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EXHIBIT 1(A)
FORM OF UNDERWRITING AGREEMENT FOR COMMON STOCK
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[Common Stock]
SOUTHTRUST CORPORATION
UNDERWRITING AGREEMENT
New York, New York
[Date]
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
SouthTrust Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), __________ shares (the "Initial Shares") of the Company's
common stock (the "Common Stock"). Such Initial Shares are to be sold to each
Underwriter, acting severally and not jointly, in such amounts as are listed in
Schedule II opposite the name of each Underwriter. The Company also grants to
the Underwriters, severally and not jointly, the option described in Section
2(c) to purchase up to _____ additional shares (the "Option Shares"; together
with the Initial Shares, the "Shares") of Common Stock to cover over-allotments.
The Common Stock is more fully described in the Final Prospectus, referred to
below. If the firm or firms listed in Schedule II hereto include only the firm
or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, each shall be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter, as of the date hereof and as of
the date of the Pricing Agreement (such latter date being hereinafter referred
to as the "Representation Date") that:
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the "Act") and has
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (the file number of which is set
forth in Schedule I hereto), which has become effective, for the
registration under the Act of the Shares. Such registration statement,
as amended at the date of this Agreement, meets the requirements set
forth in Rule 415(a)(1) under the Act and complies in all other
material respects with said Rule. The Company proposes to file with the
Commission pursuant to Rule 424 or Rule 434 under the Act a supplement
to the form of prospectus included in such registration statement
relating to the Shares and the plan of distribution thereof and has
previously advised you of all further information (financial and other)
with respect to the Company to be set forth therein. Such registration
statement, including the exhibits thereto, as amended at the date of
this Agreement, is hereinafter called the "Registration Statement";
such prospectus in the form in which it appears in the Registration
Statement is hereinafter called the "Basic Prospectus"; and such
supplemented form of prospectus, in the form in which it shall be
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filed with the Commission pursuant to Rule 424 or Rule 434 (including
the Basic Prospectus as so supplemented) is hereinafter called the
"Final Prospectus." Any preliminary form of the Final Prospectus which
has heretofore been filed pursuant to Rule 424 hereinafter is called
the "Preliminary Final Prospectus." Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act") on or before the date of this
Agreement, or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, and the
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is
first filed pursuant to Rule 424 or Rule 434 under the Act, when, prior
to the Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective (including the filing of any
document incorporated by reference in the Registration Statement), when
any supplement to the Final Prospectus is filed with the Commission and
at the Closing Date (as hereinafter defined), (i) the Registration
Statement as amended as of any such time, and the Final Prospectus, as
amended or supplemented as of any such time, will comply in all
material respects with the applicable requirements of the Act, and the
Exchange Act and the respective rules thereunder, (ii) the Registration
Statement, as amended as of any such time, will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading, and (iii) the Final Prospectus, as
amended or supplemented as of any such time, will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representatives specifically
for use in connection with the preparation of the Registration
Statement and the Final Prospectus.
2. Purchase and Sale. (a) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company the respective number of
Initial Shares set forth opposite such Underwriter's name in Schedule II hereto,
except that, if Schedule I hereto provides for the sale of Initial Shares
pursuant to delayed delivery arrangements, the respective amounts of Initial
Shares to be purchased by the Underwriters shall be set forth in Schedule II
hereto, less the respective amounts of Contract Securities determined as
provided below. Shares to be purchased by the Underwriters are herein sometimes
called the "Underwriters' Securities" and Shares to be purchased pursuant to
Delayed Delivery Contracts as hereinafter provided are herein called "Contract
Securities."
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If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Initial Shares from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the purchase price set forth
on Schedule I hereto, of the Initial Shares for which Delayed Delivery Contracts
are made. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. The Company
will make Delayed Delivery Contracts in all cases where sales of Contract
Securities arranged by the Underwriters have been approved by the Company but,
except as the Company may otherwise agree, each such Delayed Delivery Contract
must be for not less than the minimum amount of Initial Shares set forth in
Schedule I hereto and the aggregate amount of Contract Securities may not exceed
the maximum aggregate amount set forth in Schedule I hereto. The Underwriters
will not have any responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The amount of Initial Shares to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by an amount
which shall bear the same proportion to the total amount of Contract Securities
as the amount of Initial Shares set forth opposite the name of such Underwriter
bears to the aggregate amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided, however, that the
total amount of Initial Shares to be purchased by all Underwriters shall be the
aggregate amount set forth in Schedule II hereto, less the aggregate amount of
Contract Securities.
(b) The initial public offering price and the purchase price of the
Initial Shares shall be set forth in a separate written instrument (the "Pricing
Agreement") signed by the Representatives and the Company, the form of which is
attached hereto as Schedule IV. From and after the execution and delivery of the
Pricing Agreement, this Agreement shall be deemed to include the Pricing
Agreement. The purchase price per share to be paid by the several Underwriters
for the Initial Shares shall be an amount equal to the initial public offering
price, less an amount per share to be determined by agreement among the
Representatives and the Company.
(c) In addition, on the basis of the representations and warranties
contained herein, and subject to the terms and conditions set forth herein, the
Company grants an option to the Underwriters, severally and not jointly, to
purchase up to an additional _______ Option Shares at the same price per share
determined as provided above for the Initial Shares. The option hereby granted
will expire 30 days after the date of the Pricing Agreement, 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 Shares as to which the several Underwriters
are exercising the option, and the time and date of payment and delivery
thereof. Such time and date of Delivery (the "Date of Delivery") shall be
determined by the Representatives but shall not be later than seven full
business days after the exercise of such option and not in any event prior to
the Closing Date (as defined below). If the option is exercised as to all or any
portion of the Option Shares, the Option Shares 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 Initial Shares
underwriting obligations as set forth on Schedule II.
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3. Delivery and Payment. Delivery of and payment for the Initial
Shares shall be made on the date and at the time specified in the Pricing
Agreement, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Initial Shares being herein called the
"Closing Date"). Delivery of the Initial Shares shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof in the manner set forth in Schedule I hereto. Unless otherwise
agreed, certificates for the Initial Shares shall be in the form set forth in
Schedule I hereto, and such certificates may be deposited with The Depository
Trust Company ("DTC") or a custodian for DTC and registered in the name of Cede
& Co., as nominee for DTC.
In addition, in the event that any or all of the Option Shares are
purchased by the Underwriters, delivery and payment for the Option Shares shall
be made at the office specified for delivery of the Initial Shares in the
Pricing Agreement, or at such other place as the Company and the Representatives
shall determine, on the Date of Delivery as specified in the notice from the
Representatives to the Company. Delivery of the Option Shares shall be made to
the Representatives against payment by the Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company in the manner set forth in Schedule I hereto. Unless otherwise agreed,
certificates for the Option Shares shall be in the form set forth in Schedule I
hereto, and such certificates shall be registered in such names and in such
denominations as the Representatives may request not less than three full
business days in advance of the Date of Delivery.
4. Agreements. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the
Shares, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus unless the Company has furnished you a copy for your review
prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be filed with
the Commission pursuant to Rule 424 or Rule 434 via the Electronic Data
Gathering, Analysis and Retrieval System. The Company will advise the
Representatives promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424 or Rule 434, (ii) when
any amendment to the Registration Statement relating to the Shares
shall have become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or amendment of or
supplement to the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the
Shares is required to be delivered under the Act, except with respect
to any such delivery requirement imposed upon an affiliate of the
Company in connection with any secondary market sales, any event occurs
as a result of which the Final Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact
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necessary to make the statements therein in light of the circumstances
under which they were made not misleading, or if it shall be necessary
to amend or supplement the Final Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance.
(c) The Company will make generally available to its
security holders and to the Representatives as soon as practicable, but
not later than 60 days after the close of the period covered thereby,
an earnings statement (in form complying with the provisions of Rule
158 of the regulations under the Act) covering a twelve month period
beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule 158) of
the Registration Statement.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each amendment
thereto which shall become effective on or prior to the Closing Date
and, so long as delivery of a prospectus by an Underwriter or dealer
may be required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing all documents relating to the
offering.
(e) The Company will arrange for the qualification of the
Shares for sale under the laws of such jurisdictions as the
Representatives may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of
the Shares and will arrange for the determination of the legality of
the Shares for purchase by institutional investors; provided, however,
that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to general or unlimited service of process of
any jurisdiction where it is not now so subject.
(f) Until the business day following the Closing Date,
the Company will not, without the consent of the Representatives, offer
or sell, or announce the offering of, any securities covered by the
Registration Statement or by any other registration statement filed
under the Act; provided, however, the Company may, at any time, offer
or sell or announce the offering of any securities (A) covered by a
registration statement on Form S-8 or otherwise pursuant to employee
benefit plans of the Company, (B) covered by a registration statement
on Form S-3 and (i) pursuant to which the Company issues securities
under one of the Company's medium-term note programs or (ii) pursuant
to which the Company issues securities for its dividend reinvestment
plan or (C) covered by a registration statement on Form S-3 or Form S-4
pursuant to which the Company issues securities in one or more
acquisitions.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Closing Date (including the filing of any document incorporated by reference
therein) and as
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of the Closing Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) 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 the Final Prospectus shall have been filed or mailed
for filing with the Commission within the time period prescribed by the
Commission.
(b) The Company shall have furnished to the
Representatives the opinion of Bradley Arant Rose & White LLP, counsel
for the Company, dated the Closing Date, to the effect of paragraphs
(i) through (xii) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of the
State of Delaware, has the corporate power and authority to
own its properties and conduct its business as described in
the Final Prospectus, and is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as
amended; SouthTrust Bank (or the successor to such entity)
(the "Principal Subsidiary Bank") is an Alabama banking
corporation formed under the laws of the State of Alabama and
authorized thereunder to transact business;
(ii) each of the Company and the Principal
Subsidiary Bank is qualified or licensed to do business as a
foreign corporation in any jurisdiction in which such counsel
has knowledge that the Company or the Principal Subsidiary, as
the case may be, is required to be so qualified or licensed;
(iii) all the outstanding shares of capital stock
of the Principal Subsidiary Bank have been duly and validly
authorized and issued and are fully paid and nonassessable,
and, except as otherwise set forth in the Final Prospectus,
all outstanding shares of capital stock of the Principal
Subsidiary Bank (except directors' qualifying shares) are
owned, directly or indirectly, by the Company free and clear
of any perfected security interest and, to the knowledge of
such counsel, after due inquiry, any other security interests,
claims, liens or encumbrances;
(iv) the Shares conform in all material respects
to the description thereof contained in the Final Prospectus;
(v) if the Shares are to be listed on the NASDAQ
Stock Market, authorization therefor has been given, subject
to official notice of issuance and evidence of satisfactory
distribution, or the Company has filed a NASDAQ listing of
additional shares and all required supporting documents with
respect to the Securities with the NASDAQ Stock Market and
such counsel received no information stating that the Initial
Shares will not be authorized for listing, subject to official
notice of issuance and evidence of satisfactory distribution;
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(vi) such counsel is without knowledge that (1)
there is any pending or threatened action, suit or proceeding
before or by any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in
the Final Prospectus, or (2) any franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit to the Registration Statement, is not so described
or filed as required;
(vii) the Registration Statement has become
effective under the Act; such counsel is without knowledge
that any stop order suspending the effectiveness of the
Registration Statement has been issued or any proceedings for
that purpose have been instituted or threatened; and the
Registration Statement, the Final Prospectus and each
amendment thereof or supplement thereto (other than the
financial statements and other financial and statistical
information contained therein or incorporated by reference
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the
respective rules thereunder;
(viii) this Agreement, the Pricing Agreement and
any Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and each constitutes a
legal, valid and binding agreement of the Company enforceable
against the Company in accordance with its terms (subject, as
to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance
or other similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies, and
except insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may be
limited by federal and state securities laws, and further
subject to 12 U.S.C. ss.1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles of
public policy);
(ix) no consent, approval, authorization or order
of any court or governmental agency or body is required on
behalf of the Company for the consummation of the transactions
contemplated herein or in any Delayed Delivery Contracts,
except such as have been obtained under the Act and such as
may be required under the blue sky or insurance laws of any
jurisdiction in connection with the purchase and distribution
of the Shares by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(x) neither the issue and sale of the Shares,
nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of any
Delayed Delivery Contracts will conflict with, result in a
breach of, or constitute a default under the certificate of
incorporation or by-laws of the Company or (1) the terms of
any material indenture or other agreement or instrument known
to such counsel and to which the Company or the Principal
Subsidiary Bank is a party or bound, or (2) any order or
regulation known to such counsel to be applicable to the
Company or the Principal Subsidiary Bank of any court,
regulatory body, administrative agency,
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governmental body or arbitrator having jurisdiction over the
Company or the Principal Subsidiary Bank;
(xi) such counsel is without knowledge of rights
to the registration of securities of the Company under the
Registration Statement which have not been waived by the
holders of such rights or which have not expired by reason of
lapse of time following notification of the Company's
intention to file the Registration Statement; and
(xii) the Initial Shares, any Option Shares as to
which the option granted in Section 2 has been exercised and
the Date of Delivery determined by the Representatives to be
the same as the Closing Date, have been duly authorized and,
when paid for as contemplated herein, will be duly issued,
fully paid and nonassessable.
In rendering such opinion, but without opining in
connection therewith, such counsel shall also state that,
although it has not independently verified, is not passing
upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement, it has no reason to believe that the
Registration Statement or any amendment thereof at the time it
became effective contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or
supplemented, contains any untrue statement of a material fact
or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
In rendering such opinion, such counsel may rely (A)
as to matters involving the application of laws of any
jurisdiction other than the State of Alabama or the United
States, or the General Corporate Law of Delaware to the extent
deemed proper and specified in such opinion, upon the opinion
of other counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Underwriters; and (B)
as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and its
subsidiaries and public officials.
(c) The Representatives shall have received from Stroock
& Stroock & Lavan LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and sale
of the Initial Shares, the Indenture, any Delayed Delivery Contracts,
the Registration Statement, the Final Prospectus and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the Chairman of
the Board and Chief Executive Officer or a Senior Vice President and
the principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus and
this Agreement and that to the best of their knowledge:
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(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement, as amended, has been issued and
no proceedings for that purpose have been instituted or
threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been no
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(e) At the Closing Date, Arthur Andersen LLP shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the Representatives),
dated as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that the response, if any, to Item 10 of
the Registration Statement is correct insofar as it relates to them and
stating in effect that:
(i) They are independent accountants within the
meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial
statements of the Company and its subsidiaries audited by them
and included or incorporated by reference in the Registration
Statement and Final Prospectus comply as to form in all
material respects with the applicable accounting requirements
of the Act and the regulations thereunder with respect to
registration statements on Form S-3 and the Exchange Act and
the regulations thereunder.
(iii) On the basis of procedures (but not an audit
in accordance with generally accepted auditing standards)
consisting of:
(a) Reading the minutes of the meetings
of the shareholders, the board of directors, executive
committee and audit committee of the Company and the boards of
directors and executive committees of its subsidiaries as set
forth in the minute books through a specified date not more
than five business days prior to the date of delivery of such
letter;
(b) Performing the procedures specified
by the American Institute of Certified Public Accountants for
a review of interim financial information as described in SAS
No. 71, Interim Financial Information, on the unaudited
condensed consolidated interim financial statements of the
Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and
Final Prospectus and reading the unaudited interim financial
data, if any, for the period from the date of the latest
balance sheet
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included or incorporated by reference in the Registration
Statement and Final Prospectus to the date of the latest
available interim financial data; and
(c) Making inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters regarding the specific items for which
representations are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
(1) the unaudited condensed consolidated interim
financial statements, included or incorporated by reference in
the Registration Statement and Final Prospectus, do not comply
as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published
rules and regulations thereunder;
(2) any material modifications should be made to
the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in the
Registration Statement and Final Prospectus, for them to be in
conformity with generally accepted accounting principles;
(3) (i) at the date of the latest available
interim financial data and at the specified date not more than
five business days prior to the date of the delivery of such
letter, there was any change in the capital stock or the
long-term debt (other than scheduled repayments of such debt)
or any decreases in shareholders' equity of the Company and
the subsidiaries on a consolidated basis as compared with the
amounts shown in the latest balance sheet included or
incorporated by reference in the Registration Statement and
the Final Prospectus or (ii) for the period from the date of
the latest available financial data to a specified date not
more than five business days prior to the delivery of such
letter, there was any change in the capital stock or the
long-term debt (other than scheduled repayments of such debt)
or any decreases in shareholders' equity of the Company and
the subsidiaries on a consolidated basis, except in all
instances for changes or decreases which the Registration
Statement and Final Prospectus discloses have occurred or may
occur, or Arthur Andersen LLP shall state any specific changes
or decreases.
(iv) The letter shall also state that Arthur
Andersen LLP has carried out certain other specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are
included or incorporated by reference in the Registration
Statement and Final Prospectus and which are specified by the
Representatives and agreed to by Arthur Andersen LLP, and has
found such amounts, percentages and financial information to
be in agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries identified
in such letter.
In addition, at the time this Agreement is executed, Arthur Andersen
LLP shall have furnished to the Representatives a letter or letters, dated the
date of this Agreement, in form and substance satisfactory to the
Representatives, to the effect set forth in this paragraph (e) and in Schedule I
hereto.
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(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e) of this
Section 5 or (ii) any change, or any development involving a
prospective change, in or affecting the earnings, business or
properties of the Company and its subsidiaries the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the judgment
of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or the delivery
of the Shares as contemplated by the Registration Statement and the
Final Prospectus.
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(h) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities arranged by
the Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the copying of this Agreement and the
Pricing Agreement, (iii) the preparation, issuance and delivery of the
certificates for the Shares to the Underwriters, including capital duties, stamp
duties and stock transfer taxes, if any, payable upon issuance of any of the
Shares, the sale of the Shares to the Underwriters and the fees and expenses of
the transfer agent for the Shares, (iv) the fees and disbursements of the
Company's counsel and accountants, (v) the qualification of the Shares under
state securities laws in accordance with the provisions of Section 4(e),
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of the preliminary prospectuses, and of the Prospectuses and any
amendments or supplements thereto, (vii) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey, and (viii) the fee of the
National Association of Securities Dealers, Inc. and, if applicable, the NASDAQ
Stock Market.
If the sale of the Shares provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket
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<PAGE> 13
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Shares.
7. Conditions to Purchase of Option Shares. In the event the
Underwriters exercise the option granted in Section 2(c) hereof to purchase all
or any portion of the Option Shares and the Date of Delivery determined by the
Representatives pursuant to Section 2 is later than the Closing 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, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) 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) or Rule 434 under the Act shall have been made within
the proper time period.
(b) At the Date of Delivery, the Representatives shall
have received, each dated the Date of Delivery and relating to the
Option Shares:
(i) the favorable opinion of Bradley Arant Rose
& White LLP, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the same
effect as the opinion required by Section 5(b);
(ii) the favorable opinion of Stroock & Stroock &
Lavan LLP, counsel for the Underwriters, to the same effect as
the opinion required by Section 5(c);
(iii) a certificate, of the Chairman of the Board
and Chief Executive Officer or Senior Vice President of the
Company and of the principal financial or accounting officer
of the Company with respect to the matters set forth in
Section 5(d);
(iv) 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 5(e) except that the
"specified date" in the letter furnished pursuant to this
Section 7(b)(iv) shall be a date not more than five days prior
to the Date of Delivery;
(v) Subsequent to the respective dates as of
which information is given in the Registration Statement and
the Final Prospectus, there shall not have been (i) any change
or decrease specified in the letter or letters referred to in
paragraph (b)(iv) of this Section 7 or (ii) any change, or any
development involving a prospective change, in or affecting
the earnings, business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or the
delivery of the Shares as contemplated by the Registration
Statement and the Final Prospectus; and
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<PAGE> 14
(vi) such other information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Date of Delivery by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or arise out of or are based upon
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus, or any amendment or supplement
thereof, or arise out of or are based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection with the preparation
thereof, or arises out of or is based upon statements in or omissions from that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the 1939 Act of
either of the Trustees, and (ii) such indemnity with respect to the Basic
Prospectus or any Preliminary Final Prospectus shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the Shares
which are the subject thereof if such person did not receive a copy of the Final
Prospectus (or the Final Prospectus as amended or supplemented) excluding
documents incorporated therein by reference at or prior to the confirmation of
the sale of such Shares to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Basic Prospectus or any Preliminary Final Prospectus was
corrected in the Final Prospectus (or the Final Prospectus as amended or
supplemented). This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same
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<PAGE> 15
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the language on the cover page required by Item
509 of Regulation S-K and under the heading "Underwriting" or "Plan of
Distribution" in any Preliminary Final Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a), representing the indemnified
parties under subparagraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on the grounds of policy or otherwise,
the Company and the Underwriters shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) to which the
Company and one or more of the
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<PAGE> 16
Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount bears to the sum of such discount and the purchase price of the
Securities specified in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (y) in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter hereunder
and (z) 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 8, each person who controls an Underwriter within the meaning of the Act
shall have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clause (y) of this
paragraph (d). Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties under this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Shares agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Shares set forth
opposite their names in Schedule II hereto bear to the aggregate amount of
Shares set forth opposite the names of all the remaining Underwriters) the
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Shares set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Shares, and
if such nondefaulting Underwriters do not purchase all the Shares, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Shares, if prior to such time (i)
trading in securities generally on the NASDAQ Stock Market shall have been
suspended or limited or minimum prices shall have been established on such
exchange, (ii) a banking moratorium shall have been declared either by Federal
authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representatives, impracticable to market the Shares.
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<PAGE> 17
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Shares. The provisions of
Section 6 and 8 hereof and this Section 11 shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule I hereto, with a copy to: Stroock & Stroock & Lavan LLP, 180 Maiden
Lane, New York, New York 10038, Attn: James R. Tanenbaum; or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at 420
North 20th Street, Birmingham, Alabama 35203, Attn: Alton E. Yother, with a copy
to: Bradley Arant Rose & White LLP, 2001 Park Place, Suite 1400, Birmingham,
Alabama 35203, Attn: Paul S. Ware.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to principles of conflict of laws.
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<PAGE> 18
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
SOUTHTRUST CORPORATION
By:
----------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: [Name of Representatives]
By:
---------------------------
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
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<PAGE> 19
SCHEDULE I
Underwriting Agreement dated ___________, ____
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Purchase price (include type of funds, if applicable): ____________ in
federal (same day) funds or wire transfer to an account previously
designated to the Representatives by the Company, or if agreed to by
the Representatives and the Company, by certified or official bank
check or checks.
Other provisions:
Closing Date, Time and Location: ____________________
Delayed Delivery Arrangements:
Fee: ___________________
Minimum amount of each contract: ________________
Maximum aggregate amount of all contracts: ________________
Additional items to be covered by the letter
from Arthur Andersen LLP delivered
pursuant to Section 5(e) at the
time this Agreement is executed: _____________________________
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<PAGE> 20
SCHEDULE II
Principal Amount of
Initial Shares to
Underwriters be Purchased
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<PAGE> 21
SCHEDULE III
DELAYED DELIVERY CONTRACT
[Date]
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from SouthTrust Corporation
(the "Company"), and the Company agrees to sell to the undersigned, on
, (the "Delivery Date"), shares of the Company's Common Stock,
(the "Shares") offered by the Company's Final Prospectus dated ,
, receipt of a copy of which is hereby acknowledged, and on the
further terms and conditions set forth in this contract.
Payment for the Shares to be purchased by the undersigned shall be made
on or before 11:00 A.M. on the Delivery Date to or upon the order of the Company
in federal (same day) funds, at your office or at such other place as shall be
agreed between the Company and the undersigned upon delivery to the undersigned
of the Shares in definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may request by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date. If no request is received, the
Shares will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate amount of Shares to be purchased by the
undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Shares on the Delivery Date, and the obligation of the Company to sell and
deliver Shares on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Shares to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such amount of the
Shares as is to be sold to them pursuant to the Underwriting Agreement referred
to in the Final Prospectus mentioned above. Promptly after completion of such
sale to the Underwriters, the Company will mail or deliver to the undersigned at
its address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith. The obligation of the undersigned to take delivery of and make
payment for the Shares, and the obligation of the Company to cause the Shares to
be sold and delivered, shall not be affected by the failure of any purchaser to
take delivery of and make payment for the Shares pursuant to other contracts
similar to this contract.
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.
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<PAGE> 22
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on the first come, first served basis. If this contract
is acceptable to the Company, it is required 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, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with
the internal laws of the State of New York, without giving effect to principles
of conflict of laws.
Very truly yours,
---------------------------------------
(Name of Purchaser)
BY:
------------------------------------
(Signature and Title of Officer)
---------------------------------------
(Address)
Accepted:
SOUTHTRUST CORPORATION
By:
---------------------
(Authorized Signature)
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<PAGE> 23
SCHEDULE IV
_________ Shares
SOUTHTRUST CORPORATION
(a Delaware corporation)
Common Stock
PRICING AGREEMENT
[Date]
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Underwriting Agreement, dated
_____________ __, ___ (the "Underwriting Agreement"), relating to the purchase
by the several Underwriters named in Schedule I thereto, for whom you are acting
as representatives (the "Representatives"), of the above shares of Common Stock
(the "Initial Shares"), of SouthTrust Corporation (the "Company").
We confirm that the Closing Time (as defined in Section 2 of
the Underwriting Agreement) shall be at 9:30 A.M., New York City time, on
__________ __, 200_ at the offices of Stroock & Stroock & Lavan LLP, 180 Maiden
Lane LLP, New York, New York 10038.
Pursuant to Section 2 of the Underwriting Agreement, the
Company agrees with each Underwriter as follows:
1. The initial public offering price per share for the Initial
Shares, determined as provided in said Section 2, shall be $__.__.
2. The purchase price per share for the Initial Shares to be
paid by the several Underwriters shall be $__.__, being an amount equal to the
initial public offering price set forth above less $_.__ per share.
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<PAGE> 24
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
SOUTHTRUST CORPORATION
By:
-----------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
as of the date first above written:
By:
By:
------------------------------------
Name:
Title:
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
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<PAGE> 25
SCHEDULE A
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