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EXHIBIT 1.5
REGIONS FINANCIAL CORPORATION
(a Delaware corporation)
$500,000,000
7.00% Subordinated Notes due 2011
UNDERWRITING AGREEMENT
New York, New York
February 28, 2001
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Regions Financial Corporation, a Delaware corporation (the "Company"),
proposes, upon the terms and conditions set forth in this underwriting agreement
(this "Agreement") to issue and sell its 7.00% Subordinated Notes due 2011 in an
aggregate principal amount equal to $500,000,000 (the "Securities") to Xxxxxxx
Xxxxx Xxxxxx 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 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"), between the Company and DTC.
The Securities will be issued pursuant to an indenture, dated as of
February 26, 2001 (the "Original Indenture"), as supplemented by the Second
Supplemental Indenture, dated as of March 5, 2001 (the "Second Supplemental
Indenture" and, together with the Original Indenture, the "Indenture"), in each
case, between the Company and Bankers Trust Company, as trustee (the "Indenture
Trustee").
The Indenture, the DTC Agreement and this Agreement are collectively
referred to as the "Operative Agreements."
The Company and certain trusts 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
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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 the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act").
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 ("XXXXX").
1. Representations and Warranties. 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 Company meets the requirements for use of Form S-3
under the 1933 Act and has 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 and certain other securities. The Company may have filed one
or more amendments thereto, including a Preliminary Final Prospectus,
each of which has previously been furnished to you. The Company shall
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
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Company has 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 substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. 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, 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 Company makes no representations or warranties as to
(i) those parts of the Registration Statement which shall constitute
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 Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement
thereto).
(c) 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.
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(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 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, 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 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 Xxxxxx
Xxxxxx, 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 security holder
or the Company.
(h) 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.
(i) 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).
(j) The Securities have been duly authorized by the Company
for issuance as contemplated by this Agreement. The Securities, when
issued and authenticated in the manner provided for in the Indenture
and delivered against payment of the consideration
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therefor in accordance with the terms of this 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 Securities will be in the form
contemplated by, and each registered holder thereof will be entitled to
the benefits of, the Indenture.
(k) 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.
(l) The Company is not 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 not be, an
"investment company" as defined in the Investment Company Act of 1940,
as amended (the "1940 Act").
(m) 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 connection with
the purchase and distribution of the Securities by the Underwriters in
the manner contemplated herein and in the Final Prospectus.
(n) 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
(n), reasonably be expected to result in a Material Adverse Effect.
(o) 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,
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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.
(p) 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.
(q) 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.
(r) 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 (r), reasonably be expected to result in a Material Adverse
Effect.
(s) 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.
(t) 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
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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.
(u) 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.
(v) 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.
(w) 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.
(x) 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.
(y) 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
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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.
(z) 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 Xxxxxxx Xxxxx
Barney 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 Xxxxxxx Xxxxx Xxxxxx Holdings
Inc.
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
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment.
(a) Delivery. Delivery of and payment for the Securities shall
be made on the date which is three Business Days after the Execution
Date, which date and time may be postponed by agreement among the
Representatives 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 Securities shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of
the Company by wire transfer payable in same-day funds to an account
specified by the Company. Delivery of the Securities shall be made
through the facilities of DTC unless the Representatives shall
otherwise instruct. Delivery of the Securities shall be made at such
location as Xxxxxxx Xxxxx Barney Inc. shall reasonably designate at
least one Business Day in advance of the Closing Date. Certificates for
the
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Securities shall be registered in such names and in such denominations
as Xxxxxxx Xxxxx Xxxxxx Inc. may request not less than two Business
Days in advance of the Closing Date. The Company agrees to have the
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 Securities shall be made at the offices of Xxxxx & Wood LLP,
One World Trade Center, 58th Floor, 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 Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its respective best efforts to cause
the Registration Statement, if not effective at the Execution Time, and
any amendment thereof, to become effective. Prior to the termination of
the offering of the Securities, the Company will not file any amendment
of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
or any Rule 462(b) Registration Statement unless the Company has
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement 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 Company will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company 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 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 Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for
such purpose. The Company 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.
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(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 Company
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 Company will use the net proceeds received by them
from the sale of the Securities in the manner specified in the Final
Prospectus under "Use of Proceeds."
(d) The Company, during the period when a prospectus relating
to the 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 Company 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 Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities and will 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 Company 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 Securities, in any jurisdiction where it is not now so subject.
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(h) The Company will not, without the prior written consent of
Xxxxxxx Xxxxx Xxxxxx 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 debt securities issued by
the Company (other than the 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 1934 Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of 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 Company shall have requested and caused Xxxxxx & 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,
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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 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).
(v) The Securities have been duly authorized, executed
and delivered by the Company for issuance and, when executed
and authenticated in the manner provided for in the Indenture
and delivered against payment for the consideration therefor
in accordance with the terms of this 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 Securities are in the
form contemplated by, and each registered holder thereof is
entitled to the benefits of, the Indenture.
(vi) 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.
(vii) 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
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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.
(viii) 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.
(ix) 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.
(x) The Registration Statement has become effective
under the 1933 Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); 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).
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(xi) The Indenture has been duly qualified under the
0000 Xxx.
(xii) The statements included in the Final Prospectus
under the heading "Certain United States Federal Income Tax
Consequences," insofar as such statements summarize legal
matters, are accurate and fair summaries of such legal
matters.
(xiii) The Company is not 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 not 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 Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Company shall have requested and caused Xxxxxx X.
Xxxxxxxx, Xx., 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
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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.
(d) The Representatives shall have received from Xxxxx & Wood
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 Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(e) The Representatives shall have received from Xxxxxx &
Xxxxxx LLP, counsel for the Indenture Trustee, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
with respect to such matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(f) 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
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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.
(g) 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:
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(1) 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;
(2) 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
(3) 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;
(iii) with respect to the period from October 1, 2000 to
December 31, 2000 they have:
(1) 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
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(2) 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; and
(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 in Exhibit 12 to the
Registration Statement, including the information set forth
under the captions "Consolidated Ratios of Earnings to Fixed
Charges and Preferred Stock Dividends," "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 and incorporated by reference in the Registration
Statement and the Final Prospectus, 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
and 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, 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 and
certain financial information regarding the calculation of the
Company's ratio of earnings to fixed charges and preferred
stock dividends on the Company's Form 8-K to be filed prior to
the Closing Date and to be 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 (g) include any
supplement thereto at the date of the letter.
(h) 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
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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.
(i) At the Closing Date, the Securities shall be rated in one
of the four highest rating categories for long-term debt ("Investment
Grade") by Standard & Poor's Rating Service and by Xxxxx'x 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
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 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 surveillance or review with negative
implications its rating of the Securities or any of the Company's
securities or financial strength.
(j) The NASD shall not have raised any objection with respect
to the fairness or reasonableness of the underwriting terms and
arrangements.
(k) 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 Xxxxx & Wood LLP, counsel for the Underwriters, at
Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 Company will reimburse the Underwriters
severally through Xxxxxxx Xxxxx Xxxxxx Inc. on demand for all out-of-pocket
expenses (including
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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 Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
meaning of either the 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 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 Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its respective
directors, each of its respective officers who signs the Registration
Statement, and each person who controls 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 Company to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter
may otherwise have. The Company and the Underwriters acknowledge 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 Securities, (ii) the sentences related
to concessions and reallowances and (iii) the paragraphs 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.
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(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 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 Company 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 Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter
(except as may be provided in
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any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company 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 Company 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 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 Company 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 Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) 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 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 Securities set
forth opposite their names in Schedule II hereto bears to the number of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the number of Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the number of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or
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the Company. 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 Company 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 Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Securities 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
Company 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
Company 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 Xxxxxxx Xxxxx Barney Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Xxxxxx
Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General
Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
Regions Financial Corporation, Xxxxxx X. Xxxxxxxx, Xx. (fax no.: (000) 000-0000)
and confirmed to Xxxxxx X. Xxxxxxxx Xx., Executive Vice President and General
Counsel of Regions Financial Corporation, 000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx,
Xxxxxxx 00000.
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.
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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.
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
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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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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 FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Executive Vice President, General
Counsel and Corporate Secretary
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
XXXXXXX XXXXX BARNEY INC.
XXXXXX XXXXXX & COMPANY, INC.
BEAR, XXXXXXX & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxxx X. XxXxxxxxx, Xx.
------------------------------------
Name: Xxxx X. XxXxxxxxx, Xx.
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 28, 2001
Registration Statement No. 333-54552
Representative(s): Xxxxxxx Xxxxx Xxxxxx, Inc., Xxxxxx
Xxxxxx & Company, Inc., Bear,
Xxxxxxx & Co. Incorporated, Credit
Suisse First Boston Corporation, and
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
Closing Date: March 5, 2001
Title: 7.00% Subordinated Notes due 0000
Xxxxxxxxx principal amount: $500,000,000
Stated maturity: Xxxxx 0, 0000
Xxxxxxxx rate: 7.00% per annum
Interest payment dates: March 1 and September 1 of each
year, commencing September 1, 2001
Record dates: The 15th calendar day of the month
immediately prior to the month in
which each interest payment date falls.
Redemption provisions: The Securities are not redeemable
prior to maturity.
Initial public offering price: 99.575% of the aggregate principal
amount thereof plus accumulated
interest, if any, from Xxxxx 0, 0000
Xxxxxxxx price: 98.925% of the aggregate principal
amount thereof plus accumulated
interest, if any, from March 5, 2001
Underwriters' commission: 0.65% of the aggregate principal amount thereof
Form: Book-entry only
Type of Offering: Non-delayed
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Date referred to in Section 5(h) after which the Company may offer or sell
Securities issued by the Company without the consent of the Representative(s):
March 5, 2001.
Modification of items to be covered by the letter from
Ernst & Young LLP delivered pursuant to
Section 6(g) at the Execution Time: None
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SCHEDULE II
Aggregate
Principal Amount
of Securities to
Underwriters be Purchased
------------ ----------------
Xxxxxxx Xxxxx Xxxxxx Inc................................................ $ 400,002,000.00
----------------
Xxxxxx Xxxxxx & Company, Inc............................................ 50,000,000.00
----------------
Bear, Xxxxxxx & Co. Incorporated........................................ 16,666,000.00
----------------
Credit Suisse First Boston Corporation.................................. 16,666,000.00
----------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated..................... 16,666,000.00
----------------
Total....................................................... $ 500,000,000.00
================
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