("Depositary Shares"), (v) warrants to
purchase shares of Preferred Stock (the "Preferred Stock
Warrants"), (vi) warrants to purchase Depositary Shares (the
"Depositary Share Warrants"), (vii) Common Stock, no par
value (the "Common Stock" and, together with the Preferred
Stock or Depositary Shares representing Preferred Stock, the
"Equity Securities"), and (viii) warrants to purchase Common
Stock (the "Common Stock Warrants," and together with the
Debt Warrants, the Preferred Stock Warrants, and the
Depositary Share Warrants, being collectively referred to
herein as the "Securities Warrants") registered under the
registration statement referred to in Section 2(a)
( Registered Securities ). The Senior Debt Securities will
be issued under an indenture, dated as of __________, 19__
(the Senior Indenture ), between the Company and SunTrust
Bank, Atlanta, as Trustee, in one or more series, which
series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms. The Subordinated
Debt Securities will be issued under an Indenture, dated as
of , 19 (the "Subordinated Indenture," and
together with the Senior Indenture, the "Indentures")
between the Company and SunTrust Bank, Atlanta, as Trustee.
The Securities Warrants will be issued pursuant to a warrant
agreement (the "Warrant Agreement") between the Company and
a warrant agent (the "Warrant Agent"). The Depositary
Shares will be evidenced by depositary receipts (the
"Receipts") issued under a Deposit Agreement (the "Deposit
Agreement") between the Company and a depositary (the
"Depositary"). The Registered Securities constituting
preferred stock may be issued in one or more series, which
series may vary as to dividend rates, redemption provisions,
selling prices and other terms. Particular series or
offerings of Registered Securities will be sold pursuant to
a Terms Agreement referred to in Section 3, for resale in
accordance with terms of offering determined at the time of
sale.
The Registered Securities involved in any such offering
are hereinafter referred to as the Offered Securities .
The firm or firms which agree to purchase the Offered
Securities are hereinafter referred to as the Underwriters
of such Securities, and the representative or
representatives of the Underwriters, if any, specified in a
Terms Agreement referred to in Section 3 are hereinafter
referred to as the Representatives ; provided, however,
that if the Terms Agreement does not specify any
representative of the Underwriters, the term
Representatives , as used in this Agreement (other than in
Sections 2(b), 5(c) and 6 and the second sentence of
Section 3), shall mean the Underwriters.
1. Representations and Warranties of the Company. The
Company, as of the date of each Terms Agreement referred to
in Section 3, represents and warrants to, and agrees with,
each Underwriter that:
(a) A registration statement (No. 33-64333),
including a prospectus, relating to the Registered
Securities including, if the Offered Securities are
convertible, the underlying Securities into which they
are convertible, has been filed with the Securities and
Exchange Commission (the Commission ) and has become
effective. Such registration statement, as amended at
the time of any Terms Agreement referred to in
Section 3, is hereinafter referred to as the
Registration Statement , and the prospectus included
in such Registration Statement, as supplemented as
contemplated by Section 3 to reflect the terms of the
Offered Securities (if they are debt securities or
preferred stock) and the terms of the offering of the
Offered Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b)
(Rule 424(b)) under the Securities Act of 1933 (the
"Act"), including all material incorporated by
reference therein, is hereinafter referred to as the
"Prospectus". All references in this Agreement to
financial statements and schedules and other
information that is "contained," "included" or "stated"
in the Registration Statement, any preliminary
prospectus or the Prospectus (and all other references
of like import) shall be deemed to mean and include all
such financial statements and schedules and other
information that are or are deemed to be incorporated
by reference in the Registration Statement or the
Prospectus, as the case may be. Any reference herein
to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer
to and include the filing of any document under the
Securities Exchange Act of 1934, as amended (together
with all rules and regulations of the Commission
thereunder, the "Exchange Act"), after the effective
date of the Registration Statement, or the issue date
of any preliminary prospectus or the Prospectus, as the
case may be, and on or prior to the completion of the
applicable offering and which is deemed to be
incorporated therein by reference.
(b) On the effective date of the registration
statement relating to the Registered Securities, such
registration statement conformed in all respects to the
requirements of the Act, the Trust Indenture Act of
1939 (the Trust Indenture Act ) and the rules and
regulations of the Commission (the Rules and
Regulations ) and did not include any untrue statement
of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and on the date of
each Terms Agreement referred to in Section 3, the
Registration Statement and the Prospectus will conform
in all respects to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations, and
neither of such documents will include any untrue
statement of a material fact or omit to state any
material fact required to be stated therein or
necessary to make the statements therein not
misleading, except that the foregoing does not apply to
(a) statements in or omissions from any of such
documents based upon written information furnished to
the Company by any Underwriter through the
Representatives, if any, specifically for use therein
and (b) that part of the Registration Statement that
constitutes the Statement of Eligibility on Form T-1 of
the Trustee under the Trust Indenture Act under the
Indenture filed as an exhibit to the Registration
Statement (the "Form T-1").
(c) The Company has been duly incorporated and is
an existing corporation in good standing under the laws
of the State of Mississippi, with power and authority
(corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the
conduct of its business requires such qualification,
other than any failure to be so qualified or in good
standing as would not singly or in the aggregate with
all such other failures reasonably be expected to have
a materially adverse effect on the assets, liabilities,
results of operations or financial condition of the
Company and its consolidated subsidiaries (as defined
in Rule 1-02(x) of the Commission's Regulation S-X),
taken as a whole (each a "Material Adverse Effect").
(d) Each subsidiary of the Company that meets the
conditions of a "Significant Subsidiary" set forth in
Rule 1-02(w) of the Commission's Regulation S-X
(collectively, the "Subsidiaries") has been duly
incorporated or organized and is an existing
corporation, bank or savings bank in good standing
under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and
other) to own its properties and conduct its business
as described in the Prospectus; and each Subsidiary of
the Company is duly qualified to do business as a
foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification, other than any failure to be so
qualified or in good standing as would not singly or in
the aggregate with all other failures reasonably be
expected to have a Material Adverse Effect; all of the
issued and outstanding capital stock of each Subsidiary
of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and the
capital stock of each Subsidiary owned by the Company,
directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(e) If the Offered Securities are Debt Securities
or Debt Warrants: The relevant Indenture has been duly
authorized and has been duly qualified under the Trust
Indenture Act; the Offered Securities have been duly
authorized; and when the Offered Securities are
delivered and paid for pursuant to the Terms Agreement
on the Closing Date (as defined below) or pursuant to
Delayed Delivery Contracts (as hereinafter defined),
the relevant Indenture will have been duly executed and
delivered, such Offered Securities will have been duly
executed, authenticated, issued and delivered and will
conform to the description thereof contained in the
Prospectus and the relevant Indenture and such Offered
Securities 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 laws of general applicability relating to or
affecting creditors' rights and to general equity
principles.
(f) If the Offered Securities are Preferred Stock
or Depositary Shares or Depositary Share Warrants or
Preferred Stock Warrants: The Offered Securities have
been duly authorized and, when the Offered Securities
have been delivered and paid for in accordance with the
Terms Agreement on the Closing Date, such Offered
Securities will have been validly issued, fully paid
and nonassessable and will conform to the description
thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights
with respect to the Offered Securities.
(g) If the Offered Securities are Common Stock or
Common Stock Warrants are issued: The Offered
Securities and all other outstanding shares of capital
stock of the Company have been duly authorized; all
outstanding shares of capital stock of the Company are,
and, when the Offered Securities have been delivered
and paid for in accordance with the Terms Agreement on
the Closing Date, such Offered Securities will have
been, validly issued, fully paid and nonassessable and
will conform to the description thereof contained in
the Prospectus; and the stockholders of the Company
have no preemptive rights with respect to the Offered
Securities.
(h) If the Offered Securities are convertible:
When the Offered Securities are delivered and paid for
pursuant to the Terms Agreement on the Closing Date,
such Offered Securities will be convertible into Common
Stock of the Company in accordance with their terms (if
the Offered Securities are Preferred Stock) or the
relevant Indenture (if the Offered Securities are Debt
Securities); the shares of Equity Securities initially
issuable upon conversion of such Offered Securities
have been duly authorized and reserved for issuance
upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and
nonassessable; the outstanding shares of Common Stock
have been duly authorized and validly issued, are fully
paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights
with respect to the Common Stock.
(i) If the Offered Securities are Common Stock or
are exercisable for or convertible into Common Stock:
Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the
Company and any person that would give rise to a valid
claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like
payment.
(j) If the Offered Securities constitute Common
Stock or are exercisable for or convertible into Common
Stock, the outstanding shares of Common Stock are
listed on the Nasdaq Stock Market ( Nasdaq ) and the
Offered Securities (if they are Common Stock) or the
Common Stock into which the Offered Securities are
convertible (if they are convertible) has been approved
for listing on Nasdaq, subject to notice of issuance.
If the Offered Securities are Debt Securities or
Preferred Stock, they have been approved for listing on
the stock exchange or national automated quotation
system indicated in the Terms Agreement, subject to
notice of issuance.
(k) No consent, approval, authorization, or order
of, or filing with, any governmental agency or body or
any court is required for the consummation of the
transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in
connection with the issuance and sale of the Offered
Securities by the Company, except such as have been
obtained and made under the Act and, if the Offered
Securities are Debt Securities, the Trust Indenture Act
and such as may be required under state securities
laws.
(l) The execution, delivery and performance of
the relevant Indenture (if the Offered Securities are
Debt Securities), the Terms Agreement (including the
provisions of this Agreement) and any Delayed Delivery
Contracts and the issuance and sale of the Offered
Securities and, if the Offered Securities are debt
securities or preferred stock, compliance with the
terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary of the
Company or any of their properties, or any agreement or
instrument to which the Company or any such Subsidiary
is a party or by which the Company or any such
Subsidiary is bound or to which any of the properties
of the Company or any such Subsidiary is subject, or
the charter or by-laws of the Company or any such
Subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered
Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement) other than
any such breaches, violations, defaults, liens, charges
or encumbrances as would not singly or in the aggregate
with all such other breaches, violations, defaults,
liens, charges or encumbrances reasonably be expected
to have a Material Adverse Effect.
(m) The Terms Agreement (including the provisions
of this Agreement), if the Offered Securities are Debt
Securities or Preferred Stock, any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company.
(n) Except as disclosed in the Prospectus, the
Company and its Subsidiaries have good and marketable
title to all real properties and all other properties
and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect
the value thereof or materially interfere with the use
made or to be made thereof by them; and except as
disclosed in the Prospectus, the Company and its
Subsidiaries hold any leased real or personal property
under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to
be made thereof by them.
(o) The Company and its Subsidiaries possess
adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary
to conduct the business now operated by them and have
not received any notice of proceedings relating to the
revocation or modification of any such certificate,
authority or permit that, if determined adversely to
the Company or any of its subsidiaries, would
individually or in the aggregate have a Material
Adverse Effect on the Company and its Subsidiaries
taken as a whole.
(p) Except as disclosed in the Prospectus, there
are no pending actions, suits or proceedings against or
affecting the Company, any of its Subsidiaries or any
of their respective properties that, if determined
adversely to the Company or any of its Subsidiaries,
would individually or in the aggregate have a Material
Adverse Effect or would materially and adversely affect
the ability of the Company to perform its obligations
under the relevant Indenture (if the Offered Securities
are Debt Securities), the Terms Agreement (including
the provisions of this Agreement) or any Delayed
Delivery Contracts, or which are otherwise material in
the context of the sale of the Offered Securities; and
no such actions, suits or proceedings are threatened
or, to the Company's knowledge, contemplated.
(q) The financial statements included in the
Registration Statement and Prospectus present fairly
the financial position of the Company and its
consolidated subsidiaries taken as a whole as of the
dates shown and their results of operations and cash
flows for the periods shown, and, except as otherwise
disclosed in the Prospectus, such financial statements
have been prepared in conformity with the generally
accepted accounting principles in the United States
applied on a consistent basis; and any schedules
included in the Registration Statement present fairly
the information required to be stated therein.
(r) Except as disclosed in the Prospectus, since
the date of the latest audited financial statements
included in the Prospectus there has been no material
adverse change, nor any development or event involving
a prospective material adverse change, in the condition
(financial or other), business, properties or results
of operations of the Company and its subsidiaries taken
as a whole, and, except as disclosed in or contemplated
by the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(s) The Company is not and, after giving effect
to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in
the Prospectus, will not be an investment company as
defined in the Investment Company Act of 1940.
(t) The Company is duly registered under the Bank
Holding Company Act of 1956, as amended; the Company,
and each subsidiary of the Company are in compliance
with and conduct their respective businesses in
conformity with all applicable bank and bank holding
company laws and governmental regulations, except to
the extent that any such failure to be in such
conformity would not have a Material Adverse Effect.
(u) If Offered Securities constitute Depositary
Shares: The deposit of the underlying Preferred Stock
by the Company in accordance with the Deposit Agreement
has been duly authorized and, when the Depositary
Shares are issued in accordance with the terms of this
Agreement and the Deposit Agreement, the Depositary
Shares will represent legal and valid interests in the
underlying Preferred Stock.
(v) If Offered Securities constitute Depositary
Shares: Assuming due authorization, execution and
delivery of the Deposit Agreement by the Depositary,
each Depositary Share will represent the interest
described in the Prospectus in a share of underlying
Preferred Stock; assuming due execution and delivery of
the Depositary Receipts by the Depositary pursuant to
the Deposit Agreement, the Receipts will entitle the
persons in whose names such Receipts are registered to
the benefits of registered holders of Receipts provided
therein and in the Deposit Agreement.
(w) If Offered Securities are Depositary Shares:
The Deposit Agreement has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the
Depositary, is a valid and binding agreement of the
Company.
(x) If Offered Securities are Securities
Warrants: The Warrant Agreement has been duly
authorized, executed and delivered by the Company and
assuming due authorization, execution and delivery
thereof by the Warrant Agent, is a valid and binding
agreement of the Company.
3. Purchase and Offering of Offered Securities. The
obligation of the Underwriters to purchase the Offered
Securities will be evidenced by an agreement or exchange of
other written communications ( Terms Agreement ) at the time
the Company determines to sell the Offered Securities. The
Terms Agreement will incorporate by reference the provisions
of this Agreement, except as otherwise provided therein, and
will specify the firm or firms which will be Underwriters,
the names of any Representatives, the principal amount or
number of shares to be purchased by each Underwriter, any
redemption provisions and any sinking fund requirements and
whether any of the Offered Securities may be sold to
institutional investors pursuant to Delayed Delivery
Contracts (as defined below). The purchase price to be paid
by the Underwriters and (if the Offered Securities are debt
securities or preferred stock) the terms of the Offered
Securities not already specified (in the relevant Indenture,
in the case of Offered Securities that are debt securities),
including, but not limited to, interest rate (if debt
securities), dividend rate (if preferred stock), maturity
(if debt securities), any redemption provisions and any
sinking fund requirements and whether any of the Offered
Securities may be sold to institutional investors pursuant
to Delayed Delivery Contracts (as defined below). The Terms
Agreement will also specify the time and date of delivery
and payment (such time and date, or such other time not
later than seven full business days thereafter as the
Underwriter first named in the Terms Agreement (the Lead
Underwriter ) and the Company agree as the time for payment
and delivery, being herein and in the Terms Agreement
referred to as the Closing Date ), the place of delivery
and payment and any details of the terms of offering that
should be reflected in the prospectus supplement relating to
the offering of the Offered Securities. For purposes of
Rule 15c6-1 under the Securities Exchange Act of 1934, the
Closing Date (if later than the otherwise applicable
settlement date) shall be the date for payment of funds and
delivery of securities for all the Offered Securities sold
pursuant to the offering, other than Contract Securities for
which payment of funds and delivery of securities shall be
as hereinafter provided. The obligations of the
Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the
Underwriters propose to offer the Securities for sale as set
forth in the Prospectus.
If the Terms Agreement provides for sales of Offered
Securities pursuant to delayed delivery contracts, the
Company authorizes the Underwriters to solicit offers to
purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached
hereto ( Delayed Delivery Contracts ) with such changes
therein as the Company may authorize or approve. 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. On the Closing Date the Company
will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such
Terms Agreement in respect of the principal amount or number
of shares of Offered Securities to be sold pursuant to
Delayed Delivery Contracts ( Contract Securities ). The
Underwriters will not have any responsibility in respect of
the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed
Delivery Contracts, the Contract Securities will be deducted
from the Offered Securities to be purchased by the several
Underwriters and the aggregate principal amount or number of
shares of Offered Securities to be purchased by each
Underwriter will be reduced pro rata in proportion to the
principal amount or number of shares of Offered Securities
set forth opposite each Underwriter's name in such Terms
Agreement, except to the extent that the Lead Underwriter
determines that such reduction shall be otherwise than pro
rata and so advise the Company. The Company will advise the
Lead Underwriter not later than the business day prior to
the Closing Date of the principal amount or number of shares
of Contract Securities.
If the Offered Securities are preferred stock or Common
Stock, the certificates for the Offered Securities delivered
to the Underwriters on the Closing Date will be in
definitive form, and if the Offered Securities are debt
securities, the Offered Securities delivered to the
Underwriters on the Closing Date will be in definitive fully
registered form, in each case] in such denominations and
registered in such names as the Lead Underwriter requests.
If the Offered Securities are debt securities and the
Terms Agreement specifies Book-Entry Only settlement or
otherwise states that the provisions of this paragraph shall
apply, the Company will deliver against payment of the
purchase price the Offered Securities in the form of one or
more permanent global Securities in definitive form (the
"Global Securities") deposited with the Trustee as custodian
for The Depository Trust Company ("DTC") and registered in
the name of Cede & Co., as nominee for DTC. Interests in any
permanent global Securities will be held only in book-entry
form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters (if the Terms
Agreement specifies that the Offered Securities will not
trade in DTC's Same Day Funds Settlement System) by
certified or official bank check or checks in New York
Clearing House (next day) funds or (if the Terms Agreement
specifies that the Offered Securities will trade in DTC's
Same Day Funds Settlement System) in Federal (same day)
funds by official check or checks or wire transfer to an
account in New York previously designated to the Lead
Underwriter by the Company at a bank acceptable to the Lead
Underwriter, in each case drawn to the order of
at the place of payment specified in the Terms Agreement on
the Closing Date, against delivery to the Trustee as
custodian for DTC of the Global Securities representing all
of the Offered Securities.
4. Certain Agreements of the Company. The Company
agrees with the several Underwriters that in connection with
each offering of Offered Securities:
(a) The Company will file the Prospectus with the
Commission pursuant to and in accordance with
Rule 424(b)(2) (or, if applicable and if consented to
by the Lead Underwriter (which consent shall not be
unreasonably withheld), subparagraph (5)) not later
than the second business day following the execution
and delivery of the Terms Agreement.
(b) The Company will advise the Lead Underwriter
promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and will
afford the Lead Underwriter a reasonable opportunity to
comment on any such proposed amendment or supplement;
and the Company will also advise the Lead Underwriter
promptly of the filing of any such amendment or
supplement and of the institution by the Commission of
any stop order proceedings in respect of the
Registration Statement or of any part thereof and will
use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to
the Offered Securities is required to be delivered
under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or
omit to state any material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply
with the Act, the Company promptly will notify the Lead
Underwriter of such event and will promptly prepare and
file with the Commission, at its own expense, an
amendment or supplement which will correct such
statement or omission or an amendment which will effect
such compliance. Neither the Lead Underwriter's
consent to, nor the Underwriters delivery of, any such
amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than
16 months, after the date of each Terms Agreement, the
Company will make generally available to its
securityholders an earnings statement covering a period
of at least 12 months beginning after the Effective
Date, which will satisfy the provisions of
Section 11(a) of the Act.
(e) The Company will furnish to the
Representatives copies of the Registration Statement,
including all exhibits, any related preliminary
prospectus, any related preliminary prospectus
supplement, the Prospectus and all amendments and
supplements to such documents, in each case as soon as
available and in such quantities as the Lead
Underwriter reasonably requests. The Company will pay
the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange for the
qualification of the Offered Securities for sale and
(if the Offered Securities are Debt Securities or
Preferred Stock) the determination of their eligibility
for investment under the laws of such jurisdictions as
the Lead Underwriter designates and will continue such
qualifications in effect so long as required for the
distribution.
(g) During the period of five years after the
date of any Terms Agreement, the Company will furnish
to the Representatives and, upon request, to each of
the other Underwriters, if any, as soon as practicable
after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as
available, a copy of each report and any definitive
proxy statement of the Company filed with the
Commission under the Securities Exchange Act of 1934 or
mailed to stockholders, and (ii) from time to time,
such other information concerning the Company as the
Lead Underwriter may reasonably request.
(h) The Company will pay all expenses incident to
the performance of its obligations under the Terms
Agreement (including the provisions of this Agreement)
and will reimburse the Underwriters (if and to the
extent incurred by them) for any filing fees or other
expenses (including reasonable fees and disbursements
of counsel) incurred by them in connection with
qualification of the Registered Securities for sale (if
the Offered Securities are Debt Securities or Preferred
Stock) any determination of their eligibility for
investment under the laws of such jurisdictions as the
Lead Underwriter may designate and the printing of
memoranda relating thereto (if they are Debt Securities
or Preferred Stock), for any applicable filing fee of
the National Association of Securities Dealers, Inc.
relating to the Registered Securities, for any travel
expenses of the Company's officers and employees and
any other expenses of the Company in connection with
attending or hosting meetings with prospective
purchasers of Registered Securities and for expenses
incurred in distributing the Prospectus, any
preliminary prospectuses, any preliminary prospectus
supplements or any other amendments or supplements to
the Prospectus to the Underwriters.
(i) If the Offered Securities are Debt Securities
or Preferred Stock, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a
registration statement under the Act relating to United
States dollar-denominated debt securities issued or
guaranteed by the Company and having a maturity of more
than one year from the date of issue (if the Offered
Securities are debt securities) or any series of
preferred stock issued or guaranteed by the Company (if
the Offered Securities are preferred stock)], or
publicly disclose the intention to make any such offer,
sale, pledge, disposal or filing, without the prior
written consent of the Lead Underwriter for a period
beginning at the time of execution of the Terms
Agreement and ending the number of days after the
Closing Date specified under "Blackout" in the Terms
Agreement.
(j) If the Offered Securities are Common Stock or
are convertible into Common Stock, the Company will not
offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act
relating to, any additional shares of its Common Stock
or securities convertible into or exchangeable or
exercisable for any shares of its Common Stock, or
publicly disclose the intention to make any such offer,
sale, pledge, disposal or filing, without the prior
written consent of the Lead Underwriter for a period
beginning at the time of execution of the Terms
Agreement and ending the number of days after the
Closing Date specified under Blackout in the Terms
Agreement, except issuances of Common Stock pursuant to
the conversion or exchange of convertible or
exchangeable securities or the exercise of warrants or
options, in each case outstanding on the date of the
Terms Agreement, grants of employee stock options
pursuant to the terms of a plan in effect on the date
of the Terms Agreement, issuances of Common Stock
pursuant to the exercise of such options.
5. Conditions of the Obligations of the Underwriters.
The obligations of the several Underwriters to purchase and
pay for the Offered Securities will be subject to the
accuracy of the representations and warranties on the part
of the Company herein, to the accuracy of the statements of
Company officers made pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder
and to the following additional conditions precedent:
(a) On or prior to the date of the Terms
Agreement, the Representatives shall have received a
letter, dated the date of delivery thereof, of KPMG
Peat Marwick LLP confirming that they are independent
public accountants within the meaning of the Act and
the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the financial statements
and any schedules and any summary of earnings
examined by them and included in the Prospectus
comply as to form in all material respects with
the applicable accounting requirements of the Act
and the related published Rules and Regulations;
(ii) they have performed the procedures
specified by the American Institute of Certified
Public Accountants for a review of interim
financial information as described in Statement of
Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements
included in the Registration Statement;
(iii) on the basis of the review referred to
in clause (ii) above, a reading of the latest
available interim financial statements of the
Company, inquiries of officials of the Company who
have responsibility for financial and accounting
matters and other specified procedures, nothing
came to their attention that caused them to
believe that:
(A) the unaudited financial statements,
if any, and any summary of earnings included
in the Prospectus do not comply as to form in
all material respects with the applicable
accounting requirements of the Act and the
related published Rules and Regulations or
any material modifications should be made to
such unaudited financial statements and
summary of earnings for them to be in
conformity with generally accepted accounting
principles;
(B) if any unaudited capsule
information is contained in the Prospectus,
the unaudited consolidated net sales, net
operating income,(3) net income and net
income per share amounts or other amounts
constituting such capsule information and
described in such letter do not agree with
the corresponding amounts set forth in the
unaudited consolidated financial statements
or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited
statements of income;
(C) at the date of the latest available
balance sheet read by such accountants, or at
a subsequent specified date not more than
five days prior to the date of the Terms
Agreement, there was any change in the
capital stock or any increase in short-term
indebtedness or long-term debt of the Company
and its consolidated subsidiaries or, at the
date of the latest available balance sheet
read by such accountants, there was any
decrease in consolidated net current assets
or net assets, as compared with amounts shown
on the latest balance sheet included in the
Prospectus; or
(D) for the period from the closing date
of the latest income statement included in
the Prospectus to the closing date of the
latest available income statement read by
such accountants there were any decreases, as
compared with the corresponding period of the
previous year, in consolidated net sales, net
operating income in the total or (if Offered
Securities are Common Stock or are
convertible into Common Stock) per share
amounts of consolidated income before
extraordinary items or net income or (if the
Offered Securities are Debt Securities) in
the ratio of earnings to fixed charges or (if
the Offered Securities are Preferred Stock)
in the ratio of earnings to fixed charges and
preferred stock dividends combined;
except in all cases set forth in clauses (C) and
(D) above for changes, increases or decreases
which the Prospectus discloses have occurred or
may occur or which are described in such letter;
and
(iv) they have compared specified dollar
amounts (or percentages derived from such dollar
amounts) and other financial information contained
in the Prospectus (in each case to the extent that
such dollar amounts, percentages and other
financial information are derived from the general
accounting records of the Company and its
subsidiaries subject to the internal controls of
the Company's accounting system or are derived
directly from such records by analysis or
computation) with the results obtained from
inquiries, a reading of such general accounting
records and other procedures specified in such
letter and have found such dollar amounts,
percentages and other financial information to be
in agreement with such results, except as
otherwise specified in such letter.
All financial statements and schedules included in
material incorporated by reference into the Prospectus
shall be deemed included in the Prospectus for purposes
of this subsection.
(b) The Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations
and Section 4(a) of this Agreement. No stop order
suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or any
Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution of the Terms
Agreement, there shall not have occurred (i) any
change, or any development or event involving a
prospective change, in the condition (financial or
other), business, properties or results of operations
of the Company or its subsidiaries which, in the
judgment of a majority in interest of the Underwriters
including any Representatives, is material and adverse
and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities or
preferred stock of the Company by any nationally
recognized statistical rating organization (as defined
for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has
under surveillance or review its rating of any debt
securities or preferred stock of the Company (other
than an announcement with positive implications of a
possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the
New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension
of trading of any securities of the Company on any
exchange or in the over-the-counter market; (iv) any
banking moratorium declared by U.S. Federal or New York
authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial
national or international calamity or emergency if, in
the judgment of a majority in interest of the
Underwriters including any Representatives, the effect
of any such outbreak, escalation, declaration, calamity
or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the
sale of and payment for the Offered Securities.
(d) The Representatives shall have received an
opinion, dated such Closing Date, of Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, special New York counsel for the
Company, to the effect that:
(i) the statements made in the Prospectus
under the caption "Regulatory Matters" have been
reviewed by such counsel and insofar as they
relate to summaries of legal matters, constitute
fair summaries of such matters and the description
of the underwriting arrangements contained in the
Prospectus under the caption "Plan of
Distribution" and in the prospectus supplement
under the caption "Underwriters" and the
statements in the Registration Statement in Item
15, to the extent such statements constitute
summaries of legal matters or documents, have been
reviewed by such counsel and are correct in all
material respects;
(ii) the Company is not an "investment
company" or an entity "controlled" by an
"investment company," as such terms are defined in
the Investment Company Act of 1940, as amended;
(iii) Each document filed pursuant to the
Exchange Act (other than the financial statements,
schedules and other financial and statistical data
included therein, as to which such counsel need
express no opinion) and incorporated or deemed to
be incorporated by reference in the Prospectus
complies as to form in all material respects with
the applicable requirements of the Exchange Act.
(iv) If Offered Securities constitute
Depositary Shares: The deposit of the underlying
Preferred Stock by the Company in accordance with
the Deposit Agreement has been duly authorized
and, when the Depositary Shares are issued in
accordance with the terms of this Agreement and
the Deposit Agreement, the Depositary Shares will
represent legal and valid interests in the
underlying Preferred Stock.
(v) The Registration Statement has become
effective under the Act, the Prospectus was filed
with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion on the
date specified therein, and, to the best of the
knowledge of such counsel, no stop order
suspending the effectiveness of the Registration
Statement or any part thereof has been issued and
no proceedings for that purpose have been
instituted or are pending or contemplated under
the Act, the registration statement relating to
the Offered Securities, as of its effective date
and the Registration Statement and the Prospectus,
as of the date of this Agreement and any amendment
or supplement thereto, as of its date, complied as
to form in all material respects with the
requirements of the Act and the Rules and
Regulations; In addition, such counsel shall state
that such counsel has no reason to believe that
the registration statement, as of its effective
date, the Registration Statement as of the date of
this Agreement or as of such Closing Date, or any
amendment thereto, as of its date or as of such
Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits
to state any material fact required to be stated
therein or necessary to make the statements
therein not misleading or that the Prospectus or
any amendment or supplement thereto, as of the
date of this Agreement or as of such Closing Date,
contained or contains any untrue statement of a
material fact or omitted or omits 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; it being understood that such counsel
need express no opinion as to the financial
statements or other financial and statistical data
contained in the Registration Statement or the
Prospectus.
(e) You shall have received on such Closing Date
an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Company, dated such Closing Date, to the effect that:
(i) The Company is an existing corporation
in good standing under the laws of the State of
Mississippi, with corporate power and authority to
own its properties and conduct its business as
described in the Prospectus; and the Company is
duly qualified to do business as a foreign
corporation in good standing in all other
jurisdictions in which its ownership or lease of
property or the conduct of its business requires
such qualification, except where the failure to be
so qualified or in good standing would not have a
material adverse effect upon its operations or
financial condition;
(ii) the authorized capital stock of the
Company conforms as to legal matters in all
material respects to the description thereof
contained in the Prospectus under "Description of
Preferred Stock" and "Description of Common
Stock";
(iii) If the Offered Securities delivered on
such Closing Date are Preferred Stock or
Depositary Shares, such Offered Securities have
been duly authorized and validly issued, are fully
paid and nonassessable and conform to the
description thereof contained in the Prospectus;
(iv) If the Offered Securities delivered on
such Closing Date are Common Stock, such Offered
Securities have been duly authorized and validly
issued, are fully paid and nonassessable and
conform to the description thereof contained in
the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to
the Offered Securities;
(v) If the Offered Securities delivered on
such Closing Date are convertible into the
Underlying Securities of the Company in accordance
with their terms; the Underlying Securities
initially issuable upon conversion of such Offered
Securities have been duly authorized [and reserved
for issuance upon such conversion and, when issued
upon such conversion, will be validly issued,
fully paid and nonassessable; the outstanding
Underlying Securities have been duly authorized
and validly issued, are fully paid and
nonassessable] and conform to the description
thereof contained in the Prospectus[; and the
stockholders of the Company have no preemptive
rights with respect to the Securities or the
Underlying Securities];
(vi) this Agreement [and the Deposit
Agreement have/has] been duly authorized, executed
and delivered by the Company;
(vii) the Company has the corporate power
and authority to own its property and to conduct
its business as described in the Prospectus;
(viii) each Principal Subsidiary (as defined
in the Prospectus) of the Company has been duly
incorporated or organized, is validly existing as
a corporation, bank or savings bank in good
standing under the laws of the jurisdiction of its
incorporation, has the corporate or other power
and authority to own its property and to conduct
its business as described in the Prospectus;
(vii) the execution and delivery by the
Company of, and the performance by the Company of
its obligations under, this Agreement will not
violate any provision of Applicable Law (as
defined below) or the certificate of incorporation
or by-laws of the Company or, to the best of such
counsel's knowledge, constitute a breach or
default under any agreement or other instrument
binding upon the Company or any of its
subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or, to the
best of such counsel's knowledge, violate any
judgment, order or decree of any governmental
body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent,
approval, authorization or order of or
qualification with any governmental body or agency
is required for the performance by the Company of
its obligations under this Agreement, except such
as may be required by the securities or Blue Sky
laws of the various states in connection with the
offer and sale of the Offered Securities.
"Applicable Law", as used in subparagraph (iii)
above, means laws which, in such counsel's experience,
are normally applicable to, or relevant in connection
with, transactions of the type provided for in this
Agreement or issuers of the same type as the Company.
Such counsel need not express any opinion as to any
violation of any law which may have become applicable
to the Company as a result of any facts specifically
pertaining to you.
(viii) If Offered Securities constitute
Depositary Shares: The deposit of the underlying
Preferred Stock by the Company in accordance with the
Deposit Agreement has been duly authorized and, when
the Depositary Shares are issued in accordance with the
terms of this Agreement and the Deposit Agreement, the
Depositary Shares will represent legal and valid
interests in the underlying Preferred Stock.
(ix) If Offered Securities are Securities
Warrants: The Warrant Agreement has been duly
authorized, executed and delivered by the Company and
assuming due authorization, execution and delivery
thereof by the Warrant Agent, is a valid and binding
agreement of the Company.
(f) The Representatives shall have received
from counsel for the Underwriters, such opinion or
opinions, dated such Closing Date, with respect to the
incorporation of the Company, the validity of the
Offered Securities delivered on such Closing Date, the
Registration Statement, the Prospectus and other
related matters as the Representatives may 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 rendering such
opinion, [ ] may
rely as to the incorporation of the Company and all
other matters governed by Mississippi law upon the
opinion of [ ].
(g) The Representatives shall have received a
certificate, dated the Closing Date, of the President
or any Vice-President and a principal financial or
accounting officer of the Company in which such
officers, to the best of their knowledge after
reasonable investigation, shall state that the
representations and warranties of the Company in this
Agreement are true and correct, that the Company has
complied with all agreements and satisfied all
conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, that no stop
order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or
are contemplated by the Commission and that, subsequent
to the date of the most recent financial statements in
the Prospectus, there has been no material adverse
change, nor any development or event involving a
prospective material adverse change, in the condition
(financial or other), business, properties or results
of operations of the Company and its subsidiaries taken
as a whole except as set forth in or contemplated by
the Prospectus or as described in such certificate.
(h) The Representatives shall have received a
letter, dated the Closing Date, which meets the
requirements of subsection (a) of this Section, except
that the specified date referred to in such subsection
will be a date not more than five days prior to the
Closing Date for the purposes of this subsection.
The Company will furnish the Representatives with such
conformed copies of such opinions, certificates, letters and
documents as the Representatives reasonably request. The
Lead Underwriter may in its sole discretion waive on behalf
of the Underwriters compliance with any conditions to the
obligations of the Underwriters under this Agreement and the
Terms Agreement.
6. Indemnification and Contribution. (a) The Company
will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under
the Act 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 any material fact contained in the
Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, 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 will
reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; 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 an untrue statement
or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company
by any Underwriter through the Representatives, if any,
specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter
consists of the information described as such in the Terms
Agreement.
(b) Each Underwriter will severally and not jointly
indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may
become subject, under the Act 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 any material fact
contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement,
or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in
reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the
Representatives, if any, specifically for use therein, and
will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action
as such expenses are incurred, it being understood and
agreed that the only such information furnished by any
Underwriter consists of the information described as such in
the Terms Agreement.
(c) Promptly after receipt by an indemnified party
under this Section 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
subsection (a) or (b) above, notify the indemnifying party
of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any
liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel
to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an
unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such
action.
(d) If the indemnification provided for in this
Section is unavailable or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above, then
each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other
from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the
one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total
underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and
the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or
claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section
shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be
in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company,
to each officer of the Company who has signed the
Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase
Offered Securities under the Terms Agreement and the
aggregate principal amount (if debt securities) or number of
shares (if preferred stock or Common Stock)] of Offered
Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the
total principal amount (if debt securities) or number of
shares (if preferred stock or Common Stock) of Offered
Securities, the Lead Underwriter may make arrangements
satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the
Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective
commitments under the Terms Agreement (including the
provisions of this Agreement), to purchase the Offered
Securities that such defaulting Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters so
default and the aggregate principal amount (if debt
securities) or number of shares (if preferred stock or
Common Stock) of Offered Securities with respect to which
such default or defaults occur exceeds 10% of the total
principal amount (if debt securities) or number of shares
(if preferred stock or Common Stock) of Offered Securities
and arrangements satisfactory to the Lead Underwriter and
the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such
default, the Terms Agreement will terminate without
liability on the part of any non-defaulting Underwriter or
the Company, except as provided in Section 8. As used in
this Agreement, the term Underwriter includes any person
substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability
for its default. If the Offered Securities are debt
securities or preferred stock, the respective commitments of
the several Underwriters for the purposes of this Section
shall be determined without regard to reduction in the
respective Underwriters' obligations to purchase the
principal amounts (if debt securities) or numbers of shares
(if preferred stock) of the Offered Securities set forth
opposite their names in the Terms Agreement as a result of
Delayed Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and
Obligations. The respective indemnities, agreements,
representations, warranties and other statements of the
Company or its officers and of the several Underwriters set
forth in or made pursuant to the Terms Agreement (including
the provisions of this Agreement) will remain in full force
and effect, regardless of any investigation, or statement as
to the results thereof, made by or on behalf of any
Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the
Offered Securities. If the Terms Agreement is terminated
pursuant to Section 7 or if for any reason the purchase of
the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section
4 and the respective obligations of the Company and the
Underwriters pursuant to Section 6 shall remain in effect.
If the purchase of the Offered Securities by the
Underwriters is not consummated for any reason other than
solely because of the termination of the Terms Agreement
pursuant to Section 7 or the occurrence of any event
specified in clause (iii), (iv) or (v) of Section 5(c), the
Company will reimburse the Underwriters for all out-of-
pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
9. Notices. All communications hereunder will be in
writing and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to them at their
address furnished to the Company in writing for the purpose
of communications hereunder or, if sent to the Company, will
be mailed, delivered or telegraphed and confirmed to it at
Deposit Guaranty Corp., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: .
10. Successors. The Terms Agreement (including the
provisions of this Agreement) will inure to the benefit of
and be binding upon the Company and such Underwriters as are
identified in the Terms Agreement and their respective
successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will
have any right or obligation hereunder.
11. Representation of Underwriters. Any
Representatives will act for the several Underwriters in
connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement
(including the provisions of this Agreement) taken by the
Representatives jointly or by the Lead Underwriter will be
binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed
in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together
constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough
of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the
transactions contemplated thereby.
ANNEX I
(Three copies of this Delayed Delivery Contract should be
signed and returned
to the address shown below so as to arrive not later than
9:00 A.M.,
New York time, on ........................ ............,
19....)
DELAYED DELIVERY CONTRACT
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Deposit
Guaranty Corp. , a Mississippi corporation
( Company ), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert as of the date
hereof, for delivery on , 19 ( Delivery
Date ),]
[$]..............[shares]
principal amount of the Company s [Insert title of
securities] ( Securities ), offered by the Company s
Prospectus dated , 19 and a Prospectus
Supplement dated , 19 relating
thereto, receipt of copies of which is hereby acknowledged,
at % of the principal amount thereof plus accrued
interest, if any, $ per share plus accrued dividends,
if any, and on the further terms and conditions set forth in
this Delayed Delivery Contract ( Contract ).
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the
date hereof, for delivery on the dates set forth below,
Securities in the principal amounts set forth below:
PRINCIPAL AMOUNT
NUMBER OF SHARES
DELIVERY DATE
..............................................
..............................................
Each of such delivery dates is hereinafter referred to as a
Delivery Date.]
Payment for the Securities that the undersigned has
agreed to purchase for delivery on the each Delivery Date
shall be made to the Company or its order by certified or
official bank check in New York Clearing House (next day)
funds at the office of at .M.
on the such Delivery Date upon delivery to the undersigned
of the Securities to be purchased by the undersigned for
delivery on such Delivery Date in definitive fully
registered form and in such denominations and registered in
such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less
than five full business days prior to the such Delivery
Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the
undersigned; that the purchase hereunder of Securities is to
be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of
the undersigned to take delivery of and make payment for,
Securities on the each Delivery Date shall be subject only
to the conditions that (1) investment in the Securities
shall not at the such Delivery Date be prohibited under the
laws of any jurisdiction in the United States to which the
undersigned is subject and (2) the Company shall have sold
to the Underwriters the total principal amount number of
shares of the Securities less the principal amount -number
of shares thereof covered by this and other similar
Contracts. The undersigned represents that its investment
in the Securities is not, as of the date hereof, prohibited
under the laws of any jurisdiction to which the undersigned
is subject and which governs such investment.
Promptly after completion of the 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 copies of the opinion[s] of counsel for the
Company delivered to the Underwriters in connection
therewith.
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 the acceptance of any such Contract
is in the Company's sole discretion and, without limiting
the foregoing, need not be on a first-come, first-served
basis. If this Contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance below
and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will
become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
............................................................
(Name of Purchaser)
By
............................................................
............................................................
(Title of Signatory)
............................................................
............................................................
(Address of Purchaser)
Accepted, as of the above date.
DEPOSIT GUARANTY CORP.
By
..........................................................
[Insert Title]
SCHEDULE A
PRINCIPAL
Underwriter AMOUNT
[ $
]..........................................
Total $
...........................................
