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As filed with the Securities and Exchange Commission on September 4, 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
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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. [X]
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
contained herein also relates to securities of the registrant previously
registered on Form S-3 (Registration No. 33-61823)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================
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 $300,000,000 $56,426.33
=====================================================================================================
</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,
$100,000,000 of the securities being registered are being carried forward
from a prior registration statement on Form S-3 (Registration No. 33-61823).
The filing fee associated with such securities that was previously paid with
the earlier registration statement was $34,482.76
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 _______________, 1997
SOUTHTRUST CORPORATION
SouthTrust Corporation (the "Corporation") may offer from time to time
up to $300,000,000 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 ___________________, 1997.
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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 and June 30, 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.
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,
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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
June 30, 1997, the Corporation had consolidated total assets of approximately
$29.2 billion, which ranked it as the largest bank holding company
headquartered in Alabama. Of the Corporation's approximately $29.2 billion in
assets as of June 30, 1997, approximately $14.6 billion were in Alabama,
approximately $5.4 billion were in Georgia, and approximately $6.9 billion were
in Florida.
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, after 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 result of this strategy, the total
assets of the Corporation outside of Alabama have grown to approximately $14.6
billion or 50% of total assets at June 30, 1997.
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
receives inquiries and solicitations from banks and other financial institutions
regarding the possible acquisition of banks and financial institutions. The
Corporation routinely reviews and evaluates these inquiries. Thus, at any
particular point in time, including the date of this Prospectus, discussions,
and, in some cases negotiations and due diligence activities, looking toward or
culminating in the execution of preliminary or definitive documents respecting
potential acquisitions may occur or be in progress.
The Corporation's headquarters are located at 420 North 20th Street,
Birmingham, Alabama 35203 and its telephone number is (205) 254-5000.
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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>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31 JUNE 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 1.42x
Excluding Interest on Deposits 2.27 2.27 3.00 4.27 4.23 2.05 2.37
</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.
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.
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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. In addition,
SouthTrust Bank may not pay a dividend in an amount greater than its net profits
then on hand after deducting its loan losses and bad debts. For this purpose,
bad debts are defined to include, generally, the principal amount of loans which
are in arrears with respect to interest by six months or more or are past due as
to payment of principal (in each case to the extent that such debts are in
excess of the reserve for possible credit losses). Under the foregoing laws and
regulations, at June 30, 1997, approximately $399.9 million was available for
payment of dividends to the Corporation declared by SouthTrust Bank during the
final two quarters 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 June
30, 1997, the Corporation had a Tier 1 capital ratio of 7.43%, a total
risk-based capital ratio of 11.57% and a leverage ratio of 6.08%.
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
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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 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.
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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" 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 "Denominations, 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
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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 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.
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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 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.
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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
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 (a "U.S. Depositary") or a common
depositary located outside the United States (a "Common Depositary") 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 provisions will apply to all depositary arrangements.
Book-Entry Debt Securities
Unless otherwise specified in any applicable Prospectus Supplement,
Debt Securities which are to be represented by a Global Note to be deposited
with or on behalf of a U.S. Depositary will be represented by a Global Note
registered in the name of such depositary or its nominee. Upon the issuance of a
Global Note in registered form, the U.S. Depositary for such Global Note will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Note to the
accounts of institutions that have accounts with such depositary or its nominee
("Participants"). The accounts to be credited shall be designated by the
underwriters or agents of such Debt Securities or by the Corporation if such
Debt Securities are offered and sold directly by the Corporation. Ownership of
beneficial interests in such Global Notes will be limited to Participants or
persons that may hold interests through Participants. Ownership of beneficial
interests by Participants in such Global Notes will be shown on, and the
transfer of that ownership interest will be effected only through, records
maintained by the U.S. Depositary or its nominee for such Global Note. Ownership
of beneficial interests in Global Notes by persons that hold through
Participants will be shown on, and the transfer of that ownership interest
within such Participant will be effected only through, records maintained by
such Participant. The laws of some jurisdictions require that certain purchasers
of securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Note.
So long as the U.S. Depositary for a Global Note in registered form, or
its nominee, is the registered owner of such Global Note, such depositary or
such nominee, as the case may be, will be considered the sole owner or
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Holder of the Debt Securities represented by such Global Note for all purposes
under the Indenture governing such Debt Securities. Except as set forth below,
owners of beneficial interests in such Global Notes will not be entitled to have
Debt Securities of the series represented by such Global Note registered in
their names, will not receive or be entitled to receive physical delivery of
Debt Securities of such series in definitive form and will not be considered the
owners or Holders thereof under the applicable Indenture.
Payment of principal of, premium, if any, and any interest on Debt
Securities registered in the name of or held by a U.S. Depositary or its nominee
will be made to the U.S. Depositary or its nominee, as the case may be, as the
registered owner or the Holder of the Global Note representing such Debt
Securities. None of the Corporation, the Trustees, any Paying Agent or the
Security Registrar for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Note for such Debt Securities or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Corporation expects that the U. S. Depositary for Debt Securities
of a series, upon receipt of any payment of principal, premium or interest in
respect of a permanent Global Note, will credit immediately Participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Note as shown on the records of
such depositary. The Corporation also expects that payments by Participants to
owners of beneficial interests in such Global Note held through such
Participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of customers in bearer
form or registered in "street name," and will be the responsibility of such
Participants.
A Global Note may not be transferred except as a whole by the U.S.
Depositary for such Global Note to or among a nominee or a successor. If a U.S.
Depositary for Debt Securities of a series is at any time unwilling or unable to
continue as depositary and a successor depositary is not appointed by the
Corporation within ninety days, the Corporation will issue Debt Securities in
definitive registered form in exchange for the Global Note or Global Notes
representing such Debt Securities. In addition, the Corporation may at any time
and in its sole discretion determine not to have any Debt Securities in
registered form represented by one or more Global Notes and, in such event, will
issue Debt Securities in definitive form in exchange for the Global Note or
Global Notes representing such Debt Securities. Further, if the Corporation so
specifies with respect to Debt Securities of a series, an owner of a beneficial
interest in a Global Note representing Debt Securities of such series may, on
terms acceptable to the Corporation and the U.S. Depositary, receive individual
Debt Securities of such series in exchange for such beneficial interests,
subject to any limitations in any applicable Prospectus Supplement relating to
such Offered Debt Securities. In any such instance, an owner of a beneficial
interest in a Global Note will be entitled to physical delivery in definitive
form of Debt Securities of the series represented by such Global Note equal in
principal amount to such beneficial interest and to have such Debt Securities
registered in its name.
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 Euro-clear System ("Euro-clear Operator") or Cedel Bank,
societe anonyme ("CEDEL"), 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 Euro-clear Operator or
CEDEL, 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
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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 Euro-clear Operator and CEDEL with respect to the portion of
the temporary Global Note held for its account. Each of the Euro-clear Operator
and CEDEL, 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,
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.
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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.
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
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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 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
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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 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,
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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 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
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States, including a money judgment based on an obligation expressed in a Foreign
Currency, ordinarily will be rendered only in U.S. Dollars.
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 Designation 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 June 30,
1997, 99,713,302 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
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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 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. Because its primary subsidiaries are banks,
payments made by such subsidiaries 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"; 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 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
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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 between the Corporation and Mellon Bank, N.A.
(now know 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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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 United States 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 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 United States 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 to
underwriters, through agents or directly to 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
21
<PAGE> 23
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.
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 Company 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 June 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, for the periods as indicated in their reports with respect
thereto, and are included herein.
22
<PAGE> 24
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN 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. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL OR SOLICITATION OF AN OFFER TO BUY ANY OF
THESE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
CORPORATION SINCE SUCH DATE.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information............................................................................................ 2
Incorporation of Certain
Documents by Reference......................................................................................... 2
SouthTrust Corporation........................................................................................... 3
Use of Proceeds.................................................................................................. 4
Regulatory Matters............................................................................................... 4
Description of Debt Securities................................................................................... 7
Description of Capital Stock.....................................................................................17
Limitations on Issuance of
Bearer Securities..............................................................................................21
Plan of Distribution.............................................................................................21
Legal Opinions...................................................................................................22
Experts..........................................................................................................22
</TABLE>
===============================================================================
$ 300,000,000
-----------
SOUTHTRUST
CORPORATION
Debt Securities
Preferred Stock
Common Stock
-------------
PROSPECTUS
-------------
__________, 1997
===============================================================================
<PAGE> 25
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.................................................... $ 90,909.09
* Legal Fees and Expenses............................................. 70,000.00
* Accounting Fees and Expenses........................................ 35,000.00
* Blue Sky Fees and Expenses.......................................... 8,500.00
* Printing and Engraving.............................................. 30,000.00
* Miscellaneous....................................................... 5,590.91
------------
Total............................................................... $ 240,000.00
============
</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.
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> 26
<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> 27
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> 28
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 September 3,
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 September 3, 1997
--------------------------------------------- Officer, President, Director
Wallace D. Malone, Jr.
/s/ AUBREY D. BARNARD Secretary, Treasurer and September 3, 1997
--------------------------------------------- Controller (Principal
Aubrey D. Barnard Accounting and
Financial Officer)
/s/ JULIAN W. BANTON Director September 3, 1997
---------------------------------------------
Julian W. Banton
Director
---------------------------------------------
Allen J. Keesler, Jr.
* Director September 3, 1997
---------------------------------------------
Van L. Richey
Director September 3, 1997
---------------------------------------------
Carl F. Bailey
* Director September 3, 1997
---------------------------------------------
Rex J. Lysinger
</TABLE>
II-4
<PAGE> 29
<TABLE>
<S> <C> <C>
* Director September 3, 1997
---------------------------------------------
William C. Hulsey
* Director September 3, 1997
---------------------------------------------
John M. Bradford
* Director September 3, 1997
---------------------------------------------
Wm. Kendrick Upchurch, Jr.
* Director September 3, 1997
---------------------------------------------
H. Allen Franklin
* Director September 3, 1997
---------------------------------------------
F. Crowder Falls
*By /s/ WILLIAM L. PRATER September 3, 1997
- -------------------------------------------------
William L. Prater
Attorney-in-fact
</TABLE>
II-5
<PAGE> 30
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C> <C>
1 - Form of Underwriting Agreement for Securities.
3 - Composite Restated Certificate of Incorporation of SouthTrust Corporation.
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>
- ---------------------------------------
* 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 and 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
- ---- ---------------
<S> <C>
................................................................. $
.................................................................
.................................................................
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.
-2-
<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
-----------------------
-3-
<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 common 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 and 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_.
-4-
<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 an aggregate purchase price of $ _______ , equal to ______% of their
aggregate 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.
-5-
<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
--------------------------
-6-
<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
-1-
<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 check payable in 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.
(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
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<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 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.
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<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 Shares") and the closing date for
the Option Shares (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 Shares 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 Shares:
(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
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<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).
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<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
Shares 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 Shares) 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 checks payable in New York Clearing House (next 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 checks payable in New York Clearing House (next 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 checks payable in New York Clearing House (next 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 3
COMPOSITE RESTATED CERTIFICATE OF INCORPORATION OF
SOUTHTRUST CORPORATION
<PAGE> 2
EXHIBIT 3
COMPOSITE
RESTATED CERTIFICATE OF INCORPORATION
OF
SOUTHTRUST CORPORATION
In accordance with the provisions of the General Corporation
Law of the State of Delaware, including, without limitation, Sections 103, 242
and 245 thereof, SouthTrust Corporation, a corporation organized and existing
under the laws of the State of Delaware, which was originally incorporated
under the name BTNB Corporation (which name was subsequently changed to The
Alabama Financial Group, Inc., then to Southern Bancorporation, and then to
Southern Bancorporation of Alabama before the change to the present name) by
its original Certificate of Incorporation filed with the Secretary of State of
Delaware on October 8, 1968, hereby certifies (i) that this Restated
Certificate of Incorporation of SouthTrust Corporation has been proposed by the
board of directors of SouthTrust Corporation and duly adopted by the
stockholders of SouthTrust Corporation in accordance with the provisions of
Section 245 of the General Corporation Law of the State of Delaware and (ii)
that the Restated Certificate of Incorporation of SouthTrust Corporation reads
as follows:
FIRST. The name of the corporation is SouthTrust Corporation.
SECOND. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801. The name of its registered agent at such address is The Corporation
Trust Company.
THIRD. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware. Without limiting in any manner the scope
and generality of the foregoing, the Corporation shall have the following
purposes and powers:
(1) To acquire by purchase, subscription, or otherwise,
and to receive, hold, own, guarantee, sell, assign, exchange,
transfer, mortgage, pledge or otherwise dispose of or deal in and with
any and all securities, as such term is hereinafter defined, issued or
created by any corporation, firm, organization, association or other
entity, public or private, whether formed under the laws of the United
States of America or of any state, commonwealth, territory, dependency
or possession thereof, or of any foreign country or of any political
subdivision,
1
<PAGE> 3
territory, dependency, possession or municipality thereof, or issued
or created by the United States of America or any state or
commonwealth thereof or any foreign country, or by any agency,
subdivision, territory, dependency, possession or municipality of any
of the foregoing, and as owner thereof to possess and exercise all the
rights, powers and privileges of ownership, including the right to
execute consents and vote thereon.
The term "securities" as used in this Certificate of
Incorporation shall mean any and all notes, stocks, treasury stocks,
bonds, debentures, evidences of indebtedness, certificates of interest
or participation in any profit-sharing agreement, collateral-trust
certificate, pre-organization certificates or subscriptions,
transferable shares, investment contracts, voting trust certificates,
certificates of deposit for a security, fractional undivided interests
in oil, gas, or other mineral rights, or, in general, any interests or
instruments commonly known as "securities", or any and all
certificates of interest or participation in, temporary or interim
certificates for, receipts for, guaranties of, or warrants or rights
to subscribe to or purchase, any of the foregoing.
(2) To make, establish and maintain investments in securities,
and to supervise and manage such investments.
(3) To cause to be organized under the laws of the United
States of America or of any state, commonwealth, territory, dependency
or possession thereof, or of any foreign country or of any political
subdivision, territory, dependency, possession or municipality
thereof, one or more corporations, firms, organizations, associations
or other entities and to cause the same to be dissolved, wound up,
liquidated, merged or consolidated.
(4) To acquire by purchase or exchange, or by transfer to
or by merger or consolidation with the Corporation or any corporation,
firm, organization, association or other entity owned or controlled,
directly or indirectly, by the Corporation, or to otherwise acquire,
the whole or any part of the business, good will, rights, or other
assets of any corporation, firm, organization, association or other
entity, and to undertake or assume in connection therewith the whole
or any part of the liabilities and obligations thereof, to effect any
such acquisition in whole or in part by delivery of cash or other
property, including securities issued by the Corporation, or by any
other lawful means.
2
<PAGE> 4
(5) To make loans and give other forms of credit, with or
without security, and to negotiate and make contracts and agreements
in connection therewith.
(6) To aid by loan, subsidy, guaranty or in any other
lawful manner any corporation, firm, organization, association or
other entity of which any securities are in any manner directly or
indirectly held by the Corporation or in which the Corporation or any
such corporation, firm, organization, association or entity may be or
become otherwise interested; to guarantee the payment of dividends on
any stock issued by any such corporation, firm, organization,
association or entity; to guarantee or, with or without recourse
against any such corporation, firm, organization, association or
entity, to assume the payment of the principal of, or the interest on,
any obligations issued or incurred by such corporation, firm,
organization, association or entity; to do any and all other acts and
things for the enhancement, protection or preservation of any
securities which are in any manner, directly or indirectly, held,
guaranteed or assumed by the Corporation, and to do any and all acts
and things designed to accomplish any such purpose.
(7) To borrow money for any business, object or purpose
of the Corporation from time to time, without limit as to amount; to
issue any kind of indebtedness, whether or not in connection with
borrowing money, including evidences of indebtedness convertible into
stock of the Corporation, to secure the payment of any evidence of
indebtedness by the creation of any interest in any of the property or
rights of the Corporation, whether at that time owned or thereafter
acquired.
(8) To render service, assistance, counsel and advice to,
and to act as representative or agent in any capacity (whether
managing, operating, financial, purchasing, selling, advertising or
otherwise) of, any corporation, firm, organization, association, or
other entity.
(9) To engage in any commercial, financial, mercantile,
industrial, manufacturing, marine, exploration, mining, agricultural,
research, licensing, servicing, or agency business not prohibited by
law, and any, some or all of the foregoing.
The purposes and powers specified in the foregoing paragraphs
shall, except where otherwise expressed, be in nowise limited or restricted by
reference to, or inference from the terms of any other paragraph in this
Certificate of Incorporation, but the purposes and powers specified in each of
the foregoing paragraphs of this Article shall be regarded as independent
purposes and powers.
3
<PAGE> 5
The Corporation shall possess and may exercise all powers and
privileges necessary or convenient to effect any or all of the foregoing
purposes, or to further any or all of the foregoing powers, and the enumeration
herein of any specific purposes or powers shall not be held to limit or
restrict in any manner the exercise by the Corporation of the general powers
now or hereafter conferred by the laws of the State of Delaware upon
corporations formed under the General Corporation Law of Delaware.
FOURTH. The total number of shares of all classes of stock
which the Corporation shall have the authority to issue is three hundred five
million (305,000,000) shares, of which five million (5,000,000) shares, par
value $1.00 per share, are to be preferred stock (hereinafter called "Preferred
Stock"), and three hundred million (300,000,000) shares, par value of $2.50 per
share, are to be common stock (hereinafter called "Common Stock").
A. The Preferred Stock may be issued in such one or more
series as shall from time to time be created and authorized to be issued by the
board of directors as hereinafter provided.
The board of directors is hereby expressly authorized, by
resolution or resolutions from time to time adopted providing for the issuance
of Preferred Stock, to fix and state, to the extent not fixed by the provisions
hereinafter set forth, the designations, voting powers, if any, preferences and
relative, participating, optional and other special rights of the shares of
each series of Preferred Stock, and the qualifications, limitations and
restrictions thereof, including (but without limiting the generality of the
foregoing) any of the following with respect to which the board of directors
may make specific provisions:
(1) the distinctive name and any serial designations;
(2) the annual dividend rate or rates and the dividend
payment dates;
(3) with respect to the declaration and payment of
dividends upon each series of the Preferred Stock, whether such
dividends are to be cumulative or noncumulative, preferred,
subordinate or equal to dividends declared and paid upon other series
of the Preferred Stock or upon any other shares of stock of the
Corporation, and the participating or other special rights, if any, of
such dividends;
(4) the redemption provisions, if any, with respect to
any series, and if any series is subject to redemption, the manner and
time of redemption and the redemption price or prices;
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(5) the amount or amounts of preferential or other
payment to which any series of Preferred Stock is entitled over any
other series of Preferred Stock or over the Common Stock on voluntary
or involuntary liquidation, dissolution or winding-up, subject to the
provisions set forth in clause (2) of paragraph C of this Article
FOURTH;
(6) any sinking fund or other retirement provisions and
the extent to which the charges therefor are to have priority over the
payment of dividends on or the making of sinking fund or other like
retirement provisions for shares of any other series of Preferred
Stock or for shares of the Common Stock;
(7) any conversion, exchange, purchase or other
privileges to acquire shares of any other series of Preferred Stock or
of the Common Stock;
(8) the number of shares of such series; and
(9) the voting rights, if any, of such series, subject to
the provisions set forth in clause (1) of paragraph C of this Article
FOURTH.
Each share of each series of Preferred Stock shall have the
same relative rights and be identical in all respects with all the other shares
of the same series.
Before the Corporation shall issue any shares of Preferred
Stock of any series authorized as hereinbefore provided, a certificate setting
forth a copy of the resolution or resolutions with respect to such series
adopted by the board of directors of the Corporation pursuant to the foregoing
authority vested in said board shall be made, filed and recorded in accordance
with the then applicable requirements, if any, of the laws of the State of
Delaware, or, if no certificate is then so required, such certificate shall be
signed and acknowledged on behalf of the Corporation by its chairman of the
board, president or a vice president and its corporate seal shall be affixed
thereto and attested by its secretary or an assistant secretary and such
certificate shall be filed and kept on file at the principal office of the
Corporation in the State of Delaware and in such other place or places as the
board of directors shall designate.
Shares of any series of Preferred Stock which shall be issued
and thereafter acquired by the Corporation through purchase, redemption,
conversion or otherwise, may, as may be provided by resolution or resolutions
of the board of directors and upon compliance with
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applicable law, be returned to the status of authorized but unissued Preferred
Stock, undesignated as to series, or to the status of authorized but unissued
Preferred Stock of the same series.
Unless otherwise provided in the resolution or resolutions of
the board of directors providing for the issue thereof, the number of
authorized shares of stock of any such series may be increased or decreased
(but not below the number of shares thereof then outstanding) by resolution or
resolutions of the board of directors, and the filing and recording of a
certificate, setting forth that such increase or decrease has been authorized
by the board of directors, in accordance with applicable law. In case the
number of shares of any such series of Preferred Stock shall be decreased in
accordance with the immediately preceding sentence, the shares representing
such decrease shall, unless otherwise provided in the resolution or resolutions
of the board of directors providing for the issuance thereof, resume the status
of the authorized but unissued Preferred Stock, undesignated as to series.
B. The authority of the board of directors to provide
for the issuance of any shares of the Corporation's stock shall include, but
shall not be limited to, authority to issue shares of stock of the Corporation
for any purpose and in any manner (including issuance pursuant to rights,
warrants or other options) permitted by law, for delivery as all or part of the
consideration for or in connection with the acquisition of all or part of the
stock of another corporation or of all or part of the assets of another
corporation or enterprise, irrespective of the amount by which the issuance of
such stock shall increase the number of shares outstanding (but not in excess
of the number of shares authorized).
C. The following powers, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, of the stock of the Corporation are fixed
as follows:
(1) Voting Rights.
(a) Common Stock. At all elections of directors of the
Corporation and in respect of all other matters as to which the vote
or consent of stockholders of the Corporation shall be required to be
taken, the holders of the Common Stock shall be entitled to one (1)
vote for each share held by them.
(b) Preferred Stock. The holders of each series of the
Preferred Stock shall have such voting rights as may be fixed by
resolution or by resolutions of the board of directors providing for
the issuance of such series; provided, however, that the holders of
each series of the Preferred Stock shall not have more than one (1)
vote for each share held by them at all elections of directors of the
Corporation
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and in respect of all other matters as to which the vote or consent of
stockholders of the Corporation shall be required to be taken;
provided, further, that except as set forth in the resolution of the
board of directors providing for its issuance or as otherwise required
by law, the holders of the Preferred Stock, or any series thereof,
shall not vote separately as a class but shall vote on all matters as
a single class with the holders of the Common Stock and any other
class of capital stock of the Corporation voting with the Common
Stock.
(2) Liquidation, Dissolution, etc. In the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation, the assets of the Corporation available for distribution to the
stockholders (whether from capital or surplus) shall be distributed among those
of the respective series of the outstanding Preferred Stock, if any, as may be
entitled to any preferential amounts and among the respective holders thereof
in accordance with the preferences, relative, participating and other special
rights and limitations and restrictions, if any, fixed for each such series and
the holders thereof by resolution or resolutions of the board of directors
providing for the issue of each such series of the Preferred Stock; and after
payment in full of the amounts payable in respect of the Preferred Stock, if
any, the holders of any series of the outstanding Preferred Stock who are not
entitled to preferential treatment pursuant to resolutions of the board of
directors providing for the issue thereof and the holders of the outstanding
Common Stock shall be entitled (to the exclusion of the holders of any series
of the outstanding Preferred Stock entitled to preferential treatment pursuant
to resolutions of the board of directors providing for the issue thereof) to
share ratably in all the remaining assets of the Corporation available for
distribution to its stockholders.
A consolidation, merger or reorganization of the Corporation
with or into one or more other corporations, or a sale, lease or other transfer
of all or substantially all of the assets of the Corporation that does not
result in the termination of the enterprise and distribution of the assets of
the Corporation of the stockholders, shall not be deemed to constitute a
liquidation, dissolution or winding-up of the Corporation within the meaning of
this clause (2) of this paragraph C of this Article FOURTH, notwithstanding the
fact that the Corporation may cease to exist and may surrender its certificate
of incorporation.
(3) Dividends. Dividends on any stock of the Corporation
shall be payable only out of earnings or assets of the Corporation legally
available for the payment of such dividends and only as and when declared by
the board of directors.
D. No holder of any share or shares of any class of
stock of the Corporation shall have any preemptive or preferential right to
subscribe for any shares of stock of any class of the Corporation now or
hereafter authorized or for any securities convertible into or carrying any
optional rights to purchase or subscribe for any shares of stock of any class
of the corporation now or hereafter authorized; provided, however, that no
provision of this certificate of
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incorporation shall be deemed to deny to the board of directors the right, in
its discretion, to grant to the holders of shares of any class of stock at the
time outstanding the right to purchase or subscribe for shares of stock of any
class or any other securities of the Corporation now or hereafter authorized at
such prices and upon such other terms and conditions as the board of directors,
in its discretion, may fix.
FIFTH. The Corporation is to have perpetual existence.
SIXTH. A. Number, election and terms. The business and
affairs of the Corporation shall be managed by or under the direction of a
board of directors consisting of not less than three (3) nor more than sixteen
(16) persons. The exact number of directors within the minimum and maximum
limitations specified in the preceding sentence shall be fixed from time to
time by the board of directors pursuant to a resolution adopted by a majority
of the entire board of directors. At the annual meeting of stockholders of the
Corporation held in 1983, the directors shall be divided into three classes, as
nearly equal in number as possible, with the term of office of the first class
of directors to expire at the annual meeting of stockholders of the Corporation
to be held in 1984, the term of office of the second class of directors to
expire at the annual meeting of stockholders of the Corporation to be held in
1985 and the term of office of the third class of directors to expire at the
annual meeting of stockholders of the Corporation to be held in 1986. At each
annual meeting of stockholders of the Corporation following such initial
classification and election, directors elected to succeed those directors whose
terms expire at such annual meeting shall be elected for a term of office to
expire at the third succeeding annual meeting of stockholders of the
Corporation after their election.
B. Newly created directorships and vacancies. Subject
to the rights of the holders of any series of Preferred Stock then outstanding,
newly created directorships resulting from any increase in the authorized
number of directors or any vacancies in the board of directors resulting from
death, resignation, retirement, disqualification, removal from office or other
cause shall be filled by a majority vote of the directors then in office, and
directors so chosen shall hold office until the annual meeting of stockholders
of the Corporation at which the term of the class of directors to which they
have been elected expires. No decrease in the number of directors constituting
the board of directors shall shorten the term of any incumbent director.
C. Continuance in Office. Notwithstanding the foregoing
provisions of this Article SIXTH, any director whose term of office has expired
shall continue to hold office until his successor shall be elected and qualify.
D. Removal. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, any director, or the entire board
of directors, may be removed from office at any time, but only for cause and
only by the affirmative vote of the holders of at least seventy
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<PAGE> 10
percent (70%) of the voting power of all of the shares of the Corporation
entitled to vote for the election of directors.
E. Nomination of Directors By Stockholders. In addition
to the right of the board of directors of the Corporation to make nominations
for the election of directors, nominations for the election of directors may be
made by any stockholder entitled to vote for the election of directors if that
stockholder complies with all of the following provisions of this paragraph E:
(1) Advance notice of such proposed nomination shall be
received by the Secretary of the Corporation not less than fourteen
(14) days nor more than fifty (50) days prior to any meeting of the
stockholders called for the election of directors; provided, however,
that if fewer than twenty-one (21) days' notice of the meeting is
given to stockholders, such written notice shall be received by the
Secretary of the Corporation not later than the close of the tenth day
following the day on which notice of the meeting was mailed to
stockholders.
(2) Each notice under clause (1) of this paragraph E
shall set forth (i) the name, age, citizenship, business address and
residence address of each nominee proposed in such notice, (ii) the
principal occupation or employment of each such nominee for the five
years preceding such meeting, (iii) the number of shares of stock of
the Corporation which are owned, directly or indirectly, by each such
nominee, and (iv) all such other information with respect to each such
nominee as would be required to be disclosed in a proxy statement
soliciting votes with respect to the election of directors which
complies with the Securities Exchange Act of 1934 and the rules and
regulations thereunder (or any subsequent provisions replacing such
Act, rules or regulations).
(3) The nomination made by a stockholder may only be made
in a meeting of the stockholders of the Corporation called for the
election of directors at which such stockholder is present in person
or by proxy, and can only be made by a stockholder who has theretofore
complied with the notice provisions of the foregoing clauses (1) and
(2) of this paragraph E.
(4) The chairman of the stockholders' meeting may
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedures, which determination if so
made shall be conclusive and binding upon the stockholders, and if he
should so determine, he shall so declare to the meeting and such
nomination shall be disregarded.
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F. Powers of Directors. In furtherance and not in
limitation of the powers conferred by statute, the board of directors is
expressly authorized:
(1) To make, alter or repeal the by-laws of the
Corporation.
(2) To authorize and cause to be executed mortgages and
liens upon the real and personal property of the Corporation.
(3) To set apart out of any of the funds of the
corporation available for dividends a reserve or reserves for any
proper purpose and to abolish any such reserve in the manner in which
it was created.
(4) By a majority of the whole board, to designate one or
more committees, each committee to consist of two or more of the
directors of the Corporation. The board may designate one or more
directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. Any
such committee, to the extent provided in the resolution or in the
by-laws of the Corporation, shall have and may exercise the powers of
the board of directors in the management of the business and affairs
of the Corporation, and may authorize the seal of the Corporation to
be affixed to all papers which may require it; provided, however, the
by-laws may provide that in the absence or disqualification of any
member of such committee or committees, the member or members thereof
present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in the place of
any such absent or disqualified member.
G. Ballot. Election of directors need not be by written
ballot unless the by-laws so provide.
H. Amendment, repeal, etc. Notwithstanding any other
provisions of this Certificate of Incorporation or the by-laws of the
Corporation (and notwithstanding the fact that some lesser percentage may be
specified by law, this Certificate of Incorporation or the by-laws of the
Corporation), the affirmative vote of the holders of at least seventy percent
(70%) of the voting power of all of the shares of the Corporation entitled to
vote for the election of directors at the time of such action shall be required
to amend or repeal, or to adopt any provisions inconsistent with, this Article
SIXTH.
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SEVENTH. Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of stockholders of the Corporation and may not be effected by
any consent in writing by such stockholders. Special meetings of stockholders
of the Corporation may be called only by the board of directors pursuant to a
resolution approved by a majority of the entire board of directors, upon not
less than ten nor more than fifty days' written notice. Notwithstanding any
other provisions of this Certificate of Incorporation or the by-laws of the
Corporation (and notwithstanding the fact that some lesser percentage may be
specified by law, this Certificate of Incorporation or the by-laws of the
Corporation), the affirmative vote of the holders of at least seventy percent
(70%) of the voting power of all of the shares of the Corporation entitled to
vote for the election of directors at the time of such action shall be required
to amend or repeal, or to adopt any provision inconsistent with, this Article
SEVENTH.
EIGHTH. The Corporation shall indemnify its officers,
directors, employees, and agents to the extent permitted by the General
Corporation Law of Delaware.
NINTH. Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of them and/or between
this Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application in
a summary way of this Corporation or of any creditor or stockholder thereof, or
on the application of any receiver or receivers appointed for this Corporation
under the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of section 279 of Title 8
of the Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this Corporation, as the
case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
TENTH. Meetings of stockholders may be held within or without
the State of Delaware, as the by-laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the statutes)
outside the State of Delaware at such place or places as may be designated from
time to time by the board of directors or in the by-laws of the Corporation.
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ELEVENTH.
A. Definitions.
For the purpose of this Article ELEVENTH:
(1) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
March 15, 1983.
(2) "Announcement Date" means, with respect to any
Business Combination, the date of first public announcement of such
Business Combination.
(3) A person shall be a "beneficial owner" of any Voting
Stock:
(a) which such person or any of its Affiliates or
Associates beneficially own, directly or indirectly; or
(b) which such person or any of its Affiliates or
Associates have (i) the right to acquire (whether such right
is exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote
pursuant to any agreement, arrangement or understanding; or
(c) which are beneficially owned, directly or
indirectly, by any other person with which such person or any
of its Affiliates or Associates have any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock of
the Corporation.
(4) For the purposes of determining whether a person is
an Interested Stockholder pursuant to clause (11) of this paragraph A,
the number of outstanding shares of Voting Stock shall include shares
deemed owned through application of clause (3) of this paragraph A but
shall not include any other shares of Voting
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Stock which may be issuable pursuant to any agreement, or upon
exercise of conversion rights, warrants or options, or otherwise.
(5) "Board" means the board of directors of the
Corporation.
(6) A "Business Combination" shall mean any one or more
of the following:
(a) any merger or consolidation of the
Corporation or any Subsidiary with or into (i) any Interested
Stockholder or (ii) any other corporation (whether or not
itself an Interested Stockholder) which, after such merger or
consolidation, would be an Affiliate of an Interested
Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series
of transactions) to or with any Interested Stockholder or any
Affiliate of any Interested Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate Fair Market
Value of $1,000,000 or more; or
(c) the issuance or transfer by the Corporation
or any Subsidiary (in one transaction or a series of
transactions) of any securities of the Corporation or any
Subsidiary to any Interested Stockholder or any Affiliate of
any Interested Stockholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate
Fair Market Value of $1,000,000 or more; or
(d) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or
on behalf of an Interested Stockholder or an Affiliate of any
Interested Stockholder; or
(e) any reclassification of securities (including
any reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the Corporation
with any of its Subsidiaries or any similar transaction
(whether or not with or into
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or otherwise involving an Interested Stockholder) which has
the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
equity or convertible securities of the Corporation or any
Subsidiary which is directly or indirectly owned by any
Interested Stockholder or any Affiliate of any Interested
Stockholder.
(7) "Consummation Date" means, with respect to any
Business Combination, the date on which such Business Combination is
effected.
(8) "Continuing Director" means any member of the Board
who is unaffiliated with the Interested Stockholder and was a member
of the Board prior to the time that the Interested Stockholder became
an Interested Stockholder, and any successor of a Continuing Director
who is a member of the Board and who is unaffiliated with the
Interested Stockholder and was recommended to succeed a Continuing
Director by a majority of Continuing Directors on the Board at the
time of such recommendation.
(9) "Determination Date" means, with respect to any
Interested Stockholder, the date on which such Interested Stockholder
first became an Interested Stockholder.
(10) "Fair Market Value" means (a) in the case of stock,
the highest closing sale price during the thirty-day period
immediately preceding the date in question of a share of such stock on
the principal United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is listed, or, if
such stock is not listed on any such exchange, the closing bid
quotation with respect to a share of such stock on such date as
reported by the National Association of Securities Dealers, Inc.
Automated Quotations System or any system then in use, or if no such
quotations are available, the fair market value on such date of a
share of such stock as determined by the Board in good faith; and (b)
in the case of property other than cash or stock, the fair market
value of such property as determined by the Board in good faith.
(11) "Interested Stockholder" shall mean, in respect of
any Business Combination, any person (other than the Corporation or
any Subsidiary) who or which, as of the date of the first public
announcement of such Business Combination, or on the day immediately
prior to the consummation of any such Business Combination:
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(a) is the beneficial owner, directly or
indirectly, of more than ten percent (10%) of the voting power
of the outstanding Voting Stock; or
(b) is an Affiliate of the Corporation and at any
time within two years prior thereto was the beneficial owner,
directly or indirectly, of ten percent (10%) or more of the
voting power of the then outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded
to any shares of Voting Stock of the Corporation which were at
any time within the two-year period immediately prior to the
date in question beneficially owned by any Interested
Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the
meaning of the Securities Act of 1933.
(12) A "person" shall mean any individual, firm,
corporation or other entity.
(13) "Protected Stock" means all Voting Stock and all
other shares of capital stock of the Corporation having, or which may
have upon the happening of some contingency, the right to vote for the
election of some or all of the directors of the Corporation,
regardless of whether at the time in question such shares then have a
present right to so vote.
(14) "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Interested Stockholder set forth in
clause (11) of this paragraph A, the term "Subsidiary" shall mean only
a corporation of which a majority of each class of equity security is
owned, directly or indirectly, by the Corporation.
(15) "Voting Stock" means, at any time, all shares of
capital stock of the Corporation entitled to vote generally in the
election of directors, considered for the purpose of this Article
ELEVENTH as one class.
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(16) In the event of any Business Combination in which the
Corporation survives, the phrase "other consideration to be received"
as used in subclauses (a) and (b) of clause (2) of paragraph C of this
Article ELEVENTH shall include the shares of Common Stock and/or the
shares of any other class of outstanding Protected Stock retained by
the holders of such shares.
B. Higher Vote for Certain Business Combinations. In addition to
any affirmative vote required by law or this Certificate of Incorporation, and
except as otherwise expressly provided in paragraph C of this Article ELEVENTH,
any Business Combination shall require the affirmative vote of the holders of
at least seventy percent (70%) of the then outstanding shares of Voting Stock.
Such affirmative vote shall be required notwithstanding the fact that no vote
may be required, or that some lesser percentage may be specified, by law or
under the rules of, or in any agreement with, any United States securities
exchange registered under the Securities Exchange Act of 1934, or any successor
act thereto, on which any of the Voting Stock is listed, or otherwise.
C. When Higher Vote Is Not Required.
The provisions of paragraph B of this Article ELEVENTH shall not be
applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote, if any, as is required by
law and any other Article of this Certificate of Incorporation, if all of the
conditions specified in either of the following clauses (1) and (2) are met:
(1) Approval by the Board of Directors. The Business
Combination shall have been approved by a majority of the Continuing
Directors.
(2) Price and Procedure Requirements. All of the
following conditions shall have been met:
(a) Common Stock. The aggregate amount of the
cash and the Fair Market Value as of the Consummation Date of
consideration other than cash to be received by holders of the
Common Stock of the Corporation in such Business Combination,
computed on a per share basis, shall be at least equal to the
higher of the following:
(i) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested
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Stockholder for any shares of Common Stock acquired
by it (I) within the two-year period immediately
prior to the Announcement Date, (II) in the
transaction or transactions by which it became an
Interested Stockholder, (III) on the Announcement
Date, or (IV) within the period from the Announcement
Date to and including the Consummation Date,
whichever is highest; or
(ii) The Fair Market Value per share of the Common Stock
on the Announcement Date or the Determination Date,
whichever is higher.
(b) Protected Stock. The aggregate amount of the
cash and the Fair Market Value as of the Consummation Date of
consideration other than cash to be received per share by
holders of shares of any other class of outstanding Protected
Stock regardless of whether the Interested Stockholder has
previously acquired any shares of a particular class of such
Protected Stock shall be at least equal to the highest of the
following:
(i) The highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Stockholder for any
shares of such class of Protected Stock acquired by
it (I) within the two-year period immediately prior
to the Announcement Date, (II) in the transaction or
transactions by which it became an Interested
Stockholder, (III) on the Announcement Date, or (IV)
within the period from the Announcement Date to and
including the Consummation Date, whichever is
highest;
(ii) The highest preferential amount per share to which
the holders of shares of such class of Protected
Stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of
the Corporation;
(iii) The Fair Market Value per share of such class of
Protected Stock on the Announcement Date or the
Determination Date, whichever is higher; or
(iv) the price per share equal to the per share price
determined pursuant to subclause (a) of this clause
(2) of this paragraph C multiplied by the ratio of
(I) the Fair Market Value per share of such class of
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Protected Stock on the Announcement Date to (II) the
Fair Market Value per share of the Common Stock on
such date.
(c) Form of Consideration. The consideration to
be received by holders of a particular class of outstanding
Protected Stock (including Common Stock) shall be in cash or
in the same form as the Interested Stockholder has paid for
shares of such class of Protected Stock prior to the
Consummation Date. If the Interested Stockholder has paid for
shares of any class of Protected Stock with varying forms of
consideration, the form of consideration for such class of
Protected Stock shall be either cash or the form used to
acquire the largest number of shares of such class of
Protected Stock previously acquired by it.
(d) Maintain Dividends. After such Interested
Stockholder has become an Interested Stockholder and prior to
the consummation of such Business Combination: (i) except as
approved by a majority of the Continuing Directors, there
shall have been no failure to declare and pay at the regular
date therefor any full quarterly dividends (whether or not
cumulative) on any outstanding preferred stock of the
Corporation; and (ii) there shall have been (I) no reduction
in the annual rate of dividends paid on the Common Stock
except as necessary to reflect any subdivision of the Common
Stock, except as approved by a majority of the Continuing
Directors, and (II) an increase in such annual rate of
dividends as necessary to reflect any reclassification
(including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect
of reducing the number of outstanding shares of the Common
Stock unless the failure so to increase such annual rate is
approved by a majority of the Continuing Directors.
(e) No Disproportionate Benefits. After such
Interested Stockholder has become an Interested Stockholder,
such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or
other financial assistance or any tax credits or other tax
advantages provided by the Corporation, whether in
anticipation of or in connection with such Business
Combination or otherwise.
(f) Furnish Information. A proxy or information
statement describing the proposed Business Combination and
complying with the requirements of the Securities Exchange Act
of 1934 and the rules and regulations thereunder (or any
subsequent provisions replacing such Act,
18
<PAGE> 20
rules or regulations) shall be mailed to public stockholders
of this Corporation at least 30 days prior to the consummation
of such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to
such Act or subsequent provisions).
D. Powers of Board of Directors.
A majority of the directors of the Corporation shall have the
power and duty to determine for the purposes of this Article ELEVENTH on the
basis of the information known to them after reasonable inquiry, (1) the number
of shares of Voting Stock beneficially owned by any person, (2) whether a
person is an Affiliate or Associate of another, (3) whether a person has an
agreement, arrangement or understanding with another as to the matters referred
to in clause (3) of paragraph A of this Article ELEVENTH or (4) whether the
assets which are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of securities by the
Corporation or any Subsidiary in any Business Combination has, an aggregate
Fair Market Value of $1,000,000 or more.
E. No Effect on Fiduciary Obligations of Interested
Stockholders.
Nothing contained in this Article ELEVENTH shall be construed
to relieve any Interested Stockholder from any fiduciary obligation imposed by
law.
F. Amendment, Repeal, Etc.
Notwithstanding any other provisions of this Certificate of
Incorporation or the by-laws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, this Certificate of
Incorporation or the by-laws of the Corporation), the affirmative vote of the
holders of seventy percent (70%) or more of the shares of the then outstanding
Voting Stock shall be required to amend or repeal, or adopt any provisions
inconsistent with, this Article ELEVENTH of this Certificate of Incorporation.
TWELFTH. A director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of the General Corporation Law of the State of Delaware, as the same exists or
may be hereafter amended, or (iv) for any transaction from which the director
derived an improper personal benefit. If the General Corporation Law of the
19
<PAGE> 21
State of Delaware is hereafter amended to authorize the further elimination or
limitation of the liability of directors, then the liability of a director of
the corporation, in addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as amended. Any repeal or
modification of this Article TWELFTH by the stockholders of the corporation
shall be prospective only and shall not adversely affect any limitation on the
personal liability of a director of the corporation existing at the time of
such repeal or modification.
THIRTEENTH. Except as otherwise herein provided and subject
to the requirements provided in Article SIXTH, SEVENTH and ELEVENTH of this
Certificate of Incorporation, the Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
20
<PAGE> 1
EXHIBIT 5
September 3, 1995
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 September 4, 1997, relating to up
to $300,000,000 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 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 Six Months Ended
June 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 $ 227,529 $ 186,214
Plus:
Fixed Charges 948,497 800,986 507,940 404,360 388,901 568,663 445,405
Less:
Capitalized interest (785) (2,056) (599) (82) (201) (651) (296)
----------- ----------- --------- --------- --------- --------- ---------
Earnings, including interest on
deposits 1,335,222 1,102,974 768,681 628,805 553,592 795,541 631,323
Less:
Interest on deposits (644,613) (564,064) (377,643) (335,708) (337,878) (352,427) (309,263)
----------- ----------- --------- --------- --------- --------- ---------
Earnings, excluding interest on
deposits $ 690,609 $ 538,910 $ 391,038 $ 293,097 $ 215,714 $ 443,114 $ 322,060
=========== =========== ========= ========= ========= ========= =========
Fixed Charges:
Interest Expense $ 938,194 $ 791,423 $ 501,067 $ 397,743 $ 382,930 $ 562,255 $ 440,202
Capitalized interest 785 2,056 599 82 201 651 296
Amortization of debt expense 132 190 215 195 63 366 366
Interest portion of rent expense 9,386 7,317 6,059 6,340 5,707 5,391 4,541
----------- ----------- --------- --------- --------- --------- ---------
Total Fixed Charges $ 948,497 $ 800,986 $ 507,940 $ 404,360 $ 388,901 $ 568,663 $ 445,405
Less:
Interest on deposits (644,613) (564,064) (377,643) (335,708) (337,878) (352,427) (309,263)
----------- ----------- --------- --------- --------- --------- ---------
Total Fixed Charges excluding
interest on deposits $ 303,884 $ 236,922 $ 130,297 $ 68,652 $ 51,023 $ 216,236 $ 136,142
=========== =========== ========= ========= ========= ========= =========
Earnings to Fixed Charges:
Including interest on deposits 1.41x 1.38x 1.51x 1.56x 1.42x 1.40x 1.42x
=========== =========== ========= ========= ========= ========= =========
Excluding interest on deposits 2.27 2.27 3.00 4.27 4.23 2.05 2.37
=========== =========== ========= ========= ========= ========= =========
</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
August 28, 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 26th day of August, 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 27th day of August, 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 26th day of August, 1997.
/s/ H. ALLEN FRANKLIN
--------------------------------
H. Allen Franklin
<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 26th day of August, 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 26th day of August, 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 26th day of August, 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 26th day of August, 1997.
/s/ WM. KENDRICK UPCHURCH
--------------------------------
WM. Kendrick Upchurch
