Exhibit 1(a)
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COMPASS BANCSHARES, INC.
(a Delaware corporation)
COMPASS TRUST III
(a Delaware business trust)
[___]% Capital Securities
(Liquidation Amount of $25 per Capital Security)
PURCHASE AGREEMENT
Dated: March [___], 2002
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COMPASS BANCSHARES, INC.
(a Delaware corporation)
COMPASS TRUST III
(a Delaware business trust)
[___]% Capital Securities
(Liquidation Amount of $25 per Capital Security)
PURCHASE AGREEMENT
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March __, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, Inc.
as Representatives of the several Underwriters
Ladies and Gentlemen:
Compass Trust III (the "Trust"), a statutory business trust organized
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Sec. 3801 ET SEQ.) and
Compass Bancshares, Inc. (the "Company" and, together with the Trust, the
"Offerors"), confirm their agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
Inc. and each of the other Underwriters named in SCHEDULE A hereto
(collectively, the "Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., are acting as representatives (in such
capacity, the "Representatives") with respect to the issue and sale by the
Offerors and the purchase by the Underwriters, acting severally and not jointly,
of the respective number of the Trust's preferred securities (liquidation
preference $25 per preferred security) representing preferred undivided
beneficial interests in the assets of the Trust (the "Capital Securities") set
forth in said SCHEDULE A.
The payment of periodic cash distributions with respect to the Capital
Securities and payments on liquidation or redemption with respect to such
Capital Securities will be each guaranteed by the Company on behalf of the Trust
(the "Preferred Securities Guarantee"), in each case only out of funds held by
the Trust, pursuant to the Preferred Securities Guarantee
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Agreement (the "Preferred Securities Guarantee Agreement"), to be entered into
between the Company and a guarantee trustee (the "Guarantee Trustee"), and
entitled to the benefits of certain backup undertakings described in the
Prospectus (as defined below) with respect to the Company's agreement pursuant
to the Indenture (as defined below) to pay all expenses relating to
administration of the Trust (the "Undertakings"). The Capital Securities and the
related Preferred Securities Guarantee are referred to herein as the "Offered
Securities."
The Offerors understand that the Underwriters propose to make a public
offering of the Offered Securities as soon as the Representatives deem advisable
after this Agreement has been executed and delivered.
The entire proceeds from the sale of the Offered Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its undivided common beneficial interests in the Trust's assets represented by
common securities (the "Common Securities") and will be used by the Trust to
purchase the unsecured deferrable interest junior subordinated debentures (the
"Subordinated Debentures") of the Company issued by the Company to the Trust.
The Capital Securities and the Common Securities for the Trust will be issued
pursuant to an amended and restated Declaration of Trust of the Trust (the
"Declaration"), among the Company, as Sponsor, _____________ and ______________,
as the regular trustees (the "Regular Trustees"), ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, as
property trustee (the "Property Trustee"), and Chase Manhattan Bank USA,
National Association (the "Delaware Trustee" and, together with the Regular
Trustees and the Property Trustee, the "Trustees"), and the holders from time to
time of undivided beneficial interests in the assets of the Trust. The
Subordinated Debentures will be issued pursuant to an indenture (as may be
supplemented from time to time, the "Indenture"), between the Company and ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ Bank, as trustee (the "Debt Trustee").
The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-o) covering the
registration of up to a combination of $300,000,000 of (i) Capital Securities,
(ii) Preferred Securities Guarantees and (iii) Subordinated Debentures, under
the Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses. Promptly after execution and delivery of
this Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
(ii) if the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). The information included in
such prospectus or in such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and
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including the Rule 430A Information and the Rule 434 Information, as applicable,
is herein called the "Registration Statement." Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as the
"Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
The final prospectus, including the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, in the form first furnished
to the Underwriters for use in connection with the offering of the Offered
Securities is herein called the "Prospectus." If Rule 434 is relied on, the term
"Prospectus" shall refer to the preliminary prospectus dated March o, 2002
together with the Term Sheet and all references in this Agreement to the date of
the Prospectus shall mean the date of the Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
1. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties. Each Offeror jointly and severally
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. Each of the Offerors meets
the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time, the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the 1939 Act and the rules and regulations of the Commission under the
1939 Act (the "1939
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Act Regulations"), and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement
was issued and at the Closing Time, included or will include an untrue
statement of a material fact or omitted or will 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.
If Rule 434 is used, the Company will comply with the requirements of
Rule 434. The representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement
or Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the
Representatives expressly for use in the Registration Statement or
Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted
by Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectus, when they became effective or at the time they were
or hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations or the 1934 Act and the rules and regulations of
the Commission thereunder (the "1934 Act Regulations"), as applicable,
and, when read together with the other information in the Prospectus,
at the time the Registration Statement became effective, at the time
the Prospectus was issued and at the Closing Time, did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) INDEPENDENT ACCOUNTANTS. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of
the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated
therein. The selected
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financial data and the summary financial information included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement.
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Registration
Statement and the 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
(a "Material Adverse Effect"), (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 [QUARTERLY] dividends on the
common stock, par value $2.00 per share, of the Company (the "Common
Stock") in amounts per share that are consistent with past practice,
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(vi) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) GOOD STANDING OF SUBSIDIARIES. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized 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
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, 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 and is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
such Subsidiary. The only subsidiaries of the Company are the
subsidiaries listed on SCHEDULE C hereto.
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(viii) CAPITALIZATION. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Prospectus). The shares of issued and
outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any
securityholder of the Company.
(ix) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) AUTHORIZATION OF THE INDENTURE. The Indenture has been
duly authorized by the Company and, when duly executed and delivered by
the Company and the Debt Trustee, will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding
in equity or at law) (the "Bankruptcy Exceptions") and will conform in
all material respects to all statements relating thereto in the
Prospectus and will be in substantially the form filed as an exhibit to
the Registration Statement.
(xi) GOOD STANDING OF THE TRUST. The Trust has been duly
created and is validly existing in good standing as a business trust
under the Delaware Act with the power and authority to own property and
to conduct its business as described in the Registration Statement and
Prospectus and to enter into and perform its obligations under this
Agreement, the Capital Securities, the Common Securities and the
Declaration; the Trust is duly qualified to transact business as a
foreign company and is in good standing in any other jurisdiction in
which such qualification is necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Trust; the Trust is not a party to or otherwise
bound by any agreement other than those described in the Prospectus;
the Trust is and will be classified for United States federal income
tax purposes as a grantor trust and not as an association taxable as a
corporation; and the Trust is and will be treated as a consolidated
subsidiary of the Company pursuant to generally accepted accounting
principles.
(xii) AUTHORIZATION OF THE COMMON SECURITIES. The Common
Securities have been duly authorized by the Declaration and, when
issued and delivered by the Trust to the Company against payment
therefor as described in the Registration Statement and Prospectus,
will be validly issued and (subject to the terms of the Declaration)
fully paid and non-assessable undivided beneficial interests in the
assets of the Trust and will conform to all statements relating thereto
contained in the Prospectus; the issuance of the Common Securities is
not subject to preemptive or other similar rights.
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(xiii) AUTHORIZATION OF THE DECLARATION. The Declaration has
been duly authorized by the Company and, when duly executed and
delivered by the Company and the Regular Trustees, and assuming due
authorization, execution and delivery of the Declaration by the
Property Trustee and the Delaware Trustee, the Declaration will be a
valid and binding agreement of the Company and the Regular Trustees,
enforceable against the Company and the Regular Trustees in accordance
with its terms, except to the extent that enforcement thereof may be
limited by the Bankruptcy Exceptions, and will conform in all material
respects to all statements relating thereto in the Prospectus and will
be in substantially the form filed as an exhibit to the Registration
Statement.
(xiv) AUTHORIZATION OF THE PREFERRED SECURITIES GUARANTEE
AGREEMENT. The Preferred Securities Guarantee Agreement has been duly
authorized by the Company and, when duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery of the
Preferred Securities Guarantee Agreement by the Guarantee Trustee, will
constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms except to the extent
that enforcement thereof may be limited by the Bankruptcy Exceptions,
and the Preferred Security Guarantees and the Preferred Securities
Guarantee Agreement will conform in all material respects to all
statements relating thereto contained in the Prospectus and will be in
substantially the form filed as an exhibit to the Registration
Statement.
(xv) AUTHORIZATION OF THE CAPITAL SECURITIES. The Capital
Securities have been duly authorized by the Declaration and, when
issued and delivered pursuant to this Agreement against payment of the
consideration set forth in Section 2, will be validly issued and
(subject to the terms of the Declaration) fully paid and non-assessable
undivided beneficial interests in the Trust, will be entitled to the
benefits of the Declaration and will conform to all statements relating
thereto contained in the Prospectus and such description conforms to
the provisions of the Declaration; the issuance of the Capital
Securities is not subject to preemptive or other similar rights; and
(subject to the terms of the Declaration) holders of Capital Securities
will be entitled to the same limitation of personal liability under
Delaware law as extended to stockholders of private corporations for
profit.
(xvi) AUTHORIZATION OF THE SUBORDINATED DEBENTURES. The
Subordinated Debentures have been duly authorized by the Company and,
at the Closing Time, will have been duly executed by the Company and,
when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Prospectus, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms except to the extent
that enforcement thereof may be limited by the Bankruptcy Exceptions,
will be in the form contemplated by, and entitled to the benefits of,
the Indenture and will conform in all material respects to all
statements relating thereto in the Prospectus and will be in
substantially the form filed as an exhibit to the Registration
Statement.
(xvii) SUBORDINATION OF PREFERRED SECURITIES GUARANTEE. The
Company's obligations under the Preferred Securities Guarantee are
subordinate and junior in right of
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payment to all liabilities of the Company and are PARI PASSU with the
most senior preferred stock issued by the Company.
(xviii) SUBORDINATION OF SUBORDINATED DEBENTURES. The
Subordinated Debentures are subordinated and junior in right of payment
to all "senior indebtedness" (as defined in the Indenture) of the
Company.
(xix) EXECUTION AND DELIVERY OF THE DECLARATION. Each of the
Regular Trustees is an employee of the Company and has been duly
authorized by the Company to execute and deliver the Declaration; the
Declaration has been duly executed and delivered by the Regular
Trustees and is a valid and binding obligation of each Regular Trustee,
enforceable against such Regular Trustee in accordance with its terms
except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions.
(xx) ABSENCE OF DEFAULTS AND CONFLICTS FOR TRUST. The Trust is
not in violation of its Declaration or its certificate of trust as
filed with the State of Delaware (the "Certificate of Trust"); the
Trust is not 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 the Trust is a party or by which it may be bound,
or to which any of the property or assets of the Trust is subject; and
the execution, delivery and performance of this Agreement, the
Declaration, the Capital Securities, the Common Securities, the
Indenture, the Subordinated Debentures, the Preferred Securities
Guarantee Agreement and the Preferred Securities Guarantee and the
consummation of the transactions contemplated herein and therein and
compliance by the Offerors with their respective obligations hereunder
and thereunder have been duly authorized by all necessary action
(corporate or otherwise) on the part of the Trust and do not and will
not result in any violation of the Declaration or Certificate of Trust
and do not and will not conflict with, or result in a breach of any of
the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Trust under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which the Trust is a party or by which it may be bound or to which
any of its properties or assets may be subject, or (B) any existing
applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign,
or any regulatory body or administrative agency or other governmental
body having jurisdiction over the Trust or any of its respective
properties or assets.
(xxi) QUALIFICATION UNDER 1939 ACT. The Indenture, the
Preferred Securities Guarantee Agreement and the Declaration have each
been duly qualified under the 1939 Act.
(xxii) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by
8
which it or any of them may be bound, or to which any of the property
or assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would not
result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement, the Declaration, the Indenture, the
Capital Securities, the Common Securities, the Subordinated Debentures,
the Preferred Securities Guarantee and the Preferred Securities
Guarantee Agreement and the consummation of the transactions
contemplated herein, therein and in the Registration Statement
(including the issuance and sale of the Capital Securities, the Common
Securities and the Subordinated Debentures and the use of the proceeds
from the sale of such securities as described in the Prospectus under
the caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder and under the Declaration, the Indenture, the
Capital Securities, the Common Securities, the Subordinated Debentures,
the Preferred Securities Guarantee and the Preferred Securities
Guarantee Agreement have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws of
the Company or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any subsidiary.
(xxiii) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xxiv) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought 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 subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the performance by the
Company of its obligations hereunder; the aggregate of all pending
legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement,
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including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(xxv) ACCURACY OF EXHIBITS. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xxvi) POSSESSION OF INTELLECTUAL PROPERTY. The Company and
its subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xxvii) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Offered Securities hereunder or the Subordinated Debentures
or the Common Stock or the consummation of the transactions
contemplated by this Agreement or for the due execution, delivery or
performance of the Declaration, the Indenture or the Preferred
Securities Guarantee Agreement by the Company, except such as have been
already obtained or as may be required under the 1933 Act or the 1933
Act Regulations, the 1939 Act or state securities laws.
(xxviii) POSSESSION OF LICENSES AND PERMITS. The Company and
its subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses") issued
by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and neither
the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
10
(xxix) TITLE TO PROPERTY. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Prospectus or (b) do not,
singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company or any of its subsidiaries; and all of
the leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor
any subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary
to the continued possession of the leased or subleased premises under
any such lease or sublease.
(xxx) COMPLIANCE WITH CUBA ACT. The Company has complied with,
and is and will be in compliance with, the provisions of that certain
Florida act relating to disclosure of doing business with Cuba,
codified as Section 517.075 of the Florida statutes, and the rules and
regulations thereunder (collectively, the "Cuba Act") or is exempt
therefrom.
(xxxi) INVESTMENT COMPANY ACT. None of the Offerors is, and
upon the issuance and sale of the Offered Securities and the issuance
of the Subordinated Debentures and the Common Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company" or a
company controlled by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(xxxii) ENVIRONMENTAL LAWS. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might
reasonably be
11
expected to form the basis of an order for clean-up or remediation, or
an action, suit or proceeding by any private party or governmental body
or agency, against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws.
(xxxiii) The Company is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended (the
"BHC Act").
(xxxiv) The deposit accounts of each of the Company's bank
subsidiaries are insured by the Federal Deposit Insurance Corporation
(the "FDIC") to the fullest extent permitted by law and the rules and
regulations of the FDIC; and no proceedings for the termination of such
insurance are pending or, to the best of the Company's knowledge,
threatened.
(xxxv) Neither the Company nor any of its subsidiaries is a
party to or otherwise the subject of any consent decree, memorandum of
understanding, written commitment or other written supervisory
agreement with the Board of Governors of the Federal Reserve System or
any other federal or state authority or agency charged with the
supervision or insurance of depository institutions or their holding
companies.
(xxxvi) Immediately prior to the closing of the transactions
contemplated hereby at the Closing Time, the Company will have good and
valid title to the Capital Securities to be sold by it under this
Agreement, free and clear of all liens, encumbrances, equities or
claims; and upon delivery of the Capital Securities and payment
therefore pursuant to this Agreement, good an valid title to the
Capital Securities, free and clear of all liens, encumbrances, equities
or claims, will pass to the several Underwriters.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Offerors agree to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Offerors, at
the price set forth in SCHEDULE B, the aggregate principal amount of Offered
Securities set forth in SCHEDULE A opposite the name of such Underwriter, plus
any additional principal amount of Offered Securities which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Offered Securities shall be made at the offices of Mayer,
Brown, ▇▇▇▇ & Maw, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, or at such other
place as shall be agreed upon by the Representatives and the Company, at 9:00
A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten
12
business days after such date as shall be agreed upon by the Representatives and
the Company (such time and date of payment and delivery being herein called
"Closing Time").
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Offered Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Offered Securities which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇
or ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Inc., individually and not as representatives of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Offered Securities to be purchased by any Underwriter whose funds
have not been received by the Closing Time, but such payment shall not relieve
such Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates for the Offered Securities shall
be in such denominations ($1,000 or integral multiples thereof) and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time. The Offered Securities, which may be in
temporary form, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time.
3. COVENANTS OF THE COMPANY. Each of the Offerors jointly and severally
covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Offerors, subject to Section 3(b), will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Representatives
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectus or any amended Prospectus shall have been filed,
(ii) of the receipt of any comments from the Commission, (iii) of any request by
the Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the Offered
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Offerors will
promptly effect the filings necessary pursuant to Rule 424(b) and will take such
steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Offerors will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. Each Offeror will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
13
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Offerors hereby consent to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Offerors will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the
completion of the distribution of the Offered Securities as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the Offered Securities,
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Company, to
amend the Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company will
furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Offerors will use their best efforts,
in cooperation with the Underwriters, to qualify the Offered Securities and the
Subordinated Debentures for
14
offering and sale under the applicable securities laws of such states and other
jurisdictions as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Offerors shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Offered Securities have been so qualified, the
Offerors will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for a period of not
less than one year from the effective date of the Registration Statement and any
Rule 462(b) Registration Statement. The Offerors will also supply the
Underwriters with such information as is necessary for the determination of the
legality of the Offered Securities and the Subordinated Debentures for
investment under the laws of such jurisdictions as the Underwriters may request.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. Each Offeror will use or cause to be used the net
proceeds received by it from the sale of the Offered Securities in the manner
specified in the Prospectus under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the
listing of the Offered Securities, prior to the Closing Time, on the New York
Stock Exchange.
(j) Restriction on Sale of Securities. During a period of __ days from
the date of the Prospectus, the Company will not, without the prior written
consent of the Representatives, directly or indirectly, issue, sell, offer or
contract to sell, grant any option for the sale of, or otherwise transfer or
dispose of, any debt securities of the Company or beneficial interests in the
Trust, including any guarantee of such securities, or any securities convertible
into or exchangeable for or representing the right to receive any such
substantially similar securities of either the Company or the Trust.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(l) Existence of Trust. So long as any Offered Securities are
outstanding, the Trust will continue its existence in good standing as a
business trust under the Delaware Act with power and authority to own property
and conduct its business as described in the Prospectus and the Trust will
remain duly qualified to transact business as a foreign corporation in good
standing in each jurisdiction in which such qualification is necessary, except
to the extent that the failure to so qualify would not, singly or in the
aggregate, materially adversely affect the operations of the Trust.
15
(m) Rule 158 for the Trust. The Trust will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable on an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
4. PAYMENT OF EXPENSES. (a) Expenses. The Company will pay all expenses incident
to the performance of the Offeror's obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters, the Indenture,
the Declaration, the Capital Securities, the Common Securities, the Subordinated
Debentures, the Preferred Securities Guarantee Agreement and the Preferred
Securities Guarantee and such other documents as may be required in connection
with the offering, purchase, sale, issuance or delivery of the Offered
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Offered Securities to the Underwriters, the Common Securities to the Company
and the Subordinated Debentures to the Trust, including any transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of such
securities, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the Offered Securities
and the Subordinated Debentures under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any amendments
or supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii)
the fees and expenses of the Property Trustee, the Delaware Trustee, the
Guarantee Trustee and the Debt Trustee, including the fees and expenses of their
respective counsel, (ix) any fees payable in connection with the rating of the
Offered Securities, (x) the fees and expenses incurred in connection with the
listing of the Offered Securities on the New York Stock Exchange, (xi) the cost
of qualifying the Capital Securities with the Depository Trust Company, and
(xii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and
warranties of the Offerors contained in Section 1 hereof or in certificates of
any officer of the Offerors or any subsidiary of the Company delivered pursuant
to the provisions hereof, to the performance by the Offerors of their covenants
and other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933
16
Act or proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing the Rule 430A Information shall have been filed with the
Commission in accordance with Rule 424(b) (or a post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A) or, if the Company has elected to
rely upon Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company and the Offerors, in form
and substance satisfactory to counsel for the Underwriters, together with signed
or reproduced copies of such letter for each of the other Underwriters to the
effect set forth in EXHIBIT A hereto and to such further effect as counsel to
the Underwriters may reasonably request.
(c) Opinion of Special Delaware Counsel to the Offerors. At the Closing
Time, the Representatives shall have received the favorable opinion, dated as of
the Closing Time, of ____________, special Delaware counsel to the Offerors, in
form and substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters to
the effect set forth in EXHIBIT B hereto and to such further effect as counsel
to the Underwriters may reasonably request.
(d) Opinion of Counsel to Trustees. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of __________, Counsel to the Property Trustee, the Debt Trustee
and the Guarantee Trustee, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the Underwriters to the effect set forth in EXHIBIT C hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(e) Opinion of Counsel to Delaware Trustee. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of ____________, Counsel to the Delaware Trustee, in form and
substance satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the Underwriters to the effect set
forth in EXHIBIT D hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(f) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Mayer, Brown, ▇▇▇▇ & Maw, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
with respect to the matters set forth in clauses (i), (ii), (vi) through (xiv),
inclusive, and the penultimate paragraph of EXHIBIT A hereto. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law of
the United States and the General Corporation Law of the State of Delaware, upon
the opinions of counsel satisfactory to the Representatives. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to
17
the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(g) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, 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, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(h) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a
letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(i) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (h) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(j) Maintenance of Rating. At Closing Time, the Offered Securities
shall be rated at least o by Moody's Investor's Service Inc. and o by Standard &
Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc. and, since the date of
this Agreement, there shall not have occurred a downgrading in the rating
assigned to the Offered Securities or any of the Company's other debt securities
by any "nationally recognized statistical rating agency", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and
no such organization shall have publicly announced that it has under
surveillance or review its rating of the Offered Securities or any of the
Company's other debt securities.
(k) Approval of Listing. At Closing Time, the Offered Securities shall
have been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(l) Additional Documents. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the
Offered Securities as herein
18
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Offerors in connection with the issuance and
sale of the Offered Securities as herein contemplated shall be satisfactory in
form and substance to the Representatives and counsel for the Underwriters.
(m) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to the Company at
any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
6. INDEMNIFICATION.
(a) Indemnification of Underwriters. The Offerors agree jointly and
severally to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
19
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Offerors, each
of the Company's directors, the Trustees, each of the Offerors' officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Representatives,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
20
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
7. CONTRIBUTION. If the indemnification provided for in Section 6 hereof is for
any reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (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 hand from the offering of the Offered Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) 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 of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, 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 hand in connection with the offering of the Offered
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Offered Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the Offered Securities as set forth
on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency
21
or body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Offered 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 any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, the Trustees, each officer of the Offerors who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the principal amount of Offered Securities set
forth opposite their respective names in SCHEDULE A hereto and not joint.
8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Offerors or any of the Company's subsidiaries
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Offerors, and shall survive
delivery of the Offered Securities to the Underwriters.
9. TERMINATION OF AGREEMENT.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus (exclusive
of any supplement thereto), 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 has
occurred any material adverse change in the financial markets in the United
States or in the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Representatives, impracticable or inadvisable to market
the Offered Securities or to enforce contracts for the sale of the Offered
Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock Exchange
or the Nasdaq National Market, or if trading generally on the American Stock
Exchange or the
22
New York Stock Exchange or in the Nasdaq National Market has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or a material
disruption has occurred in commercial banking or securities settlement or
clearance services in the United States, or (iv) if a banking moratorium has
been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters shall fail at Closing Time to purchase the Offered Securities which
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Offered Securities to be purchased hereunder,
each of the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Offered Securities to be purchased hereunder, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company shall have the
right to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
11. NOTICES. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representatives at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of o; and notices to the Company shall be
directed to it at o, attention of o.
23
12. PARTIES. This Agreement shall each inure to the benefit of and be binding
upon the Underwriters and the Offerors and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Offerors and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Offerors and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Offered Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER
TO NEW YORK CITY TIME.
14. EFFECT OF HEADINGS. The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
COMPASS BANCSHARES INC.
By:___________________________________________
Title:
COMPASS TRUST III
By: Compass Bancshares Inc.,
as Depositor
By:___________________________________________
Authorized Officer:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By___________________________________________________
Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY, INC.
By___________________________________________________
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
SCHEDULE A hereto.
25
SCHEDULE A
Principal
Amount of
NAME OF UNDERWRITER SECURITIES
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated...................................................................
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, Inc...............................................................
Total ..................................................................................
Sch A - 1
SCHEDULE B
The Capital Securities shall have the following terms:
The Subordinated Debentures shall have the following terms:
Sch B - 1
SCHEDULE C
[List of subsidiaries]
Sch C - 1
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus in the column entitled "Actual" under
the caption "Capitalization" (except for subsequent issuances, if any, pursuant
to the Purchase Agreement or pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus); the shares of
issued and outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the Company.
(v) Each Subsidiary 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 Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of our knowledge, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary.
(vi) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
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(vii) The Indenture has been duly authorized, executed and delivered by
the Company and (assuming the due authorization, execution and delivery thereof
by the Debt Trustee) constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
(viii) The Subordinated Debentures are in the form contemplated by the
Indenture, have been duly authorized by the Company and, assuming that the
Subordinated Debentures have been duly authenticated by the Trustee in the
manner described in its certificate delivered to you today (which fact such
counsel need not determine by an inspection of the Subordinated Debentures), the
Subordinated Debentures have been duly executed, issued and delivered by the
Company and constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law), and will
be entitled to the benefits of the Indenture.
(ix) The Preferred Securities Guarantee Agreement has been duly
authorized, executed and delivered by the Company and, assuming it is duly
authorized, executed and delivered by the Guarantee Trustee, constitutes a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(x) The Declaration has been duly authorized, executed and delivered by
the Company and duly executed and delivered by the Regular Trustees and
constitutes a valid and binding agreement of each of the Company and the Trust,
enforceable against the Company and the Trust in accordance with its terms,
except to the extent that the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law).
(xi) The Indenture, the Preferred Securities Guarantee Agreement and
the Declaration have been duly qualified under the 1939 Act.
(xii) The Subordinated Debentures, the Preferred Securities Guarantee,
the Indenture, the Common Securities, the Capital Securities, the Declaration
and the Preferred Securities Guarantee Agreement conform as to legal matters in
all material respects to the descriptions thereof contained in the Prospectus.
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(xiii) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act; any
required filing of the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to the best of
our knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(xiv) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434 Information,
as applicable, the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement and
Prospectus, excluding the documents incorporated by reference therein, as of
their respective effective or issue dates (other than the financial statements
and supporting schedules included therein or omitted therefrom, and the
Trustee's Statement of Eligibility on Form T-1 (the "Form T-1"), as to which we
need express no opinion) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and
regulations thereunder.
(xv) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules included therein or
omitted therefrom, as to which we need express no opinion), when they became
effective or were filed with the Commission, as the case may be, complied as to
form in all material respects with the requirements of the 1933 Act or the 1934
Act, as applicable, and the rules and regulations of the Commission thereunder.
(xvi) To the best of our knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation, to which the Company or
any subsidiary is a party, or to which the property of the Company or any
subsidiary is subject, before or brought by any court or governmental agency or
body, domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Purchase Agreement or the performance by the
Company of its obligations thereunder.
(xvii) The information in the Prospectus under ["RISK FACTORS,"
"COMPASS TRUST III," "DESCRIPTION OF THE PREFERRED SECURITIES," "DESCRIPTION OF
SUBORDINATED DEBENTURES," "DESCRIPTION OF THE TRUST GUARANTEE," "ERISA
CONSIDERATIONS" AND "CERTAIN FEDERAL INCOME TAX CONSIDERATIONS"] and "o" and in
the Registration Statement under Item 15, to the extent that it constitutes
matters of law, summaries of legal matters, the Company's charter and bylaws or
legal proceedings, or legal conclusions, has been reviewed by us and is correct
in all material respects; and the opinion of such firm set forth under "Certain
Federal Income Tax Considerations" is confirmed.
(xviii) To the best of our knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that are not
described as required.
(xix) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best
M-3
of our knowledge, there are no franchises, contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required to be described or
referred to in the Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or incorporated by
reference as exhibits thereto, and the descriptions thereof or references
thereto are correct in all material respects.
(xx) To the best of our knowledge, neither the Company nor any
subsidiary is in violation of its charter or by-laws and no default by the
Company or any subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(xxi) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the 1933 Act and the
1933 Act Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states and except for the
qualification of the Indenture under the 1939 Act, as to which we need express
no opinion) is necessary or required in connection with the due authorization,
execution and delivery of the Purchase Agreement or the due execution, delivery
or performance of the Indenture, the Declaration or the Preferred Securities
Guarantee Agreement by the Company or for the offering, issuance, sale or
delivery of the Capital Securities, the Common Securities, the Subordinated
Debentures or the Preferred Securities Guarantee.
(xxii) The execution, delivery and performance of the Purchase
Agreement, the Declaration, the Capital Securities, the Common Securities, the
Indenture, the Subordinated Debentures, the Preferred Securities Guarantee and
the Preferred Securities Guarantee Agreement, the compliance by the Company with
all of the provisions of the Purchase Agreement, the Declaration, the
Subordinated Debentures, the Indenture and the Preferred Securities Guarantee
Agreement and the consummation of the transactions contemplated herein and
therein and in the Registration Statement (including the issuance and sale of
the Capital Securities, the Common Securities, the Subordinated Debentures and
the Preferred Securities Guarantees and the use of the proceeds from the sale of
the such securities as described in the Prospectus under the caption "Use Of
Proceeds") and compliance by the Company with its obligations under the Purchase
Agreement, the Declaration, the Capital Securities, the Common Securities, the
Indenture, the Subordinated Debentures, the Preferred Securities Guarantee and
the Preferred Securities Guarantee Agreement do not and will not, whether with
or without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined in Section
1(a)(xxii) of the Purchase Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to us, to which the Company or any subsidiary 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 subsidiary is subject (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any subsidiary, or any applicable
law, statute, rule, regulation,
M-4
judgment, order, writ or decree, known to us, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their respective properties, assets or
operations.
(xxiii) Upon payment for, and delivery of, the Capital Securities to be
sold by the Company under the Purchase Agreement in accordance with the terms
thereof, the Underwriters will acquire all of the rights of the Company in the
Capital Securities and will also acquire the interest of the Company in the
Capital Securities free of any adverse claim (within the meaning of the Uniform
Commercial Code).
(xxiv) Neither the Company nor the Trust is, nor upon issuance and sale
of the Capital Securities and the issuance of the Subordinated Debentures and
the Common Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will be an "investment
company" or a company controlled by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (the "1940 Act").
(xxv) The Company and the Trust are entitled to the use of Form S-3 for
the registration of the Capital Securities to be sold as specified in the
Purchase Agreement.
(xxvi) The Company is duly registered as a bank holding company under
the BHC Act; and the deposit accounts of the Company's domestic bank
subsidiaries are insured by the FDIC to the fullest extent permitted by law and
the rules and regulations of the FDIC, and no proceedings for the termination of
such insurance are pending or, to the best knowledge of such counsel,
threatened.
Nothing has come to our attention that would lead us to believe that
the Registration Statement or any amendment thereto, including the Rule
430A Information and Rule 434 Information (if applicable), (except for
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom and the Form
T-1, as to which we need make no statement), at the time such
Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a
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 (except for financial statements and
schedules and other financial data included or incorporated by
reference therein or omitted therefrom and the Form T-1, as to which we
need make no statement), at the time the Prospectus was issued, at the
time any such amended or supplemented prospectus was issued or at the
Closing Time, included or includes an untrue statement of a material
fact or omitted or omits 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.
In rendering such opinion, such counsel may rely, as to
matters of fact (but not as to legal conclusions), to the extent they
deem proper, on certificates of responsible officers of the Company and
public officials. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any
treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA
Section of Business Law (1991).
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Exhibit B
FORM OF OPINION OF DELAWARE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(xxvii) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act and all filings required
under the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made. Under the Delaware
Act and the Declaration, the Trust has the trust power and authority to own
property and to conduct its business, all as described in the Prospectus, to
execute and deliver and perform its obligations under the Purchase Agreement,
the Capital Securities and the Common Securities and to purchase and hold
Subordinated Debentures.
(xxviii) The Common Securities have been duly authorized by the
Declaration and are duly and validly issued and, under the Delaware Act and the
Declaration, the issuance of the Common Securities is not subject to preemptive
or other similar rights.
(xxix) Under the Delaware Act, the certificate attached to the
Declaration as Exhibit A-1 is an appropriate form of certificate to evidence
ownership of the Capital Securities. The Capital Securities have been duly
authorized by the Declaration and are duly and validly issued, and, subject to
the qualifications set forth herein, fully paid and non-assessable undivided
beneficial interests in the assets of the Trust. The holders of the Capital
Securities will be entitled to the same limitations of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware; and, under the Delaware Act
and the Declaration, the issuance of the Capital Securities is not subject to
preemptive or other similar rights. We note that the Capital Securities holders
may be obligated, pursuant to the Declaration, to (a) provide indemnity and/or
security in connection with and pay taxes or governmental charges arising from
transfers of Capital Securities and the issuance of replacement Capital
Securities, and (b) provide security and indemnity in connection with the
requests of or directions to the Property Trustee to exercise its rights and
powers under the Declaration.
(xxx) Under the Declaration and the Delaware Act, the Purchase
Agreement has been duly authorized by all necessary trust action on the part of
the Trust.
(xxxi) No filing with or authorization, approval, consent, license,
order, registration, qualification or decree of, any Delaware court or Delaware
governmental authority or agency is necessary or required solely for the due
authorization, execution or delivery by the Trust of the Purchase Agreement or
for the performance by the Trust of the transactions contemplated under the
Prospectus, the Purchase Agreement, the Declaration, the Capital Securities and
the Common Securities.
(xxxii) The issuance and sale by the Trust of the Capital Securities
and the Common Securities, the purchase by the Trust of the Subordinated
Debentures, the execution, delivery and performance by the Trust of the Purchase
Agreement, the consummation by the Trust of the
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transactions contemplated thereby and compliance by the Trust with its
obligations thereunder do not violate (A) any of the provisions of the
certificate of Trust or the Declaration or (B) any applicable Delaware Law or
administrative regulation.
(xxxiii) The Declaration constitutes a valid and binding obligation of
the Company and the Trustees, and is enforceable against the Company and the
Trustees, in accordance with its terms.
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Exhibit C
FORM OF OPINION OF TRUSTEE'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)
(xxxiv) Chase Manhattan Trust Company, National Association is a
national banking association with trust powers, duly organized, validly existing
and in good standing under the laws of the United States with all necessary
power an authority to execute an deliver, and to carry out and perform its
obligations under the terms of the Declaration, the Preferred Securities
Guarantee Agreement and the Indenture.
(xxxv) The execution, delivery and performance by the Property Trustee
of the Declaration, the execution, delivery and performance by the Guarantee
Trustee of the Preferred Securities Guarantee Agreement and the execution,
delivery and performance by the Debt Trustee of the Indenture have been duly
authorized by all necessary corporate action on the part of the Property
Trustee, the Guarantee Trustee and the Debt Trustee, respectively. Assuming the
corporate power and legal authority of and due authorization, execution and
delivery by the other parties thereto, the Declaration, the Preferred Securities
Guarantee Agreement and the Indenture have been duly executed and delivered by
the Property Trustee, the Guarantee Trustee and the Debt Trustee, respectively,
and constitute the legal, valid and binding obligations of the Property Trustee,
the Guarantee Trustee and the Debt Trustee, respectively, enforceable against
the Property Trustee, the Guarantee Trustee and the Debt Trustee, respectively,
in accordance with their terms, except as enforcement may be limited by the
Bankruptcy Exceptions.
(xxxvi) The execution, delivery and performance of the Declaration, the
Preferred Securities Guarantee Agreement and the Indenture by the Property
Trustee, the Guarantee Trustee and the Debt Trustee, respectively, do not
conflict with or constitute a breach of the Articles of Organization or Bylaws
of the Property Trustee, the Guarantee Trustee and the Debt Trustee,
respectively.
(xxxvii) No consent, approval or authorization of, or registration with
or notice to, any federal banking authority is required for the execution,
delivery or performance by the Property Trustee, the Guarantee Trustee and the
Debt Trustee of the Declaration, the Preferred Securities Guarantee Agreement
and Indenture, respectively.
(xxxviii) The Statement of Eligibility on Form T-1 with respect to each
of the Property Trustee, the Debt Trustee and the Guarantee Trustee filed with
the Commission as part of the Registration Statement complied as to form in all
material respects with the requirements of the 1939 Act and the 1939 Act
Regulations.
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Exhibit D
FORM OF OPINION OF TRUSTEE'S DELAWARE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(e)
(xxxix) Chase Manhattan Bank USA, National Association is a national
banking association with trust powers, duly organized, validly existing and in
good standing under the laws of the United States with all necessary power an
authority to execute an deliver, and to carry out and perform its obligations
under the terms of the Declaration.
(xl) The execution, delivery and performance by the Delaware Trustee of
the Declaration have been duly authorized by all necessary corporate action on
the part of the Delaware Trustee. The Declaration has been duly executed and
delivered by the Delaware Trustee and constitutes the legal, valid and binding
obligations of the Delaware Trustee enforceable against the Delaware Trustee in
accordance with its terms, except as enforcement thereof may be limited by the
Bankruptcy Exceptions.
(xli) The execution, delivery and performance of the Declaration by the
Delaware Trustee does not conflict with or constitute a breach of the Articles
of Organization or By laws of the Delaware Trustee.
(xlii) No consent, approval or authorization of, or registration with
or notice to, any federal banking authority is required for the execution,
delivery or performance by the Delaware Trustee of the Declaration.
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