AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 1, 1996
REGISTRATION NO. 33--64333
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________
DEPOSIT GUARANTY CORP.
(Exact name of registrant as specified in its charter)
MISSISSIPPI 64-0472169
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
210 East Capitol Street
Post Office Box 730
Jackson, Mississippi 39205
Telephone Number: (601) 354-8497
(Address, including zip code, and telephone number, including area
code of registrant's principal executive offices)
Arlen L. McDonald
Deposit Guaranty Corp.
210 East Capitol Street
Post Office Box 730
Jackson, Mississippi 39205
Telephone Number: (601) 354-8497
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_________________________________
Copies to:
Keith Parsons, Esq. William S. Rubenstein, Esq.
Watkins Ludlam & Stennis Skadden, Arps, Slate,
633 North State Street Meagher & Flom
Jackson, Mississippi 39205 919 Third Avenue
Telephone Number: (601) 949-4701 New York, New York 10022
Telephone Number: (212) 735-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF SECURITIES TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
________________________
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for
the same offering.( ) ______________.
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.( )_____________
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box.( )
CALCULATION OF REGISTRATION FEE
_______________________________________________________________________________
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH CLASS MAXIMUM AGGREGATE AMOUNT OF
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED(1) REGISTERED(2) PER UNIT(3) PRICE(4) FEE
________________________________________________________________________________
++ ++ ++
Debt Securities . + + +
. . . . . . . . . + + +
Debt Warrants . . + + +
. . . . . . . . . + + +
Preferred Stock, no + + +
par value . . . + + +
. . . . . . . . . + + +
Depositary Shares + + +
. . . . . . . . . + + +
Preferred Stock . + + +
Warrants. . . + $300,000,000 ++ $300,000,000 + $103,500(5)
. . . . . . . . . +
Depositary Share + + +
Warrants . . . + + +
. . . . . . . . . + + +
Common Stock,
no par value . + + +
. . . . . . . . . + + +
Common Stock
Warrants. . . . + + +
. . . . . . . . . + + +
. . . . . . . . . ++ ++ ++
(1) The securities registered hereunder may be sold separately,
together, or as units with other securities registered hereunder.
(2) In no event will the aggregate initial offering price of the Debt
Securities, Debt Warrants, Preferred Stock, Preferred Stock
Warrants, Depositary Shares, Depositary Share Warrants, Common
Stock and Common Stock Warrants, issued under this Registration
Statement and in the case of Warrants for which separate
consideration is payable upon issuance of underlying securities,
securities issued upon exercise of Warrants, exceed $300,000,000
or the equivalent thereof in one or more foreign currencies or
units of one or more foreign currencies or composite currencies
(such as European Currency Units). The aggregate amount of
equity securities registered hereunder is further limited to that
which is permissible under Rule 415(a)(4) under the Securities
Act. If any securities are issued at an original issue discount,
then additional securities may be issued as long as the aggregate
initial offering price of all such securities, together with the
initial offering price of all other securities registered
hereunder, does not exceed $300,000,000.
(3) The proposed maximum offering price per unit will be determined
from time to time by the Registrant in connection with the
issuance by the Registrant of the securities registered
hereunder.
(4) No separate consideration will be received for (i) Common Stock
that is issued upon conversion at the option of a holder of Debt
Securities, Preferred Stock, or Depositary Shares or securities
that are issued upon conversion at the option of the Corporation
of Debt Securities, Preferred Stock, or Depositary Shares. The
proposed maximum aggregate offering price has been estimated
solely for the purpose of computing the registration fee pursuant
to Rule 457 of the Securities Act of 1933.
(5) Previously paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES
THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE
SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS
TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN
ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION DATED FEBRUARY 1, 1996
PROSPECTUS
Deposit Guaranty Corp.
$300,000,000
DEBT SECURITIES DEBT WARRANTS
PREFERRED STOCK PREFERRED STOCK WARRANTS
DEPOSITARY SHAR DEPOSITARY SHARE WARRANTS
COMMON STO COMMON STOCK WARRANTS
Deposit Guaranty Corp., a Mississippi business
corporation (the "Corporation"), intends to issue from time
to time, either separately or together, (i) one or more
series of its unsecured debt securities, which may be either
senior debentures, notes, bonds, and/or other evidences of
indebtedness (the "Senior Debt Securities") or subordinated
debentures, notes, bonds, and/or other evidences of
indebtedness which may be convertible at the option of a
holder or the Corporation into Equity Securities (as
described herein) of the Corporation (the "Subordinated Debt
Securities" and, together with the Senior Debt Securities,
the "Debt Securities"), (ii) warrants to purchase Debt
Securities (the "Debt Warrants"), (iii) shares of Preferred
Stock, no par value (the "Preferred Stock"), which may be
convertible, at the option of the holder, into Common Stock
or any other class or series of Equity Securities of the
Corporation or convertible at the option of the Corporation
into Equity Securities or other debt securities of the
Corporation, (iv) shares of Preferred Stock represented by
depositary shares ("Depositary Shares"), (v) warrants to
purchase shares of Preferred Stock (the "Preferred Stock
Warrants"), (vi) warrants to purchase Depositary Shares (the
"Depositary Share Warrants"), (vii) Common Stock, no par
value (the "Common Stock" and, together with the Preferred
Stock or Depositary Shares representing Preferred Stock, the
"Equity Securities"), and (viii) warrants to purchase Common
Stock (the "Common Stock Warrants," and together with the
Debt Warrants, the Preferred Stock Warrants, and the
Depositary Share Warrants, being collectively referred to
herein as the "Securities Warrants") in amounts, at prices,
and on terms to be determined at the time of the offering.
The Debt Securities, Securities Warrants, Preferred Stock,
Depositary Shares and Common Stock offered hereby are
collectively referred to herein as the "Securities."
The Securities offered pursuant to this Prospectus
may be offered separately or together in one or more series
up to an aggregate initial public offering price of
$300,000,000 or the equivalent thereof in one or more
foreign currencies or units of one or more foreign
currencies or composite currencies (such as European
Currency Units), at individual prices and on terms to be set
forth in one or more supplements to this Prospectus (each, a
"Prospectus Supplement"); provided, however, that the amount
of Equity Securities issuable hereunder may be further
limited to that which is permissible under Rule 415(a)(4).
The particular terms of the Securities offered by any
Prospectus Supplement will be described in the Prospectus
Supplement relating to such Securities (an "Applicable
Prospectus Supplement").
The Senior Debt Securities, when issued, will rank
equally with all other unsubordinated and unsecured
indebtedness of the Corporation. The Subordinated Debt
Securities, when issued, will be subordinate to all existing
and future obligations of the Corporation to its other
creditors, except obligations ranking on a parity with or
junior to the Subordinated Debt Securities. See
"Description of Debt Securities -- Subordination of
Subordinated Debt Securities." The Debt Securities of any
series may be issued with Securities Warrants, and, in the
case of the Subordinated Debt Securities, may be convertible
into Equity Securities of the Corporation. Unless otherwise
indicated in a Prospectus Supplement, the maturity of the
Subordinated Debt Securities will be subject to acceleration
only in the event of certain events of bankruptcy,
insolvency, or reorganization of the Corporation. See
"Description of Debt Securities -- Events of Default".
The specific terms of the Securities in respect of
which this Prospectus is being delivered will be set forth
in a Prospectus Supplement and, among other things, will
include, where applicable, (i) in the case of Debt
Securities, the specific designation, aggregate principal
amount, currency, denomination, maturity, priority, premium,
if any, rate of interest (which may be variable or fixed),
time of payment of interest, terms for optional redemption
or repayment by the Corporation or any holder and for
sinking fund payments, terms for conversion, the initial
public offering price, any special provisions related to
Debt Securities denominated in a foreign currency or issued
as medium-term notes, original issue discount securities, or
with other special terms, and the designation of any
applicable trustee, security registrar, or paying agent,
(ii) in the case of shares of Preferred Stock, the specific
title and stated value, number of shares or fractional
interests therein, any dividend, liquidation, redemption,
voting, and other rights, the terms for conversion, if any,
the initial public offering price, and whether such shares
are to be issued as Depositary Shares, and, if so, the
fraction of a share to be represented by each Depositary
Share and the designation of the Depositary (as defined
herein), (iii) in the case of Common Stock, the aggregate
number of shares offered and the initial offering price, and
(iv) in the case of Securities Warrants, where applicable,
the applicable type and amount of securities covered
thereby, and, where applicable, the aggregate amount,
duration, offering price, exercise price, and detachability.
A Prospectus Supplement will also contain
information, where applicable, about certain U.S. Federal
income tax, accounting, and other considerations relating
to, and any listing on a securities exchange of, the
Securities covered by the Prospectus Supplement.
THE SECURITIES WILL BE OBLIGATIONS OF THE
CORPORATION, ARE NOT AND WILL NOT BE SAVINGS ACCOUNTS OR
DEPOSITS, WILL NOT BE OTHER OBLIGATIONS OF ANY BANK OR
NONBANK SUBSIDIARY OF THE CORPORATION, AND ARE NOT INSURED
BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK
INSURANCE FUND, THE SAVINGS ASSOCIATION INSURANCE FUND, OR
ANY OTHER GOVERNMENT AGENCY OR INSTRUMENTALITY.
- - - - - - - - - - - - - - - - - - -
THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Securities may be sold to underwriters
pursuant to the terms of the offering fixed at the time of
sale, directly by the Corporation, or through dealers or
agents designated from time to time by the Corporation,
which agents may be affiliates of the Corporation. Each
Prospectus Supplement will set forth the names of the
underwriters, dealers, or agents, if any, and any applicable
fees, commissions, or discounts and the net proceeds to the
Corporation from such sale together with the terms of the
offering. See "Plan of Distribution."
THE DATE OF THIS PROSPECTUS IS FEBRUARY , 1996.
AVAILABLE INFORMATION
The Corporation is subject to the informational
requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and in accordance therewith
files reports, proxy statements, and other information with
the Securities and Exchange Commission (the "Commission").
Such reports, proxy statements, and other information filed
by the Corporation can be inspected and copied at the public
reference facilities maintained by the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the Commission's regional offices at The
Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661, and Seven World Trade Center,
Thirteenth Floor, New York, New York 10048. Copies of such
material can be obtained by mail from the Public Reference
Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The Common
Stock of the Corporation is quoted on the Nasdaq National
Stock Market (symbol: DEPS), and such reports, proxy
statements, and other information concerning the Corporation
also may be inspected at the offices of the National
Association of Securities Dealers, Inc. at 9513 Key West
Avenue, Rockville, Maryland 20850-3389.
The Prospectus constitutes part of a registration
statement on Form S-3 (together with all amendments and
exhibits thereto, the "Registration Statement") filed by the
Corporation with the Commission under the Securities Act.
This Prospectus does not contain all of the information set
forth in the Registration Statement, certain parts of which
are omitted from this Prospectus in accordance with the
rules and regulations of the Commission. Reference is made
to the Registration Statement and to the exhibits thereto
for further information pertaining to the Corporation and
the Securities offered hereby. The Registration Statement
(and exhibits thereto) may be inspected without charge at
the office of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and copies thereof may be obtained
from the Commission at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this
Prospectus the following documents and information
heretofore filed by the Corporation with the Commission:
1. The Corporation's Annual Report on Form 10-K
for the year ended December 31, 1994;
2. The Corporation's Quarterly Reports on Form
10-Q for the quarters ended March 30, 1995,
June 30, 1995 and September 30, 1995;
3. The description of capital stock contained in
Item 14 of the Corporation's Registration
Statement on Form 10 filed April 21, 1970,
Item 4 of the Corporation's Quarterly Report
on Form 10-Q for the quarter ended March 31,
1982, Item 4 of the Corporation's Quarterly
Report on Form 10-Q for the quarter ended
March 31, 1986, Item 4 of the Corporation's
Quarterly Report on Form 10-Q for the quarter
ended March 31, 1987, relating to the
description of the Corporation's Common
Stock; and
4. The Corporation's Current Report on Form 8-K
dated September 26, 1995.
All reports subsequently filed by the Corporation
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act prior to the termination of the offering of the
Securities offered hereby shall be deemed to be incorporated
by reference into this Prospectus and to be a part hereof
from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in a
Prospectus Supplement, or any other subsequently filed
document which also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of
this Prospectus.
THE CORPORATION WILL PROVIDE UPON REQUEST AND
WITHOUT CHARGE TO EACH PERSON TO WHOM THIS PROSPECTUS IS
DELIVERED A COPY OF ANY OR ALL OF THE FOREGOING DOCUMENTS
INCORPORATED HEREIN BY REFERENCE (OTHER THAN EXHIBITS TO
SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED
THEREIN BY REFERENCE). WRITTEN REQUESTS SHOULD BE DIRECTED
TO ROBERT G. BARNETT, GENERAL COUNSEL AND SECRETARY, DEPOSIT
GUARANTY CORP., 210 EAST CAPITOL STREET, POST OFFICE BOX
730, JACKSON, MISSISSIPPI, 39205. (TELEPHONE (601) 354-
8497).
NO DEALER, SALESMAN, OR OTHER PERSON HAS BEEN
AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR THE
ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON
AS HAVING BEEN AUTHORIZED BY THE CORPORATION OR ANY
UNDERWRITER OR AGENT. THIS PROSPECTUS MAY NOT BE USED TO
CONSUMMATE SALES OF THE SECURITIES UNLESS ACCOMPANIED BY A
PROSPECTUS SUPPLEMENT. THIS PROSPECTUS AND THE ACCOMPANYING
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR
A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN
THE REGISTERED SECURITIES TO WHICH THEY RELATE AND DO NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE SECURITIES IN ANY JURISDICTION TO ANY PERSON
TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN
SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS
OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE CORPORATION
SINCE THE DATE HEREOF OR THEREOF OR THAT THE INFORMATION
CONTAINED OR INCORPORATED BY REFERENCE HEREIN OR THEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO SUCH DATE.
UNLESS OTHERWISE INDICATED, CURRENCY AMOUNTS IN
THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT ARE STATED IN
U.S. DOLLARS ("$," "DOLLARS," "U.S. DOLLARS," OR "U.S. $").
THE CORPORATION
Deposit Guaranty Corp. (the "Corporation") is a
Mississippi business corporation organized in 1968 as a bank
holding company registered under the Bank Holding Company
Act of 1956, as amended (the "BHCA"). The Corporation is
headquartered at 210 East Capitol Street, Jackson,
Mississippi 39201, telephone (601) 354-8497. Its principal
subsidiaries are Deposit Guaranty National Bank ("Deposit
Guaranty"), a national banking association, with its
principal office in Jackson, Mississippi, Commercial
National Bank ("Commercial"), a national banking association
with its principal office in Shreveport, Louisiana, Citizens
National Bank ("Citizens National"), a national banking
association with its principal office in Hammond, Louisiana
and Merchants National Bank ("Merchants"), a national
banking association with its principal office in Fort Smith,
Arkansas. The Corporation, through its subsidiaries,
provides comprehensive corporate, commercial, correspondent
and individual banking services, and personal and corporate
trust services.
As of December 31, 1994, the Corporation had total
assets of $5.1 billion, total deposits of $4 billion, total
loans of $2.9 billion and shareholders' equity of $443.5
million. Based on total assets at December 31, 1994, the
Corporation ranked first among Mississippi-based bank
holding companies.
Deposit Guaranty is located throughout Mississippi
with approximately 133 banking locations and is the second
largest bank in Mississippi.
Commercial is located in Louisiana. It is the
fifth largest bank in Louisiana and has nineteen banking
locations in the Shreveport/Bossier market and five branches
in the Monroe/West Monroe market.
Deposit Guaranty, through its wholly-owned
subsidiary, Deposit Guaranty Mortgage Company, acts as a
mortgage lender, mortgage banker, mortgage broker and
mortgage servicing agent throughout Mississippi and
Shreveport/Bossier. On August 8, 1995, Deposit Guaranty
Mortgage Company acquired First Mortgage Corp, located in
Omaha, Nebraska for $15.8 million in a purchase business
combination. First Mortgage Corp. has a $1.1 billion
mortgage servicing portfolio and 6 production offices in
Nebraska and Oklahoma.
The Corporation provides investment advice and
brokerage services through three indirect subsidiaries,
Deposit Guaranty Investments, Inc., a subsidiary of Deposit
Guaranty, Commercial National Brokerage Services, Inc., a
subsidiary of Commercial and Merchants Investment Center,
Inc., a subsidiary of Merchants.
The Corporation provides credit insurance related
to extensions of credit by its bank subsidiaries through its
subsidiary, G&W Life Insurance Company.
During 1994, the Corporation acquired First
Columbus Financial Corporation and its wholly-owned
subsidiary First Columbus National Bank located in Columbus,
Mississippi, with assets of approximately $209 million.
First Columbus Financial Corporation was merged into the
Corporation and First Columbus National Bank was merged into
Deposit Guaranty. At year end 1994, the Corporation
acquired LBO Bancorp, Inc., with assets having a fair value
of $109 million, and its wholly-owned subsidiary, Louisiana
Bank, located in West Monroe, Louisiana. LBO Bancorp, Inc.
was merged into a subsidiary of the Corporation and
Louisiana Bank was merged into Commercial. On March 10,
1994, the Corporation purchased the Coahoma County,
Mississippi operations of a local Mississippi bank. This
acquisition added assets of approximately $82 million.
On May 19, 1995, the Corporation exchanged 1.4
million shares of Common Stock for all of the outstanding
shares of Citizens National Bancshares, Inc. ("Citizens"), a
bank holding company, in a pooling of interests transaction.
Citizens had assets of approximately $193 million at the
date of acquisition.
On August 31, 1995, the Corporation exchanged
994,026 shares of Common Stock and $3.7 million for all of
the outstanding shares of common stock of First Merchants
Financial Corporation ("First Merchants"), a bank holding
company with approximately $280 million in total assets.
First Merchants was then merged into Deposit Guaranty
Arkansas Corp., a wholly-owned subsidiary of Deposit
Guaranty Corp., which will continue to operate six branches
in the Fort Smith market under the name Merchants National
Bank.
The Corporation is a legal entity separate and
distinct from its banking and other subsidiaries.
Accordingly, the right of the Corporation, its
securityholders and its creditors to participate in any
distribution of the assets or earnings of its banking and
other subsidiaries is necessarily subject to the prior
claims of the respective creditors of such banking and other
subsidiaries, except to the extent that claims of the
Corporation in its capacity as a creditor of such banking
and other subsidiaries may be recognized.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
AND RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The Corporation's ratios of earnings to fixed
charges and to combined fixed charges and preferred stock
dividends are set forth below for the periods indicated:
Nine Months
Ended
Years Ended December 31, September 30,
1990 1991 1992 1993 1994 1994 1995
Earnings to Fixed
Charges and to Combined
Fixed Charges and
Preferred Stock Divi-
dend Requirements:
Excluding Interest
on Deposits . . . 1.85 2.57 4.48 7.41 7.01 7.12 4.69
Including Interest
on Deposits . . . 1.13 1.18 1.38 1.75 1.79 1.78 1.65
For purposes of computing the above ratios,
earnings represent consolidated income before income taxes
plus fixed charges. Fixed charges include interest expense
(excluding or including interest on deposits, as the case
may be) and the proportion deemed representative of the
interest factor of rental expense, net of income from
subleases. The Corporation had no outstanding preferred
stock for the periods shown.
REGULATORY MATTERS
GENERAL
The Corporation is a bank holding company subject
to supervision and regulation by the Board of Governors of
the Federal Reserve System (the "Federal Reserve Board")
under the BHCA. As a bank holding company, the
Corporation's activities and those of its banking and
nonbanking subsidiaries are limited to the business of
banking and activities closely related or incidental to
banking, and the Corporation may not directly or indirectly
acquire the ownership or control of more than five percent
of any class of voting shares or substantially all of the
assets of any company, including a bank, without the prior
approval of the Federal Reserve Board.
The Corporation's bank subsidiaries, Deposit
Guaranty, Commercial, Citizens National and Merchants, are
national banks subject to supervision and examination by the
Office of the Comptroller of the Currency (the "OCC"). The
Federal Deposit Insurance Corporation (the "FDIC") also has
back-up enforcement authority with respect to these bank
subsidiaries. The Corporation's bank subsidiaries are
insured by, and subject to certain regulations of, the FDIC,
and are also subject to requirements and restrictions under
federal and state law, including requirements to maintain
reserves against deposits, restrictions on the types and
amounts of loans that may be made and the interest that may
be charged thereon, and limitations on the types of
investments that may be made and the types of services that
may be offered. Various consumer laws and regulations also
affect the operations of the Corporation's bank
subsidiaries.
The following description summarizes some of the
laws to which the Corporation and its bank subsidiaries are
subject. To the extent statutory or regulatory provisions
or proposals are described, the description is qualified in
its entirety by reference to the particular statutory or
regulatory provisions or proposals.
REGULATORY RESTRICTIONS ON DIVIDENDS
It is the policy of the Federal Reserve Board that
bank holding companies should pay cash dividends on common
stock only out of income available over the past year and
only if prospective earnings retention is consistent with
the organization's expected future needs and financial
condition . The policy provides that bank holding companies
should not maintain a level of cash dividends that
undermines the bank holding company's ability to serve as a
source of strength to its bank subsidiaries. Principal
sources of revenues for the Corporation are dividends
received from its banks and other subsidiaries and interest
earned on short-term investments and advances to
subsidiaries.
Federal law imposes limitations on the payment of
dividends by the national bank subsidiaries of the
Corporation. Two different calculations are performed to
measure the amount of dividends that may be paid: a recent
earnings test and a cumulative net profit test. Under the
recent earnings test, a dividend may not be paid if the
total of all dividends declared by a national bank in any
calendar year is in excess of the current year's net profits
combined with the retained net profits of the two preceding
years unless the bank obtains the approval of the OCC.
Under the cumulative net undivided profits test, a dividend
may not be paid in excess of a bank's cumulative net profits
after deducting bad debts in excess of the reserve for loan
losses. Under the recent earnings test, which is the more
restrictive of the two tests, at September 30, 1995, Deposit
Guaranty, Commercial, Citizens National and Merchants could
pay dividends of $103.4 million, $26.1 million, $4.2 million
and $1.7 million, respectively, to the Corporation without
prior approval of the OCC. Deposit Guaranty, Commercial,
Citizens National and Merchants had undivided profits of
$193.3 million, $43.0 million, $14.3 million and $146
thousand, respectively, at September 30, 1995.
In addition, the federal regulatory agencies are
authorized to prohibit a national bank or bank holding
company from engaging in an unsafe or unsound banking
practice. Depending upon the circumstances, the agencies
could take the position that paying a dividend would
constitute an unsafe or unsound banking practice.
HOLDING COMPANY STRUCTURE
The Corporation's bank subsidiaries are subject to
restrictions under federal law which limit certain
transactions by each of them with the Corporation and its
nonbanking subsidiaries, including loans, other extensions
of credit, investments or asset purchases. Such
transactions by any bank subsidiary with the Corporation or
any of its nonbanking subsidiaries are limited in amount to
ten percent of such bank subsidiary's capital and surplus
and, with respect to the Corporation and all of its
nonbanking subsidiaries together, to an aggregate of twenty
percent of such bank subsidiary's capital and surplus.
Furthermore, such loans and extensions of credit, as well as
certain other transactions, are required to be secured in
specified amounts. These and certain other transactions,
including any payment of money to the Corporation, must be
on terms and conditions that are or in good faith would be
offered to nonaffiliated companies.
Because the Corporation is a legal entity separate
and distinct from its banking and nonbanking subsidiaries,
its right to participate in the distribution of assets of
any subsidiary upon the subsidiary's liquidation or
reorganization will be subject to the prior claims of the
subsidiary's creditors (including depositors in the case of
bank subsidiaries) except to the extent that the Corporation
may itself be a creditor with recognized claims against the
subsidiary. However, in the event of a liquidation or other
resolution of an insured depository institution, the claims
of depositors and other general or subordinated creditors
are entitled to a priority of payment over the claims of
holders of any obligation of the institution to its
shareholders, including any depository institution holding
company or any shareholder or creditor thereof.
CROSS-GUARANTY AND HOLDING COMPANY LIABILITY
A depository institution insured by the FDIC can
be held liable for any loss incurred by, or reasonably
expected to be incurred by, the FDIC in connection with (i)
the default of a commonly controlled FDIC-insured depository
institution or (ii) any assistance provided by the FDIC to a
commonly controlled depository institution in danger of
default. Each of the Corporation's bank subsidiaries is a
commonly controlled depository institution. Cross-guarantee
liability may result in the ultimate failure or insolvency
of one or more insured depository institutions in a holding
company structure. Any obligation or liability owed by a
bank subsidiary to its parent company or any of the bank
subsidiary's other affiliates is subordinate to the bank
subsidiary's cross-guarantee liability.
Under Federal Reserve Board policy, a bank holding
company is expected to act as a source of financial strength
to each of its banking subsidiaries and commit resources to
their support. Such support may be required at times when,
absent this Federal Reserve Board policy, a holding company
may not be inclined to provide it. As discussed below under
"Prompt Corrective Action," a bank holding company in
certain circumstances could be required to guarantee the
capital plan of an undercapitalized bank subsidiary.
In the event of a bank holding company's
bankruptcy under Chapter 11 of the U.S. Bankruptcy Code, the
trustee will be deemed to have assumed and is required to
cure immediately any deficit under any commitment by the
debtor holding company to any of the federal banking
agencies to maintain the capital of an insured depository
institution, and any claim for breach of such obligation
will generally have priority over most other unsecured
claims.
PROMPT CORRECTIVE ACTION
Under the Federal Deposit Insurance Corporation
Improvement Act of 1991 ("FDICIA"), the federal banking
agencies must take prompt supervisory and regulatory actions
against undercapitalized depository institutions.
Depository institutions are assigned one of five capital
categories: "well capitalized," "adequately capitalized,"
"undercapitalized," "significantly undercapitalized," and
"critically undercapitalized," and subjected to differential
regulation corresponding to the capital category within
which the institution falls. Under certain circumstances, a
well capitalized, adequately capitalized or undercapitalized
institution may be treated as if the institution were in the
next lower capital category. A depository institution is
generally prohibited from making capital distributions
(including paying dividends) or paying management fees to a
holding company if the institution would thereafter be
undercapitalized. Adequately capitalized institutions
cannot accept, renew or roll over brokered deposits except
with a waiver from the FDIC, and are subject to
restrictions on the interest rates that can be paid on such
deposits. Undercapitalized institutions may not accept,
renew, or roll over brokered deposits.
The banking regulatory agencies are permitted or,
in certain cases, required to take certain actions with
respect to institutions falling within one of the three
undercapitalized categories. Depending on the level of an
institution's capital, the agency's corrective powers
include, among other things: placing limits on asset growth
and restrictions on activities; placing additional
restrictions on transactions with affiliates; restricting
the interest rate the institution may pay on deposits;
prohibiting the institution from accepting deposits from
correspondent banks; prohibiting the payment of principal
and interest on subordinated debt; prohibiting the holding
company from making distributions without prior regulatory
approval; and in the most severe cases, appointing a
conservator or receiver for the institution. A bank that is
undercapitalized is required to submit a capital restoration
plan, and such a plan will not be accepted unless, among
other things, the bank's holding company guarantees the plan
up to a certain specified amount. As of September 30, 1995
all of the Corporation's bank subsidiaries exceeded the
required capital ratios for classification as "well
capitalized." See "Capital Adequacy."
FDIC INSURANCE ASSESSMENTS
The Corporation's bank subsidiaries, the deposits
of which are insured, up to applicable limits, by the Bank
Insurance Fund (the "BIF") of the FDIC, are subject to FDIC
deposit insurance assessments.
The FDIC has adopted a risk-based assessment
system under which the assessment rate for an insured
depository institution varies according to the level of risk
involved in its activities. Under this risk-based insurance
system, effective January 1, 1996, the rates applicable
to BIF-assessed deposits have been reduced by 4 basis points
from between 4 and 31 cents per $100 of deposits to between
0 and 27 cents per $100 of deposits. As of that date, the
rate assessed for each of the Corporation's bank
subsidiaries decreased from 4 cents per $100 of eligible
deposits to zero, subject to a minimum assessment of $2,000
per institution per year.
Most thrift institutions are insured by the
Savings Association Insurance Fund (the "SAIF") of the FDIC
and are currently assessed deposit insurance premiums higher
than those assessed against most BIF institutions. In
response to concerns that such an insurance premium
disparity would have a negative effect on SAIF-insured
institutions and the SAIF, Congress recently passed
legislation that would have, among other things, eliminated
the deposit insurance premium disparity and utilized BIF
assessments to help fund debt service on certain Financing
Corporation (FICO) bonds, which could have resulted in
higher insurance premiums for BIF-insured institutions.
This legislation, which was part of budget reconciliation
proposals passed by Congress, was vetoed by President
Clinton in December 1995, but could reappear in subsequent
budget legislation. In addition, other bills have been
introduced in Congress that also attempt to eliminate the
BIF-SAIF assessment disparity. It cannot be predicted
whether, when or in what form any such legislation will be
enacted, or what effect such legislation will have on BIF-
insured institutions such as the Corporation's bank
subsidiaries.
CAPITAL ADEQUACY
RISK-BASED CAPITAL AND LEVERAGE RATIOS
As of September 30,
1995
Mini- "Well
mum capital-
re- ized"
Deposit Citizens quired minimum
Corporation Guaranty Comercial National Merchants ratio ratio
Total
stockholders'
equity . . .
Tier 1 capital 10.91% 10.66% 13.93% 20.06% 12/17% 4.00% 6%
Total capital 12.17% 11.91% 15.19% 21.31% 13.42% 8.00% 10%
Risk-weighted
assets
Leverage ratio 7.95% 7.98% 8.57% 10.44% 7.57% 3.00% 5%
The Federal Reserve Board has adopted risk-based
capital guidelines for bank holding companies such as the
Corporation. The minimum ratio of total capital to risk-
weighted assets (which are the credit risk equivalents of
balance sheet assets and certain off balance sheet items
such as standby letters of credit) is 8.00 percent. At
least half of the total capital must be composed of common
stockholders' equity (including retained earnings),
qualifying non-cumulative perpetual preferred stock, and a
limited amount of qualifying cumulative perpetual preferred
stock and minority interests in the equity accounts of
consolidated subsidiaries, less goodwill, other disallowed
intangibles and disallowed deferred tax assets, among other
items ("Tier 1 capital"). The remainder may consist of a
limited amount of subordinated debt, other perpetual
preferred stock, hybrid capital instruments, mandatory
convertible debt securities that meet certain
requirements, as well as a limited amount of reserves for
loan losses ("Tier 2 capital"). The Federal Reserve Board
has also adopted a minimum leverage ratio for bank holding
companies, requiring Tier 1 capital of at least 3.00
percent of average total consolidated assets. Under the
Federal Reserve Board's requirements, the Corporation's Tier
1 and total capital and leverage ratios at September 30,
1995 were 10.91 percent, 12.17 percent and 7.95 percent,
respectively.
The OCC and other federal bank regulatory
authorities have also established risk-based and leverage
capital guidelines for banks. These regulations are
generally similar to those established by the Federal
Reserve Board for banking holding companies. Under the OCC
guidelines, the Tier 1, total capital and leverage ratios
at September 30, 1995, respectively, for Deposit Guaranty
were 10.66 percent, 11.91 percent and 7.98 percent, for
Commercial were 13.93 percent, 15.19 percent and 8.57
percent, respectively, for Citizens National, were 20.06
percent, 21.31 percent and 10.44 percent, respectively and
for Merchants, were 12.17 percent, 13.42 percent and 7.57
percent, respectively.
The federal banking agencies' risk-based and
leverage ratios are minimum supervisory ratios generally
applicable to banking organizations that meet certain
specified criteria, assuming that they have the highest
regulatory rating. Banking organizations not meeting these
criteria are expected to operate with capital positions well
above the minimum ratios. The federal bank regulatory
agencies may set capital requirements for a particular
banking organization that are higher than the minimum ratios
when circumstances warrant. Federal Reserve Board
guidelines also provide that banking organizations
experiencing internal growth or making acquisitions will be
expected to maintain strong capital positions substantially
above the minimum supervisory levels, without significant
reliance on intangible assets. In addition, the regulations
of the OCC and the Federal Reserve Board provide that
concentration of credit risk and certain risks arising from
nontraditional activities, as well as an institution's
ability to manage these risks, are important factors to be
taken into account by regulatory agencies in assessing an
institution's overall capital adequacy.
The OCC and the Federal Reserve Board recently
adopted amendments to their risk-based capital regulations
to provide for the consideration of interest rate risk in
the agencies' determination of a banking institution's
capital adequacy. The amendments require such institutions
to effectively measure and monitor their interest rate risk
and to maintain capital adequate for that risk. The
agencies have also issued for comment a joint policy
statement that describes a frame-work that may be used by
the agencies to measure and monitor an institution's level
of interest rate risk in the assessment of a bank's capital
adequacy. The agencies plan at some future date to propose
the establishment of an explicit minimum capital requirement
to account for interest rate risk.
As discussed below under "Enforcement Powers,"
failure to meet the minimum regulatory capital requirements
could subject a banking institution to a variety of
enforcement remedies available to federal regulatory
authorities, including, in the most severe cases, the
termination of deposit insurance by the FDIC and placing the
institution into conservatorship or receivership.
ENFORCEMENT POWERS OF THE FEDERAL BANKING AGENCIES
The OCC, the Federal Reserve Board, and the FDIC
have broad enforcement powers, including the power to
terminate deposit insurance, impose substantial fines and
other civil and criminal penalties and appoint a
conservator or receiver. Failure to comply with applicable
laws, regulations and supervisory agreements could subject
the Corporation or its bank subsidiaries, as well as
officers, directors and other institution-affiliated parties
of these organizations, to administrative sanctions and
potentially substantial civil money penalties. In addition
to the grounds discussed under "Prompt Corrective Action,"
the OCC may appoint the FDIC as conservator or receiver for
a bank (or the FDIC may appoint itself, under certain
circumstances) if any one or more of a number of
circumstances exist, including, without limitation, the fact
that the bank is undercapitalized and has no reasonable
prospect of becoming adequately capitalized; fails to become
adequately capitalized when required to do so; fails to
submit a timely and acceptable capital restoration plan; or
materially fails to implement an accepted capital
restoration plan.
CONTROL ACQUISITIONS
The Change in Bank Control Act (the "CBCA")
prohibits a person or group of persons from acquiring
"control" of a bank holding company unless the Federal
Reserve Board has been notified and has not objected to the
transaction. Under a rebuttable presumption established by
the Federal Reserve Board, the acquisition of 10% or more of
a class of voting stock of a bank holding company with a
class of securities registered under Section 12 of the
Exchange Act, such as the Corporation, would, under the
circumstances set forth in the presumption, constitute
acquisition of control of the Company.
In addition, any company is required to obtain the
approval of the Federal Reserve Board under the BHCA before
acquiring 25% (5% in the case of an acquiror that is a
banking holding company) or more of the outstanding Common
Stock of the Corporation, or otherwise obtaining control or
a "controlling influence"over the Corporation.
Effective September 24, 1995, the Riegle-Neal
Interstate Banking and Branching Efficiency Act of 1994 has
permitted an adequately capitalized and adequately managed
bank holding company, with Federal Reserve Board approval,
to acquire banks located in states other than the bank
holding company's home state without regard to whether the
transaction is prohibited under state law. In addition,
effective June 1, 1997, national banks and state banks with
different home states will be permitted to merge across
state lines, with the approval of the appropriate federal
banking agency, unless the home state of a participating
bank passes legislation prior to this date that expressly
prohibits interstate mergers. Further, such interstate
mergers may be effected prior to June 1, 1997 so long as the
home state of each participating bank has passed qualifying
legislation that expressly permits such transactions.
FUTURE LEGISLATION
Various legislation, including proposals to
overhaul the bank regulatory system, expand bank and bank
holding company powers and limit the investments that a
depository institution may make with insured funds, is from
time to time introduced in Congress. Such legislation may
change banking statutes and the operating environment of the
Corporation and its bank subsidiaries in substantial and
unpredictable ways. The Corporation cannot determine the
ultimate effect that potential legislation, if enacted, or
implementing regulations, would have upon the financial
condition or results of operations of the Corporation or its
subsidiaries.
USE OF PROCEEDS
Unless otherwise set forth in the Applicable
Prospectus Supplement, the Corporation intends to use the
net proceeds from the sale of the Securities for general
corporate purposes, including investments in, and advances
to, the Corporation's banking and nonbanking subsidiaries,
reduction of short-term borrowings, investments, and
financing possible future acquisitions including, without
limitation, the acquisition of banking and nonbanking
companies and financial assets and liabilities. The
Corporation may also use part of the net proceeds from the
sale of the Securities for the repurchase of its Common
Stock.
DESCRIPTION OF DEBT SECURITIES
The Senior Debt Securities are to be issued under
an Indenture (the "Senior Indenture"), between the
Corporation and SunTrust Bank, Atlanta, as trustee. The
Subordinated Debt Securities are to be issued under a second
Indenture (the "Subordinated Indenture"), between the
Corporation and SunTrust Bank, Atlanta, as trustee. Copies
of the Senior Indenture and the Subordinated Indenture have
been filed with the Commission as exhibits to the
Registration Statement. The Senior Indenture and the
Subordinated Indenture are sometimes referred to
collectively as the "Indentures." SunTrust Bank, Atlanta is
hereinafter referred to as the "Senior Trustee" when
referring to it in its capacity as trustee under the Senior
Indenture, as the "Subordinated Trustee" when referring to
it in its capacity as trustee under the Subordinated
Indenture, and as the "Trustee" when referring to it in its
capacity as trustee under both of the Indentures. The
following summaries of certain provisions of the Senior Debt
Securities, the Subordinated Debt Securities and the
Indentures do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all the
provisions of the Indenture applicable to a particular
series of Debt Securities (the "Applicable Indenture"),
including the definitions therein of certain terms.
Wherever particular Sections, Articles or defined terms of
the Applicable Indenture are referred to, it is intended
that such Sections, Articles or defined terms shall be
incorporated herein by reference. Article and Section
references used herein are references to the Applicable
Indenture. Capitalized terms not otherwise defined herein
shall have the meaning given in the Applicable Indenture.
The following sets forth certain general terms and
provisions of the Debt Securities offered hereby. The
particular terms of the Debt Securities offered by any
Prospectus Supplement (the "Offered Debt Securities") will
be described in the Prospectus Supplement relating to such
Offered Debt Securities (the "Applicable Prospectus
Supplement").
The Corporation is a banking holding company, and
the right of the Corporation to participate as a shareholder
in any distribution of assets of any subsidiary upon its
liquidation or reorganization or winding-up (and thus the
ability of Holders of the Debt Securities to benefit, as
creditors of the Corporation, from such distribution) is
subject to the prior claims of creditors of any such
subsidiary. The Corporation's bank subsidiaries are subject
to claims by creditors for debt obligations, including
deposit liabilities, obligations for federal funds purchased
and securities sold under repurchase agreements. There are
also various legal limitations on the extent to which the
Corporation's bank subsidiaries may pay dividends or
otherwise supply funds to the Corporation or its affiliates.
See "Regulatory Matters."
GENERAL
The Indentures do not limit the amount of Debt
Securities that may be issued thereunder and provide that
Debt Securities may be issued thereunder from time to time
in one or more series. The Debt Securities will be
unsecured obligations of the Corporation. The Applicable
Prospectus Supplement will set forth the aggregate amount of
outstanding indebtedness as of the most recent practicable
date that by the terms of such Debt Securities would be
senior to the Subordinated Debt Securities and will state
any limitation on the issuance of additional Senior
Indebtedness.
Unless otherwise indicated in the Applicable
Prospectus Supplement, principal of, premium, if any, and
interest on the Debt Securities will be payable, and the
transfer of Debt Securities will be registrable, at the
office or agency of the Corporation in each Place of Payment
maintained by the Corporation and at any other office or
agency maintained by the Corporation for such purpose,
except that, at the option of the Corporation, interest may
be paid by mailing a check to the address of the Person
entitled thereto as it appears on the register for the Debt
Securities. (Sections 3.1, 3.5, 3.7 and 10.2) The Debt
Securities will be issued only in fully registered form
without coupons and, unless otherwise indicated in the
Applicable Prospectus Supplement, in denominations of $1,000
or integral multiples thereof. (Section 3.2) No service
charge will be made for any registration of transfer or
exchange of the Debt Securities, but the Corporation may
require payment of a sum sufficient to cover any tax or
other governmental charge imposed in connection therewith.
(Section 3.5)
The Applicable Prospectus Supplement will describe
the following terms of the Offered Debt Securities: (1) the
title of the Offered Debt Securities; (2) whether the
Offered Debt Securities are Senior Debt Securities or
Subordinated Debt Securities; (3) any limit on the aggregate
principal amount of the Offered Debt Securities; (4) the
Person to whom any interest on the Offered Debt Securities
is payable if other than the Person in whose name any such
Offered Debt Securities are registered; (5) the date or
dates on which the principal of the Offered Debt Securities
will mature; (6) the rate or rates per annum (which may be
fixed or variable) at which the Offered Debt Securities will
bear interest, if any, and the date or dates from which any
such interest, if any, will accrue; (7) the dates on which
such interest, if any, on the Offered Debt Securities will
be payable and the Regular Record Dates for such Interest
Payment Dates; (8) the place or places where the principal
of and any premium and interest on the Offered Debt
Securities shall be payable; (9) any mandatory or optional
sinking funds or analogous provisions; (10) the date, if
any, after which and the price or prices at which the
Offered Debt Securities may, pursuant to any optional or
mandatory redemption provisions, be redeemed and the other
detailed terms and provisions of any such optional or
mandatory redemption provision; (11) the obligation of the
Corporation, if any, to redeem or repurchase the Offered
Debt Securities at the option of the Holder; (12) if other
than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Offered Debt
Securities shall be issuable; (13) if other than the
principal amount thereof, the portion of the principal
amount of the Offered Debt Securities that will be payable
upon the declaration of acceleration of the Maturity
thereof; (14) the currency of payment of principal of and
any premium and interest on the Offered Debt Securities;
(15) any index used to determine the amount of payment of
principal of, and any premium and interest on, the Offered
Debt Securities; (16) if the Offered Debt Securities will be
issuable only in the form of a Global Security, the
Depositary or its nominee with respect to the Offered Debt
Securities and the circumstances under which the Global
Security may be registered for transfer or exchange in the
name of a Person other than the Depositary or its nominee;
(17) the applicability, if any, of the provisions described
under "Defeasance and Covenant Defeasance"; (18) any
additional Event of Default, and in the case of any Offered
Subordinated Debt Securities, any additional Event of
Default that would result in the acceleration of the
maturity thereof; and (19) any other terms of the Offered
Debt Securities. (Section 3.1)
Both Senior Debt Securities and Subordinated Debt
Securities may be issued as Original Issue Discount Debt
Securities to be offered and sold at a substantial discount
below their stated principal amount. Federal income tax
consequences and other special considerations applicable to
any such Original Issue Discount Debt Securities will be
described in the Applicable Prospectus Supplement.
"Original Issue Discount Debt Security" means any Debt
Security which provides for an amount less than the
principal amount thereof to be due and payable upon the
declaration of acceleration of the Maturity thereof upon the
occurrence of an Event of Default and the continuation
thereof. (Section 1.1)
Unless otherwise indicated in the Applicable
Prospectus Supplement, the covenants contained in the
Indentures and the Debt Securities will not afford Holders
protection in the event of a sudden decline in credit rating
that might result from a recapitalization, restructuring, or
other highly leveraged transaction.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Applicable
Prospectus Supplement, the following provisions will apply
to the Subordinated Debt Securities.
The payment of the principal of, and interest on,
the Subordinated Debt Securities will, to the extent set
forth in the Subordinated Indenture, be subordinated in
right of payment to the prior payment in full of all Senior
Indebtedness (as defined below). (Section 13.1) In certain
events of insolvency, bankruptcy, reorganization or similar
events involving the Corporation, the payment of the
principal of and the interest on the Subordinated Debt
Securities will, to the extent set forth in the Subordinated
Indenture, also effectively be subordinated in right of
payment to the prior payment in full of all Other Financial
Obligations (as defined below). Upon any payment or
distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the
benefit of creditors, marshalling of assets or any
bankruptcy, insolvency or similar proceedings of the
Corporation, the holders of all Senior Indebtedness will
first be entitled to receive payment in full of all amounts
due or to become due thereon before the Holders of the
Subordinated Debt Securities will be entitled to receive any
payment in respect of the principal of, or interest on, the
Subordinated Debt Securities. (Section 13.2) If, upon any
such payment or distribution of assets to creditors, there
remain, after giving effect to such subordination provisions
in favor of the holders of Senior Indebtedness, any amounts
of cash, property or securities available for payment or
distribution in respect of the Senior Debt Securities (as
defined in the Subordinated Indenture, "Excess Proceeds")
and if, at such time, any person entitled to payment
pursuant to the terms of the Other Financial Obligations (as
defined in the Subordinated Indenture, "Entitled Person")
has not received payment in full of all amounts due or to
become due on or in respect of such Other Financial
Obligations, then such Excess Proceeds shall first be
applied to pay or provide for the payment in full of such
Other Financial Obligations before any payment or
distribution may be made in respect of the Subordinated Debt
Securities. In the event of the acceleration of the
Maturity of any Subordinated Debt Securities, the holders of
all Senior Indebtedness will first be entitled to receive
payment in full of all amounts due or to become due thereon
before the Holders of the Subordinated Debt Securities will
be entitled to receive any payment of principal of, or
interest on, the Subordinated Debt Securities. (Section
13.3) Accordingly, in a case of such an acceleration, all
Senior Indebtedness would have to be repaid before any
payment could be made in respect of the Subordinated Debt
Securities. No payments on account of principal or interest
in respect of the Subordinated Debt Securities may be made
if there shall have occurred and be continuing a default in
any payment with respect to any Senior Indebtedness, or an
event of default with respect to any Senior Indebtedness
permitting the holders thereof to accelerate the maturity
thereof, or if any judicial proceeding shall be pending with
respect to any such default. (Section 13.4)
By reason of such subordination, in the event of
the insolvency of the Corporation, creditors of the
Corporation who are not holders of Senior Indebtedness or
the Subordinated Debt Securities may recover less, ratably,
than holders of Senior Indebtedness and may recover more,
ratably, than Holders of the Subordinated Debt Securities.
"Senior Indebtedness" is defined in the
Subordinated Indenture to mean the principal of, premium, if
any, and interest on (i) all indebtedness of the Corporation
for money borrowed (including indebtedness of others
guaranteed by the Corporation) other than the Subordinated
Debt Securities, whether outstanding on the date of
execution of the Subordinated Indenture or thereafter
created, assumed or incurred and (ii) any amendments,
renewals, extensions, modifications and refundings of any
such indebtedness, unless in either case in the instrument
creating or evidencing any such indebtedness or pursuant to
which it is outstanding it is provided that such
indebtedness is not superior in right of payment to the
Subordinated Debt Securities. (Section 1.1) For the
purposes of this definition, "indebtedness for money
borrowed" is defined as (i) any obligation of, or any
obligation guaranteed by, the Corporation for the repayment
of borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments, (ii) any
deferred payment obligation of, or any such obligation
guaranteed by, the Corporation for the payment of the
purchase price of property or assets evidenced by a note or
similar instrument, and (iii) any obligation of, or any such
obligation guaranteed by, the Corporation for the payment of
rent or other amounts under a lease of property or assets
which obligation is required to be classified and accounted
for as a capitalized lease on the balance sheet of the
Corporation under generally accepted accounting principles.
"Other Financial Obligations" is defined in the
Subordinated Indenture to mean all obligations of the
Corporation to make payment pursuant to the terms of
financial instruments, such as (i) securities contracts and
foreign currency exchange contracts, (ii) derivative
instruments, such as swap agreements (including interest
rate and currency and foreign exchange rate swap
agreements), cap agreements, floor agreements, collar
agreements, interest rate agreements, foreign exchange
agreements, options, commodity futures contracts, commodity
options, contracts and (iii) similar financial instruments;
provided that the term "Other Financial Obligations" shall
not include (A) obligations on account of Senior
Indebtedness and (B) obligations on account of indebtedness
of the Corporation for money borrowed ranking pari passu
with or subordinate to the Subordinated Debt Securities.
The Subordinated Indenture will not limit the
amount of other indebtedness, including Senior Indebtedness
and Other Financial Obligations, that may be issued or
incurred by the Corporation or any of its Subsidiaries.
The Prospectus Supplement may further describe the
provisions, if any, applicable to the subordination of the
Subordinated Debt Securities of a particular series.
RESTRICTION ON SALE OR ISSUANCE OF VOTING STOCK OF PRINCIPAL
SUBSIDIARIES
The Senior Indenture contains a covenant by the
Corporation that, so long as any Debt Securities under the
Applicable Indenture are outstanding, (a) it will not, and
will not permit any Subsidiary to, issue, sell, transfer,
assign, pledge or otherwise dispose of any shares of Voting
Stock of any class of any Principal Subsidiary or any
securities convertible or exchangeable into or options,
warrants or rights to subscribe for or purchase shares of
Voting Stock of any class of such Principal Subsidiary,
unless, after giving effect to such transaction and to
shares issuable upon conversion or exchange of outstanding
securities convertible or exchangeable into such Voting
Stock or upon the exercise of options, warrants or rights
(including such securities, if any, which may be the subject
of such transaction), at least 80 percent of the outstanding
shares of Voting Stock of each class of such Principal
Subsidiary shall be owned at that time directly or
indirectly by the Corporation, free of any lien; and (b) it
will not permit any Principal Subsidiary to merge or
consolidate or convey or transfer all or substantially all
of its assets, unless at least 80 percent of the outstanding
shares of Voting Stock of each class (after giving effect to
such transaction and to shares issuable upon conversion or
exchange of outstanding securities convertible or
exchangeable into Voting Stock or upon the exercise of
options, warrants or rights, including such securities, if
any, which may be issued in such transaction) of the
surviving corporation in the case of merger or consolidation
or of the transferee corporation in the case of a conveyance
or transfer, shall be owned at the time directly or
indirectly by the Corporation.
As defined in the Senior Indenture, the term
"Principal Subsidiary" means Deposit Guaranty, Commercial,
Citizens National or Merchants and any successors to such
banks, and the term "Voting Stock" means stock which
ordinarily has voting power for election of a majority of
the board of directors whether at all times or only so long
as no senior class of stock has such voting power by reason
of any contingency.
Notwithstanding the foregoing, any such issuance,
sale or disposition of shares or securities, or any such
merger or consolidation or conveyance or transfer of assets
shall not be prohibited if required (a) by any law,
regulation or order of any court or governmental authority
of competent jurisdiction or (b) as a condition imposed by
any law, regulation or order of any court or governmental
authority of competent jurisdiction to the acquisition by
the Corporation, directly or indirectly, through purchase of
stock or assets, merger, consolidation or otherwise of any
other corporation or entity, if, after giving effect to such
disposition and acquisition, (i) the Corporation would own,
directly or indirectly, more than 80 percent of the Voting
Stock of such other corporation or entity, and (ii) the
Consolidated Banking Assets of the Corporation would be at
least equal to the Consolidated Banking Assets of the
Corporation prior to such transaction. For this purpose,
"Consolidated Banking Assets" means all assets owned
directly or indirectly by a Bank Subsidiary and reflected in
the Corporation's consolidated statement of condition
prepared in accordance with generally accepted accounting
principles. (Section 10.7)
There is no similar restriction on the sale or
issuance of Voting Stock by a Principal Subsidiary in the
Subordinated Indenture.
EVENTS OF DEFAULT
The Senior Indenture (with respect to any series
of Senior Debt Securities then outstanding) and, unless
otherwise provided in the Applicable Prospectus Supplement,
the Subordinated Indenture (with respect to any series of
Subordinated Debt Securities), define an Event of Default as
any one of the following events: (a) default in the payment
of any interest on any Debt Security of that series when it
becomes due and payable, and continuance of such default for
a period of 30 days (in the case of the Subordinated
Indenture, whether or not payment is prohibited by the
subordination provisions); (b) default in the payment of the
principal of (or premium, if any, on) any Debt Security of
that series at its Maturity (in the case of the Subordinated
Indenture, whether or not payment is prohibited by the
subordination provisions); (c) failure to deposit any
sinking fund payment when, and as, due by the terms of a
Debt Security of that series (in the case of the
Subordinated Indenture, whether or not payment is prohibited
by the subordination provisions); (d) failure to perform any
other covenants or agreements of the Corporation in the
Applicable Indenture (other than covenants or agreements
included in the Applicable Indenture solely for the benefit
of a series of Debt Securities thereunder other than that
series), and continuance of such default for a period of 60
days after the holders of at least 25 percent of the
principal amount of the Outstanding Debt Securities of that
series have given written notice specifying such failure as
provided in the Applicable Indenture; (e) certain events in
bankruptcy, insolvency or reorganization of the Corporation
(and in the case of the Senior Indenture only, of certain of
its Subsidiaries); and (f) any other Event of Default
provided with respect to Debt Securities of that series.
(Section 5.1) If an Event of Default occurs with respect to
Debt Securities of any series, the Trustee shall give the
Holders of Debt Securities of such series notice of such
default, provided, however, that in the case of a default
described in (d) above, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof.
(Section 6.2)
If an Event of Default with respect to the Senior
Debt Securities of any series at the time Outstanding occurs
and is continuing, either the Trustee or the Holders of at
least 25 percent of the aggregate principal amount of the
Outstanding Debt Securities of that series may declare the
principal amount (or, if the Debt Securities of that series
are Original Issue Discount Debt Securities, such portion of
the principal amount as may be specified in the terms
thereof) of all the Senior Debt Securities of that series to
be due and payable immediately. Payment of the principal of
the Subordinated Debt Securities may be accelerated only in
the case of certain events of bankruptcy, insolvency or
reorganization of the Corporation. The Trustee and the
Holders will not be entitled to accelerate the maturity of
the Subordinated Debt Securities upon the occurrence of any
of the Events of Default described above except for those
described in subparagraph (e) with respect to the
Subordinated Debt Securities (i.e., certain events in
bankruptcy, insolvency or reorganization of the
Corporation). Accordingly, there is no right of
acceleration in the case of a default in the performance of
any other covenant with respect to the Subordinated Debt
Securities, including the payment of interest or principal.
At any time after a declaration of acceleration with respect
to Debt Securities of any series has been made, but before a
judgment or decree based on acceleration has been obtained,
the Holders of a majority of the aggregate principal amount
of Outstanding Debt Securities of that series may, under
certain circumstances, rescind and annul such acceleration.
(Section 5.2)
The Indentures provide that, subject to the duty
of the Trustee during default to act with the required
standard of care, the Trustee will be under no obligation to
exercise any of its rights or powers under the Indenture at
the request or direction of any of the Holders, unless such
Holders shall have offered to the Trustee reasonable
security or indemnity. (Section 6.3) Subject to such
provisions for the indemnification of the Trustee and to
certain other conditions, the Holders of a majority of the
aggregate principal amount of the Outstanding Debt
Securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Debt
Securities of that series. (Section 5.12)
No Holder of any series of Debt Securities will
have any right to institute any proceeding with respect to
the Applicable Indenture or for any remedy thereunder,
unless: (a) such Holder has previously given to the Trustee
under the Applicable Indenture written notice of a
continuing Event of Default; (b) the Holders of at least 25
percent of the aggregate principal amount of the Outstanding
Debt Securities of that series have made written request,
and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee; (c) in the 60-day
period following receipt of a written notice from a Holder,
the Trustee has not received from the Holders of a majority
of the aggregate principal amount of the Outstanding Debt
Securities of that series a direction inconsistent with such
request; and (d) the Trustee shall have failed to institute
such proceeding within such 60-day period. (Section 5.7)
However, such limitations do not apply to a suit instituted
by a Holder of a Debt Security for enforcement of payment of
the principal of and premium, if any, or interest on such
Debt Security on or after the respective due dates expressed
in such Debt Security. (Section 5.8)
The Corporation is required to furnish to the
Trustee annually a statement as to the performance by the
Corporation of certain of its obligations under the
Indenture and as to any default in such performance.
(Section 10.5)
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide that, if such provision is
made applicable to the Debt Securities of any series
pursuant to Section 3.1 of the Applicable Indenture (which
will be indicated in the Applicable Prospectus Supplement),
the Corporation may elect either (a) to defease and be
discharged from any and all obligations in respect of such
Debt Securities then outstanding (including, in the case of
Subordinated Debt Securities, the provisions described under
"Subordination of Subordinated Debt Securities" and except
for certain obligations to register the transfer of or
exchange of such Debt Securities, replace stolen, lost or
mutilated Debt Securities, maintain paying agencies and hold
monies for payment in trust) ("defeasance") or (b) to be
released from its obligations with respect to such Debt
Securities concerning the restriction on sale or issuance of
Voting Stock of the Corporation's Principal Subsidiaries
described under "Restriction on Sale or Issuance of Voting
Stock of Principal Subsidiaries" and the subordination
provisions described under "Subordination of Subordinated
Debt Securities" and any other covenants applicable to such
Debt Securities which are determined pursuant to Section 3.1
of the Applicable Indenture to be subject to covenant
defeasance ("covenant defeasance"), and the occurrence of an
event described in clause (b) (insofar as with respect to
covenants subject to covenant defeasance) under "Events of
Default" above shall no longer be an Event of Default, in
each case (a) or (b), if the Corporation deposits, in trust,
with the Trustee money or U.S. Government Obligations, which
through the payment of interest thereon and principal
thereof in accordance with their terms will provide money,
in an amount sufficient, without reinvestment, to pay all
the principal of (and premium, if any) and interest on such
Debt Securities on the dates such payments are due (which
may include one or more redemption dates designated by the
Corporation) and any mandatory sinking fund or analogous
payments thereon in accordance with the terms of such Debt
Securities. Such a trust may only be established if, among
other things, (i) no Event of Default or event which with
the giving of notice or lapse of time, or both, would become
an Event of Default under the Indenture shall have occurred
and be continuing on the date of such deposit, (ii) such
deposit will not cause the Trustee to have any conflicting
interest with respect to other securities of the Corporation
and (iii) the Corporation shall have delivered an Opinion
of Counsel to the effect that the Holders will not recognize
income, gain or loss for Federal income tax purposes as a
result of such deposit or defeasance and will be subject to
Federal income tax in the same manner as if such defeasance
had not occurred.
The Corporation may exercise its defeasance option
with respect to such Debt Securities notwithstanding its
prior exercise of its covenant defeasance option. If the
Corporation exercises its defeasance option, payment of such
Debt Securities may not be accelerated because of an Event
of Default. If the Corporation exercises its covenant
defeasance option, payment of such Debt Securities may not
be accelerated by reference to the covenants noted under
clause (b) above. In the event the Corporation omits to
comply with its remaining obligations with respect to such
Debt Securities under the Applicable Indenture after
exercising its covenant defeasance option and such Debt
Securities are declared due and payable because of the
occurrence of any Event of Default, the amount of money and
U.S. Government Obligations on deposit with the Trustee may
be insufficient to pay amounts due on the Debt Securities of
such series at the time of the acceleration resulting from
such Event of Default. However, the Corporation will remain
liable in respect of such payments. (Article Thirteen and
Article Fourteen of the Senior Indenture and the
Subordinated Indenture, respectively.)
MODIFICATION AND WAIVER
Modifications and amendments of each Indenture may
be made by the Corporation and the Trustee with the consent
of the Holders of not less than a majority of the aggregate
principal amount of the Outstanding Debt Securities of all
series issued under the Indenture and affected by the
modification or amendments (voting as a single class);
provided, however, that no such modification or amendment
may, without the consent of the Holders of all Debt
Securities affected thereby, (i) change the Stated Maturity
of the principal of, or any installment of principal of or
interest on, any Debt Security; (ii) reduce the principal
amount of, or the premium, if any, or (except as otherwise
provided in the Applicable Prospectus Supplement) interest
on, any Debt Security (including in the case of an Original
Issue Discount Debt Security the amount payable upon
acceleration of the maturity thereof); (iii) change the
place or currency of payment of principal of, premium, if
any, or interest on any Debt Security; (iv) impair the right
to institute suit for the enforcement of any payment on any
Debt Security on or after the Stated Maturity thereof (or in
the case of redemption, on or after the Redemption Date);
(v) in the case of the Subordinated Indenture, modify the
subordination provisions in a manner adverse to the Holders
of the Subordinated Debt Securities; or (vi) reduce the
percentage of the principal amount of Outstanding Debt
Securities of any series, the consent of whose Holders is
required for modification or amendment of the Indenture or
for waiver of compliance with certain provisions of the
Indenture or for waiver of certain defaults. (Section 9.2)
The Holders of at least a majority of the
aggregate principal amount of the Outstanding Debt
Securities of any series of Senior Debt Securities may, on
behalf of all Holders of that series, waive compliance by
the Corporation with certain restrictive provisions of the
Senior Indenture. (Section 10.8) There is no comparable
provision in the Subordinated Indenture. The Holders of a
majority of the aggregate principal amount of the Senior
Debt Securities or the Subordinated Debt Securities may, on
behalf of all Holders of the Senior Debt Securities or the
Subordinated Debt Securities, respectively, waive any past
default under the Applicable Indenture, except a default in
the payment of principal, premium or interest or in the
performance of certain covenants. (Section 5.13)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Corporation may not consolidate with or merge
into any other Person or transfer or lease its assets
substantially as an entirety to any Person and may not
permit any Person to merge into or consolidate with the
Corporation or transfer or lease its assets substantially as
an entirety to the Corporation, unless (i) any successor or
purchaser is a corporation organized under the laws of the
United States of America, any State or the District of
Columbia, and any such successor or purchaser expressly
assumes the Corporation's obligations on the Debt Securities
under a supplemental Indenture, and (ii) (a) in the case of
Senior Debt Securities, immediately after giving effect to
the transaction no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event
of Default, shall have occurred and be continuing and (b),
in the case of any series of Subordinated Debt Securities,
no Event of Default that would permit the Trustee or the
Holders to accelerate the Corporation's obligation to pay
the principal of such Subordinated Debt Securities shall
have occurred and be continuing. The Trustee may receive an
Opinion of Counsel as conclusive evidence of compliance with
these provisions. (Article VIII)
CONVERSION
The holders of Subordinated Debt Securities of a
specified series that are convertible into Equity Securities
("Subordinated Convertible Debt Securities") may be entitled
or, if so provided in the Applicable Prospectus Supplement,
may be required at such time or times specified in the
Applicable Prospectus Supplement relating to such
Subordinated Convertible Debt Securities, subject to prior
redemption, repayment, or repurchase, to convert any
Subordinated Convertible Debt Securities of such series into
Equity Securities, at the conversion price set forth in such
Applicable Prospectus Supplement, subject to adjustment and
to such other terms as are set forth in such Applicable
Prospectus Supplement. No separate consideration will be
received for any Equity Securities issued upon conversion of
Subordinated Convertible Debt Securities.
RISK FACTORS OF DEBT SECURITIES DENOMINATED IN FOREIGN
CURRENCIES
Debt Securities denominated or payable in foreign
currencies may entail significant risks. These risks
include, without limitation, the possibility of significant
fluctuations in the foreign currency market, the imposition
of foreign exchange controls, and potential illiquidity in
the secondary market. These risks will vary depending upon
the currency involved. These risks may be more fully
described in the Applicable Prospectus Supplement.
GLOBAL SECURITIES
Debt Securities of a series may be issued in the
form of one or more Global Securities that will be deposited
with a Depositary or its nominee identified in the
Applicable Prospectus Supplement. In such a case, one or
more Global Securities will be issued in a denomination or
aggregate denominations equal to the portion of the
aggregate principal amount of Outstanding Debt Securities of
the series to be represented by such Global Security or
Securities. Unless and until it is exchanged in whole or in
part for Debt Securities in definitive registered form, a
Global Security may not be registered for transfer or
exchange except as a whole by the Depositary for such Global
Security to a nominee or such Depositary and except in the
circumstances described in the Applicable Prospectus
Supplement. (Sections 2.4 and 3.5)
The specific terms of the depositary arrangement
with respect to any portion of a series of Debt Securities
to be represented by a Global Security will be described in
the Applicable Prospectus Supplement.
CONCERNING THE TRUSTEE
SunTrust Bank, Atlanta is a Trustee under the
Indentures. The Trustee performs services for the
Corporation in the ordinary course of business.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the
Preferred Stock sets forth certain general terms and
provisions of the Preferred Stock to which any Prospectus
Supplement may relate (the "Preferred Stock"). Certain
terms of any series of the Preferred Stock offered by any
Prospectus Supplement will be described in the Prospectus
Supplement relating to such series of the Preferred Stock.
If so indicated in the Prospectus Supplement, the terms of
any such series may differ from the terms set forth below.
The description of certain provisions of the Preferred Stock
set forth below and in any Prospectus Supplement does not
purport to be complete and is subject to and qualified in
its entirety by reference to the Articles of Amendment to
the Corporation's Articles of Incorporation (the "Articles
of Incorporation") relating to each series of the Preferred
Stock which will be filed with the Commission at or prior to
the time of the offering of such series of Preferred Stock.
GENERAL
Under the Corporation's Articles of Incorporation,
the Board of Directors of the Corporation is authorized
without further shareholder action to provide for the
issuance of up to 10,000,000 shares of Class A voting
Preferred Stock and 10,000,000 shares of Class B non-voting
Preferred Stock, in each case without par value, in one or
more series, with Class A Preferred Stock having full voting
rights and Class B Preferred Stock having no voting rights
and with relative preferences and rights as shall be set
forth in resolutions providing for the issue thereof adopted
by the Board of Directors or a duly authorized committee
thereof except that all shares of the same class shall be
identical except for the following relative rights and
preferences: (i) the rate of dividend; (ii) redemption
rights and the terms and conditions of such rights; (iii)
the amount payable upon liquidation; (iv) sinking fund
provisions; and (v) the terms and conditions, if any, of
conversion. The Corporation may amend from time to time its
Articles of Incorporation to increase the number of
authorized shares of Preferred Stock. Any such amendment
would require the approval of the holders of a majority of
the outstanding shares of Common Stock, and the approval of
the holders of a majority of the outstanding shares of all
series of Preferred Stock voting together as a single class.
As of the date of this Prospectus, the Corporation has no
shares of Preferred Stock outstanding.
Under regulations adopted by the Federal Reserve
Board, if the holders of any series of Preferred Stock
become entitled to vote for the election of directors
because dividends on such series are in arrears as described
under "Voting Rights" below, such series may then be deemed
a "class of voting securities" and a holder of 25 percent or
more of such series (or a holder of 5 percent or more if it
otherwise exercises a "controlling influence" over the
Corporation) may then be subject to regulation as a bank
holding company in accordance with the BHCA. In addition,
at such time as such series is deemed a class of voting
securities, (i) any other bank holding company may be
required to obtain the prior approval of the Federal Reserve
Board under the BHCA to acquire or retain 5 percent or more
of such series and (ii) any person other than a bank holding
company may be required to obtain the prior approval of the
Federal Reserve Board under the Change in Bank Control Act
to acquire or retain ten percent or more of such series.
The Preferred Stock shall have the dividend,
liquidation, redemption and voting rights set forth below
unless otherwise provided in the Prospectus Supplement
relating to a particular series of the Preferred Stock.
Reference is made to the Prospectus Supplement relating to
the particular series of the Preferred Stock offered thereby
for specific terms, including: (i) the title and stated
value per share of such Preferred Stock and the number of
shares offered; (ii) the price at which such Preferred Stock
will be issued; (iii) the dividend rate (or method of
calculation), the dates on which dividends shall be payable
and the dates from which dividends shall commence to
cumulate; (iv) any redemption or sinking fund provisions of
such Preferred Stock; (v) the terms of conversion, if any;
and (vi) any additional dividend, liquidation, redemption,
sinking fund and other rights, preferences, privileges,
limitations and restrictions of such Preferred Stock.
The Preferred Stock will, when issued, be fully
paid and nonassessable. Unless otherwise specified in the
Prospectus Supplement relating to a particular series of the
Preferred Stock, each series of the Preferred Stock will
rank on a parity in all respects with any outstanding
Preferred Stock of the Corporation and each other series of
Preferred Stock.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will
be entitled to receive, when, as and if declared by the
Board of Directors of the Corporation, out of assets of the
Corporation legally available therefor, cash dividends at
such rates and on such dates as are set forth in the
Prospectus Supplement relating to such series of the
Preferred Stock. Such rate may be fixed or variable or
both. Each such dividend will be payable to the holders of
record as they appear on the stock books of the Corporation
on such record dates as will be fixed by the Board of
Directors of the Corporation or a duly authorized committee
thereof. Dividends on any series of the Preferred Stock
shall be cumulative, so that if for any period the same
shall not be paid, the right thereto shall accumulate as
against the Common Stock, and all arrears so accumulated
shall be paid before any dividend shall be paid upon the
Common Stock.
No full dividends will be declared or paid or set
apart for payment on the Preferred Stock of any series
ranking, as to dividends, on a parity with or junior to any
series of Preferred Stock for any period unless full
dividends have been or contemporaneously are declared and
paid, or declared and a sum sufficient for the payment
thereof set apart for such payment, on such series of
Preferred Stock for the then-current dividend payment period
and all other dividend payment periods terminating on or
before the date of payment of such full dividends. When
dividends are not paid in full upon any series of the
Preferred Stock and any other Preferred Stock ranking on a
parity as to dividends with such series of the Preferred
Stock, all dividends declared upon such series of the
Preferred Stock and any other Preferred Stock ranking on a
parity as to dividends will be declared pro rata so that the
amount of dividends declared per share on such series of the
Preferred Stock and such other Preferred Stock will in all
cases bear to each other the same ratio that accrued
dividends per share on such series of the Preferred Stock
and such other Preferred Stock bear to each other. Except
as provided in the preceding sentence, unless full
dividends, including accumulations, if any, in respect of
prior dividend payment periods, on all outstanding shares of
any series of the Preferred Stock have been paid, no
dividends (other than in shares of Common Stock or another
stock ranking junior to such series of the Preferred Stock
as to dividends and upon liquidation ) will be declared or
paid or set aside for payment or other distributions made
upon the Common Stock or any other stock of the Corporation
ranking junior to or on a parity with the Preferred Stock as
to dividends or upon liquidation, nor will any Common Stock
or any stock of the Corporation ranking junior to or on a
parity with such series of the Preferred Stock as to
dividends or upon liquidation be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be
paid to or made available for a sinking fund for the
redemption of any shares of any such stock) by the
Corporation. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend
payment or payments which may be in arrears.
The amount of dividends payable for each dividend
period will be computed by annualizing the applicable
dividend rate and dividing by the number of dividend periods
in a year, except that the amount of dividends payable for
the initial dividend period or any period shorter than a
full dividend period shall be computed on the basis of 30-
day months, a 360-day year and the actual number of days
elapsed in the period.
Each series of Preferred Stock will be entitled to
dividends as described in the Prospectus Supplement relating
to such series, which may be based upon one or more methods
of determination. Different series of the Preferred Stock
may be entitled to dividends at different rates or based
upon different methods of determination.
RIGHTS UPON LIQUIDATION
In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation,
the holders of each series of Preferred Stock will be
entitled to receive out of assets of the Corporation
available for distribution to shareholders, before any
distribution of assets is made to holders of Common Stock or
any other class of stock ranking junior to such series of
the Preferred Stock upon liquidation, liquidating
distributions in the amount set forth in the Prospectus
Supplement relating to such series of the Preferred Stock
plus an amount equal to accrued and unpaid dividends for the
then-current dividend period and for all dividend periods
prior thereto. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation,
the amounts payable with respect to the Preferred Stock of
any series and any other shares of stock of the Corporation
ranking as to any such distribution on a parity with such
series of the Preferred Stock are not paid in full, the
holders of the Preferred Stock of such series and of such
other shares will share ratably in any such distribution of
assets of the Corporation in proportion to the full
respective preferential amounts to which they are entitled.
After payment of the full amount of the liquidating
distribution to which they are entitled, the holders of such
series of Preferred Stock will have no right or claim to any
of the remaining assets of the Corporation. Neither the
sale of all or substantially all of the property or business
of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation shall be
deemed to be a dissolution, liquidation or winding up,
voluntarily or involuntarily, of the Corporation.
REDEMPTION
A series of the Preferred Stock may be redeemable,
in whole or in part, at the option of the Corporation, and
may be subject to mandatory redemption pursuant to a sinking
fund, in each case upon terms, at the times and at the
redemption prices set forth in the Prospectus Supplement
relating to such series.
The Prospectus Supplement relating to a series of
Preferred Stock which is subject to mandatory redemption
shall specify the number of shares of such series of
Preferred Stock which shall be redeemed by the Corporation
in each year commencing after a date to be specified, at a
redemption price per share to be specified, together with an
amount equal to any accrued and unpaid dividends thereon to
the date of redemption. The redemption price may be payable
in cash, capital stock or in cash received from the net
proceeds of the issuance of capital stock of the
Corporation, as specified in the Prospectus Supplement
relating to such series of Preferred Stock.
If fewer than all the outstanding shares of the
Preferred Stock are to be redeemed, whether by mandatory or
optional redemption, the selection of the shares to be
redeemed shall be determined by lot or pro rata as may be
determined by the Board of Directors of the Corporation (or
a duly authorized committee thereof) or by any other method
which may be determined by the Board of Directors (or such
committee) to be equitable. From and after the redemption
date (unless default shall be made by the Corporation in
providing for the payment of the redemption price),
dividends shall cease to accrue on the shares of Preferred
Stock called for redemption and all rights of the holders
thereof (except the right to receive the redemption price)
shall cease.
In the event that full dividends, including
accumulations on any series of the Preferred Stock, have not
been paid, such series of the Preferred Stock may not be
redeemed in part and the Corporation may not purchase or
acquire any shares of such series of the Preferred Stock
otherwise than pursuant to a purchase or exchange offer made
on the same terms to all holders of such series of the
Preferred Stock.
VOTING RIGHTS
The holders of Class A Preferred Stock will be
entitled to full voting rights and the holders of Class B
Preferred Stock will have no voting rights, except as
specifically required by applicable law. Except as
indicated in the Prospectus Supplement relating to a
particular series of Preferred Stock, each such share will
be entitled to one vote on matters on which holders of such
series of the Preferred Stock are entitled to vote.
The affirmative vote or consent of the holders of
at least a majority of the outstanding shares of any series
of Preferred Stock, voting as a class, will be required for
any amendment of the Corporation's Articles of Incorporation
(or any certificate amendatory thereof or supplemental
thereto relating to any series of the Preferred Stock) which
will adversely affect the powers, preferences, privileges or
rights of such series of the Preferred Stock. The
affirmative vote or consent of the holders of shares
representing at least a majority of the outstanding shares
of any series of Preferred Stock and any other series of
Preferred Stock of the Corporation ranking on parity with
such series of the Preferred Stock as to dividends or upon
liquidation, voting as a single-class without regard to
series, will be required to authorize the creation of, or
reclassify any authorized stock of the Corporation into, or
issue or authorize any obligation or security convertible
into or evidencing a right to purchase, any additional class
or series of stock having rights or preferences ranking
prior, superior or substantially equal to such series of the
Preferred Stock as to dividends or upon liquidation.
In addition to the foregoing voting rights, under
the Mississippi Business Corporation Act as now in effect,
any Articles of Amendment to the Articles of Incorporation
which would increase the number of authorized shares of
Preferred Stock of the Corporation would require the
approval of the holders of a majority of the outstanding
shares of Common Stock , and the approval of the holders of
a majority of the outstanding shares of all series of
Preferred Stock voting together as a single class.
CONVERSION
The holders of a specified series of Preferred
Stock may be entitled, or if so provided in the Articles of
Amendment to the Articles of Incorporation, may be required,
to convert such shares into Common Stock or, at the option
of the Corporation, other debt securities of the
Corporation, at such conversion price or prices and on such
other terms as may be set forth in the Applicable Prospectus
Supplement relating to such series of Preferred Stock.
DEPOSITARY SHARES
General. The Corporation may, at its option,
elect to offer fractional shares ("Depositary Shares") of
Preferred Stock, rather than full shares of Preferred Stock.
In the event such option is exercised, the Corporation will
issue to the public receipts for Depositary Shares, each of
which will represent a fraction (to be set forth in the
Prospectus Supplement relating to a particular series of
Preferred Stock) of a share of a particular series of
Preferred Stock as described below.
The shares of any series of Preferred Stock
represented by Depositary Shares will be deposited under a
Deposit Agreement (the "Deposit Agreement") between the
Corporation and a bank or trust company selected by the
Corporation having its principal office in the United States
and having a combined capital and surplus of at least
$50,000,000 (the "Depositary"). Subject to the terms of the
Deposit Agreement, each owner of a Depositary Share will be
entitled, in proportion to the applicable fraction of a
share of Preferred Stock represented by such Depositary
Share, to all the rights and preferences of the Preferred
Stock represented thereby (including dividend, voting,
redemption and liquidation rights).
The shares of Preferred Stock deposited under the
Deposit Agreement may be withdrawn as provided therein.
The Depositary Shares will be evidenced by
depositary receipts issued pursuant to the Deposit Agreement
("Depositary Receipts"). Depositary Receipts will be
distributed to those persons purchasing the fractional
shares of Preferred Stock in accordance with the terms of
the offering. Copies of the forms of Deposit Agreement and
Depositary Receipt are filed as exhibits to the Registration
Statement of which this Prospectus is a part, and the
following summary is qualified in its entirety by reference
to such exhibits.
Pending the preparation of definitive engraved
Depositary Receipts, the Depositary may, upon the written
order of the Corporation, issue temporary Depositary
Receipts substantially identical to (and entitling the
holders thereof to all the rights pertaining to) the
definitive Depositary Receipts but not in definitive form.
Definitive Depositary Receipts will be prepared thereafter
without unreasonable delay, and temporary Depositary
Receipts will be exchangeable for definitive Depositary
Receipts at the Corporation's expense.
Dividends and Other Distributions. The Depositary
will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to
the record holders of Depositary Shares relating to such
Preferred Stock in proportion to the numbers of such
Depositary Shares owned by such holders.
In the event of a distribution other than in cash,
the Depositary will distribute property received by it to
the record holders of Depositary Shares entitled thereto,
unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may,
with the approval of the Corporation, sell such property and
distribute the net proceeds from such sale to such holders.
Redemption of Depositary Shares. If a series of
Preferred Stock represented by Depositary Shares is subject
to redemption, the Depositary Shares will be redeemed from
the proceeds received by the Depositary resulting from the
redemption, in whole or in part, of such series of Preferred
Stock held by the Depositary. The redemption price per
Depositary Share will be equal to the applicable fraction of
the redemption price per share payable with respect to such
series of the Preferred Stock. Whenever the Corporation
redeems shares of Preferred Stock held by the Depositary,
the Depositary will redeem as of the same redemption date
the number of Depositary Shares representing shares of
Preferred Stock so redeemed. If fewer than all the
Depositary Shares are to be redeemed, the Depositary Shares
to be redeemed will be selected by lot or pro rata as may be
determined by the Depositary.
Voting the Preferred Stock. Upon receipt of
notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the
record holders of the Depositary Shares relating to such
Preferred Stock. Each record holder of such Depositary
Shares on the record date (which will be the same date as
the record date for the Preferred Stock) will be entitled to
instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of the Preferred Stock
represented by such holder's Depositary Shares. The
Depositary will endeavor, insofar as practicable, to vote
the amount of the Preferred Stock represented by such
Depositary Shares in accordance with such instructions, and
the Corporation will agree to take all action which may be
deemed necessary by the Depositary in order to enable the
Depositary to do so. The Depositary will abstain from
voting shares of the Preferred Stock to the extent it does
not receive specific instructions from the holder of
Depositary Shares representing such Preferred Stock.
Amendment and Termination of the Deposit
Agreement. The form of Depositary Receipt evidencing the
Depositary Shares and any provision of the Deposit Agreement
may at any time be amended by agreement between the
Corporation and the Depositary. However, any amendment
which materially and adversely alters the rights of the
holders of Depositary Shares will not be effective unless
such amendment has been approved by the holders of at least
a majority of the Depositary Shares then outstanding. The
Deposit Agreement will only terminate if (i) all outstanding
Depositary Shares have been redeemed or (ii) there has been
a final distribution in respect of the Preferred Stock in
connection with any liquidation, dissolution or winding up
of the Corporation and such distribution has been
distributed to the holders of Depositary Receipts.
Charges of Depositary. The Corporation will pay
all transfer and other taxes and governmental charges
arising solely from the existence of the depositary
arrangements. The Corporation will pay charges of the
Depositary in connection with the initial deposit of the
Preferred Stock and any redemption of the Preferred Stock.
Holders of Depositary Receipts will pay other transfer and
other taxes and governmental charges and such other charges
as are expressly provided in the Deposit Agreement to be for
their accounts.
Miscellaneous. The Depositary will forward all
reports and communications from the Corporation which are
delivered to the Depositary and which the Corporation is
required or otherwise determines to furnish to the holders
of the Preferred Stock.
Neither the Depositary nor the Corporation will be
liable if it is prevented or delayed by law or any
circumstance beyond its control in performing its
obligations under the Depositary Agreement. The obligations
of the Corporation and the Depositary under the Deposit
Agreement will be limited to performance in good faith of
their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any
Depositary Shares or Preferred Stock unless satisfactory
indemnity is furnished. They may rely upon written advice
of counsel or accountants, or upon information provided by
persons presenting Preferred Stock for deposit, holders of
Depositary Receipts or other persons believed to be
competent and on documents believed to be genuine.
Resignation and Removal of Depositary. The
Depositary may resign at any time by delivering to the
Corporation notice of its election to do so, and the
Corporation may at any time remove the Depositary, any such
resignation or removal to take effect upon the appointment
of a successor Depositary and its acceptance of such
appointment. Such successor Depositary must be appointed
within 60 days after delivery of the notice of resignation
or removal and must be a bank or trust company having its
principal office in the United States and having a combined
capital and surplus of at least $50,000,000.
TRANSFER AGENT AND REGISTRAR
Deposit Guaranty National Bank will be the
transfer agent, registrar and dividend disbursement agent
for the Preferred Stock. The registrar for shares of
Preferred Stock will send notices to shareholders of any
meetings at which holders of the Preferred Stock have the
right to elect directors of the Corporation or to vote on
any other matter.
DESCRIPTION OF COMMON STOCK
The description of certain provisions of the
Common Stock set forth below does not purport to be complete
and is subject to and qualified in its entirety by reference
to the Articles of Incorporation and the By-Laws of the
Corporation which are exhibits to the Registration
Statement.
GENERAL
The Corporation's Common Stock consists of
50,000,000 authorized shares, no par value, of which there
were 19,549,143 shares outstanding as of September 30, 1995.
The Common Stock is quoted on the Nasdaq National Market
System. The transfer agent and registrar for the Common
Stock is Deposit Guaranty National Bank.
Shares of Common Stock of the Corporation may be
issued from time to time, in such amounts and proportion and
for such consideration as may be fixed by the Board of
Directors of the Corporation. No holder of Common Stock has
any preemptive or preferential rights to purchase or to
subscribe for any shares of capital stock or other
securities which may be issued by the Corporation. The
Common Stock has no redemptive or sinking fund provisions
applicable thereto. Common Stock does not have any
conversion rights. The rights of holders of Common Stock
will be subject to, and may be adversely affected by, the
rights of holders of any Preferred Stock that may be issued
in the future.
The Corporation may issue authorized but unissued
Common Stock in connection with several employee benefit and
stock option and incentive plans maintained by the
Corporation or its subsidiaries.
The outstanding Common Stock is fully paid and
non-assessable and future issuances of Common Stock, when
fully paid for, will be non-assessable.
DIVIDENDS
When, as, and if dividends, payable in cash,
stock, or other property, are declared by the Board of
Directors of the Corporation out of funds legally available
therefor, the holders of Common Stock are entitled to share
equally, share for share, in such dividends. The payment of
dividends on the Common Stock is subject to the prior
payment of dividends on any shares of the Preferred Stock
outstanding.
VOTING
Deposit Guaranty. Pursuant to the Mississippi
Business Corporation Act and the Corporation's Bylaws, each
outstanding share of the Corporation's stock is entitled to
one (1) vote on each matter submitted to a vote. However,
in connection with the election of directors, holders of
Common Stock of the Corporation have cumulative voting
rights. Pursuant to the Corporation's Bylaws, every
shareholder entitled to vote in the election of directors
shall have the right to vote, in person or by proxy, the
number of shares owned by him for as many persons as there
are directors to be elected, or to cumulate his votes by
giving one (1) candidate the number of votes equal to the
number of directors to be elected multiplied by the number
of his shares, or by distributing such votes on the same
principle among any number of candidates.
LIQUIDATION
In the event of any liquidation, dissolution, or
winding up of the Corporation, whether voluntary or
involuntary, the holders of the Common Stock are entitled to
receive, on a share for share basis, any assets or funds of
the Corporation which are distributable to its holders of
Common Stock upon such events, subject to the prior rights
of creditors of the Corporation and holders of any
outstanding shares of Preferred Stock.
DESCRIPTION OF SECURITIES WARRANTS
The Corporation may issue, separately or together
with any Debt Securities, Preferred Stock, Common Stock, or
Depositary Shares, Securities Warrants for the purchase of
other Debt Securities, Preferred Stock, Common Stock, or
Depositary Shares (collectively, the "Underlying
Securities"). The Securities Warrants will be issued under
a warrant agreement (a "Securities Warrant Agreement") to be
entered into between the Corporation and a bank or trust
company, as warrant agent (the "Securities Warrant Agent"),
all as set forth in the Applicable Prospectus Supplement
relating to the particular issue of Securities Warrants.
The form of Securities Warrant Agreement, including the form
of certificates representing the Securities Warrants
("Securities Warrant Certificates"), reflecting the
alternative provisions to be included in the Securities
Warrant Agreements that will be entered into with respect to
particular offerings of Securities Warrants, is filed as an
exhibit to the Registration Statement. The following
summaries of certain provisions of the Securities Warrant
Agreement and the Securities Warrant Certificates, which are
filed as exhibits to the Registration Statement, do not
purport to be complete and are subject to, and are qualified
in their entirety by reference to, all of the provisions of
the Securities Warrant Agreement and the Securities Warrant
Certificates, respectively, including the definitions
therein of certain terms. Wherever defined terms of the
Securities Warrant Agreement are referred to, it is intended
that such defined terms shall be incorporated herein by
reference.
GENERAL
The Applicable Prospectus Supplement relating to
the particular issue of Securities Warrants offered thereby
will describe the terms of the offered Securities Warrants,
the Securities Warrant Agreement relating to the offered
Securities Warrants, and the Securities Warrant Certificates
representing the offered Securities Warrants, including the
following where applicable: (1) if the Securities Warrants
are offered for separate consideration, the offering price
and the currency for which Securities Warrants may be
purchased; (2) the title, aggregate principal amount,
currency, and terms of the series of Debt Securities
purchasable upon exercise of the Debt Warrants and the price
at which such Debt Securities may be purchased upon such
exercise; (3) the title, number of shares, stated value, and
terms (including, without limitation, liquidation, dividend,
conversion, redemption, and voting rights) of the series of
Preferred Stock purchasable upon exercise of Preferred Stock
Warrants and the price at which such number of shares of
Preferred Stock of such series may be purchased upon such
exercise; (4) the number of Common Stock purchasable upon
the exercise of Common Stock Warrants and the price at which
such number of Common Stock may be purchased upon such
exercise; (5) the number of Depositary Shares purchasable
upon the exercise of Depositary Share Warrants, the terms of
the Preferred Stock which the Depositary Shares represent
and the price at which such number of Depositary Shares may
be purchased upon such exercise; (6) the date, if any, on
and after which the offered Securities Warrants and the
related Debt Securities, Preferred Stock, Common Stock
and/or Depositary Shares will be separately transferable;
(7) the time or times at which, or period or periods during
which, the offered Securities Warrants may be exercised and
the final date on which the Offered Securities Warrants may
be exercised (the "Expiration Date"); (8) a discussion of
the specific United States Federal income tax, accounting,
and other considerations applicable to the Securities
Warrants; (9) the location where the offered Securities
Warrants represented by the Securities Warrant Certificates
may be transferred and registered; and (10) any other terms
of the offered Securities Warrants.
Securities Warrant Certificates will be
exchangeable on the terms specified in the Applicable
Prospectus Supplement for new Securities Warrant
Certificates of different denominations evidencing the same
aggregate number of Warrants of the same title, and may be
transferred in whole or in part on the terms specified in
the Applicable Prospectus Supplement.
Prospective purchasers of Securities Warrants
should be aware that special U.S. federal income tax,
accounting and other considerations may be applicable to
instruments such as Securities Warrants. The Applicable
Prospectus Supplement relating to any issue of Securities
Warrants will describe such considerations.
EXERCISE OF WARRANTS
Each Securities Warrant will entitle the holder to
purchase the principal amount of or number of Underlying
Securities provided for therein, at such exercise price as
shall in each case be set forth in, or be determinable from,
the Applicable Prospectus Supplement relating to the
Securities Warrants, by payment of such exercise price (the
"Warrant Price") in full in the currency and in the manner
specified in the Applicable Prospectus Supplement.
Securities Warrants may be exercised at any time at or
before 5:00 P.M., New York City time on the Expiration Date
(or such later date to which such Expiration Date may be
extended by the Corporation), and unexercised Securities
Warrants will become void at such time. Securities Warrants
may be exercised at the corporate trust office of the
Securities Warrant Agent or any other office indicated in
the Applicable Prospectus Supplement relating to the
Securities Warrants.
Upon receipt at the corporate trust office of the
Securities Warrant Agent or any other office indicated in
the Applicable Prospectus Supplement of (i) payment of the
Warrant Price and (ii) the form of election to purchase set
forth on the reverse side of the Securities Warrant
Certificate properly completed and duly executed, the
Corporation will, as soon as practicable, issue the
Underlying Securities purchasable upon such exercise. If
fewer than all of the Securities Warrants represented by
such Securities Warrant Certificate are exercised, a new
Securities Warrant Certificate will be issued for the
remaining number of unexercised Securities Warrants.
MODIFICATIONS
The Warrant Agreement may be supplemented or
amended by the Corporation and the Warrant Agent from time
to time, without the approval of any Holder (as defined in
the Warrant Agreement), in order to cure any ambiguity, to
correct or supplement any defective or inconsistent
provision contained therein, or to make any other provision
in regard to matters or questions arising thereunder that
the Corporation and the Warrant Agent may deem necessary or
desirable and which will not adversely affect the interests
of the Holders.
The Corporation and the Warrant Agent may also
modify or amend the Warrant Agreement and the Securities
Warrant Certificates with the consent of the Holders of not
fewer than a majority in number of the then outstanding
unexercised Warrants affected by such modification or
amendment, for any purpose, provided that no such
modification or amendment that shortens the period of time
during which the Warrants may be exercised, or otherwise
materially and adversely affects the exercise rights of the
Holders or reduces the percentage of Holders of outstanding
Warrants the consent of which is required for modification
or amendment of the Warrant Agreement or the Warrants may be
made without the consent of each Holder affected thereby.
COMMON STOCK WARRANT ADJUSTMENTS
The terms and conditions on which the Warrant
Price of and/or the number of Common Stock covered by a
Warrant to purchase Common Stock (a "Common Stock Warrant")
are subject to adjustment will be set forth in the Warrant
Agreement and the Applicable Prospectus Supplement. Such
terms will include provisions for adjusting the Warrant
Price and/or the number of Common Stock covered by such
Common Stock Warrant; the events requiring such adjustment;
the events upon which the Corporation may, in lieu of making
such adjustment, make proper provision so that the holder of
such Common Stock Warrant, upon exercise thereof, would be
treated as if such holder had exercised such Common Stock
Warrant prior to the occurrence of such events; and
provisions affecting exercise in the event of certain events
affecting the Common Stock.
MERGER, CONSOLIDATION, SALE OR OTHER DISPOSITIONS
If at any time there shall be a merger,
consolidation, sale, conveyance, transfer, lease, or other
disposition of substantially all of the assets of the
Corporation, then the successor or assuming corporation
shall succeed to and be substituted for the Corporation in,
and the Corporation will be relieved of any further
obligation under, the Warrant Agreement or the Warrants.
ENFORCEABILITY OF RIGHTS OF HOLDERS
The Warrant Agent will act solely as an agent of
the Corporation in acting under the Warrant Agreement and in
connection with any Warrant Certificate. The Warrant Agent
shall have no duty or responsibility in case of any default
by the Corporation in the performance of its covenants or
agreements contained in the Warrant Agreement or in any
Warrant Certificate. Each Holder may, without the consent
of the Warrant Agent, enforce by appropriate legal action,
on its own behalf, the Holder's right to exercise its
Warrants in the manner provided in the Warrant Agreement and
its Warrant Certificate.
NO RIGHTS AS HOLDERS OF UNDERLYING SECURITIES
Prior to the exercise of any Securities Warrants
to purchase Underlying Securities, holders of such
Securities Warrants will not have any of the rights of
holders of the Underlying Securities purchasable upon such
exercise, including, without limitation, the right to
receive the payment of principal of, or premium on, if any,
or interest, if any, dividends or distributions of any kind,
if any, on Underlying Securities, the right to enforce any
of the covenants in the Indentures, if applicable, or the
right to exercise any voting rights.
PLAN OF DISTRIBUTION
The Corporation may offer and sell Securities to
one or more underwriters, acting as principals for their own
accounts or as agents, for public offering and sale by them
or may sell Securities to investors directly or through
agents which may be affiliates of the Corporation. Any such
underwriter or agent involved in the offer and sale of the
Securities will be named in the related Prospectus
Supplement. The Corporation may also offer and sell
Securities to certain third parties upon the exercise of
options or on behalf of such third parties. The Corporation
may also offer and sell Equity Securities in "at the market
offerings" as defined in Rule 415(a)(4) of the Securities
Act.
Underwriters may offer and sell the Securities at
a fixed price or prices, which may be changed, or from time
to time at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at
negotiated prices. The Corporation also may, from time to
time, authorize underwriters acting as agents to offer and
sell the Securities upon the terms and conditions set forth
in any Prospectus Supplement. In connection with the sale
of Securities, underwriters may be deemed to have received
compensation from the Corporation in the form of
underwriting discounts, concessions or commissions and may
also receive commissions from purchasers of Securities for
whom they may act as agents. Underwriters may sell
Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions
or commissions (which may be changed from time to time) from
the underwriters and/or from the purchasers for whom they
may act as agents.
The Securities will be new issues of securities
with no established trading market, other than the Common
Stock which are quoted on the Nasdaq National Market System.
Any Common Stock sold pursuant to a Prospectus Supplement
will be eligible for such quotation. It has not presently
been established whether the underwriters, if any, of any
Securities will make a market in such Securities. If a
market is made, it may be discontinued at any time without
notice. No assurance can be given as to the liquidity of
the trading market for the Securities.
Any underwriting compensation paid by the
Corporation to underwriters or agents in connection with the
offering of Securities and any discounts, concessions or
commissions allowed by underwriters to participating dealers
will be set forth in the Prospectus Supplement.
Underwriters, dealers and agents participating in the
distribution of the Securities may be deemed to be
underwriters, and any discounts and commissions received by
them and any profit realized by them on resale of the
Securities may be deemed to be underwriting discounts and
commissions under the Securities Act. Under agreements that
may be entered into with the Corporation, underwriters,
dealers and agents who participate in the distribution of
the Securities may be entitled to indemnification by the
Corporation against certain civil liabilities, including
liabilities under the Securities Act or contribution with
respect to payments which the underwriters, dealers or
agents may be required to make in respect thereof.
Certain of the underwriters and their affiliates
may be customers of, engage in transactions with, and
perform services for, the Corporation and its subsidiaries
in the ordinary course of business.
LEGAL OPINIONS
The validity of the Securities offered hereby will
be passed upon for the Corporation, as shall be indicated in
the Applicable Prospectus Supplement, by Watkins Ludlam &
Stennis, 633 North State Street, Post Office Box 427,
Jackson, Mississippi 39205, and Skadden, Arps, Slate,
Meagher & Flom, 919 Third Avenue, New York, New York 10022,
counsel to the Corporation, and for the Underwriters by
counsel named in the Applicable Prospectus Summary.
EXPERTS
The consolidated financial statements of the
Corporation as of December 31, 1994 and 1993, and for each
of the years in the three-year period ended December 31,
1994, have been incorporated by reference herein and in the
registration statement in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants,
also incorporated by reference herein, and upon the
authority of said firm as experts in accounting and
auditing. The report of KPMG Peat Marwick LLP covering the
December 31, 1994, consolidated financial statements refers
to a change in the method of accounting for debt securities.
With respect to the unaudited interim financial
information for the periods ended September 30, 1995, June
30, 1995 and March 31, 1995, incorporated by reference
herein, the independent certified public accountants have
reported that they applied limited procedures in accordance
with professional standards for a review of such
information. However, their separate reports included in
the Corporation's quarterly report on Form 10-Q for the
quarters ended September 30, 1995, June 30, 1995 and March
31, 1995, incorporated by reference herein, state that they
did not audit and they do not express an opinion on that
interim financial information. Accordingly, the degree of
reliance on their reports on such information should be
restricted in light of the limited nature of the review
procedure applied. The accountants are not subject to the
liability provisions of section 11 of the Securities Act for
their reports on the unaudited interim financial information
because those reports are not a "report" or a "part" of the
registration statement prepared or certified by the
accountants within the meaning of section 7 and 11 of the
Securities Act.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses in connection with the issuance and
distribution of the securities being registered other than
underwriting compensation are as follows:
SEC Registration Fee . . . . . . . . $103,500
Fees of Rating Agencies . . . . . . $120,000
Printing and Engraving Expenses . . $ 15,000
Legal Fees and Expenses . . . . . . $125,000
Accounting Fees and Expenses . . . . $ 18,000
Fees of Indenture Trustees . . . . . $ 7,500
Transfer Agent and Registrar Fees . $ 7,500
Miscellaneous . . . . . . . . . . $ 5,000
Total . . . . . . . . . . . . . $401,500
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Corporation is incorporated under the laws of
Mississippi. Subarticle E of Article 8 of the Mississippi
Business Corporation Act prescribes the conditions under
which indemnification may be obtained by a present or former
director or officer of the Corporation who incurs expenses
or liability as a consequence of matters arising out of his
activities as a director or officer.
Article Nine of the Corporation s Articles of
Incorporation also provides for indemnification of officers
and directors under certain circumstances. The Corporation
has purchased a liability policy which, subject to any
limitations set forth in the policy, indemnifies the
Corporation s directors and officers for damages that they
become legally obligated to pay as a result of any negligent
act, error or omission committed by such person in his
capacity as an officer or director.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
ITEM 16. EXHIBITS.
DESCRIPTION
(1)(a) Form of Underwriting Agreement .
(3)(a)* Articles of Incorporation of Deposit Guaranty
Corp.
(3)(b)* Bylaws of Deposit Guaranty Corp.
(4)(a)* Form of Senior Indenture, between Deposit
Guaranty Corp. and SunTrust Bank, Atlanta, as
Trustee.
(4)(b)* Form of Subordinated Indenture between
Deposit Guaranty Corp. and SunTrust Bank,
Atlanta, as Trustee.
(4)(c)* Form of Senior Debt Securities (included in
Exhibit (4)(a) to this Registration Statement
and incorporated by reference).
(4)(d)* Form of Subordinated Debt Securities
(included in Exhibit (4)(b) to this Registration
Statement and incorporated by reference).
(4)(e)* Form of Warrant Agreement.
(4)(f)* Form of Warrant Certificate (included in
Exhibit (4)(e) to this Registration Statement
and incorporated by reference).
(4)(g)* Form of Deposit Agreement.
(4)(h)* Form of Depositary Receipt (included in
Exhibit (4)(g) to this Registration Statement
and incorporated by reference).
(5)(a) Opinion of Watkins Ludlam & Stennis as to
the legality of the securities to be
registered.
(5)(b) Opinion of Skadden, Arps, Slate, Meagher &
Flom as to the legality of the securities to
be registered.
(12)* Computation of the Corporation s Consolidated
Ratios of Earnings to Fixed Charges and
Combined Fixed Charges and Preferred Stock
Dividends.
(23)(a) Consent of KPMG Peat Marwick LLP.
(23)(b) Consent of Watkins Ludlam & Stennis.
(23)(c) Consent of Skadden, Arps, Slate, Meagher &
Flom.
(25)* Form T-1 Statement of Eligibility and
Qualifications under the Trust Indenture Act
of 1939 of SunTrust Bank, Atlanta, as Trustee
under the Senior Indenture and the
Subordinated Indenture.
__________
* Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers
or sales are being made, a post-effective amendment to
this registration statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts
or events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in the
registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than a 20% change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement;
(iii) to include any material information
with respect to the plan of distribution not
previously disclosed in the registration statement
or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(i) and (a)(ii)
do not apply if the registration statement is on Form
S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) that, for the purpose of determining any
liability under the Securities Act of 1933, each post-
effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(3) to remove from registration by means of
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby further undertakes
that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant s
annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to
be a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers, and controlling persons of the
Registrant pursuant to the provisions described in Item 15
above, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the
Registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against
public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, the registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Jackson, state of
Mississippi, on this 1st day of February, 1996.
DEPOSIT GUARANTY CORP.
By: /s/ Arlen L. McDonald
______________________________
Executive Vice President
(Princiapl Financial Officer)
Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement has been signed by the
following persons in the capacities and on the date
indicated.
NAME TITLE DATE
* Chairman of the
___________________________ Board and Director
E.B. Robinson, Jr. (Principal Execu-
tive Officer)
* President and Director
___________________________
Howard L. McMillan, Jr.
/s/ Arlen L. McDonald Executive Vice February 1, 1996
___________________________ President (Principal
Arlen L. McDonald Financial Officer)
* Controller (Principal
___________________________ Accounting Officer)
Stephen E. Barker
* Director
___________________________
Michael B. Bemis
___________________________ Director
Richard H. Bremer
* Director
___________________________
W. Henry Holmon, Jr.
* Director
___________________________
Warren A. Hood, Jr.
* Director
___________________________
Charles L. Irby
* Director
___________________________
Richard D. McRae, Jr.
* Director
___________________________
W.R. Newman, III
* Director
___________________________
John N. Palmer
___________________________ Director
Steven C. Walker
___________________________ Director
J. Kelley Williams
*By: /s/ Arlen L. McDonald February 1, 1996
________________________
(Attorney-in-fact)
INDEX TO EXHIBITS
FORM S-3 SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NUMBER
(1)(a) Form of Underwriting
Agreement .
(3)(a)* Articles of Incorporation of
Deposit Guaranty Corp.
(3)(b)* Bylaws of Deposit Guaranty
Corp.
(4)(a)* Form of Senior Indenture,
between Deposit Guaranty
Corp. and SunTrust Bank,
Atlanta, as Trustee.
(4)(b)* Form of Subordinated
Indenture between Deposit
Guaranty Corp. and SunTrust
Bank, Atlanta, as Trustee.
(4)(c)* Form of Senior Debt
Securities (included in
Exhibit (4)(a) to this
Registration Statement and
incorporated by reference).
(4)(d)* Form of Subordinated Debt
Securities (included in
Exhibit (4)(b) to this
Registration Statement and
incorporated by reference).
(4)(e)* Form of Warrant Agreement.
(4)(f)* Form of Warrant Certificate
(included in Exhibit (4)(e)
to this Registration
Statement and incorporated
by reference).
(4)(g)* Form of Deposit Agreement.
(4)(h)* Form of Depositary Receipt
(included in Exhibit (4)(g)
to this Registration
Statement and incorporated
by reference).
(5)(a) Opinion of Watkins Ludlam &
Stennis as to the legality
of the securities to be
registered.
(5)(b) Opinion of Skadden, Arps,
Slate, Meagher & Flom as to
the legality of the
securities to be registered.
(12)* Computation of the
Corporation s Consolidated
Ratios of Earnings to Fixed
Charges and Combined Fixed
Charges and Preferred Stock
Dividends.
(23)(a) Consent of KPMG Peat Marwick
LLP.
(23)(b) Consent of Watkins Ludlam &
Stennis.
(23)(c) Consent of Skadden, Arps,
Slate, Meagher & Flom.
(25)* Form T-1 Statement of
Eligibility and
Qualifications under the
Trust Indenture Act of 1939
of SunTrust Bank, Atlanta,
as Trustee under the Senior
Indenture and the
Subordinated Indenture.
__________
* Previously filed.
DEPOSIT GUARANTY CORP.
UNDERWRITING AGREEMENT
Introductory. Deposit Guaranty Corp., a Mississippi
business corporation (the Company ), proposes to issue and
sell from time to time, (i) one or more series of its
unsecured debt securities, which may be either senior
debentures, notes, bonds, and/or other evidences of
indebtedness (the "Senior Debt Securities") or subordinated
debentures, notes, bonds, and/or other evidences of
indebtedness which may be convertible at the option of a
holder of the Corporation into Equity Securities (as
described herein) of the Corporation (the "Subordinated Debt
Securities" and, together with the Senior Debt Securities,
the "Debt Securities"), (ii) warrants to purchase Debt
Securities (the "Debt Warrants"), (iii) shares of Preferred
Stock, no par value (the "Preferred Stock"), which may be
convertible, at the option of the holder, into Common Stock
or any other class or series of Equity Securities of the
Corporation or convertible at the option of the Corporation
into Equity Securities or other debt securities of the
Corporation, (iv) shares of Preferred Stock represented by
depositary shares ("Depositary Shares"), (v) warrants to
purchase shares of Preferred Stock (the "Preferred Stock
Warrants"), (vi) warrants to purchase Depositary Shares (the
"Depositary Share Warrants"), (vii) Common Stock, no par
value (the "Common Stock" and, together with the Preferred
Stock or Depositary Shares representing Preferred Stock, the
"Equity Securities"), and (viii) warrants to purchase Common
Stock (the "Common Stock Warrants," and together with the
Debt Warrants, the Preferred Stock Warrants, and the
Depositary Share Warrants, being collectively referred to
herein as the "Securities Warrants") registered under the
registration statement referred to in Section 2(a)
( Registered Securities ). The Senior Debt Securities will
be issued under an indenture, dated as of __________, 19__
(the Senior Indenture ), between the Company and SunTrust
Bank, Atlanta, as Trustee, in one or more series, which
series may vary as to interest rates, maturities, redemption
provisions, selling prices and other terms. The Subordinated
Debt Securities will be issued under an Indenture, dated as
of , 19 (the "Subordinated Indenture," and
together with the Senior Indenture, the "Indentures")
between the Company and SunTrust Bank, Atlanta, as Trustee.
The Securities Warrants will be issued pursuant to a warrant
agreement (the "Warrant Agreement") between the Company and
a warrant agent (the "Warrant Agent"). The Depositary
Shares will be evidenced by depositary receipts (the
"Receipts") issued under a Deposit Agreement (the "Deposit
Agreement") between the Company and a depositary (the
"Depositary"). The Registered Securities constituting
preferred stock may be issued in one or more series, which
series may vary as to dividend rates, redemption provisions,
selling prices and other terms. Particular series or
offerings of Registered Securities will be sold pursuant to
a Terms Agreement referred to in Section 3, for resale in
accordance with terms of offering determined at the time of
sale.
The Registered Securities involved in any such offering
are hereinafter referred to as the Offered Securities .
The firm or firms which agree to purchase the Offered
Securities are hereinafter referred to as the Underwriters
of such Securities, and the representative or
representatives of the Underwriters, if any, specified in a
Terms Agreement referred to in Section 3 are hereinafter
referred to as the Representatives ; provided, however,
that if the Terms Agreement does not specify any
representative of the Underwriters, the term
Representatives , as used in this Agreement (other than in
Sections 2(b), 5(c) and 6 and the second sentence of
Section 3), shall mean the Underwriters.
1. Representations and Warranties of the Company. The
Company, as of the date of each Terms Agreement referred to
in Section 3, represents and warrants to, and agrees with,
each Underwriter that:
(a) A registration statement (No. 33-64333),
including a prospectus, relating to the Registered
Securities including, if the Offered Securities are
convertible, the underlying Securities into which they
are convertible, has been filed with the Securities and
Exchange Commission (the Commission ) and has become
effective. Such registration statement, as amended at
the time of any Terms Agreement referred to in
Section 3, is hereinafter referred to as the
Registration Statement , and the prospectus included
in such Registration Statement, as supplemented as
contemplated by Section 3 to reflect the terms of the
Offered Securities (if they are debt securities or
preferred stock) and the terms of the offering of the
Offered Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b)
(Rule 424(b)) under the Securities Act of 1933 (the
"Act"), including all material incorporated by
reference therein, is hereinafter referred to as the
"Prospectus". All references in this Agreement to
financial statements and schedules and other
information that is "contained," "included" or "stated"
in the Registration Statement, any preliminary
prospectus or the Prospectus (and all other references
of like import) shall be deemed to mean and include all
such financial statements and schedules and other
information that are or are deemed to be incorporated
by reference in the Registration Statement or the
Prospectus, as the case may be. Any reference herein
to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer
to and include the filing of any document under the
Securities Exchange Act of 1934, as amended (together
with all rules and regulations of the Commission
thereunder, the "Exchange Act"), after the effective
date of the Registration Statement, or the issue date
of any preliminary prospectus or the Prospectus, as the
case may be, and on or prior to the completion of the
applicable offering and which is deemed to be
incorporated therein by reference.
(b) On the effective date of the registration
statement relating to the Registered Securities, such
registration statement conformed in all respects to the
requirements of the Act, the Trust Indenture Act of
1939 (the Trust Indenture Act ) and the rules and
regulations of the Commission (the Rules and
Regulations ) and did not include any untrue statement
of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and on the date of
each Terms Agreement referred to in Section 3, the
Registration Statement and the Prospectus will conform
in all respects to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations, and
neither of such documents will include any untrue
statement of a material fact or omit to state any
material fact required to be stated therein or
necessary to make the statements therein not
misleading, except that the foregoing does not apply to
(a) statements in or omissions from any of such
documents based upon written information furnished to
the Company by any Underwriter through the
Representatives, if any, specifically for use therein
and (b) that part of the Registration Statement that
constitutes the Statement of Eligibility on Form T-1 of
the Trustee under the Trust Indenture Act under the
Indenture filed as an exhibit to the Registration
Statement (the "Form T-1").
(c) The Company has been duly incorporated and is
an existing corporation in good standing under the laws
of the State of Mississippi, with power and authority
(corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the
conduct of its business requires such qualification,
other than any failure to be so qualified or in good
standing as would not singly or in the aggregate with
all such other failures reasonably be expected to have
a materially adverse effect on the assets, liabilities,
results of operations or financial condition of the
Company and its consolidated subsidiaries (as defined
in Rule 1-02(x) of the Commission's Regulation S-X),
taken as a whole (each a "Material Adverse Effect").
(d) Each subsidiary of the Company that meets the
conditions of a "Significant Subsidiary" set forth in
Rule 1-02(w) of the Commission's Regulation S-X
(collectively, the "Subsidiaries") has been duly
incorporated or organized and is an existing
corporation, bank or savings bank in good standing
under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and
other) to own its properties and conduct its business
as described in the Prospectus; and each Subsidiary of
the Company is duly qualified to do business as a
foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification, other than any failure to be so
qualified or in good standing as would not singly or in
the aggregate with all other failures reasonably be
expected to have a Material Adverse Effect; all of the
issued and outstanding capital stock of each Subsidiary
of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and the
capital stock of each Subsidiary owned by the Company,
directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(e) If the Offered Securities are Debt Securities
or Debt Warrants: The relevant Indenture has been duly
authorized and has been duly qualified under the Trust
Indenture Act; the Offered Securities have been duly
authorized; and when the Offered Securities are
delivered and paid for pursuant to the Terms Agreement
on the Closing Date (as defined below) or pursuant to
Delayed Delivery Contracts (as hereinafter defined),
the relevant Indenture will have been duly executed and
delivered, such Offered Securities will have been duly
executed, authenticated, issued and delivered and will
conform to the description thereof contained in the
Prospectus and the relevant Indenture and such Offered
Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or
affecting creditors' rights and to general equity
principles.
(f) If the Offered Securities are Preferred Stock
or Depositary Shares or Depositary Share Warrants or
Preferred Stock Warrants: The Offered Securities have
been duly authorized and, when the Offered Securities
have been delivered and paid for in accordance with the
Terms Agreement on the Closing Date, such Offered
Securities will have been validly issued, fully paid
and nonassessable and will conform to the description
thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights
with respect to the Offered Securities.
(g) If the Offered Securities are Common Stock or
Common Stock Warrants are issued: The Offered
Securities and all other outstanding shares of capital
stock of the Company have been duly authorized; all
outstanding shares of capital stock of the Company are,
and, when the Offered Securities have been delivered
and paid for in accordance with the Terms Agreement on
the Closing Date, such Offered Securities will have
been, validly issued, fully paid and nonassessable and
will conform to the description thereof contained in
the Prospectus; and the stockholders of the Company
have no preemptive rights with respect to the Offered
Securities.
(h) If the Offered Securities are convertible:
When the Offered Securities are delivered and paid for
pursuant to the Terms Agreement on the Closing Date,
such Offered Securities will be convertible into Common
Stock of the Company in accordance with their terms (if
the Offered Securities are Preferred Stock) or the
relevant Indenture (if the Offered Securities are Debt
Securities); the shares of Equity Securities initially
issuable upon conversion of such Offered Securities
have been duly authorized and reserved for issuance
upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and
nonassessable; the outstanding shares of Common Stock
have been duly authorized and validly issued, are fully
paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights
with respect to the Common Stock.
(i) If the Offered Securities are Common Stock or
are exercisable for or convertible into Common Stock:
Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the
Company and any person that would give rise to a valid
claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like
payment.
(j) If the Offered Securities constitute Common
Stock or are exercisable for or convertible into Common
Stock, the outstanding shares of Common Stock are
listed on the Nasdaq Stock Market ( Nasdaq ) and the
Offered Securities (if they are Common Stock) or the
Common Stock into which the Offered Securities are
convertible (if they are convertible) has been approved
for listing on Nasdaq, subject to notice of issuance.
If the Offered Securities are Debt Securities or
Preferred Stock, they have been approved for listing on
the stock exchange or national automated quotation
system indicated in the Terms Agreement, subject to
notice of issuance.
(k) No consent, approval, authorization, or order
of, or filing with, any governmental agency or body or
any court is required for the consummation of the
transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in
connection with the issuance and sale of the Offered
Securities by the Company, except such as have been
obtained and made under the Act and, if the Offered
Securities are Debt Securities, the Trust Indenture Act
and such as may be required under state securities
laws.
(l) The execution, delivery and performance of
the relevant Indenture (if the Offered Securities are
Debt Securities), the Terms Agreement (including the
provisions of this Agreement) and any Delayed Delivery
Contracts and the issuance and sale of the Offered
Securities and, if the Offered Securities are debt
securities or preferred stock, compliance with the
terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary of the
Company or any of their properties, or any agreement or
instrument to which the Company or any such Subsidiary
is a party or by which the Company or any such
Subsidiary is bound or to which any of the properties
of the Company or any such Subsidiary is subject, or
the charter or by-laws of the Company or any such
Subsidiary, and the Company has full power and
authority to authorize, issue and sell the Offered
Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement) other than
any such breaches, violations, defaults, liens, charges
or encumbrances as would not singly or in the aggregate
with all such other breaches, violations, defaults,
liens, charges or encumbrances reasonably be expected
to have a Material Adverse Effect.
(m) The Terms Agreement (including the provisions
of this Agreement), if the Offered Securities are Debt
Securities or Preferred Stock, any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company.
(n) Except as disclosed in the Prospectus, the
Company and its Subsidiaries have good and marketable
title to all real properties and all other properties
and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect
the value thereof or materially interfere with the use
made or to be made thereof by them; and except as
disclosed in the Prospectus, the Company and its
Subsidiaries hold any leased real or personal property
under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to
be made thereof by them.
(o) The Company and its Subsidiaries possess
adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary
to conduct the business now operated by them and have
not received any notice of proceedings relating to the
revocation or modification of any such certificate,
authority or permit that, if determined adversely to
the Company or any of its subsidiaries, would
individually or in the aggregate have a Material
Adverse Effect on the Company and its Subsidiaries
taken as a whole.
(p) Except as disclosed in the Prospectus, there
are no pending actions, suits or proceedings against or
affecting the Company, any of its Subsidiaries or any
of their respective properties that, if determined
adversely to the Company or any of its Subsidiaries,
would individually or in the aggregate have a Material
Adverse Effect or would materially and adversely affect
the ability of the Company to perform its obligations
under the relevant Indenture (if the Offered Securities
are Debt Securities), the Terms Agreement (including
the provisions of this Agreement) or any Delayed
Delivery Contracts, or which are otherwise material in
the context of the sale of the Offered Securities; and
no such actions, suits or proceedings are threatened
or, to the Company's knowledge, contemplated.
(q) The financial statements included in the
Registration Statement and Prospectus present fairly
the financial position of the Company and its
consolidated subsidiaries taken as a whole as of the
dates shown and their results of operations and cash
flows for the periods shown, and, except as otherwise
disclosed in the Prospectus, such financial statements
have been prepared in conformity with the generally
accepted accounting principles in the United States
applied on a consistent basis; and any schedules
included in the Registration Statement present fairly
the information required to be stated therein.
(r) Except as disclosed in the Prospectus, since
the date of the latest audited financial statements
included in the Prospectus there has been no material
adverse change, nor any development or event involving
a prospective material adverse change, in the condition
(financial or other), business, properties or results
of operations of the Company and its subsidiaries taken
as a whole, and, except as disclosed in or contemplated
by the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(s) The Company is not and, after giving effect
to the offering and sale of the Offered Securities and
the application of the proceeds thereof as described in
the Prospectus, will not be an investment company as
defined in the Investment Company Act of 1940.
(t) The Company is duly registered under the Bank
Holding Company Act of 1956, as amended; the Company,
and each subsidiary of the Company are in compliance
with and conduct their respective businesses in
conformity with all applicable bank and bank holding
company laws and governmental regulations, except to
the extent that any such failure to be in such
conformity would not have a Material Adverse Effect.
(u) If Offered Securities constitute Depositary
Shares: The deposit of the underlying Preferred Stock
by the Company in accordance with the Deposit Agreement
has been duly authorized and, when the Depositary
Shares are issued in accordance with the terms of this
Agreement and the Deposit Agreement, the Depositary
Shares will represent legal and valid interests in the
underlying Preferred Stock.
(v) If Offered Securities constitute Depositary
Shares: Assuming due authorization, execution and
delivery of the Deposit Agreement by the Depositary,
each Depositary Share will represent the interest
described in the Prospectus in a share of underlying
Preferred Stock; assuming due execution and delivery of
the Depositary Receipts by the Depositary pursuant to
the Deposit Agreement, the Receipts will entitle the
persons in whose names such Receipts are registered to
the benefits of registered holders of Receipts provided
therein and in the Deposit Agreement.
(w) If Offered Securities are Depositary Shares:
The Deposit Agreement has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the
Depositary, is a valid and binding agreement of the
Company.
(x) If Offered Securities are Securities
Warrants: The Warrant Agreement has been duly
authorized, executed and delivered by the Company and
assuming due authorization, execution and delivery
thereof by the Warrant Agent, is a valid and binding
agreement of the Company.
3. Purchase and Offering of Offered Securities. The
obligation of the Underwriters to purchase the Offered
Securities will be evidenced by an agreement or exchange of
other written communications ( Terms Agreement ) at the time
the Company determines to sell the Offered Securities. The
Terms Agreement will incorporate by reference the provisions
of this Agreement, except as otherwise provided therein, and
will specify the firm or firms which will be Underwriters,
the names of any Representatives, the principal amount or
number of shares to be purchased by each Underwriter, any
redemption provisions and any sinking fund requirements and
whether any of the Offered Securities may be sold to
institutional investors pursuant to Delayed Delivery
Contracts (as defined below). The purchase price to be paid
by the Underwriters and (if the Offered Securities are debt
securities or preferred stock) the terms of the Offered
Securities not already specified (in the relevant Indenture,
in the case of Offered Securities that are debt securities),
including, but not limited to, interest rate (if debt
securities), dividend rate (if preferred stock), maturity
(if debt securities), any redemption provisions and any
sinking fund requirements and whether any of the Offered
Securities may be sold to institutional investors pursuant
to Delayed Delivery Contracts (as defined below). The Terms
Agreement will also specify the time and date of delivery
and payment (such time and date, or such other time not
later than seven full business days thereafter as the
Underwriter first named in the Terms Agreement (the Lead
Underwriter ) and the Company agree as the time for payment
and delivery, being herein and in the Terms Agreement
referred to as the Closing Date ), the place of delivery
and payment and any details of the terms of offering that
should be reflected in the prospectus supplement relating to
the offering of the Offered Securities. For purposes of
Rule 15c6-1 under the Securities Exchange Act of 1934, the
Closing Date (if later than the otherwise applicable
settlement date) shall be the date for payment of funds and
delivery of securities for all the Offered Securities sold
pursuant to the offering, other than Contract Securities for
which payment of funds and delivery of securities shall be
as hereinafter provided. The obligations of the
Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the
Underwriters propose to offer the Securities for sale as set
forth in the Prospectus.
If the Terms Agreement provides for sales of Offered
Securities pursuant to delayed delivery contracts, the
Company authorizes the Underwriters to solicit offers to
purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached
hereto ( Delayed Delivery Contracts ) with such changes
therein as the Company may authorize or approve. Delayed
Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies,
pension funds, investment companies and educational and
charitable institutions. On the Closing Date the Company
will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such
Terms Agreement in respect of the principal amount or number
of shares of Offered Securities to be sold pursuant to
Delayed Delivery Contracts ( Contract Securities ). The
Underwriters will not have any responsibility in respect of
the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed
Delivery Contracts, the Contract Securities will be deducted
from the Offered Securities to be purchased by the several
Underwriters and the aggregate principal amount or number of
shares of Offered Securities to be purchased by each
Underwriter will be reduced pro rata in proportion to the
principal amount or number of shares of Offered Securities
set forth opposite each Underwriter's name in such Terms
Agreement, except to the extent that the Lead Underwriter
determines that such reduction shall be otherwise than pro
rata and so advise the Company. The Company will advise the
Lead Underwriter not later than the business day prior to
the Closing Date of the principal amount or number of shares
of Contract Securities.
If the Offered Securities are preferred stock or Common
Stock, the certificates for the Offered Securities delivered
to the Underwriters on the Closing Date will be in
definitive form, and if the Offered Securities are debt
securities, the Offered Securities delivered to the
Underwriters on the Closing Date will be in definitive fully
registered form, in each case] in such denominations and
registered in such names as the Lead Underwriter requests.
If the Offered Securities are debt securities and the
Terms Agreement specifies Book-Entry Only settlement or
otherwise states that the provisions of this paragraph shall
apply, the Company will deliver against payment of the
purchase price the Offered Securities in the form of one or
more permanent global Securities in definitive form (the
"Global Securities") deposited with the Trustee as custodian
for The Depository Trust Company ("DTC") and registered in
the name of Cede & Co., as nominee for DTC. Interests in any
permanent global Securities will be held only in book-entry
form through DTC, except in the limited circumstances
described in the Prospectus. Payment for the Offered
Securities shall be made by the Underwriters (if the Terms
Agreement specifies that the Offered Securities will not
trade in DTC's Same Day Funds Settlement System) by
certified or official bank check or checks in New York
Clearing House (next day) funds or (if the Terms Agreement
specifies that the Offered Securities will trade in DTC's
Same Day Funds Settlement System) in Federal (same day)
funds by official check or checks or wire transfer to an
account in New York previously designated to the Lead
Underwriter by the Company at a bank acceptable to the Lead
Underwriter, in each case drawn to the order of
at the place of payment specified in the Terms Agreement on
the Closing Date, against delivery to the Trustee as
custodian for DTC of the Global Securities representing all
of the Offered Securities.
4. Certain Agreements of the Company. The Company
agrees with the several Underwriters that in connection with
each offering of Offered Securities:
(a) The Company will file the Prospectus with the
Commission pursuant to and in accordance with
Rule 424(b)(2) (or, if applicable and if consented to
by the Lead Underwriter (which consent shall not be
unreasonably withheld), subparagraph (5)) not later
than the second business day following the execution
and delivery of the Terms Agreement.
(b) The Company will advise the Lead Underwriter
promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus and will
afford the Lead Underwriter a reasonable opportunity to
comment on any such proposed amendment or supplement;
and the Company will also advise the Lead Underwriter
promptly of the filing of any such amendment or
supplement and of the institution by the Commission of
any stop order proceedings in respect of the
Registration Statement or of any part thereof and will
use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to
the Offered Securities is required to be delivered
under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or
omit to state any material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply
with the Act, the Company promptly will notify the Lead
Underwriter of such event and will promptly prepare and
file with the Commission, at its own expense, an
amendment or supplement which will correct such
statement or omission or an amendment which will effect
such compliance. Neither the Lead Underwriter's
consent to, nor the Underwriters delivery of, any such
amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than
16 months, after the date of each Terms Agreement, the
Company will make generally available to its
securityholders an earnings statement covering a period
of at least 12 months beginning after the Effective
Date, which will satisfy the provisions of
Section 11(a) of the Act.
(e) The Company will furnish to the
Representatives copies of the Registration Statement,
including all exhibits, any related preliminary
prospectus, any related preliminary prospectus
supplement, the Prospectus and all amendments and
supplements to such documents, in each case as soon as
available and in such quantities as the Lead
Underwriter reasonably requests. The Company will pay
the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange for the
qualification of the Offered Securities for sale and
(if the Offered Securities are Debt Securities or
Preferred Stock) the determination of their eligibility
for investment under the laws of such jurisdictions as
the Lead Underwriter designates and will continue such
qualifications in effect so long as required for the
distribution.
(g) During the period of five years after the
date of any Terms Agreement, the Company will furnish
to the Representatives and, upon request, to each of
the other Underwriters, if any, as soon as practicable
after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as
available, a copy of each report and any definitive
proxy statement of the Company filed with the
Commission under the Securities Exchange Act of 1934 or
mailed to stockholders, and (ii) from time to time,
such other information concerning the Company as the
Lead Underwriter may reasonably request.
(h) The Company will pay all expenses incident to
the performance of its obligations under the Terms
Agreement (including the provisions of this Agreement)
and will reimburse the Underwriters (if and to the
extent incurred by them) for any filing fees or other
expenses (including reasonable fees and disbursements
of counsel) incurred by them in connection with
qualification of the Registered Securities for sale (if
the Offered Securities are Debt Securities or Preferred
Stock) any determination of their eligibility for
investment under the laws of such jurisdictions as the
Lead Underwriter may designate and the printing of
memoranda relating thereto (if they are Debt Securities
or Preferred Stock), for any applicable filing fee of
the National Association of Securities Dealers, Inc.
relating to the Registered Securities, for any travel
expenses of the Company's officers and employees and
any other expenses of the Company in connection with
attending or hosting meetings with prospective
purchasers of Registered Securities and for expenses
incurred in distributing the Prospectus, any
preliminary prospectuses, any preliminary prospectus
supplements or any other amendments or supplements to
the Prospectus to the Underwriters.
(i) If the Offered Securities are Debt Securities
or Preferred Stock, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a
registration statement under the Act relating to United
States dollar-denominated debt securities issued or
guaranteed by the Company and having a maturity of more
than one year from the date of issue (if the Offered
Securities are debt securities) or any series of
preferred stock issued or guaranteed by the Company (if
the Offered Securities are preferred stock)], or
publicly disclose the intention to make any such offer,
sale, pledge, disposal or filing, without the prior
written consent of the Lead Underwriter for a period
beginning at the time of execution of the Terms
Agreement and ending the number of days after the
Closing Date specified under "Blackout" in the Terms
Agreement.
(j) If the Offered Securities are Common Stock or
are convertible into Common Stock, the Company will not
offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act
relating to, any additional shares of its Common Stock
or securities convertible into or exchangeable or
exercisable for any shares of its Common Stock, or
publicly disclose the intention to make any such offer,
sale, pledge, disposal or filing, without the prior
written consent of the Lead Underwriter for a period
beginning at the time of execution of the Terms
Agreement and ending the number of days after the
Closing Date specified under Blackout in the Terms
Agreement, except issuances of Common Stock pursuant to
the conversion or exchange of convertible or
exchangeable securities or the exercise of warrants or
options, in each case outstanding on the date of the
Terms Agreement, grants of employee stock options
pursuant to the terms of a plan in effect on the date
of the Terms Agreement, issuances of Common Stock
pursuant to the exercise of such options.
5. Conditions of the Obligations of the Underwriters.
The obligations of the several Underwriters to purchase and
pay for the Offered Securities will be subject to the
accuracy of the representations and warranties on the part
of the Company herein, to the accuracy of the statements of
Company officers made pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder
and to the following additional conditions precedent:
(a) On or prior to the date of the Terms
Agreement, the Representatives shall have received a
letter, dated the date of delivery thereof, of KPMG
Peat Marwick LLP confirming that they are independent
public accountants within the meaning of the Act and
the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the financial statements
and any schedules and any summary of earnings
examined by them and included in the Prospectus
comply as to form in all material respects with
the applicable accounting requirements of the Act
and the related published Rules and Regulations;
(ii) they have performed the procedures
specified by the American Institute of Certified
Public Accountants for a review of interim
financial information as described in Statement of
Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements
included in the Registration Statement;
(iii) on the basis of the review referred to
in clause (ii) above, a reading of the latest
available interim financial statements of the
Company, inquiries of officials of the Company who
have responsibility for financial and accounting
matters and other specified procedures, nothing
came to their attention that caused them to
believe that:
(A) the unaudited financial statements,
if any, and any summary of earnings included
in the Prospectus do not comply as to form in
all material respects with the applicable
accounting requirements of the Act and the
related published Rules and Regulations or
any material modifications should be made to
such unaudited financial statements and
summary of earnings for them to be in
conformity with generally accepted accounting
principles;
(B) if any unaudited capsule
information is contained in the Prospectus,
the unaudited consolidated net sales, net
operating income,(3) net income and net
income per share amounts or other amounts
constituting such capsule information and
described in such letter do not agree with
the corresponding amounts set forth in the
unaudited consolidated financial statements
or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited
statements of income;
(C) at the date of the latest available
balance sheet read by such accountants, or at
a subsequent specified date not more than
five days prior to the date of the Terms
Agreement, there was any change in the
capital stock or any increase in short-term
indebtedness or long-term debt of the Company
and its consolidated subsidiaries or, at the
date of the latest available balance sheet
read by such accountants, there was any
decrease in consolidated net current assets
or net assets, as compared with amounts shown
on the latest balance sheet included in the
Prospectus; or
(D) for the period from the closing date
of the latest income statement included in
the Prospectus to the closing date of the
latest available income statement read by
such accountants there were any decreases, as
compared with the corresponding period of the
previous year, in consolidated net sales, net
operating income in the total or (if Offered
Securities are Common Stock or are
convertible into Common Stock) per share
amounts of consolidated income before
extraordinary items or net income or (if the
Offered Securities are Debt Securities) in
the ratio of earnings to fixed charges or (if
the Offered Securities are Preferred Stock)
in the ratio of earnings to fixed charges and
preferred stock dividends combined;
except in all cases set forth in clauses (C) and
(D) above for changes, increases or decreases
which the Prospectus discloses have occurred or
may occur or which are described in such letter;
and
(iv) they have compared specified dollar
amounts (or percentages derived from such dollar
amounts) and other financial information contained
in the Prospectus (in each case to the extent that
such dollar amounts, percentages and other
financial information are derived from the general
accounting records of the Company and its
subsidiaries subject to the internal controls of
the Company's accounting system or are derived
directly from such records by analysis or
computation) with the results obtained from
inquiries, a reading of such general accounting
records and other procedures specified in such
letter and have found such dollar amounts,
percentages and other financial information to be
in agreement with such results, except as
otherwise specified in such letter.
All financial statements and schedules included in
material incorporated by reference into the Prospectus
shall be deemed included in the Prospectus for purposes
of this subsection.
(b) The Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations
and Section 4(a) of this Agreement. No stop order
suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or any
Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution of the Terms
Agreement, there shall not have occurred (i) any
change, or any development or event involving a
prospective change, in the condition (financial or
other), business, properties or results of operations
of the Company or its subsidiaries which, in the
judgment of a majority in interest of the Underwriters
including any Representatives, is material and adverse
and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities or
preferred stock of the Company by any nationally
recognized statistical rating organization (as defined
for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has
under surveillance or review its rating of any debt
securities or preferred stock of the Company (other
than an announcement with positive implications of a
possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the
New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension
of trading of any securities of the Company on any
exchange or in the over-the-counter market; (iv) any
banking moratorium declared by U.S. Federal or New York
authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial
national or international calamity or emergency if, in
the judgment of a majority in interest of the
Underwriters including any Representatives, the effect
of any such outbreak, escalation, declaration, calamity
or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the
sale of and payment for the Offered Securities.
(d) The Representatives shall have received an
opinion, dated such Closing Date, of Skadden, Arps,
Slate, Meagher & Flom, special New York counsel for the
Company, to the effect that:
(i) the statements made in the Prospectus
under the caption "Regulatory Matters" have been
reviewed by such counsel and insofar as they
relate to summaries of legal matters, constitute
fair summaries of such matters and the description
of the underwriting arrangements contained in the
Prospectus under the caption "Plan of
Distribution" and in the prospectus supplement
under the caption "Underwriters" and the
statements in the Registration Statement in Item
15, to the extent such statements constitute
summaries of legal matters or documents, have been
reviewed by such counsel and are correct in all
material respects;
(ii) the Company is not an "investment
company" or an entity "controlled" by an
"investment company," as such terms are defined in
the Investment Company Act of 1940, as amended;
(iii) Each document filed pursuant to the
Exchange Act (other than the financial statements,
schedules and other financial and statistical data
included therein, as to which such counsel need
express no opinion) and incorporated or deemed to
be incorporated by reference in the Prospectus
complies as to form in all material respects with
the applicable requirements of the Exchange Act.
(iv) If Offered Securities constitute
Depositary Shares: The deposit of the underlying
Preferred Stock by the Company in accordance with
the Deposit Agreement has been duly authorized
and, when the Depositary Shares are issued in
accordance with the terms of this Agreement and
the Deposit Agreement, the Depositary Shares will
represent legal and valid interests in the
underlying Preferred Stock.
(v) The Registration Statement has become
effective under the Act, the Prospectus was filed
with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion on the
date specified therein, and, to the best of the
knowledge of such counsel, no stop order
suspending the effectiveness of the Registration
Statement or any part thereof has been issued and
no proceedings for that purpose have been
instituted or are pending or contemplated under
the Act, the registration statement relating to
the Offered Securities, as of its effective date
and the Registration Statement and the Prospectus,
as of the date of this Agreement and any amendment
or supplement thereto, as of its date, complied as
to form in all material respects with the
requirements of the Act and the Rules and
Regulations; In addition, such counsel shall state
that such counsel has no reason to believe that
the registration statement, as of its effective
date, the Registration Statement as of the date of
this Agreement or as of such Closing Date, or any
amendment thereto, as of its date or as of such
Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits
to state any material fact required to be stated
therein or necessary to make the statements
therein not misleading or that the Prospectus or
any amendment or supplement thereto, as of the
date of this Agreement or as of such Closing Date,
contained or contains any untrue statement of a
material fact or omitted or omits to state any
material fact necessary in order to make the
statements therein, in the light of the
circumstances under which they were made, not
misleading; it being understood that such counsel
need express no opinion as to the financial
statements or other financial and statistical data
contained in the Registration Statement or the
Prospectus.
(e) You shall have received on such Closing Date
an opinion of Watkins Ludlam & Stennis, counsel for the
Company, dated such Closing Date, to the effect that:
(i) The Company is an existing corporation
in good standing under the laws of the State of
Mississippi, with corporate power and authority to
own its properties and conduct its business as
described in the Prospectus; and the Company is
duly qualified to do business as a foreign
corporation in good standing in all other
jurisdictions in which its ownership or lease of
property or the conduct of its business requires
such qualification, except where the failure to be
so qualified or in good standing would not have a
material adverse effect upon its operations or
financial condition;
(ii) the authorized capital stock of the
Company conforms as to legal matters in all
material respects to the description thereof
contained in the Prospectus under "Description of
Preferred Stock" and "Description of Common
Stock";
(iii) If the Offered Securities delivered on
such Closing Date are Preferred Stock or
Depositary Shares, such Offered Securities have
been duly authorized and validly issued, are fully
paid and nonassessable and conform to the
description thereof contained in the Prospectus;
(iv) If the Offered Securities delivered on
such Closing Date are Common Stock, such Offered
Securities have been duly authorized and validly
issued, are fully paid and nonassessable and
conform to the description thereof contained in
the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to
the Offered Securities;
(v) If the Offered Securities delivered on
such Closing Date are convertible into the
Underlying Securities of the Company in accordance
with their terms; the Underlying Securities
initially issuable upon conversion of such Offered
Securities have been duly authorized [and reserved
for issuance upon such conversion and, when issued
upon such conversion, will be validly issued,
fully paid and nonassessable; the outstanding
Underlying Securities have been duly authorized
and validly issued, are fully paid and
nonassessable] and conform to the description
thereof contained in the Prospectus[; and the
stockholders of the Company have no preemptive
rights with respect to the Securities or the
Underlying Securities];
(vi) this Agreement [and the Deposit
Agreement have/has] been duly authorized, executed
and delivered by the Company;
(vii) the Company has the corporate power
and authority to own its property and to conduct
its business as described in the Prospectus;
(viii) each Principal Subsidiary (as defined
in the Prospectus) of the Company has been duly
incorporated or organized, is validly existing as
a corporation, bank or savings bank in good
standing under the laws of the jurisdiction of its
incorporation, has the corporate or other power
and authority to own its property and to conduct
its business as described in the Prospectus;
(vii) the execution and delivery by the
Company of, and the performance by the Company of
its obligations under, this Agreement will not
violate any provision of Applicable Law (as
defined below) or the certificate of incorporation
or by-laws of the Company or, to the best of such
counsel's knowledge, constitute a breach or
default under any agreement or other instrument
binding upon the Company or any of its
subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or, to the
best of such counsel's knowledge, violate any
judgment, order or decree of any governmental
body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent,
approval, authorization or order of or
qualification with any governmental body or agency
is required for the performance by the Company of
its obligations under this Agreement, except such
as may be required by the securities or Blue Sky
laws of the various states in connection with the
offer and sale of the Offered Securities.
"Applicable Law", as used in subparagraph (iii)
above, means laws which, in such counsel's experience,
are normally applicable to, or relevant in connection
with, transactions of the type provided for in this
Agreement or issuers of the same type as the Company.
Such counsel need not express any opinion as to any
violation of any law which may have become applicable
to the Company as a result of any facts specifically
pertaining to you.
(viii) If Offered Securities constitute
Depositary Shares: The deposit of the underlying
Preferred Stock by the Company in accordance with the
Deposit Agreement has been duly authorized and, when
the Depositary Shares are issued in accordance with the
terms of this Agreement and the Deposit Agreement, the
Depositary Shares will represent legal and valid
interests in the underlying Preferred Stock.
(ix) If Offered Securities are Securities
Warrants: The Warrant Agreement has been duly
authorized, executed and delivered by the Company and
assuming due authorization, execution and delivery
thereof by the Warrant Agent, is a valid and binding
agreement of the Company.
(f) The Representatives shall have received
from counsel for the Underwriters, such opinion or
opinions, dated such Closing Date, with respect to the
incorporation of the Company, the validity of the
Offered Securities delivered on such Closing Date, the
Registration Statement, the Prospectus and other
related matters as the Representatives may require, and
the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling
them to pass upon such matters. In rendering such
opinion, [ ] may
rely as to the incorporation of the Company and all
other matters governed by Mississippi law upon the
opinion of [ ].
(g) The Representatives shall have received a
certificate, dated the Closing Date, of the President
or any Vice-President and a principal financial or
accounting officer of the Company in which such
officers, to the best of their knowledge after
reasonable investigation, shall state that the
representations and warranties of the Company in this
Agreement are true and correct, that the Company has
complied with all agreements and satisfied all
conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, that no stop
order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or
are contemplated by the Commission and that, subsequent
to the date of the most recent financial statements in
the Prospectus, there has been no material adverse
change, nor any development or event involving a
prospective material adverse change, in the condition
(financial or other), business, properties or results
of operations of the Company and its subsidiaries taken
as a whole except as set forth in or contemplated by
the Prospectus or as described in such certificate.
(h) The Representatives shall have received a
letter, dated the Closing Date, which meets the
requirements of subsection (a) of this Section, except
that the specified date referred to in such subsection
will be a date not more than five days prior to the
Closing Date for the purposes of this subsection.
The Company will furnish the Representatives with such
conformed copies of such opinions, certificates, letters and
documents as the Representatives reasonably request. The
Lead Underwriter may in its sole discretion waive on behalf
of the Underwriters compliance with any conditions to the
obligations of the Underwriters under this Agreement and the
Terms Agreement.
6. Indemnification and Contribution. (a) The Company
will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under
the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are
based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company
by any Underwriter through the Representatives, if any,
specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter
consists of the information described as such in the Terms
Agreement.
(b) Each Underwriter will severally and not jointly
indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement,
or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in
reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the
Representatives, if any, specifically for use therein, and
will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action
as such expenses are incurred, it being understood and
agreed that the only such information furnished by any
Underwriter consists of the information described as such in
the Terms Agreement.
(c) Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any
action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party
of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any
liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel
to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an
unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such
action.
(d) If the indemnification provided for in this
Section is unavailable or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above, then
each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other
from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the
one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total
underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and
the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or
claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section
shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be
in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company,
to each officer of the Company who has signed the
Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase
Offered Securities under the Terms Agreement and the
aggregate principal amount (if debt securities) or number of
shares (if preferred stock or Common Stock)] of Offered
Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the
total principal amount (if debt securities) or number of
shares (if preferred stock or Common Stock) of Offered
Securities, the Lead Underwriter may make arrangements
satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the
Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective
commitments under the Terms Agreement (including the
provisions of this Agreement), to purchase the Offered
Securities that such defaulting Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters so
default and the aggregate principal amount (if debt
securities) or number of shares (if preferred stock or
Common Stock) of Offered Securities with respect to which
such default or defaults occur exceeds 10% of the total
principal amount (if debt securities) or number of shares
(if preferred stock or Common Stock) of Offered Securities
and arrangements satisfactory to the Lead Underwriter and
the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such
default, the Terms Agreement will terminate without
liability on the part of any non-defaulting Underwriter or
the Company, except as provided in Section 8. As used in
this Agreement, the term Underwriter includes any person
substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability
for its default. If the Offered Securities are debt
securities or preferred stock, the respective commitments of
the several Underwriters for the purposes of this Section
shall be determined without regard to reduction in the
respective Underwriters' obligations to purchase the
principal amounts (if debt securities) or numbers of shares
(if preferred stock) of the Offered Securities set forth
opposite their names in the Terms Agreement as a result of
Delayed Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and
Obligations. The respective indemnities, agreements,
representations, warranties and other statements of the
Company or its officers and of the several Underwriters set
forth in or made pursuant to the Terms Agreement (including
the provisions of this Agreement) will remain in full force
and effect, regardless of any investigation, or statement as
to the results thereof, made by or on behalf of any
Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the
Offered Securities. If the Terms Agreement is terminated
pursuant to Section 7 or if for any reason the purchase of
the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section
4 and the respective obligations of the Company and the
Underwriters pursuant to Section 6 shall remain in effect.
If the purchase of the Offered Securities by the
Underwriters is not consummated for any reason other than
solely because of the termination of the Terms Agreement
pursuant to Section 7 or the occurrence of any event
specified in clause (iii), (iv) or (v) of Section 5(c), the
Company will reimburse the Underwriters for all out-of-
pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
9. Notices. All communications hereunder will be in
writing and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to them at their
address furnished to the Company in writing for the purpose
of communications hereunder or, if sent to the Company, will
be mailed, delivered or telegraphed and confirmed to it at
Deposit Guaranty Corp., 210 East Capitol Street, Jackson,
Mississippi 39205,
Attention: .
10. Successors. The Terms Agreement (including the
provisions of this Agreement) will inure to the benefit of
and be binding upon the Company and such Underwriters as are
identified in the Terms Agreement and their respective
successors and the officers and directors and controlling
persons referred to in Section 6, and no other person will
have any right or obligation hereunder.
11. Representation of Underwriters. Any
Representatives will act for the several Underwriters in
connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement
(including the provisions of this Agreement) taken by the
Representatives jointly or by the Lead Underwriter will be
binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed
in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together
constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough
of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the
transactions contemplated thereby.
ANNEX I
(Three copies of this Delayed Delivery Contract should be
signed and returned
to the address shown below so as to arrive not later than
9:00 A.M.,
New York time, on ........................ ............,
19....)
DELAYED DELIVERY CONTRACT
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Deposit
Guaranty Corp. , a Mississippi corporation
( Company ), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert as of the date
hereof, for delivery on , 19 ( Delivery
Date ),]
[$]..............[shares]
principal amount of the Company s [Insert title of
securities] ( Securities ), offered by the Company s
Prospectus dated , 19 and a Prospectus
Supplement dated , 19 relating
thereto, receipt of copies of which is hereby acknowledged,
at % of the principal amount thereof plus accrued
interest, if any, $ per share plus accrued dividends,
if any, and on the further terms and conditions set forth in
this Delayed Delivery Contract ( Contract ).
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the
date hereof, for delivery on the dates set forth below,
Securities in the principal amounts set forth below:
PRINCIPAL AMOUNT
NUMBER OF SHARES
DELIVERY DATE
..............................................
..............................................
Each of such delivery dates is hereinafter referred to as a
Delivery Date.]
Payment for the Securities that the undersigned has
agreed to purchase for delivery on the each Delivery Date
shall be made to the Company or its order by certified or
official bank check in New York Clearing House (next day)
funds at the office of at .M.
on the such Delivery Date upon delivery to the undersigned
of the Securities to be purchased by the undersigned for
delivery on such Delivery Date in definitive fully
registered form and in such denominations and registered in
such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less
than five full business days prior to the such Delivery
Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the
undersigned; that the purchase hereunder of Securities is to
be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of
the undersigned to take delivery of and make payment for,
Securities on the each Delivery Date shall be subject only
to the conditions that (1) investment in the Securities
shall not at the such Delivery Date be prohibited under the
laws of any jurisdiction in the United States to which the
undersigned is subject and (2) the Company shall have sold
to the Underwriters the total principal amount number of
shares of the Securities less the principal amount -number
of shares thereof covered by this and other similar
Contracts. The undersigned represents that its investment
in the Securities is not, as of the date hereof, prohibited
under the laws of any jurisdiction to which the undersigned
is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters
the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied
by a copy copies of the opinion[s] of counsel for the
Company delivered to the Underwriters in connection
therewith.
This Contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but
will not be assignable by either party hereto without the
written consent of the other.
It is understood that the acceptance of any such Contract
is in the Company's sole discretion and, without limiting
the foregoing, need not be on a first-come, first-served
basis. If this Contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance below
and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will
become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
............................................................
(Name of Purchaser)
By
............................................................
............................................................
(Title of Signatory)
............................................................
............................................................
(Address of Purchaser)
Accepted, as of the above date.
DEPOSIT GUARANTY CORP.
By
..........................................................
[Insert Title]
SCHEDULE A
PRINCIPAL
Underwriter AMOUNT
[ $
]..........................................
Total $
...........................................
Exhibit 5(a)
WATKINS LUDLAM & STENNIS, P.A.
February 1, 1996
Board of Directors
Deposit Guaranty Corp.
210 East Capital Street
Jackson, Mississippi 39205
Re: Deposit Guaranty Corp. Regis-
tration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to Deposit
Guaranty Corp., a Mississippi corporation (the
"Company"), in connection with the preparation of the
Registration Statement on Form S-3 the "Registration
Statement" to be filed by the Company with the Securities
and Exchange Commission (the "Commission"). The
Registration Statement relates to the issuance and sale
from time to time, pursuant to Rule 415 of the General
Rules and Regulations promulgated under the Securities
Act of 1933, as amended (the "Securities Act"), of the
following securities of the Company with an aggregate
initial public offering price of up to $300,000,000 (or
the equivalent thereof, based on the applicable exchange
rate at the time of sale, in one or more foreign
currencies, currency units or composite currencies as
shall be designated by the Company): (i) one or more
series of its unsecured debt securities, which may be
either senior debt securities (the "Senior Debt
Securities") or subordinated debt securities, which may
be convertible at the option of a holder or the Company
into Equity Securities (as described herein) of the
Company (the "Subordinated Debt Securities"), (ii)
warrants to purchase Debt Securities (the "Debt Warrants"
and collectively with the Senior Debt Securities and the
Subordinated Debt Securities, the "Debt Securities"),
(iii) shares of Preferred Stock, no par value (the
"Preferred Stock"), which may be convertible, at the
option of the holder, into Common Stock or any other
class or series of Equity Securities of the Company or
convertible at the option of the Company into Equity
Securities, Debt Securities or other debt securities of
the Company, (iv) fractional interests in shares of
Preferred Stock represented by depositary shares
("Depositary Shares") evidenced by depositary receipts
(the "Depositary Receipts"), (v) warrants to purchase
shares of Preferred Stock (the "Preferred Stock
Warrants"), (vi) warrants to purchase Depositary Shares
(the "Depositary Share Warrants"), (vii) Common Stock, no
par value (the "Common Stock"), and (viii) warrants to
purchase Common Stock (the "Common Stock Warrants,") in
amounts, at prices, and on terms to be determined at the
time of the offering. The Common Stock, the Preferred
Stock, the Depositary Shares, the Common Stock Warrants,
the Preferred Stock Warrants and the Depositary Share
Warrants, are collectively referred to herein as the
"Equity Securities."
This opinion is being furnished in accordance
with the requirements of Item 601(b)(5) of Regulation S-K
under the Securities Act in connection with the
Registration Statement.
In connection with this opinion, we have
examined originals or copies, certified or otherwise
identified to our satisfaction, of (i) the Registration
Statement filed with the Commission on November 16, 1995;
(ii) the form of certificates to be used to represent the
Common Stock, the Common Stock Warrants, the Preferred
Stock Warrants and the Depositary Share Warrants; (iii)
the Certificate of Incorporation and By-Laws of the
Company, as amended to date; (iv) resolutions adopted by
the Board of Directors of the Company relating to the
issuance of the Equity Securities; (v) the form of
Deposit Agreement (the "Deposit Agreement") proposed to
be entered into between the Company and a bank or trust
company to be selected by the Company, as filed with the
Commission; (vi) the form of Depositary Receipt (the
"Depositary Receipt") to be issued pursuant to the
Deposit Agreement, as filed with the Commission; (vii)
the form of Warrant Agreement (the "Warrant Agreement")
proposed to be entered into between the Company and a
bank or trust company, as filed with the Commission; and
(viii) the form of Underwriting Agreement relating to the
Equity Securities (the "Underwriting Agreement") proposed
to be entered into between the Company and an underwriter
or underwriters, as filed with the Commission. We have
also examined originals or copies, certified or otherwise
identified to our satisfaction, of such records of the
Company and such agreements, certificates of public
officials, certificates of officers or other
representatives of the Company and others, and such other
documents, certificates and records as we have deemed
necessary or appropriate as a basis for the opinions set
forth herein.
In our examination, we have assumed the legal
capacity of all natural persons, the genuineness of all
signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents
of all documents submitted to us as certified, conformed
or photostatic copies and the authenticity of the
originals of such latter documents. Furthermore, we have
also assumed the Debt Securities, the Indentures under
which they are issued and any Underwriting Agreement
executed in connection with such Debt Securities will
have been validly executed and delivered by the Company
under New York law and will be enforceable in accordance
with such law, and that such Indentures will have been
duly qualified under the Trust Indenture Act of 1939. In
making our examination of documents executed by parties
other than the Company, we have assumed that such parties
had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed
the due authorization by all requisite action, corporate
or other, and execution and delivery by such parties of
such documents and the validity and binding effect
thereof. As to any facts material to the opinions
expressed herein which were not independently established
or verified, we have relied upon oral or written
statements or representations of officers and other
representatives of the Company and others. We have
assumed that the total number of shares of Common Stock
and Preferred Stock respectively to be issued in
connection with the transactions contemplated by the
Registration Statement, when added to the number of
Common Stock and Preferred Stock presently issued and
outstanding respectively, would not exceed the number of
such shares respectively authorized by the Company's
Articles of Incorporation.
Members of our firm are admitted to the Bar in
the State of Mississippi and we do not express any
opinion as to the laws of any other jurisdiction other
than the laws of the United States of America to the
extent referred to specifically herein. The Equity
Securities may be issued from time to time on a delayed
or continuous basis, and this opinion is limited to the
laws, including the rules and regulations, as in effect
on the date hereof.
Based upon and subject to the foregoing, we are
of the opinion that:
1. The Company has been organized, and is
subsisting and in good standing, as a corporation
under the laws of the State of Mississippi.
2. With respect to any offering of Common
Stock, when (i) the Registration Statement
(including any amendments if necessary) has become
effective under the Securities Act; (ii) an
appropriate Prospectus Supplement with respect to
the Common Stock has been prepared, delivered and
filed in compliance with the Securities Act and the
applicable rules and regulations thereunder; (iii)
if the Common Stock is to be sold pursuant to a firm
commitment underwritten offering, the Underwriting
Agreement with respect to the Common Stock has been
duly authorized, executed and delivered by the
Company and the other parties thereto; (iv) the
Board, including any appropriate committee appointed
thereby, and appropriate officers of the Company
have taken all necessary corporate action to approve
the issuance of the Common Stock and related
matters; and (vi) certificates representing the
shares of Common Stock are duly executed,
countersigned, registered and delivered upon payment
of the agreed-upon consideration therefor, the
shares of Common Stock, when issued and sold in
accordance with the Underwriting Agreement with
respect to the Common Stock or any other duly
authorized, executed and delivered applicable valid
and binding purchase agreement, will be duly
authorized, validly issued, fully paid and
nonassessable.
3. With respect to any offering of Preferred
Stock, when (i) the Registration Statement
(including any amendments if necessary) has become
effective under the Securities Act; (ii) an
appropriate Prospectus Supplement and Articles of
Amendment to the Articles of Incorporation with
respect to the Preferred Stock has been prepared,
delivered and filed in compliance with the
Securities Act and the applicable rules and
regulations thereunder; (iii) the Articles of
Amendment to the Articles of Incorporation with
respect to the Preferred Stock has been duly
approved by the Board of Directors of the Company,
has been filed under the Mississippi Business
Corporation Act (the "MBCA") and is in proper form
under the laws of the State of Mississippi; (iv) if
the Preferred Stock is to be sold pursuant to a firm
commitment underwritten offering, the Underwriting
Agreement with respect to the Preferred Stock has
been duly authorized, executed and delivered by the
Company and the other parties thereto; (v) the
Board, including any appropriate committee appointed
thereby, and appropriate officers of the Company
have taken all necessary corporate action to approve
the issuance of the Preferred Stock and related
matters in accordance with the Articles of Amendment
to the Articles of Incorporation; and (vi)
certificates representing the shares of Preferred
Stock are duly executed, countersigned, registered
and delivered upon payment of the agreed-upon
consideration therefor, (a) the shares of Preferred
Stock, when issued and sold in accordance with the
Underwriting Agreement with respect to the Preferred
Stock or any other duly authorized, executed and
delivered applicable valid and binding purchase
agreement, will be duly authorized, validly issued,
fully paid and nonassessable, and (b) if Debt
Securities are issuable upon conversion of any
convertible Preferred Stock, the Debt Securities
issuable upon conversion of such convertible
Preferred Stock will be validly issued, assuming
that the conversion of the convertible Preferred
Stock is in accordance with the terms of the
Articles of Amendment to the Articles of
Incorporation and that the Debt Securities have been
duly completed, executed, authenticated, paid for
and delivered in accordance with the terms of the
Indenture relating thereto and that the Debt
Securities are otherwise valid and enforceable
obligations of the Company under New York law.
4. With respect to any offering of Depositary
Shares, when (i) the Registration Statement
(including any amendments if necessary) has become
effective under the Securities Act; (ii) an
appropriate Prospectus Supplement and Articles of
Amendment to the Articles of Incorporation relating
to a particular series of Preferred Stock, of which
the Depositary Shares represent a fraction, have
been prepared, delivered and filed in compliance
with the Securities Act and the applicable rules and
regulations thereunder; (iii) the Articles of
Amendment to the Articles of Incorporation with
respect to the particular series of Preferred Stock,
of which the Depositary Shares represent a fraction
has been duly approved by the Board of Directors of
the Company, has been filed under the MBCA and is in
proper form under the laws of the State of
Mississippi; (iv) the Deposit Agreement with respect
to the Depositary Shares has been duly authorized,
executed and delivered by the Company and the other
parties thereto; (v) if the Depositary Shares are to
be sold pursuant to a firm commitment underwritten
offering, the Underwriting Agreement with respect to
the Depositary Shares has been duly authorized,
executed and delivered by the Company and the other
parties thereto; (vi) the Board, including any
appropriate committee appointed thereby, and
appropriate officers of the Company have taken all
necessary corporate action to approve the issuance
of the Depositary Shares and related matters; and
(vii) the Depositary Receipts are duly executed,
countersigned, registered and delivered upon payment
of the agreed-upon consideration therefor, the
Depositary Receipts, when issued and sold in
accordance with the Underwriting Agreement with
respect to the Depositary Receipts or any other duly
authorized, executed and delivered applicable valid
and binding purchase agreement, will be duly
authorized, validly issued, fully paid and
nonassessable.
5. With respect to any offering of Common
Stock Warrants, Preferred Stock Warrants and
Depositary Share Warrants (the "Equity Warrants"),
when (i) the Registration Statement (including any
amendments if necessary) has become effective under
the Securities Act; (ii) an appropriate Prospectus
Supplement and, if applicable, Articles of Amendment
to the Articles of Incorporation with respect to the
Equity Warrants has been prepared, delivered and
filed in compliance with the Securities Act and the
applicable rules and regulations thereunder; (iii)
if applicable, Articles of Amendment to the Articles
of Incorporation with respect to the Equity Warrants
has been duly approved by the Board of Directors of
the Company, has been filed under the MBCA and is in
proper form under the laws of the State of
Mississippi; (iv) the Warrant Agreement with respect
to the Equity Warrants has been duly authorized,
executed and delivered by the Company and the other
parties thereto; (v) if the Equity Warrants are to
be sold pursuant to a firm commitment underwritten
offering, the Underwriting Agreement with respect to
the Equity Warrants has been duly authorized,
executed and delivered by the Company and the other
parties thereto; (vi) the Board, including any
appropriate committee appointed thereby, and
appropriate officers of the Company have taken all
necessary corporate action to approve the issuance
of the Equity Warrants and related matters; and
(vii) certificates representing the shares of Equity
Warrants are duly executed, countersigned,
registered and delivered upon payment of the agreed-
upon consideration therefor, the shares of Equity
Warrants, when issued and sold in accordance with
the Underwriting Agreement with respect to the
Equity Warrants or any other duly authorized,
executed and delivered applicable valid and binding
purchase agreement, will be duly authorized, validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion
with the Commission as Exhibit 5(a) to the Registration
Statement and to the reliance hereon, as to matters under
Mississippi law, of Skadden, Arps, Slate, Meagher & Flom.
We also consent to the reference to our firm under the
heading "Legal Opinions" in the Registration Statement.
In giving this consent, we do not hereby admit that we
are in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and
regulations of the Commission promulgated thereunder.
Very truly yours,
/s/Watkins Ludlam & Stennis, P.A.
WATKINS LUDLAM & STENNIS, P.A.
Exhibit 5(b)
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
February 1, 1996
Deposit Guaranty Corp.
210 East Capital Street
Jackson, Mississippi 39205
Re: Deposit Guaranty Corp. Registration
Statement on Form S-3 (File No. 33-64333)
Ladies and Gentlemen:
We have acted as special counsel to Deposit
Guaranty Corp., a Mississippi business corporation (the
"Company"), in connection with the preparation of the
Company's Registration Statement on Form S-3 (the
"Registration Statement") filed by the Company with the
Securities and Exchange Commission (the "Commission") on
November 16, 1995. The Registration Statement relates to
the issuance and sale from time to time, pursuant to Rule
415 of the General Rules and Regulations promulgated
under the Securities Act of 1933, as amended (the
"Securities Act"), of the following securities of the
Company with an aggregate initial public offering price
of up to $300,000,000 (or the equivalent thereof, based
on the applicable exchange rate at the time of sale, in
one or more foreign currencies, currency units or
composite currencies as shall be designated by the
Company): (i) one or more series of its unsecured debt
securities, which may be either senior debt securities
(the "Senior Debt Securities") or subordinated debt
securities, which may be convertible at the option of a
holder or the Company into Equity Securities (as defined
herein) of the Company (the "Subordinated Debt
Securities" and, together with the Senior Debt
Securities, the "Debt Securities"), which may be issued
under either the Senior Debt Securities Indenture,
between the Company and SunTrust Bank, Atlanta, as
Trustee (the "Senior Indenture"), or the Subordinated
Debt Securities Indenture, between the Company and
SunTrust Bank, Atlanta, as Trustee (the "Subordinated
Indenture" and, together with the Senior Indenture, the
"Indentures" and the Trustee under the Indentures, the
"Debt Trustees"), filed as exhibits to the Registration
Statement, (ii) warrants to purchase Debt Securities (the
"Debt Warrants"), (iii) shares of Preferred Stock, no par
value (the "Preferred Stock"), of the Company which may
be convertible, at the option of the holder, into Common
Stock (as defined herein) or any other class or series of
Equity Securities of the Company or convertible at the
option of the Company into Equity Securities or other
Debt Securities of the Company, (iv) fractional interests
in shares of Preferred Stock represented by depositary
shares ("Depositary Shares") evidenced by depositary
receipts (the "Receipts"), (v) warrants to purchase
shares of Preferred Stock (the "Preferred Stock
Warrants"), (vi) warrants to purchase Depositary Shares
(the "Depositary Share Warrants"), (vii) Common Stock, no
par value (the "Common Stock" together with the Preferred
Stock and Depositary Shares representing Preferred Stock,
the "Equity Securities") of the Company, and (viii)
warrants to purchase Common Stock (the "Common Stock
Warrants,") in amounts, at prices, and on terms to be
determined at the time of the offering. The Debt
Securities, the Preferred Stock Warrants, the Depositary
Share Warrants, the Equity Securities and the Common
Stock Warrants are hereinafter referred to as the
"Registered Securities."
This opinion is being furnished in accordance
with the requirements of Item 601(b)(5) of Regulation S-K
under the Securities Act.
In connection with this opinion, we have
examined originals or copies, certified or otherwise
identified to our satisfaction, of (i) the Company's
Registration Statement (file No. 33-64333) filed with the
Commission on November 16, 1995, as amended by Amendment
No. 1 thereto filed with the Commission on February 1,
1996 under the Act; (ii) the form of each of the Senior
Indenture and the Subordinated Indenture filed as
exhibits to the Registration Statement; (iii) the form of
underwriting agreement (the "Underwriting Agreement")
proposed to be entered into between the Company and the
one or more underwriters to be named therein (the
"Underwriters") in connection with an offering of
Registered Securities, filed as an exhibit to the
Registration Statement; (iv) the form of Warrant
Agreement (the "Warrant Agreement") proposed to be
entered into between the Company and a bank or trust
company (the "Warrant Agent"), filed as an exhibit to the
Registration Statement; and (v) the form of Deposit
Agreement (the "Deposit Agreement") proposed to be
entered into between the Company and a depositary (the
"Depositary"), filed as an exhibit to the Registration
Statement. We have also examined originals or copies,
certified or otherwise identified to our satisfaction, of
such records of the Company and such agreements,
certificates of public officials, certificates of
officers or representatives of the Company and others,
and such other documents, certificates and records as we
have deemed necessary or appropriate as a basis for the
opinions set forth herein.
In our examination, we have assumed the legal
capacity of all natural persons, the genuineness of all
signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents
of all documents submitted to us as certified, conformed
or photostatic copies and the authenticity of the
originals of such latter documents. In making our
examination of executed documents or documents to be
executed, we have assumed that parties thereto had or
will have the power, corporate or other, to enter into
and perform all obligations thereunder and have also
assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such
parties of such documents and, except as to the
enforceability against the Company of the Debt
Securities, the Debt Warrants and the Receipts to the
extent set forth in paragraphs 1, 2 and 3 below, the
validity and binding effect thereof. As to any facts
material to the opinions expressed herein which were not
independently established or verified, we have relied
upon oral or written statements and representations of
officers and other representatives of the Company and
others.
Members of our firm are admitted to the Bar in
the State of New York and we do not express any opinion
as to the laws of any other jurisdiction other than the
laws of the United States of America to the extent
referred to specifically herein, and this opinion is
limited to laws, rules and regulations, as in effect on
the date hereof.
In rendering the opinions set forth below, we
have assumed that (i) the Company has duly authorized the
issuance of the Registered Securities and the filing of
the Registration Statement under Mississippi law; (ii)
the Indentures, the Underwriting Agreement, any Deposit
Agreement and any Warrant Agreement relating to Debt
Securities will be duly authorized, executed and
delivered by the Company under Mississippi law; (iii) the
choice of New York law in the Indentures, the
Underwriting Agreement, any Deposit Agreement and any
Warrant Agreement is legal and valid under the laws of
other applicable jurisdictions; (iv) the execution by the
Company of the Indentures, any Deposit Agreement, any
Warrant Agreement relating to Debt Warrants or any
Preferred Stock underlying any offered Receipts, or any
Registered Securities which may be convertible into any
Debt Securities or any Registered Securities into which
Debt Securities may be convertible and the performance of
the Company of its obligations thereunder or under such
securities will not violate or conflict with any laws of
the State of Mississippi; (v) any securities underlying
any Receipts or any Registered Securities or which may be
issuable upon conversion of any Registered Securities or
any Equity Securities into which Debt Securities may be
convertible will be duly authorized and issued by the
Company and will be fully paid and nonassessable; and
(vi) any Debt Securities, Receipts or Debt Warrants that
may be issued will be manually signed or countersigned,
as the case may be, by duly authorized officers of the
Debt Trustees, Depositary or the Warrant Agent,
respectively.
Based upon and subject to the foregoing, we are
of the opinion that:
1. When (i) the Registration Statement, as
finally amended (including all necessary post-effective
amendments), has become effective under the Securities
Act and the relevant Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended; (ii)
an appropriate prospectus supplement with respect to the
Debt Securities has been prepared, delivered and filed in
compliance with the Securities Act and the applicable
rules and regulations thereunder; (iii) the Board of
Directors, including any appropriate committee appointed
thereby, and appropriate officers of the Company have
taken all necessary corporate action to approve the
issuance and terms of the Debt Securities, any securities
underlying any Registered Securities or which may be
issuable upon conversion of any Registered Securities or
any Registered Securities into which Debt Securities may
be convertible, and related matters; (iv) the terms of
the Debt Securities and of their issuance and sale have
been duly established by all necessary corporate action
in conformity with the relevant Indenture relating to the
offered Debt Securities so as not to violate any
applicable law, the Articles of Incorporation or By-laws
of the Company or result in a default under or breach of
any agreement or instrument binding upon the Company and
so as to comply with any requirement or restriction
imposed by any court or governmental body having
jurisdiction over the Company; (v) the Underwriting
Agreement, if any, or any other purchase or agency
agreement has been duly executed and delivered by the
Company and the other parties thereto; and (vi) the Debt
Securities have been duly executed and authenticated in
accordance with the terms of the applicable Indenture in
the applicable form filed as an exhibit to the
Registration Statement or any amendment thereto and
delivered by the proper officers of the Company to the
purchasers thereof against payment of the agreed-upon
consideration therefor in the manner contemplated in the
Registration Statement or any prospectus supplement or
term sheet relating thereto, the Debt Securities, when
issued and sold in accordance with the terms of the
Underwriting Agreement, if any, or any other purchase or
agency agreement, or when issued upon conversion of, and
in accordance with, the terms of Preferred Stock, or when
issued upon exercise of, and in accordance with, the
terms of a Warrant Agreement, the Debt Securities will be
valid and binding obligations of the Company entitled to
the benefit of the applicable Indenture and enforceable
against the Company in accordance with their terms,
except to the extent that enforcement thereof may be
limited by (a) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (b)
general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity), and except that enforcement thereof may also be
limited by (x) requirements that a claim with respect to
any Debt Securities denominated other than in United
States dollars (or a foreign currency or foreign currency
unit judgment in respect of such claim) be converted into
United States dollars at a rate of exchange prevailing on
a date determined pursuant to applicable law or (y)
governmental authority to limit, delay or prohibit the
making of payments in foreign currency or currency units
or payments outside the United States.
2. When (i) the Registration Statement, as
finally amended (including all necessary post-effective
amendments), has become effective under the Securities
Act; (ii) an appropriate prospectus supplement with
respect to the Debt Warrants has been prepared, delivered
and filed in compliance with the Securities Act and the
applicable rules and regulations thereunder; (iii) the
applicable Warrant Agreement has been duly authorized,
executed and delivered; (iv) the Board of Directors,
including any appropriate committee appointed thereby,
and appropriate officers of the Company have taken all
necessary corporate action to approve the issuance and
terms of the Debt Warrants and related matters; (v) the
terms of the Debt Warrants and of their issuance and sale
have been duly established in conformity with the Warrant
Agreement relating to such Debt Warrants so as not to
violate any applicable law, the Articles of Incorporation
or By-laws of the Company or result in a default under or
breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or
restriction imposed by any court or governmental body
having jurisdiction over the Company; (vi) the
Underwriting Agreement, if any, or any other purchase or
agency agreement with respect to the Debt Warrants has
been duly executed and delivered by the Company and the
other parties thereto; and (vii) the Debt Warrants have
been duly executed and authenticated in accordance with
the terms of the Warrant Agreement in the form filed as
an exhibit to the Registration Statement or any amendment
thereto and delivered by the proper officers of the
Company to the purchasers thereof against payment
therefor in the manner contemplated in the Registration
Statement or any prospectus supplement or term sheet
relating thereto, the Debt Warrants when issued and sold
in accordance with the terms of the Warrant Agreement,
the Underwriting Agreement or any other purchase or
agency agreement, if any, will be valid and binding
obligations of the Company and enforceable against the
Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by (a)
bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights
generally and (b) general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity).
3. When (i) the Registration Statement, as
finally amended (including all necessary post-effective
amendments), has become effective; (ii) an appropriate
prospectus supplement or term sheet with respect to the
offered Receipts has been prepared, delivered and filed
in compliance with the Securities Act and the applicable
rules and regulations thereunder; (iii) the Deposit
Agreement with respect to the Receipts has been duly
authorized, executed and delivered; (iv) the Board of
Directors, including any appropriate committee appointed
thereby, and appropriate officers of the Company have
taken all necessary corporate action to approve the
issuance and terms of the Receipts (including the
Depositary Shares underlying such Receipts) and related
matters; (v) the terms of the Receipts and of their
issuance and sale have been duly established in
conformity with the Deposit Agreement so as not to
violate any applicable law, the Restated Articles of
Incorporation or By-laws of the Company or result in a
default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company;
(vi) the Underwriting Agreement, if any, or any other
purchase or agency agreement with respect to the Receipts
has been duly executed and delivered by the Company and
the other parties thereto; and (vii) the Receipts have
been duly executed and authenticated in accordance with
the provisions of the Deposit Agreement in the form filed
as an exhibit to the Registration Statement or any
amendment thereto and delivered by the proper officers of
the Company to the purchasers thereof against payment
therefor in the manner contemplated in the Registration
Statement or any prospectus supplement or term sheet
relating thereto, the Receipts, when issued against
deposit of the underlying Preferred Stock and sold in
accordance with the applicable Deposit Agreement and the
applicable Underwriting Agreement or any other purchase
or agency agreement, will be valid and binding
obligations of the Company, enforceable against the
Company in accordance with their respective terms, except
to the extent that enforcement thereof may be limited by
(a) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or
thereafter in effect relating to creditors' rights
generally and (b) general principles of equity (regardless
of whether enforceability is considered in a proceeding
at law or in equity).
We hereby consent to the filing of this opinion
with the Commission as Exhibit 5(b) to the Registration
Statement and the appearance of this firm's name under
the heading "Legal Opinions." In giving such consent, we
do not thereby admit that we are in the category of
person whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the
Commission.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom
Skadden, Arps, Slate, Meagher & Flom
