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As filed with the Securities and Exchange Commission on December 9, 1997
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
----------------------------
SOUTHTRUST CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 63-0574085
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
420 NORTH 20TH STREET
BIRMINGHAM, ALABAMA 35203
(205) 254-5000
(Address, including zip code, and telephone number,
including area code, of registrant's
principal executive offices)
----------------------------
MR. AUBREY D. BARNARD
SOUTHTRUST CORPORATION
420 NORTH 20TH STREET
BIRMINGHAM, ALABAMA 35203
(205) 254-5000
(Name, address, including zip code and telephone number, including area code, of
agent for service)
----------------------------
The Commission is requested to send copies of all communications to:
C. LARIMORE WHITAKER, ESQ. JAMES R. TANENBAUM, ESQ.
BRADLEY ARANT ROSE & WHITE LLP STROOCK & STROOCK & LAVAN LLP
2001 PARK PLACE, SUITE 1400 180 MAIDEN LANE
BIRMINGHAM, ALABAMA 35203-2736 NEW YORK, NEW YORK 10038-4928
(205) 521-8000 (212) 806-5400
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Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective as the
Registrant may determine.
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. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed maximum
Title of each class of aggregate offering Amount of
securities to be registered price(1) registration fee(2)(3)
- -----------------------------------------------------------------------------------------------------
<S> <C> <C>
Debt Securities; Preferred Stock; Common Stock $ 600,000,000 $ 126,177
====================================================================================================
</TABLE>
(1) Estimated solely for purposes of computing the registration fee.
(2) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act of 1933, as amended, and reflects the offering
price rather than the principal amount of any Debt Securities issued at
a discount.
(3) Pursuant to Rule 429 under the Securities Act of 1933, as amended,
$167,716,200 of the securities being registered are being carried forward
from a prior registration statement on Form S-3 (Registration No.
333-34947). The filing fee associated with such securities that was
previously paid with the earlier registration statement was $50,823.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH 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 OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
===============================================================================
<PAGE> 2
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.
PROSPECTUS
SUBJECT TO COMPLETION, DATED DECEMBER 9, 1997
(SOUTHTRUST CORPORATION LOGO)
SouthTrust Corporation (the "Corporation") may offer from time to time up
to $600,000,000 of (i) its notes, debentures or other evidences of unsecured
indebtedness (the "Debt Securities") in one or more currencies on terms to be
determined at the time of sale, (ii) its preferred stock, par value $1.00 per
share (the "Preferred Stock"), in one or more currencies on terms to be
determined at the time of sale; and (iii) its common stock, par value $2.50 per
share (the "Common Stock"), in one or more currencies on terms to be determined
at the time of sale. The Preferred Stock and Common Stock are collectively
referred to as the "Equity Securities," and the Debt Securities and the Equity
Securities are collectively referred to as the "Offered Securities." The Debt
Securities may be either senior in priority of payment (the "Senior Securities")
or subordinated in right of payment (the "Subordinated Securities"). When
Offered Securities are sold, a supplement to this Prospectus (the "Prospectus
Supplement") will be delivered, which will set forth the amount and terms of the
Offered Securities and of the sale. The Offered Securities may be sold for U.S.
Dollars, foreign currencies or foreign currency units, and the principal of or
any interest on the Debt Securities may be payable in U.S. Dollars, foreign
currencies or foreign currency units.
When Debt Securities are offered, any applicable Prospectus Supplement will
set forth the specific terms such as, where applicable, the specific
designation, aggregate principal amount, denominations and currency or currency
unit for which the Debt Securities may be purchased, the currency or currency
rate in which the principal and any interest is payable, maturity, interest rate
(which may be fixed or variable), and time of payment of interest, if any, terms
for redemption (which either may be at the option of the Corporation or the
holder), terms for sinking fund payments, initial public offering price, names
of and principal amounts to be purchased by underwriters and compensation of
such underwriters, and information about any listing on a securities exchange of
such Debt Securities as are being offered thereby. When Equity Securities are
offered, any applicable Prospectus Supplement will set forth, in the case of
Preferred Stock, the specifications, such as, where applicable, the specific
title and stated value, any dividend and liquidation rights, voting rights and
the initial public offering price, and, in the case of Common Stock, the initial
public offering price and the aggregate number of shares offered.
The Debt Securities may be issued in registered or bearer form. In
addition, all or a portion of the Debt Securities of a series may be issuable in
temporary or permanent global form. Debt Securities in bearer form will be
offered and sold only outside the United States to non-U.S. Persons and to
foreign branches of certain United States financial institutions. See
"Limitations on Issuance of Bearer Securities."
The Offered Securities may be sold to underwriters for public offering
pursuant to terms of offering fixed at the time of sale. The name of any
underwriter or agent of the Corporation involved in the sale of Offered
Securities will be set forth in any applicable Prospectus Supplement. In
addition, the Offered Securities may be sold by the Corporation directly or
through agents. Any underwriters, dealers or agents participating in the
offering may be deemed "underwriters" within the meaning of the Securities Act
of 1933, as amended (the "Securities Act"). See "Plan of Distribution."
---------------------
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 DEBT SECURITIES WILL BE UNSECURED OBLIGATIONS OF THE CORPORATION AND WILL
NOT BE OBLIGATIONS OF A BANK INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER FEDERAL AGENCY.
---------------------
The date of this Prospectus is , 199 .
<PAGE> 3
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN AS CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS. THIS PROSPECTUS AND ANY APPLICABLE PROSPECTUS SUPPLEMENT DO NOT
CONSTITUTE AN OFFER OF ANY SECURITIES OTHER THAN THOSE TO WHICH THEY RELATE OR
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY WITHIN ANY JURISDICTION TO
ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OF SOLICITATION WITHIN SUCH
JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY APPLICABLE
PROSPECTUS SUPPLEMENT NOR ANY SALES MADE HEREUNDER OR THEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE ANY 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.
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934 (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 can be inspected and copied at the offices of
the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street N.W., Washington,
D.C. 20549, as well as at the following regional offices of the Commission: The
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511; and Seven World Trade Center, Suite 1300, New York, New
York 10048. The Commission also maintains a web site that contains reports,
proxy and information statements and other information regarding the Corporation
which files such information electronically with the Commission. The address of
this web site is http://www.sec.gov. Copies of such material can be obtained
from the Commission's Public Reference Section, Room 1024, Judiciary Plaza, 450
Fifth Street N.W., Washington, D.C. 20549 upon payment of prescribed rates. In
addition, reports, proxy statements, information statements and other
information concerning the Corporation may be inspected at the offices of the
National Association of Securities Dealers, Inc., 1735 K Street N.W.,
Washington, D.C. 20096. This Prospectus does not contain all information set
forth in the Registration Statement and Exhibits thereto which the Corporation
has filed with the Commission under the Securities Act and to which reference is
hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Corporation are
incorporated, as of their respective filing dates, by reference in this
Prospectus:
(a) The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1996; and
(b) The Corporation's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997 and the
Corporation's Current Reports on Form 8-K dated October 8, 1997 and
December 5, 1997.
All reports and definitive proxy or information statements filed by the
Corporation with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date of this Prospectus and prior to the termination
of the offering of the Offered Securities offered hereby shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document all or a
portion of which is 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 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.
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The Corporation will furnish without charge to each person, including any
beneficial owner, to whom this Prospectus and any applicable Supplement
Prospectus is delivered, upon the written or oral request of such person, a copy
of any or all of the documents described above, other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference
therein). Written requests should be addressed to Aubrey D. Barnard, SouthTrust
Corporation, SouthTrust Tower, 420 North 20th Street, Birmingham, Alabama 35203.
Telephone requests may be directed to Mr. Barnard at (205) 254-5000.
SOUTHTRUST CORPORATION
The Corporation, a bank holding company headquartered in Birmingham,
Alabama, was incorporated under the laws of Delaware in 1968 in order to acquire
all of the outstanding capital stock of the predecessor of SouthTrust Bank of
Alabama, National Association. The Corporation engages in a full range of
banking services from more than 530 banking locations in Alabama, Florida,
Georgia, Mississippi, North Carolina, South Carolina and Tennessee. The
Corporation also offers a range of other services, including mortgage banking
services, fiduciary and trust services and securities brokerage services. As of
September 30, 1997, the Corporation had consolidated total assets of
approximately $29.8 billion, which ranked it as the largest bank holding company
headquartered in Alabama.
Effective June 2, 1997, the Corporation, pursuant to the Riegle-Neal
Interstate Banking and Branching Efficiency Act of 1994 (the "Interstate Banking
Act"), consolidated its banking subsidiaries located in the states of Alabama,
Florida, Georgia, North Carolina, Mississippi, Tennessee and South Carolina into
its largest banking subsidiary, SouthTrust Bank of Alabama, National Association
and changed the name of such banking subsidiary to SouthTrust Bank, National
Association ("SouthTrust Bank"). The consolidation was undertaken by the
Corporation in order to obtain the benefits of the Interstate Banking Act,
which, subject to certain limitations, since June 1, 1997, permits qualifying
bank holding companies to engage in interstate mergers and allows banks to
maintain and operate branches in states other than the states where they
maintain their principal place of business. See "Regulatory Matters -- The
Riegle-Neal Interstate Bank and Branching Efficiency Act."
As a bank holding company, the Corporation is subject to regulation and
supervision by the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board") under the Bank Holding Company Act of 1956, as amended
(the "Holding Company Act"). As of December 31, 1996, the capital ratios of the
Corporation and SouthTrust Bank were in excess of the fully phased-in risk-based
and leverage capital guidelines of the Federal Reserve Board, the Office of the
Comptroller of the Currency (the "Comptroller"), and the Federal Deposit
Insurance Corporation (the "FDIC"), as applicable. SouthTrust Bank and the bank-
related subsidiaries of the Corporation are subject to regulation and
supervision by the Comptroller, the Federal Reserve Board and the FDIC, as
applicable. The amount of dividends that SouthTrust Bank may pay is limited by
regulation. See "Regulatory Matters." The Corporation has pursued a strategy of
acquiring banks and financial institutions throughout the major growth areas of
Florida, Georgia, Mississippi, North Carolina, South Carolina and Tennessee. The
purpose of this expansion is to give the Corporation access to metropolitan
markets with favorable prospects for growth of population, per capita income,
and business development opportunities.
As a routine part of its business, the Corporation evaluates opportunities
to acquire bank holding companies, banks and other financial institutions. In
addition, in the normal course of its business, the Corporation seeks out and
receives inquiries from financial institutions regarding the possible
acquisition of such institutions. The Corporation routinely evaluates these
opportunities. Thus, at any point in time, the number of acquisition
opportunities that may be available to the Corporation, as well as the stage of
development of such activity, is subject to change.
Since January 1, 1997 through the date hereof, the Corporation or one of
its affiliates has acquired, or executed agreements to acquire, six financial
institutions (or certain of their assets and/or assume certain of their
liabilities) having total assets of approximately $5.9 billion, total loans of
approximately $1.2 billion and total deposits of approximately $5.6 billion. The
aggregate consideration paid or payable by the Corporation or its affiliates in
these six transactions aggregates approximately 1.3 million shares of the
Corporation's Common
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Stock with a market value at the time of issuance of approximately $49.3
million, and approximately $515.9 million of cash. As discussed below, two of
these transactions are scheduled to be consummated during the first two quarters
of 1998 and are subject to certain closing conditions and regulatory approvals.
These six transactions serve to further the strategy of expanding and
diversifying the Corporation's customer base in selected markets with favorable
prospects for growth.
On December 4, 1997, the Corporation entered into an agreement to assume
and acquire deposits and certain assets associated with 27 branches of Home
Savings of America, FSB, a subsidiary of H. F. Ahmanson & Company for a premium
of $300 million payable in cash. These branches are located in various cities
and metropolitan areas on the East Coast of Florida, including Boca Raton, Coral
Gables, Fort Lauderdale, Hollywood, Miami Beach and South Miami Beach. In
connection with the transaction, an affiliate of the Corporation will assume
approximately $3.4 billion in deposits and will acquire cash, the banking
premises associated with such branches and a limited amount of loans associated
with the deposits.
On October 15, 1997, the Corporation executed an agreement with Barnett
Banks, Inc. for the purchase of First of America Bank, Florida FSB for a
purchase price of $160 million payable in cash. Through this acquisition, the
Corporation expects to add total asset, loans and deposits of approximately $1.1
billion, $0.8 billion and $0.9 billion, respectively, and 58 branches, primarily
on the West Coast of Florida.
The Corporation's headquarters are located at 420 North 20th Street,
Birmingham, Alabama 35203 and its telephone number is (205) 254-5000.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following are the consolidated ratios of earnings to fixed charges for
each of the periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
-------------------------------- --------------
1996 1995 1994 1993 1992 1997 1996
---- ---- ---- ---- ---- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
EARNINGS TO FIXED CHARGES
Including Interest on Deposits........... 1.41x 1.38x 1.51x 1.56x 1.42x 1.40x 1.41x
Excluding Interest on Deposits........... 2.27 2.27 3.00 4.27 4.23 2.05 2.29
</TABLE>
For purposes of computing the consolidated ratios, earnings represent net
income applicable to Common Stock, plus applicable income taxes and fixed
charges less capitalized interest. Fixed charges represent interest expense,
capitalized interest, amortization of debt expense and the interest portion of
rent expense. The ratios of earnings to combined fixed charges and preferred
stock dividends are identical to the ratios of earnings to fixed charges listed
above because no shares of Preferred Stock of the Corporation were outstanding
during the periods indicated above.
USE OF PROCEEDS
The net proceeds from the sale of the Offered Securities will be used for
general corporate purposes, including the Corporation's working capital needs,
the funding of investments in, or extensions of credit to, SouthTrust Bank and
the Corporation's nonbanking subsidiaries, possible acquisitions of other
financial institutions or their assets or liabilities, possible acquisitions of
or investments in other businesses of a type eligible for bank holding companies
or banks and possible reduction of outstanding indebtedness. Pending such use,
the Corporation may temporarily invest the net proceeds in investment grade
securities. The Corporation may, from time to time, engage in additional capital
financings of a character and in amounts to be determined by the Corporation in
light of its need at such time or times and in light of prevailing market
conditions. If the Corporation elects at the time of issuance of the Offered
Securities to make different or more specific use of proceeds other than that
set forth herein, such use will be described in the applicable Prospectus
Supplement.
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REGULATORY MATTERS
The Corporation is a bank holding company within the meaning of the Holding
Company Act, and is registered with the Federal Reserve Board. SouthTrust Bank,
the Corporation's banking subsidiary, is subject to restrictions under federal
law which limit the transfer of funds by SouthTrust Bank to the Corporation and
its nonbanking subsidiaries, whether in the form of loans, extensions of credit,
investments or asset purchases. Such transfers by SouthTrust Bank to the
Corporation or any nonbanking subsidiary are limited in amount to 10% of
SouthTrust Bank's capital and surplus and, with respect to the Corporation and
all such nonbanking subsidiaries, to an aggregate of 20% of SouthTrust Bank's
capital and surplus. Furthermore, such loans and extensions of credit are
required to be secured in specified amounts. The Holding Company Act also
prohibits, subject to certain exceptions, a bank holding company from engaging
in or acquiring direct or indirect control of more than 5% of the voting stock
of any company engaged in nonbanking activities. An exception to this
prohibition is for activities expressly found by the Federal Reserve Board to be
so closely related to banking or managing or controlling banks as to be a proper
incident thereto.
As a bank holding company, the Corporation is required to file with the
Federal Reserve Board semi-annual reports and such additional information as the
Federal Reserve Board may require. The Federal Reserve Board may also make
examinations of the Corporation and each of its subsidiaries.
The approval of the Comptroller is required for any dividend proposed to be
paid by SouthTrust Bank to the Corporation if the total of all dividends
declared by SouthTrust Bank in any calendar year would exceed the total of its
net profits, as defined by the Comptroller, for that year, combined with its
retained net profits for the preceding two years, less any required transfers to
surplus or a fund for the retirement of any preferred stock. Under the foregoing
laws and regulations, at September 30, 1997, approximately $403.9 million was
available for payment of dividends to the Corporation declared by SouthTrust
Bank during the final quarter of 1997. The payment of dividends by SouthTrust
Bank may also be affected by other factors, such as the maintenance of adequate
capital for SouthTrust Bank. In addition to the foregoing restrictions, the
Federal Reserve Board has the power to prohibit the payment of dividends by bank
holding companies if their actions constitute unsafe or unsound practices. The
Federal Reserve Board has issued a policy statement on the payment of cash
dividends by bank holding companies, which expresses the Federal Reserve Board's
view that a bank holding company experiencing earnings weaknesses should not pay
cash dividends that exceed its net income or that could only be funded in ways
that weaken the bank holding company's financial health, such as by borrowing.
Furthermore, the Comptroller has the authority to prohibit the payment of
dividends by a national bank when it determines such payment to be an unsafe and
unsound banking practice.
CAPITAL ADEQUACY
Under the Federal Reserve Board's risk-based capital guidelines applicable
to the Corporation, the minimum ratio of capital to risk-weighted assets
(including certain off-balance sheet items, such as standby letters of credit)
is 8%. To be considered a "well capitalized" bank under the guidelines, a bank
must have a total risk-based capital ratio in excess of 10%. At December 31,
1996, all of the Corporation's then existing subsidiary banks, which, effective
June 2, 1997, were consolidated into SouthTrust Bank, were considered "well
capitalized." Under these guidelines, at least half of the total capital is to
be comprised of common equity, retained earnings and a limited amount of
perpetual preferred stock, after subtracting certain intangibles, and certain
other adjustments ("Tier 1 capital"). The remainder may consist of perpetual
debt, mandatory convertible debt securities, a limited amount of subordinated
debt, other preferred stock not qualifying for Tier 1 capital and a limited
amount of loan loss reserves ("Tier 2 capital"). SouthTrust Bank is subject to
similar capital requirements adopted by the Comptroller. In addition, the
Federal Reserve Board, the Comptroller and the FDIC have adopted a minimum
leverage ratio (Tier 1 capital to adjusted quarter average assets) of 3%.
Generally, banking organizations are expected to operate well above the minimum
required capital level of 3% unless they meet certain specified criteria,
including that they have the highest regulatory ratings. Most banking
organizations are required to maintain a leverage ratio of 3% plus an additional
cushion of at least 1% to 2%. The 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 upon intangible assets. On
September 30, 1997,
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the Corporation had a Tier 1 capital ratio of 7.37%, a total risk-based capital
ratio of 11.38% and a leverage ratio of 6.14%.
Failure to meet capital guidelines could subject a banking institution to a
variety of enforcement remedies available to federal regulatory authorities,
including the termination of deposit insurance by the FDIC, issuance of a
capital directive, a prohibition on the taking of brokered deposits and certain
other restrictions on its business.
The Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA") substantially revised the depositary institution regulatory and
funding provisions of the Federal Deposit Insurance Act as well as several other
federal banking statutes. Among other things, FDICIA requires the federal
banking regulators to take prompt corrective action in respect of depositary
institutions that do not meet minimum capital requirements. FDICIA establishes
five capital tiers: "well capitalized," "adequately capitalized,"
"undercapitalized," "significantly undercapitalized" and "critically
undercapitalized." A depository institution is well capitalized if it
significantly exceeds the minimum level required by regulation for each relevant
capital measure, is adequately capitalized if it meets each such measure, is
undercapitalized if it fails to meet any such measure, is significantly
undercapitalized if it is significantly below such measure and is critically
undercapitalized if it fails to meet any critical capital level set forth in
applicable regulations. The critically undercapitalized level occurs where
tangible equity is less than 2% of total tangible assets or less than 65% of the
minimum leverage ratio to be prescribed by regulation (except to the extent that
2% would be higher than such 65% level). A depository institution may be deemed
to be in a capitalization category that is lower than is indicated by its actual
capital position if it receives an unsatisfactory examination rating.
FDICIA generally prohibits a depository institution from making any capital
distribution (including payment of a dividend) or paying any management fee to
its holding company if the depository institution would thereafter be
undercapitalized. Undercapitalized depository institutions became subject to
restrictions on borrowing from the Federal Reserve System, effective as of
December 19, 1993. In addition, undercapitalized depository institutions are
subject to growth limitations and are required to submit capital restoration
plans. A depository institution's holding company must guarantee the capital
plan, up to an amount equal to the lesser of 5% of the depository institution's
assets at the time it becomes undercapitalized or the amount of the capital
deficiency when the institution fails to comply with the plan. The federal
banking agencies may not accept a capital plan without determining, among other
things, that the plan is based on realistic assumptions and is likely to succeed
in restoring the depository institution's capital. If a depository institution
fails to submit an acceptable plan, it is treated as if it is significantly
undercapitalized.
Significantly undercapitalized depository institutions may be subject to a
number of requirements and restrictions, including orders to sell sufficient
voting stock to become adequately capitalized, requirements to reduce total
assets and cessation of receipt of deposits from correspondent banks. Critically
undercapitalized depository institutions are subject to appointment of a
receiver or conservator.
SOURCE OF STRENGTH
According to Federal Reserve Board policy, bank holding companies are
expected to act as a source of financial strength to each subsidiary bank and to
commit resources to support each such subsidiary. This support may be required
at times when a bank holding company may not be able to provide such support.
THE RIEGLE-NEAL INTERSTATE BANKING AND BRANCHING EFFICIENCY ACT
In September 1994, the Interstate Banking Act became law. The Interstate
Banking Act provides that as of September 29, 1995, adequately capitalized and
managed bank holding companies are permitted to acquire banks in any state.
State laws prohibiting interstate banking or discriminating against out-of-state
banks were preempted as of the effective date, although states were permitted to
require that target banks located within the state be in existence for a period
of up to five years before such bank may be subject to the Interstate Banking
Act. The Interstate Banking Act establishes deposit caps which prohibit
acquisitions that would result in the acquirer controlling 30% or more of the
deposits of insured banks and thrifts held in the state in which the acquisition
or merger is occurring or in any state in which the target maintains a branch or
10% or
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more of the deposits nationwide. State-level deposit caps are not preempted as
long as they do not discriminate against out-of-state acquirers, and the federal
deposit caps apply only to initial entry acquisitions.
In addition, the Interstate Banking Act provides that as of June 1, 1997,
adequately capitalized and managed banks may engage in interstate branching by
merging banks in different states and allowing banks to maintain branches in
states other than the states where they maintain their principal place of
business. Acting pursuant to this authorization, the Corporation, effective June
2, 1997, consolidated all of its then existing banking subsidiaries into its
largest banking subsidiary and changed the subsidiary's name to SouthTrust Bank,
National Association.
Proposals to change the laws and regulations governing the banking industry
are frequently introduced in Congress, in the state legislatures and before the
various bank regulatory agencies. The likelihood and timing of any such changes
and the impact such changes might have on the Corporation and its subsidiaries,
however, cannot be determined at this time.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
applicable Prospectus Supplement may relate. The particular terms of the Debt
Securities offered by any applicable Prospectus Supplement (the "Offered Debt
Securities") and the extent, if any, to which such general provisions may apply
to the Debt Securities so offered will be described in the Prospectus Supplement
relating to such Offered Debt Securities.
The Senior Securities will be issued under an Indenture (the "Senior
Indenture") between the Corporation and a Trustee to be named in any applicable
Prospectus Supplement (the "Senior Debt Trustee"). The Subordinated Securities
will be issued under an Indenture (the "Subordinated Indenture") between the
Corporation and a Trustee to be named in any applicable Prospectus Supplement
(the "Subordinated Debt Trustee"). Copies of the forms of Senior Indenture and
the Subordinated Indenture (collectively, the "Indentures") are filed as
exhibits to this Registration Statement.
The following summaries of the 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 of the provisions of the Indentures, including the
applicable definitions therein of certain terms used in this Prospectus. All
capitalized terms not defined in this Prospectus shall have the definitions
ascribed to them in the Indentures.
GENERAL
The Debt Securities will be direct, unsecured obligations of the
Corporation. 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 amount of Debt Securities that may
be offered and sold pursuant to this Prospectus, however, is limited to the
aggregate initial offering price of the securities registered under the
Registration Statement of which this Prospectus forms a part.
Any applicable Prospectus Supplement will describe the following terms of
the Offered Debt Securities: (l) the title of the Offered Debt Securities; (2)
any limit on the aggregate principal amount of the Offered Debt Securities; (3)
the date or dates on which the Offered Debt Securities may be issued and are or
will be payable; (4) the rate or rates per annum (which may be fixed or
variable) at which the Offered Debt Securities will bear interest, if any, or
the method by which such rate or rates shall be determined, and the date or
dates from which such interest, if any, will accrue; (5) the date or dates on
which such interest, if any, on the Offered Debt Securities will be payable and
the Regular Record Dates for any such Interest Payment Dates, and the extent to
which, or the manner in which, any interest payable on a temporary or permanent
global Debt Security ("Global Notes") on an Interest Payment Date will be paid
if other than in the manner described under the heading "-- Global
Notes -- Issuance of Global Notes" below; (6) each office or agency where,
subject to the terms of the relevant Indenture as described below under "Payment
and Paying Agents," the principal of, and premium, if any, and any interest on
the Offered Debt Securities will be payable and each office or agency where,
subject to the terms of the relevant Indenture as described below under
"-- Denomi-
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nations, Registration and Transfer", the Offered Debt Securities may be
presented for registration of transfer or exchange and, if applicable,
conversion; (7) the period or periods within which, the price or prices at
which, and the terms and conditions upon which the Offered Debt Securities may
be redeemed at the option of the Corporation; (8) the obligation or option, if
any, of the Corporation to redeem, to repay or purchase the Offered Debt
Securities pursuant to any sinking fund or similar provisions or at the option
of a Holder thereof and the period or periods within which, the price or prices
at which and the terms and conditions upon which the Offered Debt Securities
will be redeemed, repaid or purchased pursuant to any such obligation; (9)
whether the Offered Debt Securities are to be issued with original issue
discount within the meaning of Section 1273(a) of the Internal Revenue Code of
1986, as amended (the "Code"), and the regulations thereunder and the amount of
such discount; (10) provisions, if any, for the defeasance of the Offered Debt
Securities; (11) whether the Offered Debt Securities are to be issued as
Registered Securities or Bearer Securities, or both, and if Bearer Securities
are issued, whether Coupons will be attached thereto, whether Bearer Securities
may be exchanged for Registered Securities and the circumstances and places for
such exchange, if permitted, and any United States tax consequences to foreign
investors in Offered Debt Securities; (12) whether the Offered Debt Securities
are to be issued in whole or in part in the form of one or more temporary or
permanent Global Notes in registered or bearer form and, if so, the identity of
the depositary, if any, for such Global Note or Notes; (13) any provisions for
payment of additional amounts for taxes, and any provisions for redemption in
the event the Corporation must comply with reporting requirements in respect of
an Offered Debt Security other than a Floating Rate Security ("Affected
Security") or must pay such additional amounts in respect of any Offered Debt
Security; (14) if other than in U.S. Dollars, the Foreign Currency or Currencies
in which the Debt Securities may be denominated and the principal of, and
premium, if any, and any interest on the Offered Debt Securities shall or may be
paid and, if applicable, whether at the election of the Corporation and/or the
Holder, and the conditions and manner of determining the exchange rate or rates;
(15) any index used to determine the amount of payment of principal of and
premium, if any, and any interest on the Offered Debt Securities; (16) the
applicable Overdue Rate, if any; (17) any addition to, or modification or
deletion of, any Events of Default or covenants provided for with respect to the
Offered Debt Securities; (18) the priority of payment of such Offered Debt
Securities; and (19) any other detailed terms and provisions of the Offered Debt
Securities which are not inconsistent with the relevant Indenture. Any
applicable Prospectus Supplement will also describe any special provisions for
the payment of additional amounts with respect to the Offered Debt Securities
and terms relevant to Offered Debt Securities denominated in a currency other
than U.S. Dollars.
Debt Securities may be issued as Discount Securities to be sold at a
substantial discount below their principal amount. Discount Securities mean any
Debt Securities issued with an "original issue discount" within the meaning of
Section 1273(a) of the Code and the regulations thereunder. Special United
States income tax and other considerations applicable to Discount Securities
will be described in any applicable Prospectus Supplement relating thereto.
Discount Securities may provide for the declaration of acceleration of the
Maturity of an amount less than the principal amount thereof upon the occurrence
of an Event of Default and the continuation thereof.
DENOMINATIONS, REGISTRATION AND TRANSFER
Each Debt Security may be denominated in U.S. Dollars or in other
currencies, European Currency Units ("ECU") or other composite currencies (the
"Specified Currency"), all as set forth in any applicable Prospectus Supplement.
See "-- Currency Risks."
Debt Securities of a series may be issuable as Registered Securities, as
Bearer Securities with or without Coupons attached or as both Registered
Securities and Bearer Securities. Debt Securities of a series may be issuable in
whole or in part in the form of one or more Global Notes, as described below
under "Global Notes." Unless otherwise provided in an applicable Prospectus
Supplement with respect to a series of Debt Securities, the Debt Securities will
be issuable as Registered Securities without Coupons and in denominations (a) if
denominated in U.S. Dollars, of $1,000 or any integral multiple thereof, or (b)
if denominated in a Specified Currency other than U.S. Dollars, as set forth in
the applicable Prospectus Supplement. One or
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more Global Notes may be issued in a denomination or aggregate denominations
equal to the aggregate principal amount of Outstanding Debt Securities of the
series to be represented by such Global Note or Notes.
In connection with the sale during the restricted period (referred to under
"Limitations on Issuance of Bearer Securities"), no Bearer Security may be
mailed or otherwise delivered to any location in the United States (as defined
under "Limitations on Issuance of Bearer Securities") and a Bearer Security may
be delivered only if the Person entitled to receive such Bearer Security
furnishes written certification, in the form required by the applicable
Indenture, to the effect that such Bearer Security is not owned by or on behalf
of a U.S. Person (as defined under "Limitations on Issuance of Bearer
Securities"), or, if a beneficial interest in such Bearer Security is owned by
or on behalf of a U.S. Person, that such U.S. Person (i) acquired and holds such
Bearer Securities through a foreign branch of a financial institution, (ii) is a
financial institution purchasing for its own accounts and, in the case of either
(i) or (ii), such financial institution agrees to comply with the requirements
of Section 165(j) (3)(A), (B) or (C) of the Code and the regulations thereunder,
or (iii) is a financial institution purchasing for resale during the restricted
period only to non-U.S. Persons outside the United States. See "-- Global
Notes -- Bearer Debt Securities" and "Limitations on Issuance of Bearer
Securities."
Registered Securities of any series (other than a Global Note) will be
exchangeable for other Registered Securities of the same series and a like
aggregate principal amount and tenor of different authorized denominations. In
addition, if so provided in any applicable Prospectus Supplement, Bearer
Securities of any series which are registrable as to principal and interest may,
at the option of the Holder and subject to the terms of the applicable
Indenture, be exchangeable into Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor. Any
Bearer Security surrendered for exchange shall be surrendered with all unmatured
Coupons and all matured Coupons in default except that any Bearer Security
surrendered in exchange for a Registered Security between a Regular Record Date
or a Special Record Date and the relevant date for payment of interest shall be
surrendered without the Coupon relating to such date for payment of interest and
interest will not be payable in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such Coupon when due in accordance with the terms of the applicable Indenture.
Except as provided in an applicable Prospectus Supplement, Bearer Securities
will not be issued in exchange for Registered Securities.
Debt Securities may be presented for exchange as provided above, and
Registered Securities (other than Global Notes) may be presented for
registration of transfer (with the form of transfer endorsed thereon duly
executed), at the office of the Security Registrar or co-Security Registrar
designated by the Corporation for such purpose with respect to any series of
Debt Securities and referred to in an applicable Prospectus Supplement, without
service charge and upon payment of any taxes and other governmental charges as
described in the applicable Indenture. Such transfer or exchange will be
effected upon the Security Registrar or co-Security Registrar being satisfied
with the documents of title and identity of the person making the request. The
Corporation has appointed the Senior Debt Trustee and the Subordinated Debt
Trustee (the Senior Debt Trustee and the Subordinated Debt Trustee are herein
collectively referred to as the "Trustees") as Security Registrars in respect of
Debt Securities issued under the Senior Indenture and the Subordinated Indenture
respectively.
CURRENCY RISKS
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 markets, the imposition or
modification of foreign exchange controls and potential illiquidity. These risks
will vary depending upon the Currency or Currencies involved and will be more
fully described in any applicable Prospectus Supplement.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in any applicable Prospectus Supplement, payment
of principal of, and premium, if any, and any interest on Bearer Securities will
be payable, subject to any applicable laws and
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regulations, at the offices of such Paying Agent or Paying Agents outside the
United States as the Corporation may designate from time to time. Unless
otherwise indicated in any applicable Prospectus Supplement, payment of interest
on Bearer Securities on any Interest Payment Date will be made only against
surrender of the Coupon relating to such Interest Payment Date. No payment with
respect to any Bearer Security will be made at any office or agency of the
Corporation in the United States or by check mailed to any address in the United
States or by transfer to an account maintained in the United States. Payments
will not be made in respect of Bearer Securities or Coupons pursuant to
presentation to the Corporation or its designated Paying Agents within the
United States or the making of any other demand for payment to the Corporation
or its designated Paying Agents within the United States. Notwithstanding the
foregoing, payment of principal of, and premium, if any, and interest on Bearer
Securities denominated and payable in U.S. Dollars will be made at the office of
the Corporation's Paying Agent in The City of New York if (but only if) payment
of the full amount thereof in U.S. Dollars at all offices or agencies outside
the United States is illegal or effectively precluded by exchange controls or
other similar restrictions.
Unless otherwise indicated in any applicable Prospectus Supplement, payment
of principal of, and premium, if any, and any interest on Registered Securities
will be made at the office of such Paying Agent or Paying Agents as the
Corporation may designate from time to time, except that at the option of the
Corporation payment of any interest may be made (i) by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer to an account maintained by the
Person entitled thereto. Unless otherwise indicated in any applicable Prospectus
Supplement, payment of any installment of interest on Registered Securities will
be made to the Person in whose name such Registered Security is registered at
the close of business on the Regular Record Date for such interest.
Unless otherwise indicated in any applicable Prospectus Supplement, the
relevant Trustee will act as the Corporation's sole Paying Agent through its
principal office in The City of New York, with respect to Offered Debt
Securities which are issuable solely as Registered Securities. Any Paying Agents
outside the United States and other Paying Agents in the United States initially
designated by the Corporation for the Offered Debt Securities will be named in
any applicable Prospectus Supplement. The Corporation may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the office through which any Paying Agent acts, except that,
if Debt Securities of a series are issuable only as Registered Securities, the
Corporation will be required to maintain a Paying Agent in each Place of Payment
for such series and, if Debt Securities of a series may be issuable as Bearer
Securities, the Corporation will be required to maintain (i) a Paying Agent in
The City of New York for payments with respect to any Registered Securities of
the series (and for payments with respect to Bearer Securities of the series in
the circumstances described above, but not otherwise), and (ii) a Paying Agent
in a Place of Payment located outside the United States where Debt Securities of
such series and any Coupons appertaining thereto may be presented and
surrendered for payment; provided that if the Debt Securities of such series are
listed on The Stock Exchange of the United Kingdom and the Republic of Ireland
or the Luxembourg Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the Corporation will
maintain a Paying Agent in London or Luxembourg or any other required city
located outside the United States, as the case may be, for the Debt Securities
of such series.
All monies paid by the Corporation to the Trustees or a Paying Agent for
the payment of principal of, and premium, if any, and any interest on any Debt
Securities which remain unclaimed at the end of two years after such principal,
premium or interest shall have become due and payable will be repaid to the
Corporation and the Holder of such Debt Securities or any Coupon will thereafter
look only to the Corporation for payment thereof.
GLOBAL NOTES
Issuance of Global Notes
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Notes that will be deposited with or on behalf of a
depositary located in the United States or a common depositary
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located outside the United States identified in any applicable Prospectus
Supplement relating to such series. Global Notes may be issued in either
registered or bearer form and in either temporary or permanent form.
The specific terms of the depositary arrangement with respect to any
Offered Debt Securities of a series will be described in any applicable
Prospectus Supplement relating to such series. The Corporation anticipates that
the following provision will apply to all depositary arrangements pertaining to
bearer form Global Notes. For depositary arrangements pertaining to registered
notes, see "Book-Entry Only Issuance of Offered Securities."
Bearer Debt Securities
Unless otherwise specified in any applicable Prospectus Supplement, all
Bearer Securities of a series initially will be issued in the form of a single
temporary Global Note, to be deposited with a common depositary in London for
the operator of the Euroclear System ("Euroclear Operator") or Cedel Bank,
societe anonyme ("Cedel Bank"), for credit to the designated accounts.
Commencing 40 days after the issue date of a temporary Global Note, the Debt
Securities represented by such temporary Global Note will be exchangeable for
definitive Debt Securities or for interests in a permanent Global Note, without
interest Coupons, representing Debt Securities having the same interest rate and
Stated Maturity but in each such case only upon written certification in the
form and to the effect described above under "-- Denominations, Registration and
Transfer." The beneficial owner of a Debt Security represented by a temporary
Global Note or a permanent Global Note, on or after the applicable exchange date
and upon 30 days' notice to the relevant Trustee given through the Euroclear
Operator or Cedel Bank, may exchange its interest for definitive Bearer
Securities or definitive Registered Securities of any authorized denomination.
No Bearer Security delivered in exchange for a portion of a temporary Global
Note or a permanent Global Note shall be mailed or otherwise delivered to any
location in the United States in connection with such exchange.
Unless otherwise specified in any applicable Prospectus Supplement,
interest in respect of any portion of a temporary Global Note payable in respect
of an Interest Payment Date occurring prior to the date on which Debt Securities
represented by such temporary Global Note are exchangeable for definitive Debt
Securities or for interests in a permanent Global Note will be paid to each of
the Euroclear Operator and Cedel Bank with respect to the portion of the
temporary Global Note held for its account. Each of the Euroclear Operator and
Cedel Bank, will undertake in such circumstances to credit such interest
received by it in respect of a temporary Global Note to the respective accounts
for which it holds such temporary Global Note only upon receipt in each case of
written certification in the form and to the effect described above under
"-- Denominations, Registration and Transfer."
LIMITATIONS ON THE CORPORATION AND CERTAIN SUBSIDIARIES
The Indentures prohibit the sale, assignment, transfer or other disposition
of any shares of, or securities convertible into, or options, warrants or rights
to subscribe for or purchase shares of, Voting Stock of a Major Constituent
Bank, and further prohibits a Major Constituent Bank from issuing any shares of,
or securities convertible into, or options, warrants or rights to subscribe for
or purchase shares of, such Voting Stock, if, after giving effect to the
transaction and to the issuance of the maximum number of shares of Voting Stock
issuable upon all such convertible securities, options, warrants or rights, the
Major Constituent Bank would cease to be a Controlled Subsidiary, as provided in
the Indentures. The Indentures further prohibit the merger or consolidation of
any Major Constituent Bank with or into any other corporation, or the other
disposition of all or substantially all of its properties and assets to any
Person, if, after giving effect to such transaction, its successor in the merger
or consolidation, or the person that acquires all or substantially all of its
assets or properties will become a Controlled Subsidiary; provided, however,
that the Corporation may sell, assign, transfer or otherwise dispose of any
shares of, or securities convertible into, or options, warrants or rights to
subscribe for or purchase shares of, Voting Stock of a Major Constituent Bank,
(i) in compliance with an order of a court or regulatory authority of competent
jurisdiction; or (ii) where the proceeds, if any, from such sale, assignment or
disposition are, within a reasonable period of time, invested in any Controlled
Subsidiary engaged in the banking business or any other business in which bank
holding companies may legally engage,
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pursuant to an understanding or agreement in principle reached at the time of
such sale, assignment or disposition.
SENIOR SECURITIES
The Senior Securities will be direct, unsecured obligations of the
Corporation and will rank pari passu with all outstanding, unsecured, senior
indebtedness of the Corporation.
EVENTS OF DEFAULT
The following are Events of Default under the Senior Indenture with respect
to Senior Securities of any series: (a) default in the payment of any interest
on any Senior Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; (b) default in the payment
of the principal of or any premium on any Senior Security of such series at its
maturity; (c) default in the deposit of any sinking fund payment, when and as
due by the terms of any Senior Security of that series; (d) failure of the
Corporation, subject to the terms of the Indenture, to perform any other
covenant of the Corporation in the Senior Indenture unless the Holders of a
majority in principal of outstanding Senior Securities waives compliance with
such covenant; (e) default in the performance, or breach, of any covenant or
warranty of the Corporation (other than a covenant included in such Indenture
solely for the benefit of a series of Debt Securities other than that series),
and continuance of such default or breach for 90 days after written notice as
provided in such Indenture; (f) certain events involving bankruptcy, insolvency
or reorganization of the Corporation or a Major Constituent Bank whether
voluntary or involuntary; (g) indebtedness for borrowed money of the Corporation
or any Major Constituent Bank in excess of $5,000,000 (whether such indebtedness
now exists or is hereafter created) is not paid at final maturity or becomes or
is declared due and payable prior to the date or dates on which such
indebtedness would otherwise have become due and payable as a result of the
occurrence of one or more events of default as defined in any mortgages,
indentures, or instruments under which such indebtedness may have been issued or
by which such indebtedness may have been secured ("acceleration"), and such
failure at final maturity to pay or acceleration or accelerations, as the case
may be, shall not be rescinded, annulled, or cured prior to the expiration of 30
days after the date such failure to pay at final maturity or acceleration or
accelerations occurred; and (h) any other event of default provided for with
respect to Debt Securities of that series.
If any Event of Default (other than an Event of Default specified in clause
(f) above) occurs and is continuing with respect to Senior Securities of any
series at the time outstanding, either the Senior Debt Trustee or the Holders of
at least 25% in 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 Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all the Debt Securities of that series
to be due and payable immediately in the Currency in which such Senior
Securities are denominated. If an Event of Default specified in clause (f) above
occurs, such principal amount shall become immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder. At any
time after a declaration of acceleration with respect to Senior Securities of
any series has been made, but before a judgment or decree based on acceleration
has been obtained, the Holders of a majority in aggregate principal amount of
Outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration.
The Senior Indenture provides that upon the occurrence of an Event of
Default specified in items (a), (b) or (c) above, the Corporation will, upon
demand of the Senior Debt Trustee, pay to the Senior Debt Trustee, for the
benefit of the Holder of any such Senior Security, the whole amount then due and
payable on such Senior Securities or matured Coupons for principal, premium, if
any, and interest. The Senior Indenture further provides that if the Corporation
fails to pay such amount forthwith upon such demand, the Senior Debt Trustee
may, among other things, institute a judicial proceeding for the collection
thereof.
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SUBORDINATED SECURITIES
The Subordinated Securities will be direct, unsecured obligations of the
Corporation and will rank pari passu with all outstanding, unsecured,
subordinated indebtedness of the Corporation.
Subordination
The Subordinated Securities will be subordinate and junior in right of
payment, to the extent set forth in the Subordinated Indenture, to all Senior
Indebtedness (as defined below) of the Corporation. In the event that the
Corporation shall default in the payment of any principal of or interest on any
Senior Indebtedness when the same becomes due and payable, whether at maturity
or at a date fixed for prepayment or by declaration or otherwise, then, unless
and until such default shall have been cured or waived or shall have ceased to
exist, no direct or indirect payment (in cash, property, securities, by set-off
or otherwise) will be made or agreed to be made for principal of or interest on
the Subordinated Securities, or in respect of any redemption, retirement,
purchase or other acquisition of any of the Subordinated Securities. "Senior
Indebtedness" means (i) any obligation of the Corporation to its creditors
whether now outstanding or subsequently incurred, as to which, in the creating
instrument, it is provided that such obligation is Senior Indebtedness, (ii) the
Corporation's 8 5/8% Subordinated Notes due May 15, 2004, (iii) the
Corporation's 7% Debentures due May 15, 2003, and (iv) the Corporation's 7 5/8%
Subordinated Notes due May 1, 2004.
In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Corporation, its creditors or its property, (ii) any proceeding for the
liquidation, dissolution or other winding up of the Corporation, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Corporation for the benefit of creditors or (iv) any
other marshalling of the assets of the Corporation, all Senior Indebtedness
(including any interest thereon accruing after the commencement of any such
proceedings) will be paid in full before any payment or distribution, whether in
cash, securities or other property, is made on account of the principal of or
interest on the Subordinated Securities. In such event, any payment or
distribution on account of the principal of or interest on the Subordinated
Securities, whether in cash, securities or other property (other than securities
of the Corporation or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in the subordination provisions with respect to the
Subordinated Securities, to the payment of all Senior Indebtedness at the time
outstanding, and to any securities issued in respect thereof under any such plan
of reorganization or readjustment), which would otherwise (but for the
subordination provisions) be payable or deliverable in respect of the
Subordinated Securities, will be paid or delivered directly to the holders of
Senior Indebtedness in accordance with the priorities then existing among such
holders until all Senior Indebtedness (including any interest thereon accruing
after the commencement of any such proceedings) has been paid in full. If any
payment or distribution on account of the principal of or interest on the
Subordinated Securities of any character or any security, whether in cash,
securities or other property (other than securities of the Corporation or any
other corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinate, at least to the extent provided in the
subordination provisions with respect to the Subordinated Securities, to the
payment of all Senior Indebtedness at the time outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
readjustment), shall be received by any Holder of any Subordinated Securities in
contravention of any of the terms of the Subordinated Indenture and before all
the Senior Indebtedness shall have been paid in full, such payment or
distribution or security will be received in trust for the benefit of, and will
be paid over or delivered and transferred to, the holders of the Senior
Indebtedness at the time outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all such Senior
Indebtedness in full. In the event of any such proceeding, after payment in full
of all sums owing with respect to Senior Indebtedness, the Holders of
Subordinated Securities, together with the holders of any obligations of the
Corporation ranking on a parity with the Subordinated Securities, will be
entitled to be repaid from the remaining assets of the Corporation the amounts
at that time due and owing on account of unpaid principal of or any premium and
interest on the Subordinated Securities and such other obligations before any
payment or other distribution, whether in cash, property or otherwise, shall be
made on
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account of any capital stock or obligations of the Corporation ranking junior to
the Subordinated Securities and such other obligations. By reason of such
subordination, in the event of the insolvency of the Corporation, holders of
Senior Indebtedness may receive more, ratably, and Holders of the Subordinated
Securities having a claim pursuant to such Subordinated Securities may receive
less, ratably, than the other creditors of the Corporation. Such subordination
will not prevent the occurrence of an Event of Default in respect of the
Subordinated Securities. See "-- Events of Default and Limited Rights of
Acceleration" for limitations on the right of acceleration.
Events of Default and Limited Rights of Acceleration
The Subordinated Indenture defines an Event of Default as being certain
events involving the bankruptcy, insolvency or reorganization of the Corporation
and, if specified in the resolution adopted by the Board of Directors with
respect to a series, certain other events. If an Event of Default occurs and is
continuing, either the Subordinated Debt Trustee or the Holders of at least 25%
in aggregate principal amount of the Outstanding Subordinated Securities of that
series (or, if the Subordinated Securities of that series are Discount
Securities, such portion of the principal amount as may be specified in the
terms of the series) may declare the principal amount of all the Subordinated
Securities of that series to be due and payable immediately in the Currency in
which such Subordinated Securities are denominated. The foregoing provision
would be subject as to enforcement to the broad equity powers of a federal
bankruptcy court and to the determination by that court of the nature of the
rights of the Holders of the Subordinated Securities. At any time after a
declaration of acceleration with respect to the Subordinated Securities has been
made, but before a judgment or decree based on acceleration has been obtained,
the Holders of a majority in aggregate principal amount of outstanding
Subordinated Securities may, under certain circumstances, rescind and annul such
acceleration.
Any applicable Prospectus Supplement relating to a series of Subordinated
Securities may provide for a right of acceleration of the payment of principal
of the Subordinated Securities, or certain series thereof, upon a default in the
payment of principal or interest or in the performance of any covenant or
agreement in the Subordinated Securities or Subordinated Indenture. If not so
provided, in the event of a default in the payment of principal or accrued
interest or the performance of any covenant or agreement in the Subordinated
Securities or Subordinated Indenture, the Subordinated Debt Trustee may, subject
to certain limitations and conditions, seek to enforce payment of such principal
or accrued interest or the performance of such covenant or agreement.
MISCELLANEOUS RIGHTS AND OBLIGATIONS OF TRUSTEES
The Indentures provide that, subject to the duty of the Trustees during
default to act with the required standard of care, the respective Trustee will
be under no obligation to exercise any of its rights or powers under the
relevant Indenture at the request or direction of any of the Holders, unless
such Holders shall have offered to such Trustee reasonable security or indemnity
against costs, expenses and liabilities which might be incurred by such Trustee.
Subject to such provisions for the indemnification of the Trustees, the Holders
of a majority in 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 relevant Trustee, or
exercising any trust or power conferred on such Trustee, with respect to the
Debt Securities of that series.
The Corporation is required to furnish the Trustees annually with a
statement as to the performance by the Corporation of certain of its obligations
under the relevant Indentures and as to any default in such performance and to
file with the relevant Trustee written notice of the occurrence of any default
or Event of Default within ten business days of the Corporation becoming aware
of such default or Event of Default.
MODIFICATION AND WAIVER
Modifications of and amendments to an Indenture may be made by the
Corporation and the relevant Trustee with the consent of the Holders of not less
than a majority in principal amount of the Outstanding
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Debt Securities of each series affected by such modification or amendment voting
separately; provided, however, that no such modification or amendment may,
without the consent of the Holder of each Outstanding Debt Security affected
thereby, (a) change the Stated Maturity of the principal of, or any installment
of principal or interest on, any Debt Security, (b) reduce the principal amount
of, or any premium or interest on, any Debt Security, (c) reduce the amount of
principal of a Discount Security payable upon acceleration of the Maturity
thereof, (d) change the Currency in which principal of, or any premium or
interest on, any Debt Security is denominated or payable, (e) adversely affect
the right of repayment or repurchase, if any, at the option of the Holder, (f)
reduce the amount of or postpone the date fixed for any payment under any
sinking fund or similar provisions, (g) impair the right to institute suit for
the enforcement of any payment on or with respect to any Debt Security, (h)
reduce the percentage in principal amount of Outstanding Debt Securities of any
series, the consent of whose Holders is required for modification or amendment
of the relevant Indenture or for waiver of compliance with certain provisions of
such Indenture or for waiver of certain defaults, (i) limit the obligation of
the Corporation to maintain a paying agency outside the United States for Bearer
Securities, (j) limit the obligation of the Corporation to redeem an Affected
Security, or (k) modify the provisions of an Indenture relating to the
modification of the Indenture, or the circumstances under which the Holders may
waive past defaults by and certain covenants of the Corporation.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of each series may, on behalf of all Holders of Debt
Securities of that series, waive, insofar as that series is concerned,
compliance by the Corporation with certain covenants of the relevant Indenture
and any Event of Default resulting in acceleration of such Debt Securities in
specified circumstances. The Holders of a majority in aggregate principal amount
of the Outstanding Debt Securities of each series may, on behalf of all Holders
of Debt Securities of that series, waive any past default under the relevant
Indenture with respect to Debt Securities of that series, except a default, (i)
in the payment of principal, premium, if any, or interest or in the payment of
any sinking fund installment or analogous obligation, or (ii) in respect of a
covenant or provision that cannot be modified or amended without the consent of
the Holders of each Outstanding Debt Security affected thereby.
The Corporation may, with the consent of its Board of Directors and the
Trustee, change the terms of an Indenture through an indenture supplement
without the consent of any Holders only for the following purposes: (i) to
evidence the succession of another corporation to the Corporation and the
assumption by any such successor of the covenants of the Corporation under the
relevant Indenture; (ii) to add to the covenants of the Corporation for the
benefit of the Holders or to surrender any right or power herein conferred upon
the Corporation; (iii) to add any additional Events of Default; (iv) to add to
or change any of the provisions of the relevant Indenture to facilitate the
issuance of Debt Securities in bearer form; (v) to change or eliminate any of
the relevant Indenture's provisions, provided that there are no Debt Securities
outstanding which are entitled to the benefit of such provision; (vi) to secure
the Debt Securities; (vii) to supplement any of the provisions of the relevant
Indenture to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Debt Securities provided that any such
action shall not adversely affect the interests of the Holders of Debt
Securities of such series or any other series of Debt Securities; (viii) to
establish the form or terms of the Debt Securities and Coupons, if any, as
permitted by the relevant Indenture; (ix) to evidence and provide for the
acceptance of appointment by a successor Trustee or facilitate the
administration of the trusts under the relevant Indenture by more than one
Trustee; (x) to make any modifications, amendments or supplements to any
provisions herein which modifications, amendments or supplements are required
pursuant to any amendment of the Trust Indenture Act of 1939 enacted, or any of
the rules promulgated thereunder, after the date hereof; and (xi) to cure any
ambiguity, any defect or any inconsistent provision, provided such action shall
not adversely affect the Holders' interests in any material respect.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Both Indentures provide that the Corporation shall not consolidate with or
merge into any other corporation or convey, transfer or lease its properties and
assets substantially to any Person, and shall not permit any person to
consolidate with or merge into the Corporation or convey, transfer or lease its
properties
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<PAGE> 17
and assets substantially to the Corporation, unless (i) the corporation into
which the Corporation is merged or consolidation or to which substantially all
of the Corporation's assets or properties are conveyed, transferred or leased,
or the corporation resulting from such merger or consolidation, expressly
assumes the payment of the principal (and premium, if any) and interest on all
the Debt Securities and the performance of every covenant of the Indentures;
(ii) no Event of Default, and no event which after notice of lapse of time, or
both, would become an Event of Default, shall happen or be continuing upon the
occurrence of such transaction; (iii) the Corporation formed by such
consolidation or into which the Corporation shall have been merged or the Person
to which such sale, lease or other disposition shall have been made is a banking
institution or a bank holding company subject to Federal or State authority; and
(iv) the Corporation delivers to the respective Trustee an Officers' Certificate
and an Opinion of Counsel stating that the consolidation, merger, conveyance,
transfer or lease required in connection with such transaction, and the
supplemental indenture, if any, complies with the Indentures and all conditions
precedent have been complied with.
DEFEASANCE
If so specified in any applicable Prospectus Supplement with respect to the
Offered Debt Securities of any series, the Corporation, at its option, (i) will
be discharged from any and all obligations in respect of the Offered Debt
Securities of such series (except for certain obligations to register the
transfer or exchange of Offered Debt Securities of such series, to replace
stolen, lost or mutilated Offered Debt Securities of such series, to maintain
paying agencies and to hold moneys for payment in trust) or (ii) will not be
subject to provisions of the relevant Indenture concerning limitations upon the
disposition of Voting Stock of Major Constituent Banks, and the consolidation,
merger and sale of assets in each case if the Corporation deposits with the
relevant Trustee, in trust, 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 to pay all the principal,
premium, if any, and interest on the Offered Debt Securities of such series on
the dates such payments are due in accordance with the terms of such Offered
Debt Securities. To exercise either such option, the Corporation is required,
among other things, to deliver to the relevant Trustee an opinion of counsel to
the effect that (1) the Corporation has received from or there has been
published by the United States Internal Revenue Service a ruling to the effect
that the deposit and related defeasance would not cause the Holders of the
Offered Debt Securities of such series to recognize income, gain or loss for
United States income tax purposes and (2) if the Offered Debt Securities of such
series are then listed on any national securities exchange, such Offered Debt
Securities would not be delisted from such exchange as a result of the exercise
of such option. Notwithstanding the foregoing, no discharge or defeasance
described above shall affect the obligations, if applicable, of the Corporation
with respect to the conversion of Debt Securities of a given series into Common
Stock.
NOTICES
Except as otherwise provided in the Indentures, notices to Holders of
Bearer Securities will be given by publication at least twice in a daily
newspaper in The City of New York and, if Debt Securities of such series are
then listed on The Stock Exchange of the United Kingdom and the Republic of
Ireland or the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, in a daily
newspaper in London or Luxembourg or any other required city located outside the
United States, as the case may be, or, if not practicable, elsewhere in Europe.
Notices to Holders of Registered Securities will be given by mail to the address
of such Holders as they appear in the Security Register.
GOVERNING LAW
The Indentures, the Offered Securities and the Coupons, if any, will be
governed by, and construed in accordance with, the laws of the State of New
York. A judgment for money damages awarded by courts in the United States,
including a money judgment based on an obligation expressed in a Foreign
Currency, ordinarily will be rendered only in U.S. Dollars.
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REGARDING THE TRUSTEES
The Corporation and certain subsidiaries from time to time may borrow from
the Trustees, maintain deposit accounts and conduct other banking transactions
with them in the ordinary course of their business.
U.S. FEDERAL TAXATION
The Prospectus Supplement will contain a brief summary of the relevant
United States federal income taxation laws applicable to the Offered Debt
Securities.
DESCRIPTION OF CAPITAL STOCK
The following summaries of the Preferred Stock and the Common Stock do not
purport to be complete and are subject to and qualified in their entirety by
reference to the applicable provisions of the Delaware General Corporation Law
and the Company's Restated Certificate of Incorporation, including the
Certificate of Designations describing the Series A Junior Participating
Preferred Stock, and the Corporation's Restated Bylaws.
The authorized capital stock of the Corporation consists of 300,000,000
shares of Common Stock, and 5,000,000 shares of Preferred Stock. As of September
30, 1997, 99,793,613 shares of Common Stock were issued and outstanding and no
shares of Preferred Stock were outstanding. As of December 31, 1996, 6,514,374
shares of Common Stock were reserved for issuance pursuant to employee benefit
plans of the Corporation. In addition, 500,000 shares of Preferred Stock
designated as Series A Junior Participating Preferred Stock were reserved for
issuance upon the exercise of certain rights described below under
"-- Stockholders' Rights Plan."
Since the Corporation is a holding company, the right of the Corporation,
and hence the right of creditors and stockholders of the Corporation, to
participate in any distribution of assets of any subsidiary (including
SouthTrust Bank) upon its liquidation or reorganization or otherwise necessarily
is subject to the prior claims of creditors of the subsidiary, except to the
extent that claims of the Corporation itself as a creditor of the subsidiary may
be recognized.
DESCRIPTION OF PREFERRED STOCK
The following descriptions of the terms of the Preferred Stock sets forth
certain general items and provisions of the Preferred Stock to which any
applicable Prospectus Supplement may relate. The specific terms of any series of
the Preferred Stock offered by any applicable Prospectus Supplement will be
described in any applicable Prospectus Supplement relating to such series of the
Preferred Stock. If so indicated in any applicable 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 applicable Prospectus Supplement does not purport to be complete and is
subject to and qualified in its entirety by reference to the Certificate of
Designations relating to each series of the Preferred Stock which will be filed
with the Commission.
General
Under the Corporation's Restated Certificate of Incorporation, the Board of
Directors is authorized without further stockholder action to provide for the
issuance of up to 5,000,000 shares of Preferred Stock, in one or more series, by
adoption of a resolution or resolutions providing for the issuance of such
series and determining the relative rights and preferences of the shares of any
such series with respect to the rate of dividend, call provisions, payments on
liquidation, sinking fund provisions, conversion privileges and voting rights
and whether the shares shall be cumulative, noncumulative or partially
cumulative. The holders of the Preferred Stock would not have any preemptive
right to subscribe for any shares issued by the Corporation. It is not possible
to state the actual effect of the authorization and issuance of Preferred Stock
upon the rights of holders of the Common Stock unless and until the Board of
Directors determines the price and specific rights of the holders of a series of
the Preferred Stock. Such effects might include, however, (i) restrictions on
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dividends on the Common Stock if dividends on Preferred Stock have not been
paid; (ii) dilution of the voting power of the Common Stock to the extent that
the Preferred Stock has voting rights, or that any Preferred Stock series is
convertible into Common Stock; (iii) dilution of the equity interest of the
Common Stock unless the Preferred Stock is redeemed by the Corporation; and (iv)
the Common Stock not being entitled to share in the Corporation's assets upon
liquidation until satisfaction of any liquidation preference granted the
Preferred Stock. While the ability of the Corporation to issue Preferred Stock
is, in the judgment of the Corporation's Board of Directors, desirable in order
to provide flexibility in connection with possible acquisitions and other
corporate purposes, its issuance could impede an attempt by a third party to
acquire a majority of the outstanding voting stock of the Corporation.
In connection with the adoption of the Stockholder's Rights Plan described
below, the Corporation's Board of Directors designated 500,000 shares of the
Corporation's authorized but unissued Preferred Stock as Series A Junior
Participating Stock (which has been previously referred to as the "Series A
Preferred Stock"). The terms of the Series A Preferred Stock are such that one
share of Series A Preferred Stock will be approximately equivalent in terms of
dividend and voting rights to 100 shares of Common Stock. No shares of Series A
Preferred Stock have been issued as of the date of the Prospectus.
DESCRIPTION OF COMMON STOCK
Dividend Rights
Subject to any prior rights of any Preferred Stock of the Corporation
outstanding, holders of the Common Stock are entitled to dividends when, as and
if declared by the Board of Directors out of funds legally available therefor.
Under Delaware law, the Corporation may pay dividends out of surplus (whether
capital surplus or earned surplus) or net profits for the fiscal year in which
declared or for the preceding fiscal year, even if its surplus accounts are in a
deficit position. The sources of funds for payment of dividends by the
Corporation are its subsidiaries. The Corporation's primary subsidiary is a bank
and therefore, payments made by such subsidiary to the Corporation are limited
by law and regulations of the bank regulatory authorities. See "Regulatory
Matters."
Voting Rights and Other Matters
The holders of the Common Stock are entitled to one vote per share on all
matters brought before the stockholders. The holders of the Common Stock do not
have the right to cumulate their shares of Common Stock in the election of
directors. The Restated Certificate of Incorporation of the Corporation provides
that in the event of a transaction or a series of transactions with an
Interested Stockholder (generally defined as a holder of more than 10% of the
voting stock of the Corporation or an affiliate of such a holder) pursuant to
which the Corporation would be merged into or with another corporation or
securities of the Corporation would be issued in a transaction which would
permit control of the Corporation to pass to another entity, or similar
transactions having the same effect, approval of such transactions requires the
vote of the holders of 70% of the voting power of the outstanding voting
securities of the Corporation, except in cases in which either certain price
criteria and procedural requirements are satisfied or the transaction is
recommended to the stockholders by a majority of the members of the Board of
Directors who are unaffiliated with the Interested Stockholder and who were
directors before the Interested Stockholder became an Interested Stockholder.
The Common Stock does not have any conversion rights, nor are there any
redemption or sinking fund provisions applicable thereto. Holders of Common
Stock are not entitled to any preemptive rights.
Liquidation Rights
In the event of liquidation, holders of the Common Stock will be entitled
to receive pro rata any assets distributable to stockholders with respect to the
shares held by them, after payment of indebtedness and such preferential amounts
as may be required to be paid to the holders of any Preferred Stock hereafter
issued by the Corporation.
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Provisions with Respect to Board of Directors
The Restated Certificate of Incorporation of the Corporation provides that
the members of the Board of Directors are divided into three classes as nearly
equal in number as possible. Each class is elected for a three-year term. At
each Annual Meeting of Stockholders, roughly one-third of the members of the
Board of Directors will be elected for a three-year term. The other directors
will remain in office until their three year terms expire. Therefore, control of
the Board of Directors cannot be changed in one year, and at least two annual
meetings must be held before a majority of the members of the Board of Directors
can be changed.
Special Vote Requirements for Certain Amendments to Restated Certificate of
Incorporation
The General Corporation Law of the State of Delaware and the Restated
Certificate of Incorporation and Bylaws of the Corporation provide that a
director, or the entire Board of Directors, may be removed by the stockholders
only for cause. The Restated Certificate of Incorporation and Bylaws of the
Corporation also provide that the affirmative vote of the holders of at least
70% of the voting power of the outstanding capital stock entitled to vote for
the election of directors is required to remove a director or the entire Board
of Directors from office. Certain portions of the Restated Certificate of
Incorporation of the Corporation described in certain of the preceding
paragraphs, including those related to business combinations and the classified
Board of Directors, may be amended only by the affirmative vote of the holders
of 70% of the outstanding voting stock of the Corporation.
Possible Effect of Special Provisions
Certain of the provisions contained in the Restated Certificate of
Incorporation and Bylaws of the Corporation described above have the effect of
making it more difficult to change the Board of Directors, and may make the
Board of Directors less responsive to stockholder control. These provisions also
may tend to discourage attempts by third parties to acquire the Corporation,
and, as a result, may adversely affect the price that a potential purchaser
would be willing to pay for the capital stock of the Corporation, thereby
reducing the amount a stockholder might realize in, for example, a tender offer
for the capital stock of the Corporation.
Stockholders' Rights Plan
On February 22, 1989, the Board of Directors of the Company by resolution
declared a dividend to holders of Common Stock of record on March 6, 1989 (the
"Record Date") of one right (a "Right" and collectively, the "Rights") for, and
to be attached to, each share of Common Stock outstanding on the Record Date.
Each Right entitles the holder thereof to purchase from the Corporation one
one-hundredth of a share of Preferred Stock designated as the Series A Junior
Participating Preferred Stock ("Series A Preferred Stock") at a purchase price
of $75.00 (the "Purchase Price"). Such resolutions also provide that as long as
the Rights are attached to shares of Common Stock as provided in the Rights
Agreement referred to below, the appropriate number of Rights shall be issued
with each share of Common Stock issued after March 6, 1989. The number of Rights
attached to or to be issued with each share of Common Stock of the Corporation
as well as the redemption price for each such Right, were appropriately
decreased as a result of a three-for-two stock split effected by the Corporation
on January 24, 1992, and a three-for-two stock split effected by the Corporation
on May 19, 1993. Accordingly, at the present time four-ninths of a Right is
attached to each share of Common Stock of the Corporation.
The Rights will expire on February 22, 1999, unless redeemed earlier, and
will not be exercisable or transferable separately from the shares of Common
Stock until the close of business on the Distribution Date, which will occur on
the earlier of (i) the tenth day following a public announcement that a person
(an "Acquiring Person") or any associate or affiliate of an Acquiring Person has
acquired, or obtained the right to acquire, beneficial ownership of 20% or more
of the outstanding Common Stock of the Corporation (the "Stock Acquisition
Date"); or (ii) the tenth day following commencement of a tender or exchange
offer which would result in the ownership of 20% or more of the outstanding
Common Stock of the Corporation; or (iii) the tenth day after the Board of
Directors declares, upon a determination by at least a majority of the
Corporation's independent directors, that a person, alone or with affiliates and
associates (an "Adverse
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Person"), has become the beneficial owner of a substantial amount (not to be
less than 10%) of outstanding Common Stock of the Corporation and that such
person's ownership either is intended to cause the Corporation to take action
adverse to its long-term interests or may cause a material adverse impact on the
Corporation to the detriment of the Corporation's Stockholders.
In the event that (i) the Board of Directors determines that a person is an
Adverse Person; (ii) the Corporation is the surviving corporation in a merger
with an Acquiring Person and the Corporation's Common Stock remains outstanding
and unchanged and is not exchanged for securities of the Acquiring Person or
other property; (iii) an Acquiring Person receives a financial benefit or
advantage, through certain self-dealing transactions involving the Corporation,
greater than that received by other stockholders of the Corporation or that
which would have resulted from arms-length negotiations; (iv) a person becomes
the beneficial owner of 30% or more of the outstanding Common Stock of the
Corporation (except pursuant to a "Fair Offer" as determined by the independent
directors); or (v) while there is an Acquiring Person, an event involving the
Corporation or any of its subsidiaries occurs which results in the Acquiring
Person's proportionate ownership interest being increased by more than 1%, each
holder of a Right will have the right to receive, upon payment of the Purchase
Price, in lieu of Series A Preferred Stock, a number of shares of Common Stock
(or, in certain circumstances, cash or other property) having a value equal to
twice the Purchase Price. Rights are not exercisable following the occurrence of
any of the events set forth in this paragraph until the expiration of the period
during which the Rights may be redeemed by the Corporation as described below.
Notwithstanding the foregoing, after the occurrence of any of the events set
forth in this paragraph, Rights that are (or, under certain circumstances,
Rights that were) beneficially owned by an Acquiring Person or an Adverse Person
will be null and void.
Unless the Rights are redeemed earlier, if, after the Distribution Date,
the Corporation is acquired in a merger or other business combination in which
the Corporation is not the surviving corporation or in which the Common Stock of
the Corporation is changed into or exchanged for securities of any other person
or other property (other than a merger which follows a Fair Offer) or 50% or
more of the assets or earning power of the Corporation and its subsidiaries
(taken as a whole) are sold or transferred, the Rights Agreement provides that
each holder of record of a Right will from and after the time have the right to
receive, upon payment of the Purchase Price, that number of shares of common
stock of the acquiring company which has value equal to twice the Purchase
Price.
At any time until ten days following the Stock Acquisition Date (subject to
certain provisions requiring action by a majority of the Disinterested
Directors, as defined in the Rights Agreement), the Corporation may redeem the
Rights in whole, but not in part, at a price of $.01 per Right. Prior to the
Distribution Date, the Corporation may, except with respect to the Purchase
Price, the redemption price or the date of expiration of the Rights, amend the
Rights in any manner. At any time after the Distribution Date, the Corporation
may amend the Rights in any manner that does not adversely affect the interest
of holders of the Rights as such.
The Rights have certain anti-takeover effects and may adversely affect a
third party's attempt to acquire the Corporation. The Rights will cause
substantial dilution to a person or group that attempts to acquire the
Corporation. The Rights should not interfere with any merger or other business
combination approved by the Board of Directors of the Corporation since, among
other things, the Board of Directors may, at its option, under certain
circumstances, redeem all but not less than all of the then outstanding Rights
at $.01 per Right.
The foregoing description of the Rights and the Series A Preferred Stock
does not purport to be complete and is qualified in its entirety by reference to
the Rights Agreement (the "Rights Agreement") between the Corporation and Mellon
Bank, N.A. (now known as ChaseMellon Shareholder Services LLC), as Rights Agent,
a copy of which is filed as an exhibit to the Registration Statement of which
this Prospectus forms a part, and the Certificate of Designation for the Series
A Preferred Stock.
Transfer Agent
The transfer agent for the Common Stock is ChaseMellon Shareholder Services
LLC.
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BOOK-ENTRY ONLY ISSUANCE OF OFFERED SECURITIES
Unless otherwise specified in any applicable Prospectus Supplement, Offered
Securities which are to be issued in book-entry only form will be represented by
one or more global securities (each a "Global Security") held through The
Depository Trust Company ("DTC") or its nominee (in the United States), or
through Cedel Bank or Euroclear (abroad), Offered Securities held through DTC
will be registered in the name of Cede & Co., as nominee of DTC. Cedel Bank and
Euroclear will hold omnibus positions on behalf of Cedel Bank Participants (as
defined below) and Euroclear Participants (as defined below), respectively,
through customers' securities accounts in Cedel Bank's and Euroclear's names,
respectively, on the books of their respective depositaries, which in turn, will
hold such positions on the books of DTC.
Under the book-entry system of DTC, purchases of Offered Securities must be
made by or through institutions that have accounts with DTC or its nominee
("Participants") or persons that may hold interests through Participants
("Indirect Participants"). Upon the issuance and deposit of a Global Security,
DTC will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Offered Securities represented by such
Global Security to the accounts of Participants as designated by the
underwriters or by the Corporation if such Offered Securities are offered by the
Corporation. The ownership of beneficial interests in such Global Security will
be shown on, and the transfer of that ownership will be effected only through,
records maintained by DTC or its nominee (with respect to interests of
Participants) and the records of Participants (with respect to interests of
Indirect Participants) and Indirect Participants. So long as DTC, or its
nominee, is the registered holder of a Global Security, DTC or its nominee will
be considered the sole owner or holder of the Offered Securities represented by
such Global Security. Except as provided below, owners of beneficial interests
in a Global Security will not be entitled to have Offered Securities registered
in their names, will not receive or be entitled to receive physical delivery of
such Offered Securities in certificated form and will not be considered the
owners or holders thereof. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of such securities in
certificated form. Such transfer restrictions and such laws may impair the
ability to own, transfer or pledge beneficial interests in a Global Security.
DTC has advised the Corporation as follows: DTC is a limited-purpose trust
company organized under New York law, a "banking organization" within the
meaning of New York law, a member of the Federal Reserve system, a "clearing
corporation" within the meaning of the Uniform Commercial Code as in effect in
the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act, as amended. DTC was created to
hold securities deposited by its Participants and to facilitate the clearance
and settlement of securities transactions among Participants in such securities
through electronic computerized book-entry changes in accounts of the
Participants, thereby eliminating the need for physical movement of securities
certificates. DTC's direct Participants include securities brokers and dealers
(including the underwriters), banks (including certain subsidiaries of the
Corporation), trust companies, clearing corporations and certain other
organizations, some of whom (and/or their representatives) have ownership
interests in DTC. DTC is owned by a number of its Participants and by the New
York Stock Exchange, Inc., the American Stock Exchange, Inc. and the NASD.
Indirect access to DTC's book-entry system is also available to Indirect
Participants, such as banks, brokers, dealers and trust companies that clear
through or maintain a custodial relationship with a Participant, either directly
or indirectly. The rules applicable to DTC and its Participants are on file with
the Commission.
To facilitate subsequent transfers, all securities deposited with DTC are
registered in the name of DTC's partnership nominee, Cede & Co. The deposit of
securities with DTC and their registration in the name of Cede & Co. effect no
change in beneficial ownership. DTC has no knowledge of the actual beneficial
owners of securities deposited with it such as the Offered Securities; DTC's
records reflect only the identity of the Participants to whose accounts such
securities are credited, which may or may not be the beneficial owners. The
Participants will remain responsible for keeping account of their holdings on
behalf of their customers. Conveyance of notices and other communications by DTC
to Participants, by Participants to Indirect Participants and by Participants
and Indirect Participants to beneficial owners will be governed by arrangements
among them, subject to any statutory or regulatory requirements as may be in
effect from time to time. Neither DTC nor Cede & Co. will consent or vote with
respect to securities held by DTC. Under its usual
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procedures, DTC mails an omnibus proxy to an issuer as soon as possible after
the record date. The omnibus proxy assigns Cede & Co.'s consenting or voting
rights to those Participants to whose accounts the securities are credited on
the record date (identified in a listing attached to the omnibus proxy).
DTC can act only on behalf of Participants, who in turn act on behalf of
Indirect Participants. Owners of beneficial interests in a Global Security that
are not Participants or Indirect Participants but desire to purchase, sell or
otherwise transfer ownership of such interests may do so only through
Participants and Indirect Participants. In addition, the ability of owners of
beneficial interests in a Global Security to pledge such interests to persons or
entities that do not participate in the DTC system may be limited due to the
lack of certificates for the Offered Securities.
Transfers between Cedel Bank Participants and Euroclear Participants will
occur in the ordinary way in accordance with their applicable rules and
operating procedures.
Cross-market transfers between persons holding securities directly or
indirectly through DTC in the United States, on the one hand, and directly or
indirectly through Cedel Bank Participants or Euroclear Participants, on the
other, will be effected by DTC in accordance with DTC rules on behalf of the
relevant European international clearing system by its depositary; however, such
cross-market transactions will require delivery of instructions to the relevant
European international clearing system by the counterparty in such system in
accordance with its rules and procedures and within its established deadlines
(European time). The relevant European international clearing system will, if
the transaction meets its settlement requirements, deliver instructions to its
depositary to take action to effect final settlement on its behalf by delivering
or receiving securities in DTC, and making or receiving payment in accordance
with normal procedures for same-day funds settlement applicable to DTC. Cedel
Bank Participants and Euroclear Participants may not deliver instructions
directly to the depositaries.
Because of time-zone differences, credits for securities in Cedel Bank or
Euroclear as a result of a transaction with a DTC Participant will be made
during the subsequent securities settlement processing, dated the business day
following the DTC settlement date, and such credits or any transactions in such
securities settled during such processing will be reported to the relevant Cedel
Bank Participant or Euroclear Participant on such business day. Cash received in
Cedel Bank or Euroclear as a result of sales of securities by or through a Cedel
Bank Participant or a Euroclear Participant to a DTC Participant will be
received with value on the DTC settlement date but will be available in the
relevant Cedel Bank or Euroclear cash account only as of the business day
following settlement in DTC.
Cedel Bank is incorporated under the laws of Luxembourg as a professional
depository. Cedel Bank holds securities for its participating organizations
("Cedel Bank Participants") and facilitates the clearance and settlement of
securities transactions between Cedel Bank Participants through electronic
book-entry changes in accounts of Cedel Bank Participants, thereby eliminating
the need for physical movement of certificates. Transactions may be settled by
Cedel Bank in any of 28 currencies, including United States dollars. Cedel Bank
provides to its Cedel Bank Participants, among other things, services for
safekeeping, administration, clearance and settlement of internationally traded
securities and securities lending and borrowing. Cedel Bank interfaces with
domestic markets in several countries. As a professional depository, Cedel Bank
is subject to regulation by the Luxembourg Monetary Institute. Cedel Bank
Participants are recognized financial institutions around the world, including
underwriters, securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations and may include one or more of the
underwriters of the Offered Securities. Indirect access to Cedel Bank is also
available to others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a Cedel Bank
Participant, either directly or indirectly.
The Euroclear System (the "Euroclear System") was created in 1968 to hold
securities for participants of the Euroclear System ("Euroclear Participants")
and to clear and settle transactions between Euroclear Participants through
simultaneous electronic book-entry delivery against payment, thereby eliminating
the need for physical movement of certificates and any risk from lack of
simultaneous transfers of securities and cash. Transactions may now be settled
in any of 32 currencies, including United States dollars. The Euroclear System
includes various other services, including securities lending and borrowing and
interfaces with
22
<PAGE> 24
domestic markets in several countries generally similar to the arrangements for
cross-market transfers with DTC described above. The Euroclear System is
operated by the Euroclear Operator, under contract with Euroclear Clearance
System, S.C., a Belgian cooperative corporation (the "Cooperative"). All
operations are conducted by the Euroclear Operator, and all Euroclear securities
clearance accounts and Euroclear cash accounts are accounts with the Euroclear
Operator, not the Cooperative. The Cooperative establishes policy for the
Euroclear System on behalf of Euroclear Participants. Euroclear Participants
include banks (including central banks), securities brokers and dealers and
other professional financial intermediaries and may include one or more of the
underwriters of the Offered Securities. Indirect access to the Euroclear System
is also available to other firms that clear through or maintain a custodial
relationship with a Euroclear Participant, either directly or indirectly.
The Euroclear Operator is the Brussels branch of a New York banking
corporation which is a member bank of the Federal Reserve system. As such, it is
regulated and examined by the Federal Reserve Board and the New York State
Banking Department, as well as the Belgian Banking Commission.
Securities clearance accounts and cash accounts with the Euroclear Operator
are governed by the Terms and Conditions Governing Use of Euroclear and the
related Operating Procedures of the Euroclear System and applicable Belgian law
(collectively, the "Terms and Conditions"). The Terms and Conditions govern
transfers of securities and cash within the Euroclear System, withdrawal of
securities and cash from the Euroclear System, and receipts of payments with
respect to securities in the Euroclear System. All securities in the Euroclear
System are held on a fungible basis without attribution of specific certificates
to specific securities clearance accounts. The Euroclear Operator acts under the
Terms and Conditions only on behalf of Euroclear Participants and has no record
of or relationship with persons holding through Euroclear Participants.
Distributions with respect to the Offered Securities held through Cedel
Bank or Euroclear will be credited to the cash accounts of Cedel Bank
Participants or Euroclear Participants in accordance with the relevant system's
rules and procedures, to the extent received by its depositary. Such
distributions will be subject to tax reporting in accordance with relevant
United States tax laws and regulations. United States federal income tax
consequences to foreign investors will be further discussed in an applicable
Prospectus Supplement. Cedel Bank or the Euroclear Operator, as the case may be,
will take any other action permitted to be taken by a holder of the Offered
Securities on behalf of a Cedel Bank Participant or a Euroclear Participant only
in accordance with its relevant rules and procedures and subject to its
depositary's ability to effect such actions on its behalf through DTC.
Although DTC, Cedel Bank and Euroclear have agreed to the foregoing
procedures in order to facilitate transfers of the Offered Securities among
participants of DTC, Cedel Bank and Euroclear, they are under no obligation to
perform or continue to perform such procedures and such procedures may be
discontinued at any time.
Except as otherwise provided herein, the holder of a Global Security shall
be the only person entitled to receive payments with respect to Offered
Securities represented by such Global Security. Accordingly, payments of
principal of, premium, if any, and any interest on Offered Securities
represented by a Global Security will be made only to DTC or its nominee, as the
case may be, as the registered holder of the Global Security representing such
Offered Securities. The Corporation expects that, upon receipt of any payment of
principal, premium or interest in respect of a Global Security, DTC will credit
Participants' accounts in accordance with their respective holdings with respect
to a Global Security as shown on DTC's records. The Corporation also expects
that payments by Participants to beneficial owners will be governed by standing
instructions and customary practices, as is the case with securities held for
the accounts of customers in bearer form or registered in "street name." Such
instructions will be the responsibility of such Participant and not of DTC, the
underwriters, the Corporation or the Trustees; subject to any statutory or
regulatory requirements as may be in effect from time to time. The Corporation
will in every case be discharged by payment to, or to the order of, DTC or its
nominee as the holder of such Global Security, of the amount so paid. Each of
the persons shown in the records of DTC or its nominee as an owner of a
beneficial interest therein must look solely to DTC or its nominee, as the case
may be, for its share of any such payment so made by the Corporation. None
23
<PAGE> 25
of the Corporation, the Trustees, any Paying Agent, the Security Registrar or
transfer agent for the Offered Securities will have any responsibility or
liability for any aspect if the records relating to or payments made on account
of owners of beneficial interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial interests.
Although DTC has agreed to the foregoing procedure in order to facilitate
transfers of beneficial interests in Global Securities among its Participants,
it is under no obligation to perform or continue to perform such procedures, and
such procedures may be discontinued at any time.
A Global Security may not be transferred except as a whole by DTC for such
Global Security to or among a nominee or successor. If DTC is at any time
unwilling, unable or ineligible to continue as a depositary and a successor
depositary is not appointed by the Corporation within 90 days, the Corporation
will issue registered Offered Securities in certificated form in exchange for
beneficial interest in each Global Security. In addition, the Corporation may at
any time and in its sole discretion determine not to have Offered Securities
represented by Global Securities and, in such event, will issue registered
Offered Securities in certificated form in exchange for beneficial interests in
Global Securities. In any such instance, an owner of a beneficial interest in a
Global Security will be entitled to physical delivery in certificated form of an
Offered Security or Offered Securities equal in liquidation amount to such
beneficial interest and to have such Offered Security or Offered Securities
registered in its name.
In the event that the Offered Securities are issued in certificated form,
the Trustees, if applicable, will appoint a paying and transfer agent in
Luxembourg at whose office such Offered Securities in certificated form may be
presented for payment and/or transfer for so long as they are outstanding. The
paying and transfer agent that is expected to be appointed in such circumstances
is: Banque Generale du Luxembourg, 14 rue Aldringen, L2951 Luxembourg. In
addition, upon redemption of the Offered Securities, such Offered Securities in
certificated form may be presented for payment at the offices of such paying and
transfer agent in Luxembourg up to two years after the date of redemption of the
Offered Securities. If Offered Securities in certificated form are issued,
notices to holders of the Offered Securities will also be given by mail to the
addresses of such holders as they appear on the security register.
Any notices required to be given to holders of the Offered Securities will
be given to DTC or its nominee, as the registered holder of the Offered
Securities, and by publication in a daily newspaper in Luxembourg, which is
expected to be the Luxemburger Wort. Until such time as any Offered Securities
are issued in certificated form, there may be substituted for publication in
such newspaper the delivery of the relevant notice to Euroclear and Cedel Bank
for communication to their Participants except that, so long as the Offered
Securities are listed on the Luxembourg Stock exchange and the rules of the
Luxembourg Stock Exchange so require, notices will also be published in the
Luxemburger Wort. Any such notice to Euroclear and Cedel Bank shall be deemed to
have been given to their Participants on the seventh day after the day on which
the said notice was given to Euroclear and Cedel Bank.
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
In compliance with United States federal tax laws and regulations, Bearer
Securities may not be offered or sold during the restricted period (as defined
in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations,
which is generally the first 40 days after the closing date, and with respect to
unsold allotments, until sold) or delivered in connection with a sale during the
restricted period, directly or indirectly, in the United States or to U.S.
Persons other than to foreign branches of United States financial institutions
(as defined in United States Treasury Regulations Section 1.165-12(c)(1)(v))
purchasing for their own account or for resale during the restricted period,
which institutions agree in writing to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Code, and the regulations thereunder. A sale of
Bearer Securities may be made during the restricted period to a U.S. Person who
acquired and holds the Bearer Security through a foreign branch of the United
States financial institution that agrees to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) and the regulations thereunder. Any
underwriters, agents and dealers participating in the offering of Debt
Securities, directly or indirectly, must agree that they
24
<PAGE> 26
will not offer or sell, directly or indirectly, any Bearer Securities in the
United States or to U.S. Persons (other than the financial institutions
described above).
Bearer Securities (other than temporary global securities) and any Coupons
which may be detached therefrom will bear a legend substantially to the
following effect: "Any U.S. Person who holds this obligation will be subject to
limitations under the United States income tax laws, including the limitations
provided in Sections 165(j) and 1287(a) of the Internal Revenue Code." The
sections referred to in such legend provide that a U.S. Person (other than a
United States Financial Institution described above or a U.S. Person holding
through such a financial institution) who holds Bearer Securities or Coupons
appertaining thereto will not be allowed to deduct any loss realized on Bearer
Securities and any gain (which might otherwise be characterized as capital gain)
recognized on any sale or disposition (including the receipt of principal) of
such Bearer Securities will be treated as ordinary income.
Purchasers of Bearer Securities also may be affected by certain limitations
under United States tax laws which will be described in an applicable Prospectus
Supplement.
PLAN OF DISTRIBUTION
The Corporation may sell the Offered Securities being offered hereby in one
or more of the following ways: through underwriters or dealers, through agents
or directly to one or more purchasers. The applicable Prospectus Supplement will
set forth the terms of the offering of the Offered Securities to which such
Prospectus Supplement relates, including the name or names of any underwriters
or agents with whom the Corporation has entered into arrangements with respect
to the sale of such Offered Securities, the public offering or purchase price of
such Offered Securities and the net proceeds to the Corporation from such sale,
any underwriting discounts and other items constituting underwriters'
compensation, any discounts and commissions allowed or paid to dealers, if any,
any commissions allowed or paid to agents, and the securities exchanges, if any,
on which the Offered Securities will be listed. Dealer trading may take place in
the Offered Securities, including Offered Securities not listed on any
securities exchange.
The Offered Securities may be purchased to be re-offered to the public
through underwriting syndicates led by one or more managing underwriters, or
through one or more underwriters. The underwriter or underwriters with respect
to an underwritten offering of the Offered Securities will be named in any
applicable Prospectus Supplement relating to such offering and, if an
underwriting syndicate is used, the managing underwriter or underwriters will be
set forth on the cover page of any applicable Prospectus Supplement. Unless
otherwise set forth in any applicable Prospectus Supplement, the obligations of
the underwriters to purchase the Offered Securities will be subject to certain
conditions precedent, and each of the underwriters with respect to a sale of the
Offered Securities will be obligated to purchase all of its allocated Offered
Securities if any are purchased. Any initial public offering price and any
discount or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
Offered Securities may be offered and sold by the Corporation, directly or
through agents designated by the Corporation from time to time, which agents may
be affiliates of the Corporation. Any agent involved in the offer and sale of
the Offered Securities in respect of which this Prospectus is being delivered
will be named, and any commissions payable by the Corporation to such agent will
be set forth, in any applicable Prospectus Supplement. If sold through agents,
the Offered Securities may be sold from time to time by means of ordinary
brokers' transactions, block transactions, "fixed price offerings" or any
combination of such offerings at the prevailing market prices at the time of
sale or in negotiated sales. Unless otherwise indicated in any applicable
Prospectus Supplement, any such agent will be acting on a reasonable effort
basis for the period of its appointment.
If so indicated in the applicable Prospectus Supplement, the Corporation
may authorize underwriters, dealers or agents to solicit offers by certain
institutions to purchase Offered Securities from the Corporation at the public
offering price set forth in such Prospectus Supplement pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") providing for payment and
delivery on the date or dates stated in the Prospectus Supplement. Each Delayed
Delivery Contract will be for an amount of Offered Securities not less than and,
unless the Corporation otherwise agrees, the aggregate amount of Offered
Securities sold pursuant to Delayed Delivery Contracts shall be not more than
the respective minimum and maximum amounts stated
25
<PAGE> 27
in the Prospectus Supplement. The obligations of the purchaser under any Delayed
Delivery Contract to pay for and take delivery of Offered Securities will not be
subject to any conditions except that (i) the purchase of Offered Securities by
such institution shall not at the time of delivery be prohibited under the laws
of the jurisdiction to which such institution is subject; and (ii) any related
sale of Offered Securities to underwriters shall have occurred. A commission set
forth in the Prospectus Supplement will be paid to underwriters soliciting
purchases of Offered Securities pursuant to Delayed Delivery Contracts accepted
by the Corporation. The underwriters will not have any responsibility in respect
of the validity or performance of Delayed Delivery Contracts.
The Debt Securities and Preferred Stock will be new issues of securities
with no established trading market. Any underwriters to whom such Debt
Securities or Preferred Stock are sold by the Corporation for public offering
and sale may make a market in such Debt Securities or Preferred Stock, but such
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given as to the liquidity
of the trading market for any Offered Securities.
Any underwriter or agent participating in the distribution of the Offered
Securities may be deemed to be an underwriter, as that term is defined in the
Securities Act, of the Offered Securities so offered and sold and any discounts
or commissions received by them from the Corporation and any profit realized by
them on the sale or resale of the Offered Securities may be deemed to be
underwriting discounts and commissions under the Securities Act or to be the
contribution with respect to payments which the underwriters or agents may be
required to make in respect thereof.
Underwriters, agents and their controlling persons may be entitled, under
agreements entered into with the Corporation, to indemnification by the
Corporation against certain civil liabilities, including liabilities under the
Securities Act or to contribution with respect to payments which the
underwriters or agents may be required to make in respect thereof.
LEGAL OPINIONS
The legality of the Offered Securities being offered hereby will be passed
upon for the Corporation by Bradley Arant Rose & White LLP, Birmingham, Alabama,
and, for the underwriters by Stroock & Stroock & Lavan LLP, New York, New York.
As of September 30, 1997, the partners and associates of Bradley Arant Rose &
White LLP beneficially owned approximately 2,035,000 shares of Common Stock of
the Corporation.
EXPERTS
The consolidated financial statements of the Corporation and its
subsidiaries incorporated by reference in this Prospectus and elsewhere in this
Registration Statement to the extent and for the periods indicated in their
reports have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in giving
said reports.
26
<PAGE> 28
======================================================
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION OR ANY
UNDERWRITER. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL UNDER ANY CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE
IN THE AFFAIRS OF THE CORPORATION SINCE THE DATE HEREOF. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH
OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER
OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
SouthTrust Corporation................ 3
Use of Proceeds....................... 4
Regulatory Matters.................... 5
Description of Debt Securities........ 7
Description of Capital Stock.......... 17
Book-Entry Only Issuance of Offered
Securities.......................... 21
Limitations on Issuance of
Bearer Securities................... 24
Plan of Distribution.................. 25
Legal Opinions........................ 26
Experts............................... 26
</TABLE>
======================================================
======================================================
$600,000,000
(SOUTHTRUST CORPORATION LOGO)
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
------------------------------
PROSPECTUS
------------------------------
, 1997
======================================================
<PAGE> 29
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate, subject to future contingencies,
of the expenses to be incurred by the registrant in connection with the issuance
and distribution of securities being registered:
<TABLE>
<S> <C>
Registration Fee.................................................... $ 126,177
* Legal Fees and Expenses............................................. 70,000
* Accounting Fees and Expenses........................................ 35,000
* Blue Sky Fees and Expenses.......................................... 8,500
* Printing and Engraving.............................................. 30,000
* Miscellaneous....................................................... 5,323
-------
Total............................................................... $ 275,000
=======
</TABLE>
- ------------------------
*Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Certificate of Incorporation and the Bylaws of
the Corporation provide that the Corporation shall indemnify its officers,
directors, employees, and agents to the extent permitted by the General
Corporation Law of Delaware, which permits a corporation to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit, or proceeding by reason of the fact that he
is or was a director, officer, employee, or agent of the Corporation, against
expenses (including attorney's fees), judgments, fines, and settlements incurred
by him in connection with any such suit or proceeding, if he acted in good faith
and in a manner reasonably believed to be in or not opposed to the best interest
of the Corporation, and, in the case of a derivative action on behalf of the
Corporation, the Corporation shall indemnify such persons only against expenses
and then only if he not be adjudged to be liable for negligence or misconduct.
The Corporation also maintains insurance coverage relating to certain
liabilities of directors and officers.
ITEM 16. LIST OF EXHIBITS
The following Exhibits are filed as part of this Registration
Statement:
<TABLE>
<S> <C> <C> <C>
1 - Form of Underwriting Agreement for
Securities.
* 3 - Composite Restated Certificate of
Incorporation of SouthTrust Corporation,
which was filed as Exhibit 3 to SouthTrust
Corporation's Registration Statement on Form
S-3 (Reg. No. 333-34947).
* 4(a) - Articles FOURTH, SIXTH, SEVENTH and ELEVENTH
of the Restated Certificate of Incorporation
of SouthTrust Corporation (included at
Exhibit 3).
* 4(b) - Certificate of Adoption of
Resolutions designating Series A Junior
Participating Preferred Stock, adopted
February 22, 1989, which was filed as
Exhibit 1 to SouthTrust Corporation's
Registration Statement on Form 8-A (File No.
1-3613).
* 4(c) - Stockholders' Rights Agreement, dated
as of February 22, 1989, between SouthTrust
Corporation and Mellon Bank, N.A., Rights
Agent, which was filed as Exhibit 1 to
SouthTrust Corporation's Registration
Statement on Form 8-A (File No. 1-3613).
</TABLE>
II-1
<PAGE> 30
<TABLE>
<S> <C> <C> <C>
* 4(d) - Indenture, dated as of May 1, 1987,
between SouthTrust Corporation and National
Westminster Bank USA, which was filed as
Exhibit 4(a) to SouthTrust Corporation's
Registration Statement on Form S-3
(Registration No. 33-13637).
* 4(e) - Subordinated Indenture, dated as of
May 1, 1992, between SouthTrust Corporation
and Chemical Bank, which was filed as
Exhibit 4(b)(ii) to the Registration
Statement on Form S-3 of SouthTrust
Corporation (Registration No. 33-52717).
* 4(f) - Composite Restated Bylaws of SouthTrust
Corporation which was filed as Exhibit
4(e) to the Registration Statement on Form
S-4 of SouthTrust Corporation (Registration
No. 33-61557).
* 4(g)(i) - Form of Senior Indenture which was filed as
Exhibit 4(b)(i) to the Registration
Statement on Form S-3 of SouthTrust Corporation
(Registration No. 33-44857).
* 4(g)(ii) - Form of Subordinated Indenture
which was filed as Exhibit 4(b)(ii) to the
Registration Statement on Form S-3 of
SouthTrust Corporation (Registration No.
33-52717).
5 - Opinion of Bradley Arant Rose & White LLP.
12 - Computation of Ratios of Earnings to Fixed Charges.
23(a) - Consent of Bradley Arant Rose & White LLP (included in Exhibit 5).
23(b) - Consent of Arthur Andersen LLP.
24 - Powers of Attorney.
** 25(a) - Statement of Eligibility and Qualification of
Subordinated Debt Trustee under the Trust Indenture Act
of 1939 on Form T-1.
** 25(b) - Statement of Eligibility and Qualification of Senior
Debt Trustee under the Trust Indenture Act of 1939
on Form T-1.
</TABLE>
- ----------------------------------------
* Incorporated herein by reference.
** To be filed by amendment.
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,
II-2
<PAGE> 31
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; and
(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)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 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 such 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 the time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a 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 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to 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 under Item 15
above, or otherwise, the registrant has been advised that in the opinion of the
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.
The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-3
<PAGE> 32
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 Birmingham, State of Alabama, on December 9,
1997.
SOUTHTRUST CORPORATION
/s/ Wallace D. MALONE, JR.
---------------------------------------
Wallace D. Malone, Jr.
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ WALLACE D. MALONE, JR. Chairman, Chief Executive December 9, 1997
--------------------------------------------- Officer, President, Director
Wallace D. Malone, Jr.
/s/ AUBREY D. BARNARD Secretary, Treasurer and December 9, 1997
--------------------------------------------- Controller (Principal
Aubrey D. Barnard Accounting and
Financial Officer)
/s/ JULIAN W. BANTON Director December 9, 1997
---------------------------------------------
Julian W. Banton
Director
---------------------------------------------
Allen J. Keesler, Jr.
* Director December 9, 1997
---------------------------------------------
Van L. Richey
* Director December 9, 1997
---------------------------------------------
Carl F. Bailey
* Director December 9, 1997
---------------------------------------------
Rex J. Lysinger
</TABLE>
II-4
<PAGE> 33
<TABLE>
<S> <C> <C>
* Director December 9, 1997
---------------------------------------------
William C. Hulsey
* Director December 9, 1997
---------------------------------------------
John M. Bradford
* Director December 9, 1997
---------------------------------------------
Wm. Kendrick Upchurch, Jr.
Director
---------------------------------------------
H. Allen Franklin
* Director December 9, 1997
---------------------------------------------
F. Crowder Falls
*By /s/ WILLIAM L. PRATER December 9, 1997
- -------------------------------------------------
William L. Prater
Attorney-in-fact
</TABLE>
II-5
<PAGE> 34
INDEX TO EXHIBITS
<TABLE>
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1 - Form of Underwriting Agreement for Securities.
* 3 - Composite Restated Certificate of Incorporation of
SouthTrust Corporation which was filed as Exhibit
3 to SouthTrust Corporation's Registration
Statement on Form S-3 (Reg. No. 333-34947).
* 4(a) - Articles FOURTH, SIXTH, SEVENTH and ELEVENTH of the
Restated Certificate of Incorporation of SouthTrust
Corporation (included at Exhibit 3).
* 4(b) - Certificate of Adoption of Resolutions designating
Series A Junior Participating Preferred Stock, adopted
February 22, 1989, which was filed as Exhibit 1 to
SouthTrust Corporation's Registration Statement on Form 8-A
(File No. 1-3613).
* 4(c) - Stockholders' Rights Agreement, dated as of February
22, 1989, between SouthTrust Corporation and Mellon Bank,
N.A., Rights Agent, which was filed as Exhibit 1 to
SouthTrust Corporation's Registration Statement on Form 8-A
(File No. 1-3613).
* 4(d) - Indenture, dated as of May 1, 1987, between SouthTrust
Corporation and National Westminster Bank USA, which was
filed as Exhibit 4(a) to SouthTrust Corporation's
Registration Statement on Form S-3 (Registration No. 33-13637).
* 4(e) - Subordinated Indenture, dated as of May 1, 1992,
between SouthTrust Corporation and Chemical Bank, which was
filed as Exhibit 4(b)(ii) to the Registration Statement on
Form S-3 of SouthTrust Corporation (Registration No.
33-52717).
* 4(f) - Composite Restated Bylaws of SouthTrust Corporation which
was filed as Exhibit 4(e) to the Registration Statement
on Form S-4 of SouthTrust Corporation (Registration
No. 33-61557).
* 4(g)(i) - Form of Senior Indenture which was filed as Exhibit 4(b)(i)
to the Registration Statement on Form S-3 of SouthTrust
Corporation (Registration No. 33-44857).
* 4(g)(ii) - Form of Subordinated Indenture which was filed
as Exhibit 4(b)(ii) to the Registration Statement on Form
S-3 of SouthTrust Corporation (Registration No.
33-52717).
5 - Opinion of Bradley Arant Rose & White LLP.
12 - Computation of Ratios of Earnings to Fixed Charges.
23(a) - Consent of Bradley Arant Rose & White LLP (included in Exhibit 5).
23(b) - Consent of Arthur Andersen LLP.
24 - Powers of Attorney.
** 25(a) - Statement of Eligibility and Qualification of Subordinated
Debt Trustee under the Trust Indenture Act of 1939 on Form
T-1.
** 25(b) - Statement of Eligibility and Qualification of Senior Debt
Trustee under the Trust Indenture Act of 1939 on Form T-1.
</TABLE>
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* Incorporated herein by reference.
** To be filed by amendment.
<PAGE> 1
EXHIBIT 1
[DEBT SECURITIES]
UNDERWRITING AGREEMENT
[TITLE OF SECURITY]
[MATURITY]
___________ __, 199_
SouthTrust Corporation
420 North 20th Street
34th Floor, SouthTrust Tower
Birmingham, Alabama 35203
Ladies and Gentlemen:
We, acting as representatives (the "Representatives") of the
several underwriters named herein (the "Underwriters"), understand that
SouthTrust Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell [up to] an aggregate principal amount of $ _______________ of the
above-captioned ____________ (the "Underwritten Securities"). The terms of the
Underwritten Securities are set forth in the Registration Statement on Form S-3
(Registration No. 333-_______) and Basic Prospectus (as defined in the
provisions incorporated herein by reference), as supplemented by any Prospectus
Supplement relating to the Underwritten Securities dated subsequent to the date
of the Basic Prospectus (the Basic Prospectus together with any such Prospectus
Supplement being hereinafter referred to as the "Prospectus").
All the provisions (including defined terms) contained in the
document entitled SouthTrust Corporation Underwriting Agreement Standard
Provisions (February 1997) (the "Standard Provisions") heretofore delivered by
the Underwriters, receipt of which is hereby acknowledged, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Underwriting Agreement (the "Agreement") to the same extent as if such
provisions had been set forth in full herein. The Delivery Date referred to in
Section 4 of the Standard Provisions shall be __________ __, 199_.
<PAGE> 2
Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase, severally and not jointly, the Underwritten
Securities at a price equal to ______% of their aggregate principal amount plus
accrued interest or accrued amortization of original issue discount, if any,
from ________ __, 199_, to the date of payment and delivery, in the amounts set
forth below opposite their names:
<TABLE>
<CAPTION>
Principal Amount of Debt
Securities
Name To Be Purchased
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................................................................. $
.................................................................
.................................................................
Total........................... $
----------
</TABLE>
The Underwriters will offer the Underwritten Securities for
sale upon the terms and conditions set forth in the Prospectus.
The Underwriters will pay for the Underwritten Securities at
the time and place and in the manner set forth in the provisions incorporated
herein by reference, except as amended herein.
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<PAGE> 3
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below and returning the
signed copy to us.
Very truly yours,
[LEAD MANAGER]
By
------------------------------------
Its
---------------------------------
Acting on behalf of itself and
the Underwriters named above
Accepted:
SOUTHTRUST CORPORATION
By
--------------------------
Its
-----------------------
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<PAGE> 4
[EQUITY SECURITIES]
UNDERWRITING AGREEMENT
[TITLE OF SECURITY]
_________ __, 199_
SouthTrust Corporation
420 North 20th Street
34th Floor, SouthTrust Tower
Birmingham, Alabama 35203
Ladies and Gentlemen:
We, acting as representatives (the "Representatives") of the
several underwriters named herein (the "Underwriters"), understand that
SouthTrust Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell ____________ shares of its ___________ stock, par value $ _____
per share, at a public offering price of $ _____ per share (the "Firm
Securities"). We further understand that the Company proposes to grant to the
Underwriters an option exercisable by the Representatives, to purchase up to
_________ additional shares of its ______ stock (the "Option Securities") at the
same price per share as determined for the Firm Securities. The Firm Securities
and the Option Securities are hereinafter referred to as the "Underwritten
Securities". The terms of the Underwritten Securities are set forth in the
Registration Statement on Form S-3 (Registration No. 333-_________) and Basic
Prospectus (as defined in the provisions incorporated herein by reference), as
supplemented by any Prospectus Supplement relating to the Underwritten
Securities dated subsequent to the date of the Basic Prospectus (the Basic
Prospectus together with any such Prospectus Supplement being hereinafter
referred to as the "Prospectus").
All the provisions (including defined terms) contained in the
document entitled SouthTrust Corporation Underwriting Agreement Standard
Provisions (February 1997) (the "Standard Provisions") heretofore delivered by
the Underwriters, receipt of which is hereby acknowledged, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Underwriting Agreement (the "Agreement") to the same extent as if such
provisions had been set forth in full herein. The Delivery Date referred to in
Section 4 of the Standard Provisions shall be _______ __, 199_.
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<PAGE> 5
Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase, severally and not jointly, the Firm Securities
at a purchase price of $ _______ per share, equal to ______% of the public
offering price, in the amounts set forth below opposite their names:
<TABLE>
<CAPTION>
Number of Shares
Name To Be Purchased
- ---- ---------------
<S> <C>
...............................................................................
...............................................................................
...............................................................................
Total........................... Shares
-------------------------
</TABLE>
The Company hereby grants the Underwriters an option to
purchase all or any portion of the Option Securities. The option to purchase the
Option Securities will expire 30 days after the date hereof, and may be
exercised, in whole or in part (but not more than once), only for the purpose of
covering over-allotments upon notice by the Representatives to the Company
setting forth the number of Option Securities as to which the several
Underwriters are exercising the option, and the time and date of payment and
delivery thereof. If the option is exercised as to all or any portion of the
Option Securities, the Option Securities as to which the option is exercised
shall be purchased by the Underwriters severally and not jointly, in proportion
to, as nearly as practicable, their respective Firm Securities underwriting
obligations as set forth above.
[During the period beginning on the date hereof and continuing
to and including the date 90 days after the date of the Prospectus, the Company
will not offer, sell, contract to sell or otherwise dispose of any shares of its
capital stock, or securities exchangeable or convertible or exercisable for its
capital stock (other than the Securities to be sold to the Underwriters) without
the prior written consent of the Representatives, except in connection with (i)
the exercise of conversion rights outstanding on the date hereof, (ii) the
exercise of employee stock options outstanding on the date hereof or pursuant to
the Company's dividend reinvestment plan or other employee benefit plan existing
on the date hereof, and (iii) acquisitions by the Company.]
The Underwriters will offer the Underwritten Securities for
sale upon the terms and conditions set forth in the Prospectus.
The Underwriters will pay for the Underwritten Securities at
the time and place and in the manner set forth in the provisions incorporated
herein by reference, except as amended herein.
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<PAGE> 6
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below and returning the
signed copy to us.
Very truly yours,
[LEAD MANAGER]
By
-------------------------------------
Its
----------------------------------
Acting on behalf of itself and
the Underwriters named above
Accepted:
SOUTHTRUST CORPORATION
By
-----------------------------
Its
--------------------------
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<PAGE> 7
SOUTHTRUST CORPORATION
Underwriting Agreement
Standard Provisions
(February 1997)
-----------------------
SOUTHTRUST CORPORATION, a Delaware corporation (the
"Company"), may from time to time enter into one or more underwriting agreements
that provide for the sale of its debt securities and convertible debt
securities, (together, the "Debt Securities"), common stock, par value $2.50 per
share (the "Common Stock") and/or preferred stock, par value $1.00 per share
(the "Preferred Stock"), registered under the registration statement referred to
in Paragraph 1(a) hereof (collectively, the "Securities"). Any Debt Securities
issued will be issued under either (i) a Senior Debt Indenture or (ii) a
Subordinate Debt Indenture (each an "Indenture"). The Indenture under which the
Debt Securities are issued and the Trustee thereunder will be identified in any
applicable Prospectus (as herein defined) and all references herein to
"Indenture" and "Trustee" shall be deemed to mean the Indenture (together with
any amendments or supplemental indentures thereto) and the Trustee so identified
in the Prospectus. The Debt Securities will have varying maturities, interest
rates, interest payment dates, redemption provisions, conversion provisions,
selling prices and other terms, with all such terms for any particular offering
to be determined at the time of sale. The Preferred Stock will be issued in one
or more series, which series may vary as to voting rights, dividends, optional
and mandatory redemption provisions, liquidation preference and conversion or
exchange provisions, if any, and any other terms, with all such terms for any
particular series or issue of the Preferred Stock being determined at the time
of issue. The standard provisions set forth herein may be incorporated by
reference in any underwriting agreement relating to an offering of the
Securities (an "Underwriting Agreement"). The Underwriting Agreement, including
the provisions incorporated therein by reference, is herein sometimes referred
to as "this Agreement." Unless otherwise deemed herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Securities
involved in any such offering are hereinafter referred to as the "Underwritten
Securities," the firms which agree to purchase the same are hereinafter referred
to as the "Underwriters" of such Underwritten Securities and the representatives
of the Underwriters named in the Underwriting Agreement are hereinafter referred
to as the "Managing Underwriters." The Underwritten Securities to be purchased
from the Company on the Delivery Date (as hereinafter defined) are called the
"Immediate Delivery Underwritten Securities."
1. The Company represents and warrants that:
(a) A registration statement on Form S-3 (Registration No.
333-________) with respect to the Securities, more particularly
described in the Underwriting Agreement into which the standard
provisions set forth herein are incorporated by reference, has been
prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has become
effective. As used in this Agreement, "Registration Statement" means
that registration statement, as amended or supplemented at the date of
this Agreement, including the material incorporated therein by
reference and exhibits and financial statements, and, in the event any
post-effective amendment thereto becomes effective prior to the
Delivery Date (as hereinafter defined), shall also mean such
registration statement as so amended; "Basic Prospectus" means the
prospectus (including
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<PAGE> 8
all documents incorporated therein by reference) included in the
Registration Statement at the effective date; "Prospectus" means the
Basic Prospectus, together with any prospectus amendment or supplement
(each, a "Prospectus Supplement"), whether in preliminary or final form
(including in each case all documents incorporated therein by
reference), specifically relating to the Underwritten Securities, as
filed with, or mailed for filing to, the Commission pursuant to
paragraph (b) or (c) of Rule 424 of the Rules and Regulations (each
such Prospectus in preliminary form being hereinafter referred to as a
"Preliminary Prospectus"); and "effective date" of the Registration
Statement means each date on which the Registration Statement and any
post-effective amendment or amendments thereto (including the date of
filing of the Company's Annual Report on Form 10-K) became or become
effective. Any reference herein to the Registration Statement, a
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the effective
date of the Registration Statement, or the date of such Preliminary
Prospectus or the Prospectus, as the case may be; and 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 Exchange Act after the effective date of the
Registration Statement, or the date of such Preliminary Prospectus or
the Prospectus, as the case may be, deemed to be incorporated therein
by reference. The Commission has not issued any order preventing or
suspending the use of the Prospectus.
(b) The Registration Statement and the Prospectus conform, and
each amendment or supplement to the Registration Statement or the
Prospectus prior to the termination of the offering of the Underwritten
Securities will conform, in all material respects with the requirements
of the Act and the Rules and Regulations and the Exchange Act, and the
rules and regulations of the Commission thereunder; and the
Registration Statement and the Prospectus do not, and any amendment or
supplement thereto prior to the termination of the offering of the
Underwritten Securities will not, contain 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
provided that this representation and warranty shall not apply to
statements or omissions made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
expressly for use therein.
(c) The documents filed with the Commission pursuant to the
Exchange Act and incorporated by reference into the Prospectus conform,
and any further documents so filed and incorporated by reference into
the Prospectus or any amendment or supplement to the Prospectus prior
to the termination of the offering of the Underwritten Securities, when
filed with the Commission pursuant to the Exchange Act, will conform,
with the applicable requirements of the Exchange Act and the rules and
regulations thereunder; and none of such documents contains or will,
when so filed, contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(d) The financial statements incorporated by reference in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and
the statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified;
said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved (it being understood
that the financial statements of the Company that appear in the
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<PAGE> 9
Prospectus Supplement and any interim financial statements incorporated
by reference in the Prospectus Supplement are not audited). The
supporting schedules, if any, included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in or incorporated by
reference into the Registration Statement.
(e) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated in such documents or incorporated by reference
therein, (i) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (ii) no transactions have been
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise and (iii) except for quarterly dividends on the Common
Stock, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(f) The Company is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, 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 (the "1940 Act").
2. If the Prospectus or any Prospectus Supplement so provides,
the Underwriters may solicit offers to purchase Underwritten Securities by
institutional investors for delayed delivery pursuant to contracts substantially
in the form of Exhibit A, Exhibit B or Exhibit C attached hereto, with such
changes therein as the Company may approve (the "Delayed Delivery Contracts").
The Company shall have the right, in its sole discretion, to approve or
disapprove each such institutional investor.
The Company will pay to the Managing Underwriters for the
account of the Underwriters, contemporaneously with the purchase on the Delivery
Date by the Underwriters of the Immediate Delivery Underwritten Securities
pursuant to this Agreement, the compensation specified herein for arranging the
sale of Underwritten Securities pursuant to Delayed Delivery Contracts, which
shall be equal to a percentage of the aggregate principal amount of the
Underwritten Securities for which Delayed Delivery Contracts have been made (the
"Delayed Delivery Underwritten Securities"). The Underwriters shall have no
responsibility in respect of the validity or performance of the Delayed Delivery
Contracts.
3. The Company shall not be obligated to deliver any
Underwritten Securities except upon payment for all the Immediate Delivery
Underwritten Securities to be purchased hereunder as hereinafter provided.
4. The Immediate Delivery Underwritten Securities shall be
delivered in temporary or definitive form by the Company to the Managing
Underwriters for the account of the Underwriters, against payment of the
purchase price therefor by each Underwriter or on its behalf by certified or
official bank check or by wire transfer of federal (same-day) funds, at 10:00
a.m., New York City time, on the third business day following the date of this
Agreement or at such other time and date as the Managing Underwriters and the
Company mutually agree, such time and date herein called the "Delivery Date."
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<PAGE> 10
5. The Company agrees:
(a) To furnish promptly to the Managing Underwriters and to
counsel for the Underwriters a copy of the Registration Statement and
the Prospectus, including all documents incorporated in the Prospectus
by reference and all consents and exhibits filed therewith;
(b) To furnish the Underwriters with copies of the Prospectus
(including the documents incorporated by reference therein) in such
quantities as the Managing Underwriters may reasonably request;
provided, however, that in case the Company is required to deliver
copies of the Prospectus to any Underwriter, other than pursuant to
subsection (f) of this Section 5, for use in connection with sales of
Underwritten Securities, at any time nine months or more after the date
of this Agreement, copies of such Prospectus will be furnished at the
expense of such Underwriter;
(c) To file promptly all reports and definitive proxy
statements or information statements required to be filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act during such period following the date of this Agreement as a
Prospectus is required to be delivered in connection with the offering
and sale of the Underwritten Securities;
(d) To advise the Managing Underwriters, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or any order preventing or suspending the use of the Prospectus,
of the suspension of the qualification of the Underwritten Securities
for offering or sale in any jurisdiction, and of any request by the
Commission for the amending or supplementing of the Registration
Statement or the Prospectus;
(e) Promptly from time to time to take such action as the
Managing Underwriters may reasonably request to qualify the
Underwritten Securities for offering and sale under the securities laws
of such jurisdictions as the Managing Underwriters may reasonably
request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution; provided, however, that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(f) Prior to the termination of the offering of the
Underwritten Securities, to notify the Managing Underwriters promptly
of any proposed amendment or supplement to the Registration Statement
or the Prospectus and furnish the Managing Underwriters with a copy for
their review prior to filing, and not to file any such amendment or
supplement which shall reasonably be disapproved by the Managing
Underwriters promptly after such notification; if at any time during
such period following the date of the Agreement a Prospectus Supplement
is required to be delivered in connection with the offering and sale of
the Underwritten Securities, any event shall have occurred 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 in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if for any
other reason it shall be necessary to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act or the
Exchange Act, to notify the Managing Underwriters and, upon the request
of the Managing Underwriters, to amend or supplement the Prospectus or
file such document and to notify the Managing Underwriter of the
effectiveness of such amendment or supplement and to prepare and
furnish,
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<PAGE> 11
without charge to each Underwriter and to any dealer in securities, as
many copies as the Managing Underwriters may from time to time
reasonably request of a supplement to the Prospectus or any applicable
Prospectus Supplement which will correct such statement or omission or
effect such compliance;
(g) To make generally available to the holders of Underwritten
Securities as soon as practicable an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and Rule 158 thereunder and covering a period of at
least twelve consecutive months beginning after the effective date of
the Registration Statement;
(h) To pay or cause to be paid all expenses incident to the
performance of its obligations hereunder, including the printing and
filing of the Registration Statement as originally filed and of each
amendment thereto, the cost of all qualifications of the Underwritten
Securities under the securities laws of such jurisdictions as the
Managing Underwriters may have reasonably requested (including the fees
and disbursements of counsel to the Underwriters in connection with
such qualifications and in connection with legal investment surveys)
and the cost of printing this Agreement, any fees charged by securities
rating services for rating the Underwritten Securities, and any
incident to any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities;
(i) During the period prior to the earlier of the
Delivery Date and the date on which any price restrictions on
the sale of the Underwritten Securities are terminated, not to
offer or sell, or to cause any subsidiary to offer or sell, in
the United States, without the prior consent of the Managing
Underwriters, any securities which are substantially similar
to the Underwritten Securities to be delivered to the Managing
Underwriter on behalf of the Underwriters on the Delivery
Date.
6. The obligations of the Underwriters hereunder shall be
subject to the condition that all representations and warranties and other
statements on the part of the Company herein are, at and as of the Delivery
Date, true and correct, the condition that the Company shall have performed all
of its obligations hereunder theretofore to be performed and the following
additional conditions:
(a) At or before the Delivery Date, no stop order suspending
the effectiveness of the Registration Statement or any order directed
to any document incorporated by reference in the Prospectus or in any
amendment or supplement thereto shall have been issued, and prior to
that time no stop order proceeding shall have been initiated or
threatened by the Commission.
(b) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
Indenture (if the Underwritten Securities are Debt Securities), the
Underwritten Securities, the form of the Registration Statement, and
the Prospectus and all other legal matters relating to this Agreement
and the transactions contemplated hereby shall be reasonably
satisfactory in all respects to Stroock & Stroock & Lavan LLP, counsel
for the Underwriters, and the Company shall have furnished to such
counsel all documents and information that such counsel shall
reasonably request to enable them to pass upon such matters for the
Underwriters on the Delivery Date.
(c) Since the respective dates as of which information is
given in the Prospectus, there shall not have been any change (other
than changes resulting from the accretion of premium or amortization of
debt discount on long-term debt) in the
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<PAGE> 12
consolidated long-term debt of the Company and its subsidiaries, any
change in the capital stock of the Company (except for increases in
outstanding capital stock which are not material), or any change, or
any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the effect of
which, in any such case, is in the judgment of the Managing
Underwriters so material and adverse as to make it impracticable or
advisable to proceed with the public offering or the delivery of the
Underwritten Securities on the terms and in the manner contemplated in
the Prospectus.
(d) Bradley Arant Rose & White LLP, counsel for the Company
(the "Company Counsel"), shall have furnished to the Managing
Underwriters their written opinion, dated the Delivery Date, in form
and substance satisfactory to the Managing Underwriters, to the effect
that:
(i) The Company is a duly organized and validly
existing corporation in good standing under the laws of the
State of Delaware; and SouthTrust Bank, National Association
(the "Bank") is a duly organized and validly existing national
banking association in good standing under the laws of the
United States; each of the Company and the Bank has the
corporate power and authority to own its properties and
conduct its business as described in the Prospectus; the
Company is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended;
(ii) The Underwritten Securities conform to the
description thereof contained in the Prospectus;
(iii) If the Underwritten Securities are Debt
Securities, (A) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under the
Trust Indenture Act of 1939 and constitutes the legal, valid
and binding agreement of the Company enforceable in accordance
with its terms (except as enforcement thereof may be limited
by applicable bankruptcy, insolvency or other similar laws
relating to or affecting the enforcement of creditors' rights
generally and by general principles of equity which may limit
the availability of specific remedies); and (B) the Immediate
Delivery Underwritten Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute
legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture, and the Delayed Delivery
Underwritten Securities, if any, have been validly authorized
and, when duly executed, authenticated, issued and delivered
to, and paid for by, the respective purchasers thereof under
the Delayed Delivery Contracts, the Delayed Delivery
Underwritten Securities will have been validly issued and will
be outstanding and legally binding obligations of the Company
entitled to the benefits of the Indenture;
(iv) If the Underwritten Securities are Preferred
Stock or Common Stock, (A) the Immediate Delivery Underwritten
Securities and all other outstanding shares of capital stock
of the Company have been duly authorized, validly issued and
are fully paid and nonassessable, and (B) the Delayed Delivery
Underwritten Securities, if any, and any Underwritten
Securities subject to an overallotment option set forth in the
Underwriting Agreement have been duly authorized and, when
paid for as contemplated in the Delayed Delivery Contracts, or
the Underwriting Agreement, as the case may be, will be
validly issued, fully paid and nonassessable.
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<PAGE> 13
(v) Any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and
constitute valid and legally binding obligations of the
Company;
(vi) To the best knowledge of the Company Counsel
there is no pending or threatened action, suit or proceeding
against the Company or any of its subsidiaries of a character
required to be disclosed in the Registration Statement or the
Prospectus which is not adequately disclosed therein, or of
any contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement which
are not described or filed as required;
(vii) The Registration Statement is effective under
the Act, and, to the best knowledge of the Company Counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or threatened, and the Registration
Statement and the Prospectus (except for the financial
statements and financial data included therein as to which no
opinion need be expressed) comply as to form in all material
respects with the requirements of the Act and the Rules and
Regulations, and the documents incorporated by reference
therein (except for the financial statements and financial
data included therein as to which no opinion need be
expressed) comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
of the Commission thereunder;
(viii) This Agreement has been duly authorized,
executed and delivered by the Company and constitutes the
legal, valid and binding agreement of the Company enforceable
in accordance with its terms (except as enforcement thereof
may be limited by applicable bankruptcy, insolvency or other
similar laws relating to or affecting the enforcement of
creditors' rights generally and by general principles of
equity which may limit the availability of specific remedies);
(ix) No consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation by the Company of the transactions
contemplated in this Agreement, except such as have been
obtained under the Act and the Trust Indenture Act of 1939 and
such as may be required under the blue sky or similar laws of
any jurisdiction in connection with the purchase and
distribution of the Underwritten Securities by the
Underwriters;
(x) Neither the issue or sale of the Underwritten
Securities, nor the consummation of any other of the
transactions contemplated in this Agreement, nor the
fulfillment of the terms of this Agreement will conflict with,
result in a breach of or constitute a default under the terms
of the Restated Certificate of Incorporation or By-laws of the
Company or of any indenture or other agreement or instrument
known to the Company Counsel to which the Company is a party
or is bound, or any order or regulation known by the Company
Counsel to be applicable to the Company of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over the Company; and
(xi) Nothing has come to the attention of the
Company Counsel which gives it reason to believe that the
Registration Statement or any amendment thereto at the time it
became effective under the Act contained any untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus or
any supplement thereto contains any untrue statement of a
material fact or omits to state a material
-7-
<PAGE> 14
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(e) The Company shall have furnished to the Managing
Underwriters on the date hereof and on the Delivery Date a letter of
Arthur Andersen LLP, addressed to the Underwriters and dated the
Delivery Date, in form and substance satisfactory to the Managing
Underwriters,
(i) to the effect that:
(A) They are independent certified public
accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the
applicable published Rules and Regulations
thereunder;
(B) In their opinion, the financial
statements and schedule(s) examined by them and
incorporated by reference in the Prospectus comply as
to form in all material respects with the applicable
accounting requirements of the Act and the Exchange
Act and the published rules and regulations
thereunder;
(C) On the basis of limited procedures, not
constituting an audit, including a reading of the
unaudited financial statements referred to below, a
reading of the latest available interim financial
information of the Company and its subsidiaries,
inspection of the minute books of the Company since
the end of the Company's previous fiscal year,
inquiries of officials of the Company responsible for
financial and accounting matters and such other
inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused
them to believe that:
(1) the unaudited financial
statements incorporated by reference in the
Registration Statement do not comply in form
in all material respects with the applicable
accounting requirements of the Act and the
related published Rules and Regulations or
are not presented in conformity with
generally accepted accounting principles
applied on a basis substantially consistent
with that of the audited financial
statements of the Company and its
subsidiaries incorporated by reference in
the Registration Statement, or
(2) as of the date not more than
five days prior to the date of their letter,
there has been any increase or decrease of
more than 10 percent in the reserve for
possible loan losses or any decrease in
shareholders' equity of the Company and its
subsidiaries as compared with the comparable
amounts as of the end of the Company's most
recent fiscal period for which financial
statements (or an unaudited summary thereof)
are set forth or incorporated by reference
in the Prospectus, except as disclosed in
the Prospectus; and
(ii) discussing any such other financial information
contained in the Prospectus, or in any amendment or supplement
thereto prepared in connection with the Underwritten
Securities, as the Company and the Managing Underwriters may
agree upon.
-8-
<PAGE> 15
(f) The Company shall (i) confirm that the representations and
warranties herein are true and correct as of the Delivery Date, and
(ii) furnish a certificate, as of the Delivery Date, of the Company as
to the accuracy of such representations and warranties of the Company
as of the Delivery Date, as to the performance by the Company of all of
its obligations hereunder to be performed at or prior to the Delivery
Date and as to the matters set forth in subsections (a) and (c) of
Section 6.
(g) In the event the Underwriters are granted an option and
exercise such option to purchase a certain number of shares of Common
Stock or Preferred Stock (the "Option Securities") and the closing date
for the Option Securities (the "Option Closing Date") determined by the
Representatives pursuant to the Underwriting Agreement is later than
the Delivery Date, the obligations of the several Underwriters to
purchase and pay for the Option Securities that they shall have
respectively agreed to purchase hereunder are subject to the accuracy
of the representations and warranties of the Company contained herein
as of the Option Closing Date, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(i) At any time before the Option Closing Date, no
stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been
instituted or threatened; and any required filing of the Final
Prospectus pursuant to Rule 424(b) under the Act shall have
been made within the proper time period.
(ii) At the Option Closing Date, the Representatives
shall have received, each dated the Delivery Date and relating
to the Option Securities:
(A) the favorable opinion of the Company
Counsel, in form and substance satisfactory to
counsel for the Underwriters, to the same effect as
the opinion required by Section 6(d);
(B) a letter from Arthur Andersen LLP, in
form and substance satisfactory to the Underwriters,
substantially the same in scope and substance as the
letter furnished to the Underwriters pursuant to
Section 6(e);
(C) a certificate, of a principal executive
officer of the Company to the same effect as the
certificate required by Section 6(f); and
(D) such other information, certificates and
documents as the Representatives may reasonably
request.
7. (a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including
information included in the Prospectus that was omitted from such
Registration Statement at the time it became effective but that was
deemed to be part of such Registration Statement at the time it became
effective pursuant to paragraph (b) of Rule 430A ("430A Information")
or pursuant to paragraph (d) of Rule 434 ("434 Information") of the
Rules and Regulations, if applicable, or the omission or alleged
omission therefrom
-9-
<PAGE> 16
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 7(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriters), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid for under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule
434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) and that this
indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person
asserting such loss, claim, damage or liability purchased the
Underwritten Securities, or any person controlling such Underwriter, if
a copy of the Prospectus, as then supplemented or amended, was not sent
or given by or on behalf of the Company to such person by such
Underwriter and if the Prospectus (as amended or supplemented and as
required by law to have been delivered to such person at or prior to
the written confirmation of the sale of the Underwritten Securities to
such person) would have cured the defect giving rise to such losses,
liabilities, claims, damages or expenses.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
-10-
<PAGE> 17
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 7(a) above, counsel to the
indemnified parties shall be selected by the Representatives, and, in
the case of parties indemnified pursuant to Section 7(b) above, counsel
to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of
any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also
be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under
this Section hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section
7(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior
to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section is for
any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein; then each indemnifying party
shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Underwritten
Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering
of the Underwritten Securities pursuant to this Agreement shall be
deemed to be in the same respective
-11-
<PAGE> 18
proportions as the total net proceeds from the offering of the
Underwritten Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover of
the Prospectus, bear to the aggregate public offering price of the
Underwritten Securities as set forth on such cover.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(f) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this Section 7. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of any such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act of Section 20 of the
Exchange Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Firm Securities set forth opposite
their respective names above.
8. (a) If any Underwriter shall default in its obligation to
purchase the Underwritten Securities which it has agreed to purchase hereunder,
the non-defaulting Underwriters may in their discretion arrange for the
non-defaulting Underwriters or another party or parties to purchase such
Underwritten Securities on the terms contained herein. If within thirty-six (36)
hours after such default by any Underwriter, the non-defaulting Underwriters do
not arrange for the purchase of such Underwritten Securities, then the Company
shall be entitled to a further period of thirty-six (36) hours within which to
procure another party or parties satisfactory to the non-defaulting Underwriters
to purchase such Underwritten Securities on such terms. In the event that,
within the respective prescribed period, the non-defaulting Underwriters notify
the Company that the non-defaulting Underwriters have so arranged for the
purchase of
-12-
<PAGE> 19
such Underwritten Securities, or the Company notifies the non-defaulting
Underwriters that it has so arranged for the purchase of such Underwritten
Securities, the non-defaulting Underwriters or the Company shall have the right
to postpone the Delivery Date for a period of not more than seven (7) days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in the opinion of the Managing
Underwriters may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Underwritten Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Underwritten Securities of a defaulting Underwriter or
Underwriters by the non-defaulting Underwriters or the Company or both
as provided in subsection (a) above, the aggregate principal amount of
Underwritten Securities which remains unpurchased does not exceed 10
percent of the aggregate principal amount of all the Underwritten
Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the Underwritten Securities
which such Underwriter agreed to purchase hereunder and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Underwritten Securities which
such Underwriter agreed to purchase hereunder) of the Underwritten
Securities of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements by the
non-defaulting Underwriters or the Company or both, as provided in
subsection (a) above, for the purchase of the Underwritten Securities
of a defaulting Underwriter or Underwriters, the aggregate principal
amount of Underwritten Securities which remains unpurchased exceeds 10
percent of the aggregate principal amount of all the Underwritten
Securities, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Underwritten Securities of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company, except as
provided in Sections 9 and 10 hereof, but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
9. If this Agreement shall be terminated pursuant to Section
8(c) or Section 11 (other than pursuant to clause (a)(ii)) hereof, the Company
shall not then be under any liability to any Underwriter except as provided in
Section 5 and Section 7 hereof, but, if for any other reason the Company shall
fail to tender the Immediate Delivery Underwritten Securities (or any Option
Securities as to which the Underwriters have exercised their option) for
delivery to the Underwriters or the Underwriters shall decline to purchase the
Immediate Delivery Underwritten Securities, the Company will reimburse the
Underwriters for all out-of-pocket expenses, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Immediate Delivery Underwritten Securities
(or such Option Securities) and the solicitation of purchases of the Delayed
Delivery Underwritten Securities, and upon demand the Company shall pay the full
amount thereof to the Managing Underwriters, but the Company shall then be under
no further liability to any Underwriter except as provided in Section 5 and
Section 7 hereof.
10. The respective indemnities, agreements, representations,
warranties, and other statements of the Company and the Underwriters, as set
forth in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and
-13-
<PAGE> 20
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company, or any officer of the Company who signed the
Registration Statement or any director or controlling person of the Company, and
shall survive delivery of and payment for the Underwritten Securities.
11. (a) The Representative(s) may terminate this Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
occurred any calamity or crisis affecting the U.S. financial markets or any
outbreak of hostilities or escalation thereof or other calamity or crisis or
change or development involving a prospective change in national or
international political conditions, in each case the effect of which is such as
to make it, in the reasonable judgment of the Representatives, impracticable to
market the Underwritten Securities or to enforce contracts for the sale of the
Securities, or (ii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the Nasdaq National Market,
or if trading generally on the American Stock Exchange or the New York Stock
Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iii) if a banking moratorium has
been declared by either Federal or New York authorities, or (iv) if there has
been any decrease in the ratings of any of the securities of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) or if any such organization shall have publicly
announced that it has under surveillance or review its rating of any of the
Company's securities for possible downgrade.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 7
and 8 shall survive such termination and remain in full force and effect.
12. In all dealings hereunder, the Managing Underwriters shall
act on behalf of each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by the Managing Underwriters.
13. All statements, requests, notices and agreements hereunder
shall be in writing, or by telegram if promptly confirmed in writing, and if to
the Underwriters, shall be sufficient in all respects if delivered or sent by
registered mail to the Managing Underwriters at their address furnished to the
Company and if to the Company, shall be sufficient in all respects if delivered
or sent by registered mail to the Company at 420 North 20th Street, Birmingham,
Alabama 35203, Attention: Aubrey D. Barnard.
14. This Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters and the Company, and to the extent provided in
Sections 7 and 9 hereof, the directors of the Company, the officers of the
Company who signed the Registration Statement and each person who controls any
Underwriter or the Company, and their respective personal representatives,
successors, and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any Underwritten
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
15. Time shall be of the essence of this Agreement.
16. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
-14-
<PAGE> 21
17. This Agreement may be executed by any one or more of the
parties hereto 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 instrument.
-15-
<PAGE> 22
[DEBT SECURITIES]
EXHIBIT A
SOUTHTRUST CORPORATION
Delayed Delivery Contract
___________, 19__
SouthTrust Corporation
420 North 20th Street
34th Floor
Birmingham, Alabama 35203
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SouthTrust
Corporation, a Delaware corporation (the "Company"), and the Company hereby
agrees to sell to the undersigned ___________, $__________ principal amount of
the Company's above-captioned _____________ (the "Securities") offered by the
Company's prospectus dated _________ __, 199_, as supplemented by the prospectus
supplement dated _________ __, 199_ (collectively, the "Prospectus"), receipt of
a copy of which is hereby acknowledged, at a purchase price of __ % of the
principal amount thereof plus accrued interest or accrued amortization of
original issue discount, or both, as the case may be, from __________ 199_ to
the Delivery Date (as defined in the next paragraph) and on the further terms
and conditions set forth in this Delayed Delivery Contract (the "Contract").
Payment for and delivery of the securities to be purchased by
the undersigned shall be made on __________, 19__, herein called the "Delivery
Date".
At 10:00 a.m., New York City time, on the Delivery Date, the
Securities to be purchased by the undersigned hereunder will be delivered by the
Company to the undersigned, and the undersigned will accept delivery of such
Securities and will make payment to the Company of the purchase price therefor,
all at the principal office of the Company. Payment will be by certified or
official bank check or by wire transfer of federal (same-day) funds. Securities
will be delivered in temporary or definitive fully registered form in such
authorized denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to the Company not
less than two full business days prior to the Delivery Date or, if the
undersigned fails to make a timely designation in the foregoing manner, in the
form of one fully registered certificate representing the Securities in the
above principal amount, registered in the name of the undersigned.
This Contract will terminate and be of no further force and
effect after
A-1
<PAGE> 23
_______________ 199__, unless (i) on or before such date it shall have been
executed and delivered by both parties hereto and (ii) the Company shall have
(a) sold to the Underwriters named in the Prospectus the immediate Delivery
Underwritten Securities (as defined in the Underwriting Agreement referred to in
the Prospectus) and (b) mailed or delivered to the undersigned at its address
set forth below a notice to that effect, stating the date of the occurrence
thereof, accompanied by copies of the opinion of counsel for the Company
delivered to such Underwriters pursuant to Paragraph 6(d) of the Underwriting
Agreement.
The obligation of the undersigned to accept delivery of and
make payment for the Securities on the Delivery Date will be subject to the
condition that the Securities shall not on the Delivery Date be an investment
prohibited by the laws of the jurisdiction to which the undersigned is subject,
the undersigned hereby representing that such an investment is not so prohibited
on the date hereof.
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 acceptance of any Delayed Delivery
Contract (as defined in said Underwriting Agreement) 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.
Very truly yours,
[Name of Purchaser]
By
-------------------------------
Title
---------------------------
Address:
---------------------------------
---------------------------------
---------------------------------
Accepted as of
______________ 199_.
SOUTHTRUST CORPORATION
By
---------------------------
Title
------------------------
A-2
<PAGE> 24
[PREFERRED STOCK]
EXHIBIT B
SOUTHTRUST CORPORATION
Delayed Delivery Contract
___________, 19__
SouthTrust Corporation
420 North 20th Street
34th Floor
Birmingham, Alabama 35203
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SouthTrust
Corporation, a Delaware corporation (the "Company"), and the Company hereby
agrees to sell to the undersigned _____________________, __________ shares of
the Company's preferred stock, par value $1.00 per share (the "Securities"),
offered by the Company's prospectus dated _________ __, 199_, as supplemented by
the prospectus supplement dated _________ __, 199_ (collectively, the
"Prospectus"), receipt of a copy of which is hereby acknowledged, at a purchase
price of __ per share and on the further terms and conditions set forth in this
Delayed Delivery Contract (the "Contract").
Payment for and delivery of the securities to be purchased by
the undersigned shall be made on __________, 19__, herein called the "Delivery
Date".
At 10:00 a.m., New York City time, on the Delivery Date, the
Securities to be purchased by the undersigned hereunder will be delivered by the
Company to the undersigned, and the undersigned will accept delivery of such
Securities and will make payment to the Company of the purchase price therefor,
all at the principal office of the Company. Payment will be by certified or
official bank check or by wire transfer of federal (same-day) funds. Securities
will be delivered in such authorized denominations and registered in such names
as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than two full business days prior to the
Delivery Date or, if the undersigned fails to make a timely designation in the
foregoing manner, in the form of one fully registered certificate representing
the number of Securities set forth above, registered in the name of the
undersigned.
This Contract will terminate and be of no further force and
effect after _______________ 199__, unless (i) on or before such date it shall
have been executed and delivered by both parties hereto and (ii) the Company
shall have (a) sold to the Underwriters
B-1
<PAGE> 25
named in the Prospectus the Immediate Delivery Underwritten Securities (as
defined in the Underwriting Agreement referred to in the Prospectus) and (b)
mailed or delivered to the undersigned at its address set forth below a notice
to that effect, stating the date of the occurrence thereof, accompanied by
copies of the opinion of counsel for the Company delivered to such Underwriters
pursuant to Paragraph 6(d) of the Underwriting Agreement.
The obligation of the undersigned to accept delivery of and
make payment for the Securities on the Delivery Date will be subject to the
condition that the Securities shall not on the Delivery Date be an investment
prohibited by the laws of the jurisdiction to which the undersigned is subject,
the undersigned hereby representing that such an investment is not so prohibited
on the date hereof.
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 acceptance of any Delayed Delivery
Contract (as defined in said Underwriting Agreement) 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.
Very truly yours,
[Name of Purchaser]
By
--------------------------------
Title
------------------------------
Address:
------------------------------------
------------------------------------
------------------------------------
Accepted as of
______________ 199_.
SOUTHTRUST CORPORATION
By
----------------------------
Title
-------------------------
B-2
<PAGE> 26
[COMMON STOCK]
EXHIBIT C
SOUTHTRUST CORPORATION
Delayed Delivery Contract
___________, 19__
SouthTrust Corporation
420 North 20th Street
34th Floor
Birmingham, Alabama 35203
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from SouthTrust
Corporation, a Delaware corporation (the "Company"), and the Company hereby
agrees to sell to the undersigned ____________________, __________ shares of the
Company's common stock, par value $2.50 per share (the "Securities"), offered by
the Company's prospectus dated _________ __, 199_, as supplemented by the
prospectus supplement dated _________ __, 199_ (collectively, the "Prospectus"),
receipt of a copy of which is hereby acknowledged, at a purchase price of __ per
share and on the further terms and conditions set forth in this Delayed Delivery
Contract (the "Contract").
Payment for and delivery of the securities to be purchased by
the undersigned shall be made on __________, 19__, herein called the "Delivery
Date".
At 10:00 a.m., New York City time, on the Delivery Date, the
Securities to be purchased by the undersigned hereunder will be delivered by the
Company to the undersigned, and the undersigned will accept delivery of such
Securities and will make payment to the Company of the purchase price therefor,
all at the principal office of the Company. Payment will be by certified or
official bank check or by wire transfer of federal (same-day) funds. Securities
will be delivered in such authorized denominations and registered in such names
as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than two full business days prior to the
Delivery Date or, if the undersigned fails to make a timely designation in the
foregoing manner, in the form of one fully registered certificate representing
the above number of Securities, registered in the name of the undersigned.
This Contract will terminate and be of no further force and
effect after _______________ 199__, unless (i) on or before such date it shall
have been executed and delivered by both parties hereto and (ii) the Company
shall have (a) sold to the Underwriters named in the Prospectus the Immediate
Delivery Underwritten Securities (as defined in the Underwriting Agreement
referred to in the Prospectus) and (b) mailed or delivered to the undersigned at
its address set forth below a notice to that effect, stating the date of the
occurrence thereof, accompanied by copies of the opinion of counsel for the
Company delivered to such
C-1
<PAGE> 27
Underwriters pursuant to Paragraph 6(d) of the Underwriting Agreement.
The obligation of the undersigned to accept delivery of and
make payment for the Securities on the Delivery Date will be subject to the
condition that the Securities shall not on the Delivery Date be an investment
prohibited by the laws of the jurisdiction to which the undersigned is subject,
the undersigned hereby representing that such an investment is not so prohibited
on the date hereof.
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 acceptance of any Delayed Delivery
Contract (as defined in said Underwriting Agreement) 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.
Very truly yours,
[Name of Purchaser]
By
--------------------------------
Title
-----------------------------
Address:
----------------------------------
----------------------------------
----------------------------------
Accepted as of
______________ 199_.
SOUTHTRUST CORPORATION
By
-----------------------------
Title
--------------------------
C-2
<PAGE> 1
EXHIBIT 5
December 9, 1997
SouthTrust Corporation
420 North 20th Street
Birmingham, Alabama 35203
Gentlemen:
In our capacity as counsel for SouthTrust Corporation, a
Delaware corporation ("SouthTrust"), we have examined the Registration Statement
on Form S-3 (the "Registration Statement"), in the form as proposed to be filed
by SouthTrust with the Securities and Exchange Commission under the provisions
of the Securities Act of 1933, as amended, on December 8, 1997, relating to up
to $600,000,000 of (i) its notes, debentures or other evidences of unsecured
indebtedness (the "Debt Securities") in one or more currencies on terms to be
determined at the time of sale, (ii) its preferred stock, par value $1.00 per
share (the "Preferred Stock"), and (iii) its common stock, par value $2.50 per
share (the "Common Stock"). The Preferred Stock and Common Stock are
collectively referred to as the "Equity Securities" and the Debt Securities and
the Equity Securities are collectively referred to as the "Offered Securities".
The Offered Securities are to be offered by SouthTrust to the public pursuant to
the Registration Statement. In this connection, we have examined such records,
documents and proceedings as we have deemed relevant and necessary as a basis
for the opinions expressed herein.
Upon the basis of the foregoing, we are of the opinion that:
(i) the Debt Securities to be offered under the Registration
Statement, to the extent actually issued by SouthTrust pursuant to the
Underwriting Agreement described in the Registration Statement (the
"Underwriting Agreement"), will be duly and validly authorized and
issued, will be fully paid and non-assessable Debt Securities of
SouthTrust, and will constitute legal, valid and binding obligations of
SouthTrust in accordance with their terms;
(ii) the Equity Securities to be offered under the
Registration Statement, to the extent actually issued by SouthTrust
pursuant to the Underwriting Agreement, will be duly and validly
authorized and issued and will be fully paid and nonassessable Equity
Securities of SouthTrust; and
(iii) under the laws of the State of Delaware, no personal
liability attaches to the ownership of the Offered Securities of
SouthTrust.
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the Registration Statement.
In addition, we hereby consent to the inclusion of the statements made in
reference to our firm under the caption "LEGAL OPINIONS" in the Prospectus which
is a part of the Registration Statement.
Yours very truly,
/s/ BRADLEY ARANT ROSE & WHITE LLP
<PAGE> 1
EXHIBIT 12
STATEMENT OF COMPUTATION OF RATIOS
<TABLE>
<CAPTION>
Earnings To Fixed Charges Nine Months Ended
September 30,
1996 1995 1994 1993 1992 1997 1996
----------- ----------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income before income taxes $ 387,510 $ 304,044 $ 261,340 $ 224,527 $ 164,892 $ 350,130 $ 281,018
Plus:
Fixed Charges 948,497 800,986 507,940 404,360 388,901 880,710 690,359
Less:
Capitalized interest (785) (2,056) (599) (82) (201) (1,216) (534)
----------- ----------- --------- --------- --------- --------- ---------
Earnings, including interest on
deposits 1,335,222 1,102,974 768,681 628,805 553,592 1,229,624 970,843
Less:
Interest on deposits (644,613) (564,064) (377,643) (335,708) (337,878) (547,001) (473,255)
----------- ----------- --------- --------- --------- --------- ---------
Earnings, excluding interest on
deposits $ 690,609 $ 538,910 $ 391,038 $ 293,097 $ 215,714 $ 682,623 $ 497,588
=========== =========== ========= ========= ========= ========= =========
Fixed Charges:
Interest Expense $ 938,194 $ 791,423 $ 501,067 $ 397,743 $ 382,930 $ 870,702 $ 682,335
Capitalized interest 785 2,056 599 82 201 1,216 534
Amortization of debt expense 132 190 215 195 63 545 545
Interest portion of rent expense 9,386 7,317 6,059 6,340 5,707 8,247 6,945
----------- ----------- --------- --------- --------- --------- ---------
Total Fixed Charges $ 948,497 $ 800,986 $ 507,940 $ 404,360 $ 388,901 $ 880,710 $ 690,359
Less:
Interest on deposits (644,613) (564,064) (377,643) (335,708) (337,878) (547,001) (473,255)
----------- ----------- --------- --------- --------- --------- ---------
Total Fixed Charges excluding
interest on deposits $ 303,884 $ 236,922 $ 130,297 $ 68,652 $ 51,023 $ 333,709 $ 217,104
=========== =========== ========= ========= ========= ========= =========
Earnings to Fixed Charges:
Including interest on deposits 1.41x 1.38x 1.51x 1.56x 1.42x 1.40x 1.41x
=========== =========== ========= ========= ========= ========= =========
Excluding interest on deposits 2.27 2.27 3.00 4.27 4.23 2.05 2.29
=========== =========== ========= ========= ========= ========= =========
</TABLE>
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated February 7, 1997
included in SouthTrust Corporation's Form 10-K for the year ended December 31,
1996 and to all references to our Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Birmingham, Alabama
December 5, 1997
<PAGE> 1
EXHIBIT 24
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
whose signature appears below hereby constitutes and appoints Aubrey D. Barnard
and William L. Prater, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign a registration
statement of SouthTrust Corporation on Form S-3 relating to the equity
securities and debt securities registration, including all amendments to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and with any state securities commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Dated as of this 3rd day of December, 1997.
/s/ JOHN M. BRADFORD
--------------------------------
John M. Bradford
<PAGE> 2
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
whose signature appears below hereby constitutes and appoints Aubrey D. Barnard
and William L. Prater, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign a registration
statement of SouthTrust Corporation on Form S-3 relating to the equity
securities and debt securities registration, including all amendments to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and with any state securities commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Dated as of this 4th day of December, 1997.
/s/ F. CROWDER FALLS
--------------------------------
F. Crowder Falls
<PAGE> 3
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
whose signature appears below hereby constitutes and appoints Aubrey D. Barnard
and William L. Prater, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign a registration
statement of SouthTrust Corporation on Form S-3 relating to the equity
securities and debt securities registration, including all amendments to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and with any state securities commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Dated as of this 4th day of December, 1997.
/s/ CARL F. BAILEY
--------------------------------
Carl F. Bailey
<PAGE> 4
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
whose signature appears below hereby constitutes and appoints Aubrey D. Barnard
and William L. Prater, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign a registration
statement of SouthTrust Corporation on Form S-3 relating to the equity
securities and debt securities registration, including all amendments to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and with any state securities commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Dated as of this 2nd day of December, 1997.
/s/ WILLIAM C. HULSEY
--------------------------------
William C. Hulsey
<PAGE> 5
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
whose signature appears below hereby constitutes and appoints Aubrey D. Barnard
and William L. Prater, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign a registration
statement of SouthTrust Corporation on Form S-3 relating to the equity
securities and debt securities registration, including all amendments to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and with any state securities commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Dated as of this 5th day of December, 1997.
/s/ REX J. LYSINGER
--------------------------------
Rex J. Lysinger
<PAGE> 6
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
whose signature appears below hereby constitutes and appoints Aubrey D. Barnard
and William L. Prater, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign a registration
statement of SouthTrust Corporation on Form S-3 relating to the equity
securities and debt securities registration, including all amendments to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and with any state securities commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Dated as of this 5th day of December, 1997.
/s/ VAN L. RICHEY
--------------------------------
Van L. Richey
<PAGE> 7
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
whose signature appears below hereby constitutes and appoints Aubrey D. Barnard
and William L. Prater, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign a registration
statement of SouthTrust Corporation on Form S-3 relating to the equity
securities and debt securities registration, including all amendments to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and with any state securities commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Dated as of this 4th day of December, 1997.
/s/ WM. KENDRICK UPCHURCH
--------------------------------
WM. Kendrick Upchurch
<PAGE> 8
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
whose signature appears below hereby constitutes and appoints Aubrey D. Barnard
and William L. Prater, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign a registration
statement of SouthTrust Corporation on Form S-3 relating to the equity
securities and debt securities registration, including all amendments to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and with any state securities commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Dated as of this 5th day of December, 1997.
/s/ WALLACE D. MALONE, JR.
--------------------------------
Wallace D. Malone, Jr.
<PAGE> 9
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
whose signature appears below hereby constitutes and appoints Aubrey D. Barnard
and William L. Prater, and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign a registration
statement of SouthTrust Corporation on Form S-3 relating to the equity
securities and debt securities registration, including all amendments to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and with any state securities commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Dated as of this 5th day of December, 1997.
/s/ JULIAN W. BANTON
--------------------------------
Julian W. Banton
