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EXHIBIT 1.4
REGIONS FINANCING TRUST I
(a Delaware trust)
$287,500,000
11,500,000 8% Trust Preferred Securities
(Liquidation Amount $25 per Trust Preferred Security)
Fully and Unconditionally Guaranteed by
REGIONS FINANCIAL CORPORATION
(a Delaware Corporation)
UNDERWRITING AGREEMENT
New York, New York
February 16, 2001
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Regions Financing Trust I (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. Section 3801 et
seq.), and Regions Financial Corporation, a Delaware corporation (the "Company"
and, together with the Trust, the "Offerors"), as depositor of the Trust and as
guarantor of the securities of the Trust, propose, upon the terms and conditions
set forth in this underwriting agreement (this "Agreement") to issue and sell
11,500,000 8% Trust Preferred Securities with an aggregate liquidation amount
equal to $287,500,000 (the "Trust Preferred Securities") to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc. and the other Underwriters set forth on Schedule I attached hereto
(collectively, the "Underwriters"), for whom you (the "Representatives") are
acting as representatives.
The Trust Preferred Securities and the Common Securities (as defined
herein) are to be issued pursuant to the terms of an Amended and Restated
Declaration of Trust, dated as of February 26, 2001 (the "Declaration"), among
Regions Financial Corporation, as depositor, Bankers Trust Company (the "Trust
Company"), a New York banking corporation, as property trustee ("Property
Trustee"), Bankers Trust (Delaware) ("Trust Delaware"), a Delaware banking
corporation, as Delaware trustee ("Delaware Trustee" and, together with the
Property Trustee,
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the "Trustees"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., D. ▇▇▇▇▇ ▇▇▇▇▇▇ and R. ▇▇▇▇ Deer, as
administrative trustees (the "Administrative Trustees"), and the holders from
time to time of undivided interests in the assets of the Trust. The Trust
Preferred Securities will be guaranteed by the Company on a subordinated basis
and subject to certain limitations with respect to distributions and payments
upon liquidation, redemption or otherwise (the "Guarantee") pursuant to a
Guarantee Agreement, to be dated as of February 26, 2001 (the "Guarantee
Agreement"), between the Company and the Trust Company, as Trustee (the
"Guarantee Trustee"). The Trust Preferred Securities issued in book-entry form
will be issued to Cede & Co., as nominee of The Depository Trust Company
("DTC"), pursuant to a letter agreement, to be dated as of the Closing Date (as
defined herein) (the "DTC Agreement"), among the Trust, the Trust Company and
DTC.
The entire proceeds from the sale of the Trust Preferred Securities
will be combined with the entire proceeds from the sale by the Trust to the
Company of its common securities (the "Common Securities") in an aggregate
liquidation amount of $8,892,000 and will be used by the Trust to purchase
$296,392,000 aggregate principal amount of 8% Junior Subordinated Debentures due
2031 (the "Junior Subordinated Debentures") to be issued by the Company on the
Closing Date. The Company will purchase the Common Securities from the Trust
pursuant to a Common Securities Subscription Agreement, dated February 26, 2001
(the "Common Securities Subscription Agreement"). The Trust will purchase the
Junior Subordinated Debentures from the Company pursuant to a Junior
Subordinated Debentures Subscription Agreement, dated February 26, 2001 (the
"Debenture Subscription Agreement" and, together with the Common Securities
Subscription Agreement, the "Subscription Agreements"). The Junior Subordinated
Debentures will be issued pursuant to an indenture, to be dated as of February
26, 2001 (the "Original Indenture"), as supplemented by the First Supplemental
Indenture, to be dated as of February 26, 2001 (the "First Supplemental
Indenture" and, together with the Original Indenture, the "Indenture"), in each
case, between the Company and the Trust Company, as trustee (the "Indenture
Trustee").
The Trust Preferred Securities, the Guarantee and the Junior
Subordinated Debentures are referred to collectively as the "Securities." The
Declaration, the Indenture, the Guarantee Agreement, the DTC Agreement, the
Subscription Agreements and this Agreement are collectively referred to as the
"Operative Agreements."
The Company, the Trust and a certain other trust sponsored by the
Company have filed with the Securities and Exchange Commission (the
"Commission") a joint registration statement on Form S-3 (No. 333-54552) and
pre-effective amendment no. 1 thereto, for the registration of the Securities
and certain other securities described therein under the Securities Act of 1933,
as amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such Registration Statement has been
declared effective by the Commission and each of the Declaration, the Guarantee
Agreement and the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act").
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To the extent there are no additional Underwriters listed on Schedule I
other than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the "1934 Act"),
and the rules and regulations of the Commission under the 1934 Act (the "1934
Act Regulations") on or before the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the
1934 Act or the 1934 Act Regulations after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. Certain terms used herein are defined
in Section 17 hereof.
For purposes of this Agreement, all references to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus or to any amendment or supplement to any of the foregoing shall be
deemed to include any copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
1. Representations and Warranties. Each of the Trust, as
to itself, and the Company represents and warrants to, and agrees with, each
Underwriter as of the date hereof and as of the Closing Date (in each case, a
"Representation Date"), as set forth below.
(a) The Offerors meet the requirements for use of Form
S-3 under the 1933 Act and have prepared and filed with the Commission
a registration statement (the file number of which is set forth in
Schedule I hereto) on Form S-3, including a related basic prospectus,
for registration under the 1933 Act of the offering and sale of the
Securities. The Offerors may have filed one or more amendments thereto,
including a Preliminary Final Prospectus, each of which has previously
been furnished to you. The Offerors will next file with the Commission
one of the following: (1) after the Effective Date of such registration
statement, a final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b), (2) prior to the Effective Date
of such registration statement, an amendment to such registration
statement (including the form of final prospectus supplement) or (3) a
final prospectus in accordance with Rules 415 and 424(b). In the case
of clause (1), the Offerors have included in such registration
statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the 1933 Act and the 1933 Act
Regulations to be included in such registration statement and the Final
Prospectus. As filed, such final prospectus supplement or such
amendment and form of final prospectus supplement shall contain all
Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all
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substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Offerors have advised you, prior
to the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the requirements
set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did
or will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the 1933 Act, the 1933 Act
Regulations, the 1934 Act, the 1934 Regulations and the 1939 Act and
the rules and regulations thereunder; on the Effective Date and at the
Execution Time, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on the
Closing Date, the Indenture did or will comply in all material respects
with the applicable requirements of the 1939 Act and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Offerors make no representations or warranties as to
(i) those parts of the Registration Statement which shall constitute
the Trust Company's Statements of Eligibility and Qualification on Form
T-1 (the "Form T-1s") under the 1939 Act or (ii) the information
contained in or omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Offerors by or
on behalf of any Underwriter through the Representatives specifically
for inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto).
(c) Each of the Company and its subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered or
organized with full corporate power and authority to own or lease, as
the case may be, and to operate its properties and conduct its business
as described in the Final Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification.
(d) The Company is duly registered as a financial holding
company under the Bank Holding Company Act of 1956, as amended (the
"BHC Act").
(e) Regions Bank is a duly organized and validly existing
Alabama state chartered bank and continues to hold a valid certificate
to do business as such; and is an
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insured depositary institution under the provisions of the Federal
Deposit Insurance Act, as amended. Regions Bank is the only
"Significant Subsidiary" of the Company, as defined by Rule 1-02 of
Regulation S-X.
(f) Since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus, there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties
of the Company and its subsidiaries (including the Trust), taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated by the Final
Prospectus (a "Material Adverse Effect").
(g) 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 Final Prospectus and to enter into and
perform its obligations under the Operative Agreements to which it is a
party, the Trust Preferred Securities, the Common Securities and any
other instruments or agreements to which it is a party. The Trust is
not a party to or otherwise bound by any material instrument or
agreement other than those described in the Registration Statement; and
the Trust is and will, under current law, be classified for United
States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation.
(h) The outstanding shares of capital stock of the
Company are as set forth in the Final Prospectus in the column entitled
"Actual" under the caption "Capitalization" (except for subsequent
issuances thereof, if any, pursuant to reservations, agreements or
employee benefit plans, pursuant to the exercise of convertible
securities or options or in connection with the Company's acquisition
of ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.). Such shares of capital stock have been duly
authorized and validly issued by the Company and are fully paid and
non-assessable, and none of such shares of capital stock was issued in
violation of preemptive or other similar rights of any securityholder
or the Company.
(i) All the outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and nonassessable (except as provided in
statutes pursuant to which depository institution subsidiaries are
subject), and, except as otherwise set forth in the Final Prospectus, a
controlling majority of the outstanding shares of voting capital stock
of the subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest or any other security interests, claims, liens or
encumbrances.
(j) As of the Closing Date, the Common Securities will
have been duly authorized for issuance by the Trust pursuant to the
Declaration and, when issued and delivered by the Trust to the Company
against payment therefor as described in the Final Prospectus, will be
validly issued and fully paid undivided common beneficial interests in
the assets of the Trust. The issuance of the Common Securities will not
be subject to preemptive or other similar rights. As of the Closing
Date, all of the issued and outstanding Common Securities of the Trust
will be directly owned by the Company,
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free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equitable right.
(k) As of the Closing Date, the Trust Preferred
Securities will have been duly authorized for issuance and sale by the
Trust pursuant to the Agreement. Such Trust Preferred Securities, when
issued and delivered in the manner provided for in the Declaration
against payment of the consideration therefor as provided herein, will
be validly issued and fully paid and non-assessable undivided preferred
beneficial interests in the assets of the Trust. The issuance of the
Trust Preferred Securities will not be subject to preemptive or other
similar rights. The Trust Preferred Securities will be in the form
specified in, and each registered holder thereof will be entitled to
the benefits of, the Declaration.
(l) The Declaration has been duly authorized, and, at the
Closing Date will have been executed and delivered by the Company and
the Administrative Trustees and, assuming due authorization, execution
and delivery of the Declaration by the Property Trustee and the
Delaware Trustee, the Declaration will constitute a valid and binding
agreement of the Company and the Administrative Trustees, enforceable
against the Company and the Administrative Trustees 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 other
similar laws affecting the enforcement of creditors' rights generally
or by general equitable principles (regardless of whether enforcement
is considered in a proceeding at law or in equity).
(m) The Guarantee Agreement has been duly authorized,
and, at the Closing Date will have been executed and delivered by the
Company and, assuming due authorization, execution and delivery thereof
by the Guarantee Trustee, the Guarantee Agreement 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 other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding at law
or in equity).
(n) Each of the Administrative Trustees of the Trust is
an employee of the Company and has been duly authorized by the Company
to execute and deliver the Declaration.
(o) This Agreement has been duly authorized, executed and
delivered by the Trust and the Company.
(p) Each of the Subscription Agreements has been duly
authorized by each of the Company and the Trust, and, at the Closing
Date will have been executed and delivered by each of the Company and
the Trust and each Subscription Agreement will constitute a valid and
binding agreement of the Company and the Trust, enforceable against the
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Company and the Trust 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 other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding at law or in equity).
(q) The Indenture has been duly authorized, and, at the
Closing Date will have been duly executed and delivered by the Company
and, assuming due authorization, execution and delivery by the
Indenture 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 other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law).
(r) The Junior Subordinated Debentures have been duly
authorized by the Company for issuance and sale to the Trust as
contemplated by this Agreement. The Junior Subordinated Debentures,
when issued and authenticated in the manner provided for in the
Indenture and delivered against payment of the consideration therefor
in accordance with the terms of the Debenture Subscription Agreement,
will 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 other similar laws affecting
the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law). The Junior Subordinated Debentures
will be in the form contemplated by, and each registered holder thereof
will be entitled to the benefits of, the Indenture.
(s) The Securities and the Operative Agreements, as of
each Representation Date, will conform in all material respects to the
statements relating thereto contained in the Final Prospectus and will
be in substantially the form filed or incorporated by reference, as the
case may be, as an exhibit to the Registration Statement.
(t) Neither the Trust nor Company is and, after giving
effect to the offering and sale of the Securities and the application
of the proceeds thereof as described in the Final Prospectus, will be,
an "investment company" as defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(u) No consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such as
have been obtained under the 1933 Act and the 1939 Act and such as may
be required under the blue sky laws of any jurisdiction in
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connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the Final
Prospectus.
(v) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to, (i) the charter or by-laws of the Company or any of its
subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its
or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any
of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of its
or their properties which violation or default would, in the case of
clauses (ii) and (iii) above, either individually or in the aggregate
with all other violations and defaults referred to in this paragraph
(v), reasonably be expected to result in a Material Adverse Effect.
(w) The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries included in
the Final Prospectus and the Registration Statement present fairly in
all material respects the financial condition, results of operations
and cash flows of the Company and its consolidated subsidiaries as of
the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations and have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein).
The selected financial data set forth under the caption "Selected
Historical Financial Data" in the Final Prospectus fairly present, on
the basis stated in the Final Prospectus, the information included
therein.
(x) Ernst & Young LLP, who have certified certain
financial statements of the Company and its consolidated subsidiaries
and delivered their report with respect to the audited consolidated
financial statements and schedules included in the Final Prospectus,
are independent public accountants with respect to the Company within
the meaning of the 1933 Act and the 1933 Act Regulations.
(y) No action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries or its or their property is
pending or, to the best knowledge of the Company, threatened that (i)
would reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) would reasonably be expected
to result in a Material Adverse Effect.
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(z) Neither the Company nor any subsidiary is in
violation or default of (i) any provision of its charter or by-laws,
(ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to
which its property is subject or (iii) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, which violation or default would, in the
case of clauses (ii) and (iii) above, either individually or in the
aggregate with all other violations and defaults referred to in this
paragraph (z), reasonably be expected to result in a Material Adverse
Effect.
(aa) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to file
would not reasonably be expected to have a Material Adverse Effect and
has paid all taxes required to be paid by it and any other assessment,
fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as would not
reasonably be expected to result in a Material Adverse Effect.
(bb) The Company and each of its subsidiaries are insured
by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; all policies of insurance and
fidelity or surety bonds insuring the Company or any of its
subsidiaries or their respective businesses, assets, employees,
officers and directors are in full force and effect; the Company and
its subsidiaries are in compliance with the terms of such policies and
instruments in all material respects; and there are no claims by the
Company or any of its subsidiaries under any such policy or instrument
as to which any insurance company is denying liability or defending
under a reservation of rights clause; neither the Company nor any such
subsidiary has been refused any insurance coverage sought or applied
for; and neither the Company nor any such subsidiary has any reason to
believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not reasonably be expected to result in a
Material Adverse Effect.
(cc) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary's property or
assets to the Company or any other subsidiary of the Company, except as
described in or contemplated by the Final Prospectus and applicable
banking laws and regulations.
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(dd) The Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, and neither the Company nor any
such subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected
to result in a Material Adverse Effect.
(ee) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(ff) The Company has not taken, directly or indirectly,
any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the 1934 Act, the
1934 Act Regulations or otherwise, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
(gg) The Company and its subsidiaries are (i) in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (ii) have
received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) have not received notice
of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not,
individually or in the aggregate, reasonably be expected to result in
a Material Adverse Effect. Except as set forth in the Final
Prospectus, neither the Company nor any of the subsidiaries has been
named as a "potentially responsible party" under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended.
(hh) Except as disclosed in the Registration Statement and
the Final Prospectus, the Company (i) does not have any material
lending or other relationship with any bank or lending affiliate of
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc. and (ii) does not intend to use any
of the proceeds from the sale of the Securities hereunder to repay any
outstanding debt owed to any affiliate of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Holdings
Inc.
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Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Trust and the Company agree to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at
the purchase price set forth in Schedule I hereto the principal amount of the
Securities set forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment.
(a) Delivery. Delivery of and payment for the Trust
Preferred Securities shall be made on the date which is five Business
Days after the Execution Date, which date and time may be postponed by
agreement among the Representatives, the Trust and the Company or as
provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the "Closing Date").
Delivery of the Trust Preferred Securities shall be made to the
Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives
of the purchase price thereof to or upon the order of the Trust by wire
transfer payable in same-day funds to an account specified by the
Trust. Delivery of the Trust Preferred Securities shall be made through
the facilities of DTC unless the Representatives shall otherwise
instruct. Delivery of the Trust Preferred Securities shall be made at
such location as ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. shall reasonably designate
at least one Business Day in advance of the Closing Date. Certificates
for the Trust Preferred Securities shall be registered in such names
and in such denominations as ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. may request not
less than two Business Days in advance of the Closing Date. The Trust
and the Company agrees to have the Trust Preferred Securities available
for inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 PM on the Business Day prior to the
Closing Date.
(b) Payment. Payment of the purchase price for, and
delivery of, the Trust Preferred Securities shall be made at the
offices of ▇▇▇▇▇ & ▇▇▇▇ LLP, One World Trade Center, New York, New
York, or at such other place as shall be agreed upon by the
Underwriters and the Trust, at 9:00 A.M. (Eastern time) on the Closing
Date.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Trust Preferred Securities for sale to
the public as set forth in the Final Prospectus.
5. Agreements. Each of the Offerors agrees with the
several Underwriters that:
(a) Each of the Offerors will use its respective best
efforts to cause the Registration Statement, if not effective at the
Execution Time, and any amendment
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thereof, to become effective. Prior to the termination of the offering
of the Trust Preferred Securities, the Offerors will not file any
amendment of the Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus or any Rule 462(b) Registration Statement unless the
Offerors have furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Final Prospectus is otherwise required under
Rule 424(b), the Offerors will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Offerors will promptly
advise the Representatives (1) when the Registration Statement, if not
effective at the Execution Time, shall have become effective, (2) when
the Final Prospectus, and any supplement thereto, shall have been filed
(if required) with the Commission pursuant to Rule 424(b) or when any
Rule 462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the Trust
Preferred Securities, any amendment to the Registration Statement shall
have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any
supplement to the Final Prospectus or for any additional information,
(5) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the receipt
by the Offerors of any notification with respect to the suspension of
the qualification of the Trust Preferred Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for
such purpose. Each of the Offerors will use its best efforts to prevent
the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the 1933 Act, any event
occurs as a result of which the Final Prospectus as then supplemented
would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the light
of the circumstances under which they were made not misleading, or if
it shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the 1933 Act, the 1933 Act
Regulations, the 1934 Act or the 1934 Act Regulations, the Offerors
promptly will (1) notify the Representatives of such event, (2) prepare
and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3)
supply any supplemented Final Prospectus to you in such quantities as
you may reasonably request.
(c) The Offerors will use the net proceeds received by
them from the sale of the Trust Preferred Securities, the Common
Securities and the Junior Subordinated Debentures in the manner
specified in the Final Prospectus under "Use of Proceeds."
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(d) The Offerors, during the period when a prospectus
relating to the Trust Preferred Securities 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 and the 1934 Act
Regulations within the time periods required thereby.
(e) As soon as practicable, the Company will make
generally available to its security holders and to the Representatives
an earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the 1933 Act and
Rule 158 under the 1933 Act Regulations.
(f) The Offerors will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the 1933 Act, as many copies of each
Preliminary Final Prospectus and the Final Prospectus and any
supplement thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing or other production of all
documents relating to the offering.
(g) The Offerors will arrange, if necessary, for the
qualification of the Trust Preferred Securities for sale under the laws
of such jurisdictions as the Representatives may designate, will
maintain such qualifications in effect so long as required for the
distribution of the Trust Preferred Securities and will pay any fee of
the National Association of Securities Dealers, Inc. ("NASD") in
connection with its review of the offering; provided, that in no event
shall the Offerors be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Trust Preferred Securities,
in any jurisdiction where it is not now so subject.
(h) Neither the Trust nor the Company will, without the
prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., offer, sell,
contract to sell, pledge, or otherwise dispose of, (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the
Company or any affiliate of the Company or any person in privity with
the Company or any affiliate of the Company) directly or indirectly,
including the filing (or participation in the filing) of a registration
statement with the Commission in respect of, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the 1934 Act, any
preferred securities issued or guaranteed by the Offerors (other than
the Trust Preferred Securities) or publicly announce an intention to
effect any such transaction, until the Business Day set forth on
Schedule I hereto.
(i) The Company will not take, directly or indirectly,
any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the
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1934 Act or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Trust Preferred Securities.
6. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Trust Preferred Securities
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Offerors made in any certificates
pursuant to the provisions hereof, to the performance by the Offerors of their
respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Representatives agree
in writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Offerors shall have requested and caused ▇▇▇▇▇▇ &
Bird LLP, counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) Each of the Company and Regions Bank is
validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own or
lease, as the case may be, and to operate its properties and
conduct its business as described in the Final Prospectus.
Each of the Company and Regions Bank is duly qualified to do
business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or
conducts material business and where the failure to be so
qualified would, individually or in the aggregate, result in a
Material Adverse Effect.
(ii) The Company is duly registered as a
financial holding company under the BHC Act.
(iii) This Agreement has been duly authorized,
executed and delivered by the Company.
(iv) The Declaration has been duly authorized,
executed and delivered by the Company and the Administrative
Trustees, and constitutes a legal, valid
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and binding instrument enforceable against the Company and the
Administrative Trustees in accordance with its terms (subject,
as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity and law, including, without
limitation, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether considered in a
proceeding in equity or at law); and the Trust Preferred
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the
Declaration and delivered to and paid for by the Underwriters
pursuant to this Agreement, will constitute legal, valid and
binding obligations of the Trust entitled to the benefits of
the Declaration. The Trust Preferred Securities are in the
form contemplated by, and each registered holder thereof is
entitled to the benefits of, the Declaration.
(v) The Indenture has been duly authorized,
executed and delivered by the Company, and constitutes a
legal, valid and binding instrument enforceable against the
Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity or law, including, without
limitation, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether considered in a
proceeding in equity or at law).
(vi) The Junior Subordinated Debentures have been
duly authorized, executed and delivered by the Company for
issuance and sale to the Trust and, when executed and
authenticated in the manner provided for in the Indenture and
delivered to and paid for by the Trust in accordance with the
terms of the Debenture Subscription Agreement, will 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 other
similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or
at law). The Junior Subordinated Debentures are in the form
contemplated by, and each registered holder thereof is
entitled to the benefits of, the Indenture.
(vii) The Guarantee Agreement has been duly
authorized, and, at the Closing Date will have been executed
and delivered by the Company and, assuming due authorization,
execution and delivery thereof by the Guarantee Trustee, the
Guarantee Agreement 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 other similar laws affecting the
enforcement of
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creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a
proceeding in equity or at law).
(viii) Each of the Subscription Agreements has been
duly authorized, executed and delivered by the Company, and
constitutes a legal, valid and binding agreement enforceable
against the Company in accordance with its respective terms
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time
in effect and to general principles of equity or law,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law).
(ix) The Securities and the Operative Agreements
conform in all material respects to the statements relating
thereto contained in the Final Prospectus and, to the extent
applicable, are in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit
to the Registration Statement.
(x) The statements in the Registration Statement
and the Final Prospectus insofar as they are descriptions of
contracts, agreements, instruments or the Company's
Certificate of Incorporation or legal proceedings, or
constitute statements or summaries of United States federal,
New York State laws or the General Corporation Law of the
State of Delaware or legal conclusions with respect thereto,
are accurate and present fairly the information required to be
shown.
(xi) The Registration Statement and the Final
Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration
Statement and Final Prospectus, excluding the documents
incorporated by reference therein, as of their respective
effective or issue dates (other than the financial statements
and supporting schedules and other financial data included
therein or omitted therefrom and each Form T-1, as to which
such counsel need express no opinion) complied as to form in
all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations.
(xii) The documents incorporated by reference in
the Final Prospectus (other than the financial statements and
supporting schedules and other financial data included therein
or omitted therefrom, as to which such counsel 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, the
1933 Act Regulations, the 1934 Act or the 1934 Act
Regulations, as applicable.
(xiii) The Registration Statement has become
effective under the 1933 Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus
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and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other than
the financial statements and other financial information
contained therein and each Form T-1, as to which such counsel
need express no opinion) comply as to form in all material
respects with the applicable requirements of the 1933 Act, the
1933 Act Regulations, the 1934 Act, the 1934 Act Regulations
and the 1939 Act and the rules and regulations of the
Commission thereunder; and such counsel has no reason to
believe that on the Effective Date or the date the
Registration Statement was last deemed amended, the
Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus as of its
date and on the Closing Date included or includes any untrue
statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements
and other financial information contained therein and each
Form T-1, as to which such counsel need express no opinion).
(xiv) Each of the Declaration, the Indenture and
the Guarantee Agreement has been duly qualified under the 1939
Act.
(xv) The statements included in the Final
Prospectus under the headings "Certain United States Federal
Income Tax Consequences" and "ERISA Considerations," insofar
as such statements summarize legal matters, are accurate and
fair summaries of such legal matters.
(xvi) Neither the Trust nor the Company is and,
after giving effect to the offering and sale of the Trust
Preferred Securities and the application of the proceeds
thereof as described in the Final Prospectus, will be, an
"investment company" as defined in the 1940 Act.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of New York, the Federal laws of the United States or
the General Corporation Law of the State of Delaware, to the extent
they deem proper and specified in such opinion, upon the opinion of
other counsel of good standing whom they believe to be reliable and who
are satisfactory to counsel for the Underwriters and (B) as to matters
of fact, to the extent they deem proper, on certificates of responsible
officers of the Offerors and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at the
Closing Date.
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(c) The Offerors shall have requested and caused ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇., Executive Vice President and General Counsel of the Company, to
have furnished to the Representatives his opinion, dated the Closing Date and
addressed to the Representatives, to the effect that:
(i) No consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such as
have been obtained under the 1933 Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Final Prospectus and such
other approvals (specified in such opinion) as have been obtained.
(ii) Neither the execution and delivery of the Indenture,
the issue and sale of the Securities, nor the consummation of any other
of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation of or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or its subsidiaries pursuant to, (A) the charter
or by-laws of the Company or its subsidiaries, (B) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or its subsidiaries is a party or bound
or to which its or their property is subject, or (C) any statute, law,
rule, regulation, judgment, order or decree applicable to the Company
or its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or its subsidiaries or any of its or
their properties, which violation or default would, in the case of
clauses (B) and (C) above, either individually or in the aggregate with
all other violations and defaults referred to in this paragraph (ii)
(if any), reasonably be expected to result in a Material Adverse
Effect.
(iii) To the knowledge of such counsel, there is no pending
or threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or their respective property, of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required; and the statements incorporated by reference in the Final
Prospectus under the headings "Supervision and Regulation" in the
Company's most recent Annual Report on Form 10-K insofar as such
statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of such
legal matters, agreements, documents or proceedings.
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(d) The Offerors shall have requested and caused ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
& Finger, P.A., special Delaware counsel for the Offerors, to have furnished to
the Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act;
all filings required under the laws of the State of Delaware with
respect to the formation and valid existence of the Trust as a business
trust have been made; under the Declaration and the Delaware Act, the
Trust has all necessary trust power and authority to (A) own property
and to conduct its business as described in the Registration Statement
and the Final Prospectus, (B) execute, deliver and perform its
obligations under each of the Operative Agreements to which it is a
party, (C) issue and perform its obligations under the Trust Preferred
Securities and Common Securities, and (D) purchase and hold the Junior
Subordinated Debentures.
(ii) Under the Declaration and the Delaware Act, the
execution and delivery by the Trust of the Operative
Agreements to which it is a party, and the
performance by the Trust of its obligations
thereunder, have been duly authorized by all
necessary trust action on the part of the Trust.
(iii) Assuming due authorization, execution and delivery by
the Company and the Administrative Trustees, the
Declaration is a valid and binding obligation of the
Company and the Administrative Trustees, and is
enforceable against the Company and the
Administrative Trustees in accordance with its terms,
except as enforcement thereof may be limited by (A)
bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance of
transfer and other similar laws relating to or
affecting the rights and remedies of creditors
generally, (B) principles of equity or law, including
applicable law relating to fiduciary duties
(regardless of whether considered and applied in a
proceeding in equity or at law) and (C) the effect of
applicable public policy on the enforceability of
provisions relating to indemnification.
(iv) The Trust Preferred 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 nonassessable undivided
beneficial interests in the assets of the Trust. The
holders of the Trust Preferred Securities will be
entitled to the benefits of the Declaration and, as
beneficial owners of the Trust, are entitled to the
same
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limitation of personal liability extended to
stockholders of private corporations for profit
organized under the General Corporation Law of the
State of Delaware. We note that the holders of the
Trust Preferred Securities 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 or
exchanges of Trust Preferred Securities and the
issuance of replacement Trust Preferred Securities
and (B) provide security and/or indemnity in
connection with requests of or directions to the
Property Trustee to exercise its rights and powers
under the Declaration. Under the Declaration and the
Delaware Act, the issuance of the Trust Preferred
Securities is not subject to preemptive or other
similar rights.
(v) The execution, delivery and performance by the Trust
of this Agreement, the Subscription Agreements, the
Trust Preferred Securities and the Common Securities;
the consummation by the Trust of the transactions
contemplated therein; and the compliance by the Trust
with its obligations thereunder do not result in any
violation of the Declaration, the Certificate of
Trust or any applicable Delaware law or Delaware
administrative regulation.
(vi) Except as previously made or obtained, as the case
may be, no filing with, or authorization, approval,
consent, license, order, registration, qualification
or decree of, any Delaware court or Delaware
governmental authority or Delaware agency is
necessary or required in connection with the
execution or delivery by the Trust of the Operative
Agreements to which it is a party, or the performance
by the Trust of the transactions contemplated
thereby.
(e) The Representatives shall have received from ▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date
and addressed to the Representatives, with respect to the issuance and sale of
the Securities, the Operative Agreements, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related matters as
the Representatives may reasonably require, and the Trust and the Company shall
have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(f) The Representatives shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, counsel for the Trust Company, such opinion or opinions, dated the Closing
Date and addressed to the Representatives, with respect to such matters as the
Representatives may
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reasonably require, and the Trust and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to pass
upon such matters.
(g) The Company shall have furnished to the Representatives a
certificate signed by the Chief Executive Officer or Vice Chairman and the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully examined
the Registration Statement, the Final Prospectus, any supplements to the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct on and as of the Closing Date with
the same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus (exclusive of any supplement thereto), there has been no
Material Adverse Effect.
(h) The Trust shall have furnished to the Representatives a
certificate signed by two Administrative Trustees of the Trust, dated the
Closing Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Final Prospectus, any supplements to
the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Trust in
this Agreement are true and correct on and as of the Closing Date with
the same effect as if made on the Closing Date and the Trust has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Trust's knowledge, threatened;
and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus, there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties
of the Trust, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
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(i) The Company shall have requested and caused Ernst &
Young LLP to have furnished to the Representatives, at the Execution
Time and at the Closing Date, letters, (which may refer to letters
previously delivered to one or more of the Representatives), dated
respectively as of the Execution Time and as of the Closing Date, in
form and substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the 1933 Act,
the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and
that they have performed a review of the unaudited interim financial
information of the Company for the three-, six- and nine-month periods
ended March 31, 2000, June 30, 2000 and September 30, 2000, in
accordance with Statement on Auditing Standards No. 71, and stating in
effect that:
(i) in their opinion the consolidated financial
statements audited by them and included in the Company's
Annual Report on Form 10-K at December 31, 1999 and
incorporated by reference in the Registration Statement and
the Final Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
1933 Act, 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
of the unaudited interim financial information for the
nine-month period ended September 30, 2000 and as at September
30, 2000, performing the procedures specified by the American
Institute of Certified Public Accountants for a review of
interim financial information as described in SAS 71 Interim
Financial Information (but not an examination in accordance
with auditing standards generally accepted in the United
States), which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter, a reading of the minutes of the meetings of the
shareholders and Board of Directors of the Company as set
forth in the minute books through a specified date not more
than three days prior to the date of the letter; and inquiries
of certain officials of the Company who have responsibility
for financial and accounting matters of the Company as to
transactions and events subsequent to December 31, 1999,
nothing came to their attention which caused them to believe
that:
any unaudited financial statements included
or incorporated by reference in the Registration
Statement and the Final Prospectus do not comply as
to form in all material respects with applicable
accounting requirements of the 1933 Act and with the
1933 Act Regulations with respect to financial
statements included or incorporated by reference in
quarterly reports on Form 10-Q under the 1934 Act;
and said unaudited financial statements are not in
conformity with accounting principles generally
accepted in the United States applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated by
reference in the Registration Statement and the Final
Prospectus;
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At December 31, 2000, there were any changes
in consolidated common stock, increase in
consolidated long-term debt, decrease in consolidated
shareholders' equity or consolidated allowance for
loan losses, as compared with the amounts shown on
the September 30, 2000 unaudited statement of
condition included or incorporated by reference in
the Registration Statement and the Final Prospectus,
or for the period from October 1, 2000 to December
31, 2000, there was any decrease, as compared with
the corresponding periods in the preceding year, in
consolidated net interest income, consolidated income
before taxes or in total or per-share amount of
consolidated net income, except in all instances for
changes, increases, or decreases that that
Registration Statement discloses have occurred or may
occur and except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the
Representatives; and
the information included or incorporated by
reference in the Registration Statement and Final
Prospectus in response to Regulation S-K, Item 301
(Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to
Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K;
and
(iii) with respect to the period from October 1,
2000 to December 31, 2000 they have:
read the unaudited consolidated financial
statements of the Company for the three months ended
December 31 of both 2000 and 1999 furnished to them
by the Company, officials of the Company have advised
them that no such consolidated financial statements
as of any date or for any period subsequent to
December 31, 2000 were available; and
inquired or certain officials of the Company
who have the responsibility for financial and
accounting matters as to whether the unaudited
consolidated financial statements referred to in
(iii) (1) are stated on a basis substantially
consistent with that of the audited consolidated
financial statements incorporated by reference in the
Registration Statement.
(iv) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and
23
24
in Exhibit 12 to the Registration Statement, including the
information set forth under the captions "Capitalization" and
"Selected Historical Financial Data" in the Final Prospectus,
the information included or incorporated by reference in Items
1, 2, 6, 7 and 11 of the most recent Company's Annual Report
on Form 10-K, incorporated by reference in the Registration
Statement and the Final Prospectus, and the information
included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated by reference in the Company's Quarterly Reports
on Form 10-Q, incorporated by reference in the Registration
Statement and the Final Prospectus, the information included
in Item 7 of the Company's Reports on Form 8-K filed on
October 18, 2000 and January 18, 2001 incorporated by
reference in the Registration Statement and Final Prospectus,
and certain financial information about the Company included
in the Company's Form 8-K filed on December 18, 2000
incorporated by reference in the Registration Statement and
the Final Prospectus, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of
legal interpretation.
References to the Final Prospectus in this paragraph (i) include any
supplement thereto at the date of the letter.
(j) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus, there
shall not have been (i) any change or decrease specified in the letter
or letters referred to in paragraph (i) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final
Prospectus the effect of which, in any case referred to in clause (i)
or (ii) above, is, in the sole judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated
by the Registration Statement and the Final Prospectus.
(k) At the Closing Date, the Trust Preferred Securities
shall be rated in one of the four highest rating categories for
preferred stock ("Investment Grade") by Standard & Poor's Rating
Service and by ▇▇▇▇▇'▇ Investors Service, Inc., and the Company shall
have delivered to the Underwriters a letter, dated as of such date,
from each such rating organization, or other evidence satisfactory to
the Underwriters, confirming that the Trust Preferred Securities have
such ratings. Since the time of execution of this Agreement, there
shall not have occurred a downgrading in, or withdrawal of, the rating
assigned to the Trust Preferred Securities or any of the Company's
securities or financial strength by any such rating organization or any
other "nationally recognized statistical rating organization," as
defined for purposes of Rule 436(g)(2) under the 1933 Act Regulations,
and no such rating organization shall have publicly announced that it
has under
24
25
surveillance or review with negative implications its rating of the
Trust Preferred Securities or any of the Company's securities or
financial strength.
(l) The NASD shall not have raised any objection with
respect to the Fairness or reasonableness of the underwriting terms and
arrangements.
(m) The Trust Preferred Securities shall have been listed
and admitted and authorized for trading on the New York Stock Exchange,
and satisfactory evidence of such actions shall have been provided to
the Representatives.
(n) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in
this Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and
all obligations of the Underwriters hereunder may be canceled at, or at
any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of ▇▇▇▇▇ & Wood LLP, counsel for the Underwriters, at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Offerors will reimburse the Underwriters
severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
8. Indemnification and Contribution.
(a) The Offerors agree to indemnify and hold harmless
each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
meaning of either the 1933 Act or the 1934 Act against any and all
losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the 1933 Act, the 1934 Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon
25
26
any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action;
provided, however, that the Offerors will not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to
the Offerors by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Offerors may
otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Offerors, each of its respective
directors, each of its respective officers who signs the Registration
Statement, and each person who controls the Trust and the Company
within the meaning of either the 1933 Act or the 1934 Act, to the same
extent as the foregoing indemnity in paragraph (a) above from the
Offerors to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Offerors by
or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Offerors
acknowledges that the statements set forth in the last paragraph of the
cover page regarding delivery of the Securities and, under the heading
"Underwriting," (i) the list of Underwriters and their respective
participation in the sale of the Trust Preferred Securities, (ii) the
sentences related to concessions and reallowances and (iii) the
paragraph related to stabilization, syndicate covering transactions and
penalty bids in any Preliminary Final Prospectus and the Final
Prospectus constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in any Preliminary
Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the
26
27
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Offerors and the
Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Offerors and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand
and by the Underwriters on the other from the offering of the Trust
Preferred Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Trust Preferred
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Trust Preferred Securities
purchased by such Underwriter hereunder. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the
Offerors and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Offerors on the one hand and of the
Underwriters on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Offerors shall be
deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be
27
28
equal to the total underwriting discounts and commissions (before
deducting expenses), in each case as set forth on the cover page of the
Final Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Offerors on the
one hand or the Underwriters on the other, the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Offerors and
the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the 1933 Act or
the 1934 Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the
meaning of either the 1933 Act or the 1934 Act, each officer of the
Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Trust Preferred
Securities agreed to be purchased by such Underwriter or Underwriters hereunder
and such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining Underwriters shall
be obligated severally to take up and pay for (in the respective proportions
which the number of Trust Preferred Securities set forth opposite their names in
Schedule II hereto bears to the number of Trust Preferred Securities set forth
opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the number of Trust Preferred Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the number of Trust Preferred Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Trust Preferred
Securities, and if such nondefaulting Underwriters do not purchase all the Trust
Preferred Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Offerors. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Offerors and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Offerors prior to delivery of
28
29
and payment for the Trust Preferred Securities, if at any time prior to such
time (i) trading in the Company's Common Stock shall have been suspended by the
Commission or the Nasdaq National Market or trading in securities generally on
the New York Stock Exchange or the Nasdaq National Market shall have been
suspended or limited or minimum prices shall have been established on either of
such exchange or the Nasdaq National Market, (ii) a banking moratorium shall
have been declared either by Federal, New York State or Alabama authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Final Prospectus (exclusive of any supplement thereto.
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Offerors or its respective officers or trustees and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or the Offerors or any of the officers, directors, employees, agents
or controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 7 and 8
hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representatives, will
be mailed, delivered or telefaxed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. General Counsel
(fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention:
General Counsel; or, if sent to the Company, will be mailed, delivered or
telefaxed to Regions Financial Corporation, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. (fax no.:
(▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇., Executive Vice
President and General Counsel of Regions Financial Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers, directors, employees, agents and controlling persons referred to
in Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK.
15. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
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30
17. Definitions. The terms which follow, when used in
this Agreement, shall have the meanings indicated.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City or Birmingham, Alabama.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the 1933 Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
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31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
REGIONS FINANCING TRUST I
By: REGIONS FINANCIAL CORPORATION, as depositor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Executive Vice President, General Counsel
and Corporate Secretary
REGIONS FINANCIAL CORPORATION
By: /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: D. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President and
Comptroller
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
UBS WARBURG LLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Managing Director
For themselves and the other several Underwriters, if any, named in Schedule II
to the foregoing Agreement.
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SCHEDULE I
Underwriting Agreement dated: February 16, 2001
Registration Statement No. 333-54552
Representative(s): ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Inc., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇
▇▇▇▇▇▇ & Company, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated and UBS Warburg LLC
Closing Date: February 26, 2001
Title: 8% Trust Preferred Securities
Distribution rate: 8% per annum
Distribution payment dates: March 31, June 30, September 30 and December
31 of each year, commencing June 30, 2001
Record dates: The 15th calendar day immediately
preceding each distribution payment
date.
Liquidation amount: $25 per security, plus accumulated
distributions, if any
Redemption provisions: The Company will have the right to redeem the
Junior Subordinated Debentures upon the
occurrence and continuation of a Tax Event, an
Investment Company Event or a Capital
Treatment Event, in whole but not in part,
within 90 days of the occurrence of such event.
Initial public offering price: $25 per security plus accumulated
distributions, if any, from February 26, 2001
Purchase price: $25 per security plus accumulated
distributions, if any, from February 26, 2001
I-1
33
Underwriter commission: $0.7875 per security
Form: Book-entry only
Type of Offering: Non-delayed
Date referred to in Section 5(h) after which the Company may offer or sell
preferred securities issued or guaranteed by the Company without the consent of
the Representative(s): February 20, 2001.
Modification of items to be covered by the letter from
Ernst & Young LLP delivered pursuant to
Section 6(e) at the Execution Time: None
2
34
SCHEDULE II
Number of Trust
Preferred Securities to
Underwriters be Purchased
------------- -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc................................................ 2,100,000
-------------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated...................... 2,090,000
-------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc............................................ 1,150,000
-------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated...................................... 2,090,000
-------------------------
UBS Warburg LLC......................................................... 2,090,000
-------------------------
ABN AMRO Incorporated................................................... 90,000
-------------------------
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc................................................ 90,000
-------------------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc................................................. 90,000
-------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc............................................... 90,000
-------------------------
CIBC World Markets Corp................................................. 90,000
-------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated.............................................. 90,000
-------------------------
First Union Securities, Inc............................................. 90,000
-------------------------
Fleet Securities, Inc................................................... 90,000
-------------------------
H&R Block Financial Advisors, Inc....................................... 90,000
-------------------------
McDonald Investments Inc., a KeyCorp Company............................ 90,000
-------------------------
Prudential Securities Incorporated...................................... 90,000
-------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc......................................... 90,000
-------------------------
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC...................................... 90,000
-------------------------
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc......................................... 90,000
-------------------------
Advest, Inc............................................................. 45,000
-------------------------
▇.▇. ▇▇▇▇ & Associates, Inc............................................. 45,000
-------------------------
▇.▇. ▇▇▇▇▇▇▇▇ & Co...................................................... 45,000
-------------------------
▇▇▇▇▇▇▇▇▇▇ & Co. Inc.................................................... 45,000
-------------------------
Gibraltar Securities Co................................................. 45,000
-------------------------
Gruntal & Co., L.L.C.................................................... 45,000
-------------------------
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc........................................ 45,000
-------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC............................................. 45,000
-------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated.................................... 45,000
-------------------------
Mesirow Financial, Inc.................................................. 45,000
-------------------------
NatCity Investments, Inc................................................ 45,000
-------------------------
▇▇▇▇▇▇▇▇ Inc............................................................ 45,000
-------------------------
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated................................ 45,000
-------------------------
TD Securities (USA) Inc................................................. 45,000
-------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Incorporated............................................. 45,000
-------------------------
Wachovia Securities, Inc................................................ 45,000
-------------------------
II-3
35
Total....................................................... 11,500,000
=========================
4
