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As filed with the Securities and Exchange Commission on March 21, 2000
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. ALTON E. YOTHER
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:
PAUL S. WARE, 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./ /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of each class of Proposed maximum Amount of
securities to be registered aggregate offering price(1) registration fee(2)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Debt Securities; Preferred Stock; Common Stock $1,000,000,000 $264,000
==================================================================================================================
</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.
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.
================================================================================
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The information contained in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the
Securities and Exchange commission is effective. This prospectus is not an offer
to sell these securities and we are not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
PROSPECTUS (SUBJECT TO COMPLETION)
PRELIMINARY PROSPECTUS DATED MARCH 21, 2000
SOUTHTRUST CORPORATION
[LOGO]
We may offer and sell from time to time up to $1,000,000,000 (or the U.S.
dollar equivalent) of:
- debt securities
- preferred stock
- common stock.
We may also issue common stock upon conversion, exchange or exercise of the
preferred stock.
When we sell a particular series of securities, we will prepare a
prospectus supplement describing the offering and terms of that series of
securities. You should read this prospectus and that prospectus supplement
carefully. The securities described in this prospectus may be denominated in
U.S. dollars or a foreign currency as described in the prospectus supplement.
Our 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. We will only offer and sell debt securities
in bearer form outside the United States to non-U.S. persons and to foreign
branches of certain United States banks.
----------------------------
Our debt securities are unsecured and are not savings accounts,
deposits or other obligations of a bank. The securities are not guaranteed by
any bank and are not insured by the Federal Deposit Insurance Corporation or any
other governmental agency.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved the securities to be issued under this
prospectus or determined if this prospectus is accurate or adequate. Any
representation to the contrary is a criminal offense.
----------------------------
The date of this prospectus is March 21, 2000
<PAGE> 3
TABLE OF CONTENTS
TABLE OF CONTENTS.................................................... 2
ABOUT THIS PROSPECTUS................................................ 4
WHERE YOU CAN FIND MORE INFORMATION.................................. 4
SOUTHTRUST CORPORATION............................................... 5
Consolidated Ratios of Earnings to Fixed Charges................ 6
Earnings to Fixed Charges....................................... 6
USE OF PROCEEDS...................................................... 6
REGULATORY MATTERS.................................................. 7
Capital Adequacy................................................ 8
Source of Strength.............................................. 9
Interstate Banking.............................................. 9
Recent Legislation.............................................. 9
Changes in Regulations.......................................... 10
DESCRIPTION OF DEBT SECURITIES....................................... 10
General......................................................... 10
Denominations, Registration and Transfer........................ 12
Currency Risks.................................................. 13
Payment and Paying Agents....................................... 13
Global Notes.................................................... 14
Senior Securities............................................... 16
Events of Default............................................... 16
Subordinated Securities......................................... 17
Miscellaneous Rights and Obligations of Trustees................ 18
Modification and Waiver......................................... 19
Consolidation, Merger and Sale of Assets........................ 20
Defeasance...................................................... 21
Notices......................................................... 21
Governing Law................................................... 21
Regarding the Trustees.......................................... 22
U.S. Federal Taxation........................................... 22
DESCRIPTION OF CAPITAL STOCK......................................... 22
Description of Preferred Stock.................................. 22
Description of Common Stock..................................... 23
REGISTRATION AND SETTLEMENT.......................................... 26
The Depository Trust Company.................................... 26
Cedelbank and Euroclear......................................... 27
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES......................... 29
PLAN OF DISTRIBUTION................................................. 30
LEGAL OPINIONS....................................................... 31
EXPERTS ............................................................ 31
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the SEC using a "shelf" registration or continuous offering process. We may from
time to time sell any combination of the securities described in this prospectus
in one or more offerings up to a total dollar amount of $1,000,000,000 or the
equivalent of this amount in foreign currencies or foreign currency units.
This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities we will provide you with a
prospectus supplement containing specific information about the terms of the
securities being offered. The prospectus supplement which contains information
about the terms of the securities being offered, will also include a discussion
of certain U.S. federal income tax consequences and any risk factors or other
special considerations applicable to those securities. The prospectus supplement
may also add, update or change information in this prospectus. If there is any
inconsistency between the information in the prospectus and the prospectus
supplement, you should rely on the information in the prospectus supplement. You
should read both this prospectus and any prospectus supplement together with
additional information described under the heading "Where You Can Find More
Information" below.
You should rely only on the information provided in this prospectus and
in any prospectus supplement including the information incorporated by
reference. Neither we, nor any underwriters or agents, have authorized anyone to
provide you with different information. We are not offering the securities in
any state where the offer is not permitted. You should not assume that the
information in this prospectus, or any supplement to this prospectus, is
accurate at any date other than the date indicated on the cover page of these
documents.
Unless otherwise indicated or unless the context requires otherwise,
all references in this prospectus to "we," "us," "our," or similar references
mean SouthTrust Corporation.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file with the SEC at its public reference facilities at 450
Fifth Street, N.W., Washington, D.C. 20549, 7 World Trade Center, Suite 1300,
New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. You can also obtain copies of the documents
at prescribed rates by writing to the Public Reference Section of the SEC at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
facilities. You can also inspect records and other reports we file at the
offices of the National Association of Securities Dealers, Inc., 1735 K Street,
N.W., Washington, D.C. 20096.
We "incorporate by reference" into this prospectus the information we
file with the SEC, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference
is an important part of this prospectus. Some information contained in this
prospectus updates the information incorporated by reference, and information
that we file subsequently with the SEC will automatically update this
prospectus. In other words, in the case of a conflict or inconsistency between
information set forth in this prospectus and information incorporated by
reference into this prospectus, you should rely on the information contained in
the document that was filed later. We incorporate by reference the documents
listed below and any filings we make with the SEC under Sections 13(a), 13(c),
14, or 15(d) of the Securities Exchange Act of 1934 after the initial filing of
the registration statement that contains this prospectus and prior to the time
that we sell all the securities offered by this prospectus:
- Annual Report on Form 10-K for the year ended
December 31, 1999.
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You may request a copy of these filings, other than an exhibit to a
filing unless that exhibit is specifically incorporated by reference into that
filing, at no cost, by writing to or telephoning us at the following address:
Alton E. Yother
SouthTrust Corporation
SouthTrust Tower
420 North 20th Street
Birmingham, Alabama 35203
Phone: (205) 254-5000
You should rely only on the information incorporated by reference or
presented in this prospectus or the applicable prospectus supplement. Neither
we, nor any underwriters or agents, have authorized anyone else to provide you
with different information. We may only use this prospectus to sell securities
if it is accompanied by a prospectus supplement. We are only offering these
securities in states where the offer is permitted. You should not assume that
the information in this prospectus or the applicable prospectus supplement is
accurate as of any date other than the dates on the front of those documents.
SOUTHTRUST CORPORATION
We are a bank holding company headquartered in Birmingham, Alabama. We
were incorporated under the laws of Delaware in 1968 in order to acquire all of
the outstanding capital stock of the predecessor of SouthTrust Bank, National
Association. We engage, through our subsidiary bank or bank-related
subsidiaries, in a full range of banking services from more than 600 banking
locations in Alabama, Florida, Georgia, Mississippi, North Carolina, South
Carolina, Tennessee and Texas. We also offer a range of other services,
including mortgage banking services, fiduciary and trust services and securities
brokerage services. As of December 31, 1999, we had consolidated total assets of
approximately $43.3 billion, which ranked us as the twenty-second largest bank
holding company in the United States.
As a bank holding company, we are regulated and supervised by the Board
of Governors of the Federal Reserve System under the Bank Holding Company Act of
1956, as amended. As of December 31, 1999, our capital ratios and those of
SouthTrust Bank were in excess of the guidelines imposed by the Federal Reserve
Board, the Office of the Comptroller of the Currency and the Federal Deposit
Insurance Corporation. SouthTrust Bank and our bank-related subsidiaries are
subject to regulation and supervision by the OCC, the Federal Reserve Board and
the FDIC, as applicable. The amount of dividends that SouthTrust Bank may pay is
limited by regulation. We have pursued a strategy of acquiring banks and
financial institutions throughout the growth areas of the Southeast and Texas.
The purpose of this expansion is to give us access to metropolitan markets with
favorable prospects for growth of population, per capita income, and business
development opportunities. During 1999, we completed three acquisitions, adding
approximately $706.1 million in total assets, $397.6 million in loans, and
$652.5 million in deposits.
As part of our operations, we regularly evaluate the potential
acquisition of, and hold discussions with, various financial institutions and
other businesses that are eligible for bank holding company ownership and
control. In addition, we regularly analyze the values of, and submit bids for,
the acquisition of deposits and other liabilities and assets of such financial
institutions and other businesses. We also regularly consider the potential
disposition of certain of our assets, branches, subsidiaries or lines of
business.
Our headquarters are located at 420 North 20th Street, Birmingham,
Alabama 35203 and our telephone number is (205) 254-5000.
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CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Our consolidated ratios of earnings to fixed charges for each of the
years in the five year period ended December 31, 1999 are as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
EARNINGS TO FIXED CHARGES
Including Interest on Deposits 1.42x 1.39x 1.40x 1.41x 1.38x
Excluding Interest on Deposits 2.11 2.09 2.05 2.27 2.27
</TABLE>
- The consolidated ratio of earnings to fixed charges
is calculated as follows:
net income before taxes + fixed charges - equity in
undistributed earnings or losses of unconsolidated
subsidiaries
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fixed charges
Fixed charges consist of:
- interest expense,
- capitalized interest,
- amortization of debt expense, and
- interest portion of rent expense.
The consolidated ratios of earnings to fixed charges and preferred
stock dividends are identical to the ratios of earnings to fixed charges listed
above because we had no shares of preferred stock outstanding during the periods
indicated above.
USE OF PROCEEDS
Unless we describe a different use in a prospectus supplement, we will
use net proceeds from the sale of the securities for general corporate purposes.
General corporate purposes include:
- our working capital needs;
- investments in, or extensions of credit to,
SouthTrust Bank and our bank- related subsidiaries;
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- possible acquisitions of or investments in businesses
of a type eligible for bank holding companies or
banks;
- possible acquisitions of other financial institutions
or their assets or liabilities; and
- possible reduction of outstanding indebtedness.
We may temporarily invest the net proceeds in investment grade
securities pending their use. We may also, from time to time, engage in
additional capital financings as we determine appropriate based on our needs and
prevailing market conditions.
REGULATORY MATTERS
We are a bank holding company within the meaning of the Bank Holding
Company Act, and we are registered with the Federal Reserve Board. SouthTrust
Bank, our banking subsidiary, is subject to restrictions under federal law which
limit the transfer of funds by SouthTrust Bank to us and our nonbanking
subsidiaries, whether in the form of loans, extensions of credit, investments or
asset purchases. SouthTrust Bank's transfers to us or any of our nonbanking
subsidiaries are limited in amount to 10% of SouthTrust Bank's capital and
surplus and, with respect to us and all of our nonbanking subsidiaries, to an
aggregate of 20% of SouthTrust Bank's capital and surplus. Federal law requires
that any loans or extensions of credit be secured in specified amounts. The Bank
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. The
Federal Reserve Board only allows exceptions to the rule when it has determined
that the activities involved are closely related to banking or controlling
banks.
As a bank holding company, we are 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 examine us and
each of our subsidiaries.
The OCC must approve any dividend proposed to be paid by SouthTrust
Bank to us 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 OCC,
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 over six months past due in interest
payments or past due for any period of time in principal payments but only to
the extent that those debts are in excess of the reserve for possible credit
losses. Under these laws and regulations, at December 31, 1999, SouthTrust Bank
could have paid us a total of $561.5 million in dividends during the final
quarter of 1999. The payment of dividends by SouthTrust Bank may also be
affected by other factors, such as the maintenance of adequate capital for
SouthTrust Bank. The Federal Reserve Board also 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 OCC 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.
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CAPITAL ADEQUACY
The Federal Reserve Board, the OCC and the FDIC have issued
substantially similar risk-based and leverage capital guidelines applicable to
United States banking organizations. In addition, these regulatory agencies may
from time to time require that a banking organization maintain capital above the
minimum levels, based on its financial condition or actual or anticipated
growth. The Federal Reserve Board risk-based guidelines define a three-tier
capital framework. Tier 1 capital consists of common and qualifying preferred
stockholders' equity, less certain intangibles and other adjustments. Tier 2
capital consists of preferred stock not qualifying as Tier 1 capital,
subordinated and other qualifying debt and the allowance for credit losses up to
1.25 percent of risk weighted assets. Tier 3 capital includes subordinated debt
that is unsecured, fully paid, has an original maturity of at least two years,
is not redeemable before maturity without the prior approval of the Federal
Reserve and includes a lock-in clause precluding payment of either interest or
principal if the payment would cause the issuing bank's risk-based capital ratio
to fall or remain below the required minimum. The sum of Tier 1 and Tier 2
capital less investments in unconsolidated subsidiaries represents qualifying
total capital, at least 50 percent of which must consist of Tier 1 capital.
Risk-based capital ratios are calculated by dividing Tier 1 and total capital by
risk-weighted assets. Assets and off-balance sheet exposures are assigned to one
of four categories of risk-weights, based primarily on relative credit risk. The
minimum Tier 1 capital ratio is 4 percent and the minimum total capital ratio is
8 percent. Our Tier 1 and total risk-based capital ratios under the guidelines
at December 31, 1999 were 6.65 percent and 10.41 percent, respectively. At
December 31, 1999, we did not have any subordinated debt that qualified as Tier
3 capital.
The leverage ratio is determined by dividing Tier 1 capital by adjusted
quarterly average assets. Although the stated minimum ratio is 3 percent, most
banking organizations are required to maintain ratios of at least 1 or 2 percent
above the minimum 3 percent. Our leverage ratio at December 31, 1999 was 5.81
percent.
The Federal Deposit Insurance Corporation Improvement Act of 1991,
among other things, identifies five capital categories for insured depository
institutions (well capitalized, adequately capitalized, undercapitalized,
significantly undercapitalized and critically undercapitalized) and requires the
respective federal bank regulatory agencies to implement systems for "prompt
corrective action" for insured depository institutions that do not meet minimum
capital requirements within such categories. This Act imposes progressively
higher constraints on operations, management and capital distributions,
depending on the category in which an institution is classified. Failure to meet
the capital guidelines could also subject a banking institution to capital
raising requirements. In addition, this act requires the various regulatory
agencies to prescribe certain non-capital standards for safety and soundness
relating generally to operations and management, asset quality and executive
compensation and permits regulatory action against a financial institution that
does not meet such standards.
Banking regulatory agencies have adopted regulations that define the
five capital categories identified by this act, using the total risk-based
capital, Tier 1 risk-based capital and leverage capital ratios as the relevant
capital measures. Under those regulations, a "well capitalized" institution must
have a Tier 1 capital ratio of at least 6 percent, a total capital ratio of at
least 10 percent and a leverage ratio of at least 5 percent and not be subject
to a capital directive order. Under these guidelines, our bank is considered
"well capitalized."
The Federal Deposit Insurance Act 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.
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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 we are not able to provide such support.
INTERSTATE BANKING
Pursuant to the Riegle-Neal Interstate Banking and Branching Efficiency
Act of 1994, a bank holding company may acquire banks in states other than its
home state without regard to the permissibility of such acquisitions under state
law, but is subject to any state requirement that the banks have been organized
and operating for a minimum period of time, not to exceed five years, and the
requirement that the bank holding company, before or after the proposed
acquisition, controls no more than 10 percent of the total amount of deposits of
insured depository institutions in the United States and no more than 30
percent, or such lesser or greater amount set by state law, of such deposits in
that state.
The Interstate Banking and Branching Act also authorizes, subject to
certain restrictions, banks to merge across state lines and to create interstate
branches. The Interstate Banking and Branching Act also permits a bank to open
new branches in a state in which it does not already have banking operations if
the state enacts a law permitting such branching. We consolidated our banking
subsidiaries located in the states of Alabama, Florida, Georgia, Mississippi,
North Carolina, South Carolina and Tennessee into our largest banking
subsidiary, SouthTrust Bank of Alabama, National Association and changed its
name to SouthTrust Bank, National Association effective June 2, 1997. Since that
time, we have acquired additional banks located in the state of Texas. As
previously described, we regularly evaluate merger and acquisition opportunities
and anticipate that we will continue that practice.
RECENT LEGISLATION
On November 12, 1999, President Clinton signed into law legislation
that allows bank holding companies to engage in a wider range of nonbanking
activities, including greater authority to engage in securities and insurance
activities. Under the Gramm-Leach-Bliley Act, a bank holding company that elects
to become a financial holding company may engage in any activity that the
Federal Reserve Board, in consultation with the Secretary of the Treasury,
determines by regulation or order is (1) financial in nature, (2) incidental to
any such financial activity, or (3) complementary to any such financial activity
and does not pose a substantial risk to the safety or soundness of depository
institutions or the financial system generally. This legislation makes
significant changes in U.S. banking law, principally by repealing certain
restrictive provisions of the 1993 Glass-Steagall Act. The new law specifies
activities that are deemed to be financial in nature, including lending,
exchanging, transferring, investing for others, or safeguarding money or
securities; underwriting and selling insurance; providing financial, investment,
or economic advisory services; underwriting, dealing in or making a market in,
securities; and any activity currently permitted for bank holding companies by
the Federal Reserve Board under Section 4(c)(8) of the Bank Holding Company Act.
The legislation does not authorize banks or their affiliates to engage in
commercial activities that are not financial in nature. A bank holding company
may elect to be treated as a financial holding company only if all depository
institution subsidiaries of the holding company are well-capitalized,
well-managed and have at least a satisfactory rating under the Community
Reinvestment Act.
National banks are also authorized by the legislation to engage,
through "financial subsidiaries," in any activity that is permissible for a
financial holding company and any activity that the Secretary of the Treasury,
in consultation with the Federal Reserve Board, determines is financial in
nature or incidental to any such financial activity, except (1) insurance
underwriting, (2) real estate development or real estate investment activities,
unless those activities are otherwise permitted by law, (3) insurance company
portfolio investments and (4) merchant banking. The authority of a national bank
to invest in a financial subsidiary is subject to a number of conditions,
including, among other things, requirements that the bank must be well-managed
and well-capitalized after deducting investments in financial subsidiaries from
the bank's capital outstanding.
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The legislation also contains a number of other provisions which will
affect our operations and the operations of all financial institutions. One of
the new provisions relates to the financial privacy of consumers, authorizing
federal banking regulators to adopt rules that will limit the ability of banks
and other financial entities to disclose non-public information about consumers
to non-affiliated entities. These limitations likely will require more
disclosure to our customers, and in some circumstances, will require consent by
the customer before information is allowed to be provided to a third party.
On February 15, 2000, we filed a written declaration with the Board of
Governors of the Federal Reserve System to become a financial holding company.
On March 13, 2000, the Federal Reserve approved our application to become a
financial holding company.
At this time, we are unable to predict the impact this legislation may
have upon us or SouthTrust Bank, including its impact on our financial condition
and results of operations.
CHANGES IN REGULATIONS
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. We cannot determine the likelihood
and timing of any such proposals or legislation and the impact they might have
on us and our subsidiaries.
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. A prospectus supplement will
describe the particular terms of any debt securities that we offer, including
the extent to which these general provisions will apply to any offered debt
securities.
We will issue any senior debt securities under an indenture between us
and a trustee to be named in any applicable prospectus supplement. We will issue
any subordinated debt securities under an indenture between us and a trustee to
be named in any applicable prospectus supplement. We will refer to the senior
indenture and the subordinated indenture collectively as the "indentures" and
the senior trustee and subordinated trustee collectively as the "trustees."
Copies of the forms of indentures are filed as exhibits to this registration
statement. An applicable prospectus supplement will detail any changes or
modifications to the forms of indentures discussed below.
The following summaries of the debt securities and the indentures are
not complete and are qualified in their entirety by reference to the terms of
the indentures. Whenever defined terms are used, but not defined in this
prospectus, the terms have the meanings given to them in the indentures.
GENERAL
The debt securities will be our direct, unsecured obligations. The
total amount of securities that may be offered and sold using this prospectus is
limited to the aggregate initial offering price of the securities registered
under the registration statement. Neither indenture limits the amount of debt
securities that may be issued.
A prospectus supplement will describe the following terms of any
offered debt securities:
- the title of the offered debt securities;
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- any limit on the aggregate principal amount of the
offered debt securities;
- the date or dates on which the offered debt
securities may be issued and are or will be payable;
- the interest rate or rates, which may be fixed or
variable, and the method used to calculate that
interest, and the date interest will begin to accrue;
- the interest payment dates, the regular record dates
for the interest payment dates, and the extent to
which any interest payable on a temporary or
permanent global debt security on an interest payment
date will be paid if different from the manner
described under the heading "Global Notes" below;
- the place or places where payments may be made on
offered debt securities and the place or places where
the offered debt securities may be presented for
registration of transfer or exchange and, if
applicable, conversion;
- the date or dates after which, the price or prices at
which, and the terms and conditions upon which the
offered debt securities may be redeemed at our
option;
- our obligation or option, if any, 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;
- 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, and the amount of such discount;
- provisions, if any, for the defeasance of the offered
debt securities;
- 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, 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;
- whether the offered debt securities are to be issued
in whole or in part in the form of one or more
temporary or permanent global notes in registered or
bearer form and, if so, the identity of the
depositary, if any, for such global note or notes;
- any provisions for payment of additional amounts for
taxes, and any provisions for redemption in the event
we must comply with reporting requirements in respect
of an offered debt security other than a floating
rate security or must pay such additional amounts in
respect of any offered debt security;
- 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,
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whether at our election and/or the holder, and the
conditions and manner of determining the exchange
rate or rates;
- any index used to determine the amount of principal,
premium and interest on the offered debt securities;
- the applicable overdue rate, if any;
- any addition to, or modification or deletion of, any
events of default or covenants provided for with
respect to the offered debt securities;
- the priority of payment of such offered debt
securities; and
- any other detailed terms and provisions of the
offered debt securities which are not inconsistent
with the relevant indenture.
If offered debt securities are denominated in a foreign currency, the prospectus
supplement will also describe any special provisions relevant to offered debt
securities denominated in a currency other than U.S. dollars.
We may issue debt securities in one or more series with the same or
different maturities. We may issue debt securities which provide for an amount
less than the stated principal amount to be paid upon an acceleration of its
maturity. These "discount securities" may bear no interest or may bear interest
at a rate which at the time of issuance is below market rates and will be sold
at a discount below their stated principal amount. Some debt securities may be
deemed to be issued with "original issue discount" within the meaning of the
Internal Revenue Code. If we issue debt securities with original issue discount,
we will discuss the United States tax implications in the prospectus supplement.
DENOMINATIONS, REGISTRATION AND TRANSFER
We may denominate the debt securities in U.S. dollars or in another
currency or currency unit. If any of the debt securities are denominated in a
foreign currency or currency unit, or if principal or any premium or interest on
any of the debt securities is payable in any foreign currency or currency unit,
we will disclose the authorized denominations, as well as any investment
considerations, restrictions, tax consequences, specific terms and other
information relating to the issue of debt securities and the foreign currency or
currency unit in the prospectus supplement.
We may issue debt securities of a series 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 we otherwise provide in a prospectus supplement
with respect to a series of debt securities, we will issue debt securities in
fully registered form without coupons in the following denominations: (a) of
$1,000 or multiples thereof if denominated in U.S. dollars, or (b) if
denominated in a currency other than U.S. dollars, as set forth in the
applicable prospectus supplement. We may also issue one or more global notes in
a denomination or aggregate denominations equal to the aggregate principal
amount of the 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", we cannot mail or
otherwise deliver any bearer security to any location in the United States and
we may deliver a bearer security only if the person entitled to receive the
bearer security furnishes us with written certification, in the form required by
the applicable indenture, to the effect that the bearer security is not owned by
or on behalf of a U.S. person, or, if a beneficial interest in the bearer
security is owned by or on behalf of a U.S. person, that the U.S. person (1)
acquired and holds such bearer securities through a foreign branch of a
financial institution, (2) is a financial institution purchasing for its own
accounts and, in the case of either (1) or (2), such financial institution
agrees to comply with the requirements of Section 165(j) (3) (A) , (B) or (C) of
the Code and
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the regulations thereunder, or (3) is a financial institution purchasing for
resale during the restricted period only to non-U.S. persons outside the United
States.
You may exchange registered securities of any series (other than a
global note) for other registered securities of the same series and a like
aggregate principal amount and tenor of different authorized denominations. In
addition, if we so provide in a 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. You must surrender any
bearer security for exchange with all unmatured coupons and all matured coupons
in default except that any bearer security you surrender in exchange for a
registered security between a regular record date or a special record date and
the relevant date for payment of interest must be surrendered without the coupon
relating to such date for payment of interest and interest will not be payable
on the registered security issued in exchange for the surrendered bearer
security, but will be payable only to the holder of the coupon when due in
accordance with the terms of the applicable indenture. Except as provided in a
prospectus supplement, we will not issue bearer securities in exchange for
registered securities.
You may present debt securities for exchange as provided above, and
registered securities, other than global notes, may be presented for
registration of transfer, at the office of the security registrar or co-security
registrar, without service charge and upon payment of any taxes and other
governmental charges as described in the applicable indenture. The security
registrar or co-security registrar will make the transfer or exchange only if it
is satisfied with the documents of title and identity of the person making the
request. We have appointed the trustees as security registrars in respect of
debt securities issued under the indentures.
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 we will
describe them more thoroughly in the prospectus supplement.
PAYMENT AND PAYING AGENTS
The principal and any premium and interest on bearer securities will be
payable, subject to any applicable laws and regulations, at the offices of the
paying agents outside the United States as we may designate from time to time.
Unless we indicate otherwise in a prospectus supplement, payment of interest on
bearer securities on any interest payment date will be made only if the coupon
relating to such interest payment date is surrendered. We will not allow payment
with respect to any bearer security at any of our offices or agencies 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. We will not allow
payment on bearer securities or coupons upon presentation to us or our
designated paying agents within the United States or allow any other demand for
payment to us or our designated paying agents within the United States. However,
we will allow payment of principal and any interest on bearer securities
denominated and payable in U.S. dollars to be made at the office of the 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 we indicate otherwise in a prospectus supplement, payment of
principal of, and any premium and interest on, registered securities will be
made at the office of such paying agent or paying agents as we may designate
from time to time, except that at our option payment of any interest may be made
(1) by check mailed to the address of the person entitled to payment at the
address appearing in the security register or (2) by wire transfer to an account
maintained by the person entitled to payment. Unless we indicate otherwise in a
prospectus supplement, we will pay any installment of interest on registered
securities to the person in whose name such registered security is registered at
the close of business on the regular record date for the interest payment.
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Unless we indicate otherwise in a prospectus supplement, the relevant
trustee will act as our 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. We will name any paying agents outside the
United States and other paying agents in the United States in a prospectus
supplement. We 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, we 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, we will be required to maintain (1) 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 (2) a
paying agent in a place of payment located outside the United States where debt
securities of such series and any attached coupons may be presented and
surrendered for payment. However, 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 the stock exchange shall so require, we 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 the series.
Any monies which we pay to the trustees or a paying agent for the
payment of principal of, and any premium and interest on, any debt securities
which remain unclaimed at the end of two years after such principal, premium or
interest became due and payable will be repaid to us and the holder of such debt
securities or any coupon will be required to look only to us for payment.
GLOBAL NOTES
We may issue debt securities in whole or in part in the form of one or
more global notes that we will deposit with or on behalf of a depositary located
in the United States or a common depositary located outside the United States
which we will identify in a prospectus supplement relating to the series. We may
issue global notes in either registered or bearer form and in either temporary
or permanent form.
We will describe the specific terms of the depositary arrangement with
respect to any offered debt securities of a series in a prospectus supplement
relating to the series. We anticipate that the following provisions will apply
to all depositary arrangements.
Book-Entry Debt Securities
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 unless we state
otherwise in a prospectus supplement. Upon the issuance of a global note in
registered form, the U.S. depositary for the global note will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the debt securities represented by the global note to the accounts of
institutions that have accounts with the depositary or its nominee. The
underwriters or agents of the debt securities will designate the accounts to be
credited, or we will designate the accounts if the debt securities are offered
and sold directly by us. We will limit ownership of beneficial interests in the
global notes to participants or persons that may hold interests through
participants. The U.S. depositary for a global note or its nominee will maintain
records of ownership of beneficial interests, and any transfer of ownership
interest must be reflected on those records. Each individual participant will be
required to maintain its own set of records regarding ownership of beneficial
interests, and transfers of ownership interests held by a person through a
participant must be effected through the participant's records. The laws of some
jurisdictions require that certain purchasers of securities take possession of
those securities, and these laws may not allow the transfer of 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 the global note, the depositary or the
nominee, as the case may be, will be considered the sole owner or holder of the
debt securities represented by the global note for all purposes under the
indenture governing the debt securities. Except as set forth below, owners of
beneficial interests in the global notes will not be entitled to have debt
securities of the series represented by the global note registered in their
names, will not receive or be entitled to
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receive physical delivery of debt securities of such series in definitive form
and will not be considered the owners or holders of the debt securities under
the applicable indenture.
Payment of principal, interest and any premium 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 the debt
securities. Neither we, the trustees, any paying agent nor the security
registrar for the 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 the debt securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
We expect 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 the
depositary. We also expect that payments by participants to owners of beneficial
interests in the 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 the participants.
A global note may not be transferred except as a whole by the U.S.
depositary for the 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 us within
ninety days, we will issue debt securities in definitive registered form in
exchange for the global note or global notes representing the debt securities.
In addition, we may at any time and in our 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 the debt securities. Further,
we may specify that an owner of a beneficial interest in a global note
representing debt securities of the series may, on terms acceptable to us and
the U.S. depositary, receive individual debt securities of such series in
exchange for such beneficial interests, subject to any limitations we impose in
a prospectus supplement relating to the 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 we specify otherwise in a prospectus supplement, we will
initially issue all bearer securities of a series 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 or Cedel Bank, societe anonyme, for credit
to the designated accounts. Forty days after the issue date of a temporary
global note, the debt securities represented by the 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 case only upon written proof
of title 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. We will not deliver a bearer security, by mail or
otherwise, in exchange for a portion of a temporary global note or a permanent
global note to any location in the United States in connection with the
exchange.
Unless we specify otherwise in a prospectus supplement, we will pay
interest on a temporary global note payable on an interest payment date
occurring prior to the date on which debt securities represented by the
temporary global note are exchangeable for definitive debt securities or for
interests in a permanent global note to the Euro-clear Operator or Cedel with
respect to the portion of the temporary global note held for its account. Both
the Euro-clear Operator and Cedel will undertake to credit the interest received
by it in respect of a temporary global note to the respective accounts for which
it holds the temporary global note only upon receipt in each case of
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written proof of title in the form and to the effect described above under
"Denominations, Registration and Transfer."
LIMITATIONS ON US AND CERTAIN OF OUR 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 our
banking subsidiary, SouthTrust Bank, and further prohibits SouthTrust 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, SouthTrust Bank would cease to be a subsidiary controlled by
us, as provided in the indentures. The indentures further prohibit the merger or
consolidation of SouthTrust 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 the 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. However, we 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 SouthTrust Bank, (1) in compliance with an order of a
court or regulatory authority of competent jurisdiction; or (2) where the
proceeds, if any, from such sale, assignment or disposition are, within a
reasonable period of time, invested in a subsidiary controlled by us 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 are our direct, unsecured obligations and are not
obligations of our subsidiaries. The senior securities of each series rank
equally with all of our other outstanding, unsecured, senior indebtedness.
EVENTS OF DEFAULT
The following are events of default under the senior indenture with
respect to senior securities of any series:
- our failure to pay interest on any securities of a
series within 30 days after the interest becomes due;
- our failure to pay the principal or any premium on
any senior security of the series at its maturity;
- our default in the deposit of any sinking fund
payment, when and as due by the terms of any senior
security of that series;
- our failure, subject to the terms of the indenture,
to perform any of our covenants under the senior
indenture unless the holders of a majority in
principal of the outstanding senior securities waive
compliance with the covenant;
- our default under or breach of any of our covenants
or warranties other than a covenant included in the
indenture solely for the benefit of a series of debt
securities other than that series for a period of 90
days after written notice is provided pursuant to the
indenture;
- certain events involving the bankruptcy, insolvency
or reorganization of us or SouthTrust Bank, whether
voluntary or involuntary;
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- our indebtedness for borrowed money or the
indebtedness of SouthTrust Bank in excess of
$5,000,000, whether the indebtedness now exists or is
created later, 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 the indebtedness may have been secured, and
the failure is not cured, rescinded or annulled
within 30 days; and
- any other event of default provided for with respect
to debt securities of that series.
If any event of default, other than bankruptcy, insolvency or
reorganization, 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 the senior securities are denominated. If bankruptcy, insolvency or
reorganization occurs, the principal amount of the senior securities 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, withdraw or stop the acceleration.
The senior indenture provides that upon our failure to pay interest or
principal or to make a deposit of a sinking fund payment, we 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 entire amount due on the senior
securities or matured coupons for principal, premium, if any, and interest. The
senior indenture further provides that if we fail to pay such amount immediately
upon demand, the senior debt trustee may, among other things, institute a
judicial proceeding for the collection of the payment.
SUBORDINATED SECURITIES
The subordinated securities are our direct, unsecured obligations and
will rank equally with all of our other outstanding, unsecured, subordinated
indebtedness.
Subordination
The subordinated securities will rank below and be junior in right of
payment, to the extent set forth in the subordinated indenture, to all of our
senior indebtedness. In the event that we 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, we will not make any direct or
indirect payment 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 (1) any of our
obligations to our creditors whether now outstanding or subsequently incurred,
as to which, in the creating instrument, it is provided that the obligation is
senior indebtedness, (2) our 85/8% Subordinated Notes due May 15, 2004, (3) our
7% Debentures due May 15, 2003, (4) our 75/8% Subordinated Notes due May 1,
2004, and (5) our 8% Subordinated Notes due September 15, 2014.
If any of the following events occur, all senior indebtedness,
including any interest which accrues after such an event, will be paid in full
before any payment or distribution is made for interest or principal on the
subordinated securities:
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- any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment,
composition or any similar proceeding relating to us,
our creditors, or our property;
- any proceeding involving our liquidation, dissolution
or other winding up of our business, whether
voluntary or involuntary and whether or not involving
insolvency or bankruptcy proceedings;
- any assignment by us for the benefit of our
creditors; or
- any other marshaling of our assets.
If we repay any debt security before the required date or in connection
with one of the above events, any principal, premium or interest will be paid to
holders of senior indebtedness before any holders of subordinated securities are
paid. In addition, if such amounts were previously paid to the holders of
subordinated securities or the subordinated trustee, the holders of senior
indebtedness shall have first rights to such amounts previously paid.
Until all senior indebtedness is paid in full, the holders of
subordinated indebtedness will be subrogated to the rights of the holders of
senior indebtedness to receive payments or distributions of our assets.
Events of Default and Limited Rights of Acceleration
The subordinated indenture defines an event of default as our
bankruptcy, insolvency or reorganization and, if specified in the resolution
adopted by our 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 are discount securities, such portion of the principal amount, may
declare the principal amount of all the subordinated securities of that series
to be due and payable immediately in the currency in which the subordinated
securities are denominated. This acceleration provision would be subject 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. The holders of a majority in principal amount of the subordinated
securities then outstanding or of the series affected may annul the declaration
of an event of default and waive past defaults.
A 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 the 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 the trustee reasonable security or indemnity
against costs, expenses and liabilities which might be incurred by the trustee.
Subject to the provisions for the indemnification of the trustees, the holders
of a majority in aggregate principal amount of the outstanding debt securities
of any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the relevant trustee, or
exercising any trust or power conferred on the trustee, with respect to the debt
securities of that series.
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We are required to furnish the trustees annually with a statement as to
our performance of certain obligations under the relevant indentures and as to
any default in 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 date we first become aware of such default or event of default.
MODIFICATION AND WAIVER
We and the relevant trustee may modify the indentures with the consent
of the holders of a majority in principal amount of the outstanding debt
securities of each series affected by such modification or amendment voting
separately. However, no modification or amendment may, without the consent of
the holder of each outstanding debt security affected thereby:
- change the stated maturity of the principal of, or
any installment of principal or interest on, any debt
security,
- reduce the principal amount of, or any premium or
interest on, any debt security,
- reduce the amount of principal of a discount security
payable upon acceleration of its maturity,
- change the currency in which principal of, or any
premium or interest on, any debt security is
denominated or payable,
- adversely affect the right of repayment or
repurchase, if any, at the option of the holder,
- reduce the amount of or postpone the date fixed for
any payment under any sinking fund or similar
provisions,
- impair the right to sue for the enforcement of any
payment on or with respect to any debt security,
- 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 the
indenture or for waiver of certain defaults,
- limit our obligation to maintain a paying agency
outside the United States for bearer securities,
- limit our obligation to redeem an affected security,
or
- modify the provisions of an indenture relating to the
modification of the indenture, or the circumstances
under which the holders may waive our past defaults
and certain of our covenants.
The holders of a majority in principal amount of the outstanding debt
securities of each series may waive compliance 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
waive any past default under the relevant indenture with respect to debt
securities of that series, except a default, (1) in the payment of principal,
premium, if any, or interest or in the payment of any sinking fund installment
or similar obligation, or (2) under a covenant or provision that cannot be
modified or amended without the consent of the holders of each outstanding debt
security affected by the default.
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In addition, we may, with the consent of our 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:
- to evidence our purchase by or merger with another
corporation and the assumption by any such successor
of our covenants under the relevant indenture;
- to add to our covenants for the benefit of the
holders or to surrender any right or power herein
conferred upon us;
- to add any additional events of default;
- to add to or change any of the provisions of the
relevant indenture to facilitate the issuance of debt
securities in bearer form;
- 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 the provision;
- to secure the debt securities;
- to supplement any of the provisions of the relevant
indenture to the extent 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 the series or any other
series of debt securities;
- to establish the form or terms of the debt securities
and coupons, if any, as permitted by the relevant
indenture;
- 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;
- to make any modifications, amendments or supplements
to any indenture provisions which are required by
amendment of the Trust Indenture Act of 1939 or any
changes to pertinent regulations after the date of
this prospectus; and
- 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 we shall not consolidate with or merge
into any other corporation or convey, transfer or lease our properties and
assets substantially to any person, and we shall not permit a consolidation or
merger with another person or allow another person to convey, transfer or lease
its properties and assets substantially to us, unless (1) the corporation into
which we are merged or consolidated or to which substantially all of our assets
or properties are conveyed, transferred or leased, or the corporation resulting
from such merger or consolidation, expressly assumes the payment of the
principal, interest and any premium on all the debt securities and the
performance of every covenant of the indentures; (2) 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;
(3) the corporation formed by the consolidation or into which we 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 (4) we deliver to the respective trustee an officers'
certificate and
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an opinion of counsel stating that the consolidation, merger, conveyance,
transfer or lease required in connection with the transaction, and the
supplemental indenture, if any, complies with the indentures and all conditions
precedent have been complied with.
DEFEASANCE
At the time that we establish a series of debt securities under the
applicable indenture, we can provide that, at our option, we:
(1) will be discharged from any and all obligations with
respect to the offered debt securities of the series,
except for obligations relating to transfer or
exchange of the debt securities, replacement of
stolen, lost or mutilated debt securities,
maintenance of paying agencies or to hold monies for
payment in trust; or
(2) will not be subject to provisions of the relevant
indenture concerning merger, consolidation or sale,
or the sale of voting stock of SouthTrust Bank.
If we exercise either of the above options, we must deposit with the
relevant trustee an amount which would be sufficient to pay all the principal,
interest and any premium on the offered debt securities of the series on the
dates payments are due in accordance with the terms of the offered debt
securities. If we do exercise either of the options, we must also deliver an
opinion of counsel that states:
- that we have received from or there has been
published by the IRS 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
- if the offered debt securities of the series are then
listed on any national securities exchange, the debt
securities would not be delisted from the exchange as
a result of our exercise of the option.
No discharge or defeasance described above shall affect any of our
obligations, if applicable, to convert debt securities of a given series into
common stock.
NOTICES
Unless the indentures provide otherwise, we will provide notice to
holders of bearer securities via publication at least twice in a daily newspaper
in the city of New York and, if debt securities of a 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. We will provide
holders of registered securities any required notices by mail to the addresses
of the holders as they appear in the security register.
GOVERNING LAW
The indentures, the offered securities and the coupons, if any, will be
governed by, and construed in accordance with, the laws of the State of New
York. A judgment for money damages awarded by courts in the United States,
including a money judgment based on an obligation expressed in a foreign
currency, ordinarily will be rendered only in U.S. dollars.
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REGARDING THE TRUSTEES
We and our 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 are
not complete and are qualified in their entirety by reference to the applicable
provisions of the Delaware General Corporation Law and our restated certificate
of incorporation, including the certificate of designation which will describe
our preferred stock and be filed with the SEC at or before the time of sale of
any preferred stock, and our restated bylaws.
Our authorized capital stock consists of 500,000,000 shares of common
stock and 5,000,000 shares of preferred stock. As of December 31, 1999,
167,905,349 shares of common stock were issued and outstanding and no shares of
preferred stock were outstanding. In addition, 2,000,000 shares of preferred
stock designated as Series 1999 Junior Participating preferred stock were
reserved for issuance upon the exercise of certain rights described below under
"Stockholders' Rights Plan."
Since we are a holding company, our right, and hence the rights of
creditors and stockholders, 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 our claims as a creditor of the subsidiary
may be recognized.
DESCRIPTION OF PREFERRED STOCK
The following descriptions of the terms of the preferred stock are
general in nature, and will be applicable to any prospectus supplement. We will
describe the specific terms of any series of the preferred stock offered in a
prospectus supplement relating to the series of the preferred stock offered. If
indicated in the applicable prospectus supplement, we may vary the terms of the
series from the terms set forth below. Our description of certain provisions of
the preferred stock set forth below and in any applicable prospectus supplement
is not complete and is 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 SEC.
General
We have 5,000,000 shares of preferred stock authorized and may issue
such preferred stock in one or more series, each with such preferences,
designations, limitations, conversion rights and other rights as we may
determine. The prospectus supplement for any offer of preferred stock will
contain specific terms, such as:
- the title and stated value of the preferred stock;
- the aggregate number of shares of preferred stock
offered;
- dividend rates;
- call provisions;
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- liquidation payments;
- sinking fund provisions;
- conversion privileges;
- voting rights; and
- whether dividends will be cumulative, noncumulative
or partially cumulative.
Regardless of the series of preferred stock, holders of preferred stock
will not have any preemptive right to purchase more of our shares upon issuance.
Any issuance of preferred stock may affect the rights of our common
stockholders, and these effects might include:
- restrictions of our payment of dividends to holders
of common stock if we have not paid dividends on the
preferred stock;
- dilution of the equity interest in our common stock
unless we redeem the preferred stock; and
- inability to share in a distribution of our assets
upon liquidation until any liquidation preference of
our preferred stockholders has been satisfied.
Series 1999 Junior Participating Preferred Stock
We currently have designated 2,000,000 shares of Series 1999 Junior
Participating preferred stock in connection with our Stockholder's Rights Plan,
no shares of which were issued and outstanding as of December 31, 1999. One
share of the Series 1999 Junior Participating preferred is equivalent to 100
shares of our common stock in terms of dividend and voting rights.
DESCRIPTION OF COMMON STOCK
Dividend Rights
The holders of the common stock are entitled to receive dividends or
distributions as our board may declare out of funds legally available for such
payments. Our payment of dividends is subject to the restrictions of Delaware
law applicable to the declaration of dividends by a corporation. A corporation
generally may not authorize and pay dividends if, after giving effect thereto,
it would be unable to meet its debts as they become due in the usual course of
business or if the corporation's total assets would be less than the sum of its
total liabilities plus the amount that would be needed, if it were to be
dissolved at the time of distribution, to satisfy claims upon dissolution of its
stockholders who have preferential rights superior to the rights of the holders
of its common stock. In addition, the payment of dividends to holders of common
stock is subject to any prior rights of outstanding preferred stock. Because our
primary subsidiary is a bank, dividend payments made by such subsidiary to us
are limited by law and regulations of the bank regulatory authorities.
Voting Rights and Other Matters
The holders of common stock are entitled to one vote per share. The
holders of the common stock do not have the right to cumulate their shares of
common stock in the election of directors. In general, a majority of votes cast
on a matter is sufficient to take action upon routine matters. However, in the
event of a transaction or a series of transactions with a holder of more than
10% of our voting stock or an affiliate of such a holder pursuant to which we
would be merged into or with another corporation or securities would be issued
in a transaction which would transfer control to another entity, or similar
transactions having the same effect, a vote of the holders of 70% of the voting
power of our outstanding voting securities would be required except in cases in
which either certain price
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criteria and procedural requirements are satisfied or the transaction is
recommended to the stockholders by a majority of the members of our board who
are unaffiliated with the 10% holder and who were directors prior to the
transaction.
Our common stock does not have any conversion rights, preemptive
rights, redemption privileges or sinking fund provisions.
Liquidation Rights
In the event of our liquidation, holders of common stock will be
entitled to receive pro rata any assets legally available for distribution to
stockholders, subject to any prior rights of any preferred stock then
outstanding.
Provisions with Respect to Board of Directors
Our restated certificate of incorporation provides that the members of
our board 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 will be elected for
a three-year term. The other directors will remain in office until their three
year terms expire. Therefore, control of our board cannot be changed in one
year, and at least two annual meetings must be held before a majority of the
members of the board can be changed.
Special Vote Requirements for Amendments to Our Restated Certificate of
Incorporation
The General Corporation Law of the State of Delaware and our restated
certificate of incorporation and bylaws provide that a director, or the entire
board of directors, may be removed by the stockholders only for cause. Our
restated certificate of incorporation and bylaws also provide that a vote of at
least 70% 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. Portions of our restated certificate of incorporation which we have
described in 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 our outstanding voting stock.
Possible Effect of Special Provisions
Certain provisions of our restated certificate of incorporation and
bylaws may make it less likely that our management would be changed or someone
would acquire voting control of our company without our board's consent. These
provisions also may delay, deter or prevent attempts by third parties to acquire
control of our company, and, as a result, may reduce the amount a stockholder
might realize in, for example, a tender offer for our capital stock.
Stockholders' Rights Plan
Each share of our common stock outstanding as of February 22, 1999,
including those that may be issued upon the conversion or exercise of other
securities offered under this prospectus, carries with it one preferred share
purchase right, referred to in this prospectus as a "Right." If the Rights
become exercisable, each Right entitles the registered holder of a Right to
purchase one one-hundredth of a share of the Series 1999 Junior Participating
preferred stock at a purchase price of $150.00. Until a Right is exercised, the
holder of the Right has no right to vote or receive dividends or any other
rights as a stockholder as a result of holding the Right.
The Rights trade automatically with shares of common stock. A holder of
common stock may exercise the Rights only under the circumstances described
below. The Rights will generally cause substantial dilution to a person or group
that attempts to acquire us on terms not approved by our board of directors. The
Rights should not interfere with any merger or other business combination that
our board of directors approves since we may redeem the Rights before a person
or group acquires 15% or more of the outstanding shares of our common stock. The
Rights may, but are not intended to, deter takeover proposals that may be in the
interests of our stockholders.
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Holders may exercise their Rights only following a distribution date. A
distribution date will occur on the earlier of:
- 10 days after a public announcement that a person or
group has acquired or obtained the right to acquire
15% or more of the outstanding shares of common
stock; or
- 10 days after a person or group makes or announces an
offer to purchase common stock, which, if successful,
would result in the acquisition of 15% or more of the
outstanding shares of common stock; or
- 10 days after the board of directors declares that a
person or group has become the beneficial owner of at
least 10% of the outstanding shares of common stock,
and that this ownership might cause us to take action
which is not in our long-term interests or which will
impact us to the detriment of our stockholders.
The Rights have additional features that will be triggered upon the
occurrence of specified events, including:
- if a person or group acquires 15% or more of the
outstanding shares of common stock, holders of the
Rights, other than such person or group whose Rights
will have become void, may purchase common stock,
instead of our Series 1999 Junior Participating
preferred stock, having a value of twice the Right's
then current purchase price;
- if our company is involved in certain business
combinations or the sale of 50% or more of our assets
or earning power after a person or group acquires 15%
or more of our outstanding common stock, the holders
of the Rights, other than such person or group whose
Rights will have become void, may purchase common
stock of the acquirer or an affiliated company having
a value of twice the Right's then current purchase
price; or
- if a person or group acquires 15% or more of the
outstanding shares of common stock, our board of
directors may, at any time before the person or group
acquires 50% or more of the outstanding shares of
common stock, exchange all or part of the Rights,
other than Rights held or previously held by the 15%
or greater stockholder, for common stock at an
exchange ratio of one share of common stock per
Right, subject to adjustment for any stock split,
stock dividend or similar transaction.
At any time prior to the earlier of (1) 10 days after a person or group
acquires 15% or more of the outstanding shares of common stock, or (2) February
22, 2009, our board of directors may redeem all of the Rights at a price of $.01
per Right, subject to adjustment for stock dividends, stock splits and similar
transactions. Our board of directors in its sole discretion may establish the
effective time, basis and conditions of the redemption. However, the board may
not redeem any of the Rights after it determines that a person or group owning
at least 10% of our common stock poses a threat to our company. Immediately
after the redemption of the Rights, the holder can no longer exercise the Rights
and can only receive the redemption price described above.
The Rights will expire on February 22, 2009, unless we redeem or
exchange them before then or extend the expiration date. Our board of directors
may amend the terms of the Rights, other than the redemption price, without the
consent of the holders of the Rights at any time prior to a distribution date in
any manner our board deems desirable. Our board of directors may amend the terms
of the Rights without the consent of the holders of the Rights after the
distribution date only if the amendment does not adversely affect the interests
of the holders of the Rights.
Our description of the Rights and the Series 1999 Junior Participating
preferred stock is not complete and is qualified in its entirety by reference to
our Rights Agreement with ChaseMellon Shareholder Services LLC dated
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as of January 12, 1999 and effective as of February 22, 1999 and the certificate
of designation for the Series 1999 Junior Participating preferred stock.
Transfer Agent
The transfer agent for the common stock is ChaseMellon Shareholder
Services LLC.
REGISTRATION AND SETTLEMENT
THE DEPOSITORY TRUST COMPANY
Unless otherwise specified in a prospectus supplement, the debt
securities we offer will be issued only in book-entry form represented by global
securities in registered form (a "Global Security"). The Global Security will be
held through DTC, as depositary, and registered in the name of Cede & Co., as
nominee of DTC. Accordingly, Cede & Co. will be the holder of record of the
securities.
Beneficial interests in the Global Security will be shown on, and
transfers will be effected through, records maintained by DTC. Transfers of
ownership interests in the securities will be accomplished by making entries in
DTC participants' books acting on behalf of beneficial owners. Beneficial owners
of these securities will not receive certificates representing their ownership
interest, unless the use of the book-entry system is discontinued.
So long as DTC or its nominee is the registered owner of a Global
Security, DTC or its nominee, as the case may be, will be the sole holder of the
securities represented thereby for all purposes under the applicable indenture
or warrant or unit agreement. Except as otherwise provided below, the beneficial
owners of the securities will not be entitled to receive physical delivery of
the certificated security and will not be considered the holders for any purpose
under the applicable indenture or agreement. Accordingly, each beneficial owner
must rely on the procedures of DTC and, if such beneficial owner is not a DTC
participant, on the procedures of the DTC participant through which the
beneficial owner owns its interest in order to exercise any rights of a holder
under the security or the applicable indenture or agreement. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of the securities in certificated form. Such limits and laws may impair
the ability to transfer beneficial interests in the securities.
The following is based on information supplied by DTC:
DTC will act as securities depository for certain securities.
Those securities will be issued as fully registered securities
registered in the name of DTC's partnership nominee, Cede & Co. One
Global Security will be issued for all of the principal amount of the
securities, but if any series exceeds an aggregate principal amount of
$200,000,000, certificates will be issued in increments of up to
$200,000,000.
DTC is a limited-purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of the
New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Securities Exchange Act of 1934, as
amended. DTC holds securities that its participants deposit with it.
DTC also facilitates the settlement among its participants of
securities transactions, such as transfers and pledges, in deposited
securities through electronic book-entry changes in the participant's
accounts, thereby eliminating the need for physical movement of
securities certificates. Direct participants of DTC include securities
brokers and dealers, banks, trust companies, clearing corporations and
certain other organizations. DTC is owned by a number of its direct
participants and by the New York Stock Exchange, Inc., the American
Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to DTC's system
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is also available to others such as securities brokers and dealers,
banks and trust companies that clear through or maintain a custodial
relationship with a direct participant, either directly or indirectly.
The rules applicable to DTC and its participants are on file with the
SEC.
Purchases of securities under DTC's system must be made by or
through direct participants, which will receive a credit for the
securities on DTC's records. The ownership interest of each actual
purchaser, the beneficial owner, of each security represented by a
Global Security is in turn to be recorded on the records of direct and
indirect participants. Beneficial owners will not receive written
confirmation from DTC of their purchase, but beneficial owners are
expected to receive written confirmations providing details of the
transaction, as well as periodic statements of their holdings, from the
direct or indirect participants through which the beneficial owner
entered into the transaction. The participants will remain responsible
for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to its
direct participants, by direct participants to indirect participants,
and by direct and indirect participants to beneficial owners will be
governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect
to the securities. DTC assigns its right to consent or vote to its
direct participants.
Principal and any premium or interest payments on the
securities will be made in immediately available funds to DTC. DTC's
practice is to credit direct participants' accounts on the applicable
payment date in accordance with their respective holdings shown on
DTC's records unless DTC has reason to believe that it will not receive
payment on such date. Payments by participants to beneficial owners
will be governed by standing instructions and customary practices, as
is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the
responsibility of such participant and not of DTC or any other party,
subject to any statutory or regulatory requirements that may be in
effect from time to time. Payment of principal and any premium or
interest to DTC is our responsibility, disbursement of those payments
to direct participants is the responsibility of DTC, and disbursement
of those payments to the beneficial owners is the responsibility of the
direct or indirect participant.
DTC will send redemption notices to Cede & Co. If we redeem
less than all of the securities, DTC's practice is to determine by lot
the amount of the interest of each direct participant in such issue to
be redeemed.
DTC may discontinue providing its services as securities
depository for the securities at any time by giving us reasonable
notice. Under such circumstances, if a successor securities depository
is not obtained, certificated securities are required to be printed and
delivered.
The information in this section concerning DTC and DTC's
system has been obtained from sources we believe to be reliable, but we
take no responsibility for the accuracy of this information.
CEDELBANK AND EUROCLEAR
Securities of a series issued in book-entry form and sold or traded
outside the United States may be represented by one or more Global Securities
held through Cedelbank, societe anonyme, or the Euroclear operator of the
Euroclear System, the Brussels branch of a New York banking corporation which is
a member bank of the Federal Reserve System. As such, it is regulated and
examined by the Federal Reserve Board and the New York State Banking Department,
as well as the Belgian Banking Commission. Cedelbank and Euroclear hold omnibus
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positions on behalf of Cedelbank participants and Euroclear participants,
respectively, on the books of their respective depositaries, which in turn hold
such positions in customers' securities accounts in the depositaries' names on
the books of the DTC.
Transfers between Cedelbank participants and Euroclear participants
occur in compliance with their rules and operating procedures. Cross-market
transfers between persons holding directly or indirectly through DTC in the
United States, on the one hand, and directly or indirectly through Cedelbank
participants or Euroclear participants, on the other, will be handled by DTC in
accordance with DTC rules on behalf of a European international clearing system
by its depositary; however, cross-market transactions will require delivery of
instructions to the European international clearing system by the counterparty
in such system in accordance with its rules and procedures and within its
established deadlines. A European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to its
depositary to take action to carry out final settlement on its behalf by
delivering or receiving securities in DTC, and making or receiving in accordance
with normal procedures for same-day funds settlement applicable to DTC.
Cedelbank participants and Euroclear participants may not deliver instructions
directly to the depositaries.
Because of time-zone differences, credits for securities in Cedelbank
or Euroclear as a result of a transaction with a DTC participant will be made
during the subsequent securities settlement processing, and will be dated the
business day following the DTC settlement date; those credits or any
transactions in those securities settled during processing will be reported to
the relevant Cedelbank participant or Euroclear participant on that business
day. Cash received in Cedelbank or Euroclear as a result of sales of securities
by or through a Cedelbank participant or a Euroclear participant to a DTC
participant will be received with value on the DTC settlement date but will be
available in the relevant Cedelbank or Euroclear cash account only as of the
business day following settlement in DTC.
Cedelbank is incorporated under the laws of Luxembourg as a depositary.
Cedelbank holds securities for its participating organizations and facilitates
the clearance and settlement of securities transactions between its participants
through electronic book-entry changes in accounts of those participants, thereby
eliminating the need for physical movement of certificates. Transactions may be
settled by Cedelbank in any of 28 currencies, including United States dollars.
Cedelbank provides to its participants services for safekeeping, administration,
clearance and settlement of internationally traded securities and securities
lending and borrowing. Cedelbank interfaces with domestic markets in several
countries. As a depository, Cedelbank is subject to regulation by the Luxembourg
Monetary Institute. Cedelbank participants consist of recognized financial
institutions around the world, including underwriters, securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations and may include the underwriters or agents with respect to a
particular series of securities. Indirect access to Cedelbank is also available
to other entities that clear through or maintain a custodial relationship with a
Cedelbank participant.
The Euroclear System was created in 1968 to hold securities for
participants of the Euroclear System and to clear and settle transactions
between Euroclear participants through simultaneous electronic book-entry
delivery against payment, thereby eliminating the need for physical movement of
certificates and any risk from lack of simultaneous transfers of securities and
cash. Transactions may now be settled by Euroclear in any of 32 currencies,
including United States dollars. The Euroclear system includes various other
services, including securities lending and borrowing and interfaces with
domestic markets in several countries generally similar to the arrangements for
cross-market transfers with DTC described above. The Euroclear System is
operated by the Euroclear operator, under contract with Euroclear Clearance
System, S.C., a Belgian cooperative corporation. All operations are conducted by
the Euroclear operator, and all Euroclear securities clearance accounts and
Euroclear cash accounts are accounts with the Euroclear operator, not the
Cooperative. The Cooperative establishes policy for the Euroclear System on
behalf of Euroclear participants. Euroclear participants include banks
(including central banks), securities brokers and dealers and other professional
financial intermediaries and may include the underwriters or agents for a
particular series of securities. Indirect access to the Euroclear System is also
available to other firms that clear through or maintain a custodial relationship
with a Euroclear participant.
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Securities clearance accounts and cash accounts with the Euroclear
operator are governed by the Terms and Conditions Governing Use of Euroclear and
the related Operating Procedures of the Euroclear Systems and applicable Belgian
law. The Terms and Conditions govern transfers of securities and cash within the
Euroclear System, withdrawal of securities and cash from the Euroclear System
and receipts of payments with respect to securities in the Euroclear System. All
securities in the Euroclear System are held on a fungible basis without
attribution of specific certificates to specific securities clearance accounts.
The Euroclear operator acts under the Terms and Conditions only on behalf of
Euroclear participants and has no record of or relations with persons holding
through Euroclear participants.
Distributions for securities of a series held through Cedelbank or
Euroclear will be credited to the cash accounts of Cedelbank participants or
Euroclear participants in accordance with the relevant system's rules and
procedures. Distributions are subject to tax reporting in accordance with
relevant United States tax laws and regulations. The applicable prospectus
supplement will describe selected income tax consequences to foreign investors.
Cedelbank or the Euroclear operator will take any other action permitted to be
taken by a holder of securities under the applicable indenture, warrant
agreement or unit agreement on behalf of a Cedelbank participant or a Euroclear
participant only in accordance with its relevant rules and procedures and
subject to its respective depositary's ability to carry out those actions on its
behalf through DTC.
Although Cedelbank and Euroclear have established these procedures to
facilitate transfers of applicable securities among participants of DTC,
Cedelbank and Euroclear, they are under no obligation to perform or continue to
perform those procedures, and those procedures may be discontinued at any time.
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
In compliance with United States federal tax laws and regulations, we
may not offer and sell bearer securities during the restricted period, 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
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. We may
sell bearer securities during the restricted period to a United States person
who acquires and holds the bearer security through a foreign branch of a 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 and represent to us 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.
Our bearer securities, other than temporary global securities, and any
attached coupons will bear a legend stating: "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 this 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 will not be allowed to deduct any loss realized on bearer
securities and any gain recognized on any sale or disposition of those 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 we will describe in an applicable
prospectus supplement.
28
<PAGE> 30
PLAN OF DISTRIBUTION
We may sell securities to or through underwriters or dealers, through
agents or directly to purchasers. Each prospectus supplement will state the
terms of the securities to be offered including the name or names of any
underwriters or agents, the public offering or purchase price of the securities
and the net proceeds from the 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 securities will be listed. Dealer
trading may take place in the securities, including securities not listed on any
securities exchange.
Securities may be purchased to be reoffered to the public through
underwriting syndicates led by one or more managing underwriters, or through one
or more underwriters acting alone. The underwriters may acquire the securities
for their own account and may resell the securities from time to time in one or
more transactions, including negotiated transactions, at a fixed public offering
price or varying prices determined at the time of sale. We will name the
underwriter or underwriters with respect to an underwritten offering of the
offered securities in a 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 the prospectus supplement. Unless we state
otherwise in the prospectus supplement, the obligations of the underwriters to
purchase the offered securities will be subject to certain conditions, and each
of the underwriters will be obligated to purchase all of its allocated
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.
We may offer and sell securities directly or through agents we
designate from time to time. We may also designate agents who are our
affiliates. We will name any agent involved in the offer and sale of the offered
securities and any commissions we pay will be set forth in the prospectus
supplement. If we sell securities 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
we indicate otherwise in the prospectus supplement, an agent will be acting on a
reasonable effort basis for the period of its appointment.
Since any series of securities offered and sold pursuant to this
prospectus may be a new issue of securities with no established trading market,
there may not be a liquid trading market for the securities. Any underwriters to
whom we sell the securities for public offering and sale may make a market in
those securities, but the underwriters will not be obligated to do so and may
discontinue any market making at any time without notice.
Any underwriter or agent participating in the distribution of the
securities may be considered to be an underwriter, as that term is defined in
the Securities Act, of the securities offered and sold. Any discounts or
commissions received by them from us and any profit realized by them on the sale
or resale of the securities may be considered to be underwriting discounts and
commissions under the Securities Act.
We may authorize underwriters, dealers or agents to solicit offers by
certain institutions to purchase debt securities from us pursuant to delayed
delivery contracts providing for payment and delivery at a future date. The type
of security, the amount, the price and other significant terms of such delayed
delivery contracts will be described in the prospectus supplement. Institutions
that may be solicited include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions and
others, all as approved by us. The obligations of any purchaser under any such
contract will not be subject to any conditions except that (1) the purchase of
the debt securities will not at the time of delivery be prohibited under the
laws of the jurisdiction to which the purchaser is subject, and (2) if the debt
securities are also being sold to underwriters acting as principals for their
own account, the underwriters must have purchased the debt securities not sold
for delayed delivery. The underwriters and other such persons will not have any
responsibility for the validity or performance of such contracts.
29
<PAGE> 31
To facilitate offering the securities, the underwriters may engage in
transactions that stabilize, maintain or otherwise affect the price of the
securities or any other securities the prices of which may be used to determine
payments on such securities. Specifically, the underwriters may overallot in
connection with the offering, creating a short position in the securities for
their own accounts. In addition, to cover overallotments or to stabilize the
price of the securities or of any other securities, the underwriters may bid
for, and purchase, the securities or any other securities in the open market.
Finally, in any offering of the securities through a syndicate of underwriters,
the underwriting syndicate may reclaim selling concessions allowed to an
underwriter or dealer for distributing the securities in the offering if the
syndicate repurchases previously distributed securities in transactions to cover
syndicate short positions, in stabilization transactions or otherwise. Any of
these activities may stabilize or maintain the market price of the securities
above independent market levels. The underwriters are not required to engage in
these activities, and may end any of these activities at any time.
Underwriters, agents and their controlling persons may be entitled,
under agreements entered into with us, to indemnification by us 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.
LEGAL OPINIONS
The legality of the offered securities will be passed upon for us by
Bradley Arant Rose & White LLP, Birmingham, Alabama, and, for the underwriters
or agents by Stroock & Stroock & Lavan LLP, New York, New York. As of March 21,
2000, the partners and associates of Bradley Arant Rose & White LLP beneficially
owned approximately 3,100,000 shares of our common stock.
EXPERTS
The consolidated financial statements incorporated by reference in this
prospectus and elsewhere in this registration statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are incorporated by reference in reliance upon
the authority of said firm as experts in giving said reports.
30
<PAGE> 32
NEITHER WE, NOR ANY UNDERWRITERS OR AGENTS, HAVE AUTHORIZED ANYONE ELSE
TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS
PROSPECTUS, AND IF GIVEN OR MADE, YOU CANNOT RELY UPON THE INFORMATION OR
REPRESENTATIONS AS HAVING BEEN AUTHORIZED BY US OR ANY UNDERWRITER. THIS
PROSPECTUS IS NOT AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF
THESE SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER OUR DELIVERY OF THIS PROSPECTUS
NOR ANY SALE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THIS INFORMATION IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF THE
PROSPECTUS OR THAT THERE HAS BEEN NO CHANGE IN OUR AFFAIRS SINCE SUCH DATE.
TABLE OF CONTENTS
PAGE
About This Prospectus.................................................. 4
Where You Can Find More Information.................................... 4
SouthTrust Corporation................................................. 5
Use of Proceeds........................................................ 6
Regulatory Matters..................................................... 7
Description of Debt Securities......................................... 10
Description of Capital Stock........................................... 22
Registration and Settlement............................................ 26
Limitations on Issuance of
Bearer Securities.................................................... 29
Plan of Distribution................................................... 30
Legal Opinions......................................................... 31
Experts................................................................ 31
$1,000,000,000
SOUTHTRUST
CORPORATION
[LOGO]
Debt Securities
Preferred Stock
Common Stock
PROSPECTUS
March 21, 2000
<PAGE> 33
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.................................................... $ 264,000
* Legal Fees and Expenses............................................. 75,000
* Accounting Fees and Expenses........................................ 40,000
* Blue Sky Fees and Expenses.......................................... 10,000
* Printing and Engraving.............................................. 40,000
* Listing Fees........................................................ 17,500
* Rating Agency Fees and Expenses..................................... 294,000
* Miscellaneous....................................................... 9,500
----------
Total............................................................... $ 750,000
========
</TABLE>
*Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Certificate of Incorporation and the Bylaws of
the Corporation provide that the Corporation shall indemnify its officers,
directors, employees, and agents to the extent permitted by the General
Corporation Law of Delaware, which permits a corporation to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit, or proceeding by reason of the fact that he
is or was a director, officer, employee, or agent of the Corporation, against
expenses (including attorney's fees), judgments, fines, and settlements incurred
by him in connection with any such suit or proceeding, if he acted in good faith
and in a manner reasonably believed to be in or not opposed to the best interest
of the Corporation, and, in the case of a derivative action on behalf of the
Corporation, the Corporation shall indemnify such persons only against expenses
and then only if he not be adjudged to be liable for negligence or misconduct.
The Corporation also maintains insurance coverage relating to certain
liabilities of directors and officers.
ITEM 16. LIST OF EXHIBITS
The following Exhibits are filed as part of this Registration
Statement:
1(a) - Form of Underwriting Agreement for Common Stock.
1(b) - Form of Underwriting Agreement for Preferred
Stock.
1(c) - Form of Underwriting Agreement for Debt
Securities.
3(a) - Composite Restated Certificate of Incorporation
of SouthTrust Corporation.
*3(b) - 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).
II-1
<PAGE> 34
4(a) - Articles FOURTH, SIXTH, SEVENTH, ELEVENTH of
the Restated Certificate of Incorporation of
SouthTrust Corporation (included at Exhibit
3(a)).
*4(b) - Certificate of Designation of Preferences and
Rights of Series 1999 Junior Participating
Preferred Stock, adopted December 16, 1998 and
effective February 22, 1999, which was filed as
Exhibit A to Exhibit 1 to SouthTrust
Corporation's Registration Statement on Form 8-A
(File No. 1-3613).
*4(c) - Stockholders' Rights Agreement, dated as of
January 12, 1999 and effective February 22, 1999,
between SouthTrust Corporation and ChaseMellon
Shareholder Services, L.L.C., Rights Agent, which
was filed as Exhibit 1 to SouthTrust
Corporation's Registration Statement on Form 8-A
(File No. 001-14781).
*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)(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. 33-52717).
*4(f)(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 as to
the legality of the securities being registered.
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 (a) - Powers of Attorney.
24(b) Certified Resolutions
**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.
99 - Provisions of the Delaware General Corporation
Law, as amended, relating to the
indemnification of directors and officers.
- ---------------------
* Incorporated herein by reference.
** To be filed by amendment.
II-2
<PAGE> 35
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 the Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement; 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 (1)(i) and (1)(ii) do not
apply if the Registration Statement is on Form S-8, Form S-8 or Form
F-3, and 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 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 foregoing provisions 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
II-3
<PAGE> 36
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-4
<PAGE> 37
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 March 21, 2000.
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 March 21, 2000
--------------------
Wallace D. Malone, Jr. Officer, President, Director
/s/ ALTON E. YOTHER Secretary, Treasurer and March 21, 2000
--------------------
Alton E. Yother Controller (Principal
Accounting and
Financial Officer)
/s/ JULIAN W. BANTON Director March 21, 2000
--------------------
Julian W. Banton
* Director March 21, 2000
---------------------
Allen J. Keesler, Jr.
* Director March 21, 2000
---------------------
Van L. Richey
* Director March 21, 2000
---------------------
Carl F. Bailey
* Director March 21, 2000
---------------------
Rex J. Lysinger
</TABLE>
II-5
<PAGE> 38
<TABLE>
<S> <C> <C>
* Director March 21, 2000
---------------------
William C. Hulsey
* Director March 21, 2000
---------------------
John M. Bradford
* Director March 21, 2000
---------------------
Wm. Kendrick Upchurch, Jr.
* Director March 21, 2000
---------------------
H. Allen Franklin
* Director March 21, 2000
---------------------
Donald M. James
* Director March 21, 2000
---------------------
William A. Coley
*By /s/ ALTON E. YOTHER March 21, 2000
- --- -------------------
Alton E. Yother
Attorney-in-fact
</TABLE>
II-6
<PAGE> 39
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
1(a) - Form of Underwriting Agreement for Common Stock.
1(b) - Form of Underwriting Agreement for Preferred Stock.
1(c) - Form of Underwriting Agreement for Debt Securities.
3(a) - Composite Restated Certificate of Incorporation of SouthTrust Corporation.
* 3(b) - 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(a) - Articles FOURTH, SIXTH, SEVENTH, ELEVENTH of the Restated Certificate of
Incorporation of SouthTrust Corporation (included at Exhibit 3(a)).
* 4(b) - Certificate of Designation of Preferences and Rights of Series 1999 Junior
Participating Preferred Stock, adopted December 16, 1998 and effective
February 22, 1999, which was filed as Exhibit A to Exhibit 1 to SouthTrust
Corporation's Registration Statement on Form 8-A (File No. 1-3613).
* 4(c) - Stockholders' Rights Agreement, dated as of January 12, 1999 and effective
February 22, 1999, between SouthTrust Corporation and ChaseMellon
Shareholder Services, L.L.C., Rights Agent, which was filed as Exhibit 1 to
SouthTrust Corporation's Registration Statement on Form 8-A (File No. 001-
14781).
* 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)(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. 33-52717).
* 4(f)(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 as to the legality of the
securities being registered.
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.
</TABLE>
<PAGE> 40
<TABLE>
<S> <C>
24(a) - Powers of Attorney.
24(b) - Certified Resolutions.
** 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.
99 - Provisions of the Delaware General Corporation Law, as amended, relating to the indemnification
of directors and officers.
</TABLE>
* Incorporated herein by reference.
** To be filed by amendment.
<PAGE> 1
EXHIBIT 1(a)
FORM OF UNDERWRITING AGREEMENT FOR COMMON STOCK
<PAGE> 2
[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
-1-
<PAGE> 3
(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 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-
<PAGE> 4
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."
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.
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<PAGE> 5
(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.
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
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<PAGE> 6
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 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.
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<PAGE> 7
(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
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
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<PAGE> 8
Bank, National Association (or the successor to such entity)
(the "Principal Subsidiary Bank") is a national banking
association formed under the laws of the United States 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 (except
as provided in 12 U.S.C. Section 55, as amended)
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;
(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
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<PAGE> 9
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. Section 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, 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
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<PAGE> 10
(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:
(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
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<PAGE> 11
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
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<PAGE> 12
financial data, if any, for the period from the date of the
latest balance sheet 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
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<PAGE> 13
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.
(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
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<PAGE> 14
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 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
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<PAGE> 15
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
(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
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<PAGE> 16
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 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
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<PAGE> 17
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 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).
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<PAGE> 18
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.
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
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<PAGE> 19
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> 20
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> 21
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> 22
SCHEDULE II
Principal Amount of
Initial Shares to
Underwriters be Purchased
-2-
<PAGE> 23
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
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<PAGE> 24
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.
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> 25
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> 26
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> 27
SCHEDULE A
<PAGE> 1
EXHIBIT 1(b)
FORM OF UNDERWRITING AGREEMENT FOR PREFERRED STOCK
<PAGE> 2
[Preferred 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 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
preferred stock (the "Preferred Stock"). 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") of Preferred Stock
to cover over-allotments. The Company may elect to offer fractional interests in
shares of Preferred Stock, in which event the Company will provide for the
issuance by a Depositary of receipts evidencing depositary shares that will
represent such fractional interests ("Depositary Shares"). The shares of
Preferred Stock involved in any such offering are hereinafter referred to as the
"Securities" and, where appropriate herein, reference to the Securities includes
the Depositary Shares. Such Securities 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 Securities are 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 that:
(i) 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 Securities. 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
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<PAGE> 3
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 Securities 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 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.
(ii) 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
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<PAGE> 4
of any Underwriter through the Representatives specifically for use in
connection with the preparation of the Registration Statement and the
Final Prospectus.
(b) Each Underwriter represents and agrees that it has not and will
not, directly or indirectly, offer, sell or deliver any of the Securities or
distribute the Final Prospectus or any other offering materials relating to the
Securities in or from any jurisdiction except under circumstances that will, to
the best of its knowledge and belief, result in compliance with any applicable
laws and regulations thereof and that, to the best of its knowledge and belief,
will not impose any obligations on the Company except as set forth herein.
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. Initial
Shares to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Initial Shares to be purchased pursuant to
Delayed Delivery Contracts as hereinafter provided are herein called "Contract
Securities."
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.
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<PAGE> 5
(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.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made on the date and at the time specified in Schedule I
hereto, 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 Securities being herein called the
"Closing Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof in the manner set forth in Schedule I hereto. Unless otherwise
agreed, certificates for the Underwriters' Securities 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 of 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
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<PAGE> 6
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 Securities, 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 Securities 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 Securities 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 Securities 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 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.
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<PAGE> 7
(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 Securities 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 Securities and will arrange for the determination of the legality
of the Securities 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
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.
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<PAGE> 8
(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, National Association (or
the successor to such entity) (the "Principal Subsidiary
Bank") is a national banking association formed under the laws
of the United States 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
(except as provided in 12 U.S.C. Section 55, as amended)
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 Securities conform in all
material respects to the description thereof contained in the
Final Prospectus;
(v) if the Securities 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 Securities will not be authorized for listing, subject to
official notice of issuance and evidence of satisfactory
distribution;
(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,
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<PAGE> 9
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 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. Section 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 Securities by the Underwriters and such
other approvals (specified in such opinion) as have been
obtained;
(x) neither the issue and sale of the
Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the
terms hereof 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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<PAGE> 10
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 Securities 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 Securities, 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
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<PAGE> 11
examined the Registration Statement, the Final Prospectus and this
Agreement and that to the best of their knowledge:
(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;
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<PAGE> 12
(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 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 Prospectus discloses have occurred or may occur,
or Arthur Andersen LLP shall state any specific changes or
decreases.
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<PAGE> 13
(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.
(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 Securities 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 Securities to the Underwriters, including capital duties, stamp duties and
stock
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<PAGE> 14
transfer taxes, if any, payable upon issuance of any of the Securities, the sale
of the Securities to the Underwriters and the fees and expenses of the transfer
agent for the Securities, (iv) the fees and disbursements of the Company's
counsel and accountants, (v) the qualification of the Securities 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 Securities 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 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 Securities.
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);
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<PAGE> 15
(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 Securities as contemplated by the Registration
Statement and the Final Prospectus; and
(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
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<PAGE> 16
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 Securities 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 Securities 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 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
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<PAGE> 17
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 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
-16-
<PAGE> 18
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 Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bear to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
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 Securities, 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 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 Securities.
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 Securities. The provisions of
Section 6 and 8 hereof and this Section 11 shall survive the termination or
cancellation of this Agreement.
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<PAGE> 19
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> 20
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> 21
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: ____________________
-20-
<PAGE> 22
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
- ------------ ------------
-21-
<PAGE> 23
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 ,
20 , (the "Delivery Date"), shares of the Company's Preferred Stock
(the "Securities") offered by the Company's Final Prospectus dated ,
20 , receipt of a copy of which is hereby acknowledged, and on the further
terms and conditions set forth in this contract.
Payment for the Securities 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 Securities 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 Securities will be registered in the name of the
undersigned and issued in a denomination equal to the aggregate amount of
Securities to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities 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 Securities 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 Securities 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 Securities, and the obligation of the
Company to cause the Securities to be sold and delivered, shall not be affected
by the failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract.
-1-
<PAGE> 24
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 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> 25
SCHEDULE IV
_________ Shares
SOUTHTRUST CORPORATION
(a Delaware corporation)
Preferred 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 Preferred 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, 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> 26
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.
-2-
<PAGE> 1
EXHIBIT 1(c)
FORM OF UNDERWRITING AGREEMENT FOR DEBT SECURITIES
<PAGE> 2
[Debt Securities]
SOUTHTRUST CORPORATION
UNDERWRITING AGREEMENT
New York, New York
------------, ----
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 sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its securities identified in
Schedule I hereto (the "Securities"), to be issued under an indenture (the
"Indenture") dated as of _________________ between the Company and ____________,
as trustee (the "Trustee"). 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. (a)The Company represents and
warrants to, and agrees with, each Underwriter that:
(i) 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 Securities. 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 Securities 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 filed with the Commission pursuant to Rule 424 or
Rule 434 (including
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<PAGE> 3
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.
(ii) 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, and the Indenture will
comply in all material respects with the applicable requirements of the
Act, the Trust Indenture Act of 1939 (the "Trust Indenture 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 (A) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the Trust
Indenture Act of the Trustee or (B) 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.
(b) Each Underwriter represents and agrees that it has not and
will not, directly or indirectly, offer, sell or deliver any of the
Securities or distribute the Final Prospectus or any other offering
materials relating to the Securities in or from any jurisdiction except
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<PAGE> 4
under circumstances that will, to the best of its knowledge and belief,
result in compliance with any applicable laws and regulations thereof
and that, to the best of its knowledge and belief, will not impose any
obligations on the Company except as set forth herein.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of Securities pursuant to delayed delivery arrangements,
the respective principal amounts of Securities 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. Securities to be
purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and Securities to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities 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
percentage set forth in Schedule I hereto of the principal amount of the
Securities 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 principal amount set forth in Schedule I hereto and the aggregate
principal amount of Contract Securities may not exceed the maximum aggregate
principal 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 principal amount of Securities 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 principal amount of Contract
Securities as the principal amount of Securities set forth opposite the name of
such Underwriter bears to the aggregate principal 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 principal amount of Securities to be purchased
by all Underwriters shall be the aggregate principal amount set forth in
Schedule II hereto, less the aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made on the date and at the time specified in Schedule I
hereto, which date and time may
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<PAGE> 5
be postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the
Underwriters' Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof in the manner set
forth in Schedule I hereto. Unless otherwise agreed, certificates for the
Underwriters' Securities 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 of DTC and registered in the name of Cede & Co., as nominee for
DTC.
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement
or supplement (including the Final Prospectus) 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 Securities
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 Securities 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 Securities
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 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.
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<PAGE> 6
(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
Securities 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 Securities and will arrange for the determination of the legality
of the Securities 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
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates
-5-
<PAGE> 7
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, National Association (the "Principal
Subsidiary Bank") is a national banking association formed
under the laws of the United States 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 (except as
provided in 12 U.S.C. Section 55, as amended) 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 Securities conform in all material respects
to the description thereof contained in the Final Prospectus;
(v) if the Securities 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
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<PAGE> 8
received no information stating that the Securities will not
be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;
(vi) the Indenture has been duly authorized, executed
and delivered by the Company, has been duly qualified under
the Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, 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 further subject to 12
U.S.C. Section 1818(b)(6)(D) and similar bank regulatory
powers and to the application of principles of public policy);
and the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, in the case of the
Underwriters' Securities, or by the purchasers thereof
pursuant to Delayed Delivery Contracts, in the case of any
Contract Securities, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture (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 further subject to 12 U.S.C.
Section 1818(b)(6)(D) and similar bank regulatory powers and
to the application of principles of public policy);
(vii) 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;
(viii) 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
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<PAGE> 9
applicable requirements of the Act and the Exchange Act and
the respective rules thereunder;
(ix) this 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.
Section 1818(b)(6)(D) and similar bank regulatory powers and
to the application of principles of public policy);
(x) 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 Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(xi) neither the issue and sale of the Securities,
nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof 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, governmental body or
arbitrator having jurisdiction over the Company or the
Principal Subsidiary Bank; and
(xii) 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.
In rendering such opinion, but without opining in connection
therewith, such counsel shall also state that, although it has not
independently verified, is not
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<PAGE> 10
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 Securities, 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:
(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
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<PAGE> 11
(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 included or incorporated by reference in the
Registration Statement and Final Prospectus to the date of the
latest available interim financial data; and
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<PAGE> 12
(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 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.
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<PAGE> 13
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.
(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 Securities 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. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 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 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 Securities.
7. 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
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<PAGE> 14
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 Securities 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 Securities 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 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
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<PAGE> 15
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 7
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 7, 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 7. 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 7 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 7 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 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
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<PAGE> 16
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 7, 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).
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bear to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 8, 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.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if 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 by Federal authorities or (iii)
there shall have occurred any outbreak or material escalation of
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<PAGE> 17
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 Securities.
10. 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 7 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Section 6 and 7 hereof and this Section 10 shall survive the termination or
cancellation of this Agreement.
11. 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.
12. 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 7 hereof, and no
other person will have any right or obligation hereunder.
13. 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:
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 ___________, 200_
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include type of funds and accrued interest or
amortization, 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.
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: ____________, New York City time, Office of
Stroock & Stroock & Lavan LLP
Listing:
Delayed Delivery Arrangements:
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 Securities to
Underwriters be Purchased
-2-
<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
, 20 , (the "Delivery Date"), $ principal amount of the
Company's (the "Securities") offered by the Company's Final Prospectus
dated , 20 , receipt of a copy of which is hereby acknowledged,
at a purchase price of % of the principal amount thereof, plus accrued
interest, if any, thereon from , 20 , to the date of payment and
delivery, and on the further terms and conditions set forth in this contract.
Payment for the Securities 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 Securities 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 Securities will be registered in the name of the undersigned and
issued in a denomination equal to the aggregate principal amount of Securities
to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities 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 Securities 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
principal amount of the Securities 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 Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected
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<PAGE> 22
by the failure of any purchaser to take delivery of and make payment for the
Securities 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.
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> 1
EXHIBIT 3(a)
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, 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,
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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.
(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 with 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.
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(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.
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 five hundred five million
(505,000,000) 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
five hundred million (500,000,000) 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;
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(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;
(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 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
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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 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.
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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 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.
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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 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.
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.
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(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.
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
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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.
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
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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 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 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.
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(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:
(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.
11
<PAGE> 12
(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.
(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
12
<PAGE> 13
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 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
Protected Stock on the Announcement Date to (II) the
Fair Market Value per share of the Common Stock on
such date.
13
<PAGE> 14
(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, 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
14
<PAGE> 15
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 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.
15
<PAGE> 1
EXHIBIT 5
March 21, 2000
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 March 21, 2000, relating to up to
$1,000,000,000 of (i) its notes, debentures or other evidences of unsecured
indebtedness (the "Debt Securities") in one or more currencies on terms to be
determined at the time of sale, (ii) its preferred stock, par value $1.00 per
share (the "Preferred Stock"), and (iii) its common stock, par value $2.50 per
share (the "Common Stock"). The Preferred Stock and Common Stock are
collectively referred to as the "Equity Securities" and the Debt Securities and
the Equity Securities are collectively referred to as the "Offered Securities."
The Offered Securities are to be offered by SouthTrust to the public pursuant to
the Registration Statement. In this connection, we have examined such records,
documents and proceedings as we have deemed relevant and necessary as a basis
for the opinions expressed herein.
Upon the basis of the foregoing, we are of the opinion that:
(i) the Debt Securities to be offered under the Registration
Statement, to the extent actually issued by SouthTrust pursuant to the
Underwriting Agreement described in the Registration Statement (the
"Underwriting Agreement"), will be duly and validly authorized and
issued, will be fully paid and non-assessable Debt Securities of
SouthTrust, and will constitute legal, valid and binding obligations of
SouthTrust in accordance with their terms;
(ii) the Equity Securities to be offered under the
Registration Statement, to the extent actually issued by SouthTrust
pursuant to the Underwriting Agreement, will be duly and validly
authorized and issued and will be fully paid and non-assessable 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
1999 1998 1997 1996 1995
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Earnings:
Income before income taxes $ 658,716 $ 547,809 $ 477,851 $ 387,510 $ 304,044
Plus:
Fixed Charges 1,553,080 1,398,114 1,199,730 948,497 800,986
Less:
Capitalized interest (1,371) (919) (1,732) (785) (2,056)
----------- ----------- ----------- ----------- -----------
Earnings, including interest on 2,210,425 1,945,004 1,675,849 1,335,222 1,102,974
deposits
Less:
Interest on deposits (962,504) (897,903) (745,122) (644,613) (564,064)
----------- ----------- ----------- ----------- -----------
Earnings, excluding interest on
deposits $ 1,247,921 $ 1,047,101 $ 930,727 $ 690,609 $ 538,910
=========== =========== =========== =========== ===========
Fixed Charges:
Interest Expense $ 1,539,538 $ 1,386,256 $ 1,186,079 $ 938,194 $ 791,423
Capitalized interest 1,371 919 1,732 785 2,056
Amortization of debt expense 461 681 602 132 190
Interest portion of rent expense 11,710 10,258 11,317 9,386 7,317
----------- ----------- ----------- ----------- -----------
Total Fixed Charges $ 1,553,080 $ 1,398,114 $ 1,199,730 $ 948,497 $ 800,986
Less:
Interest on deposits (962,504) (897,903) (745,122) (644,613) (564,064)
----------- ----------- ----------- ----------- -----------
Total Fixed Charges excluding
interest on deposits $ 590,576 $ 500,211 $ 454,608 $ 303,884 $ 236,922
=========== =========== =========== =========== ===========
Earnings to Fixed Charges:
Including interest on deposits 1.42 1.39 1.40 1.41 1.38
Excluding interest on deposits 2.11 2.09 2.05 2.27 2.27
</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 (Form S-3 for the registration of
$1,000,000,000 of debt securities, preferred stock, or common stock) of our
report dated January 28, 2000 included in SouthTrust Corporation's Form 10-K for
the year ended December 31, 1999 and to all references to our Firm included in
this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Birmingham, Alabama
March 21, 2000
<PAGE> 1
EXHIBIT 24(a)
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 Alton E. Yother
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 21st day of March, 2000.
/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 Alton E. Yother
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 21st day of March, 2000.
/s/ DONALD M. JAMES
-----------------------------------
Donald M. James
<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 Alton E. Yother
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 21st day of March, 2000.
/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 Alton E. Yother
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 21st day of March, 2000.
/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 Alton E. Yother
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 21st day of March, 2000.
/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 Alton E. Yother
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 21st day of March, 2000.
/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 Alton E. Yother
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 21st day of March, 2000.
/s/ WM. KENDRICK UPCHURCH
-----------------------------------
Wm. Kendrick Upchurch
<PAGE> 8
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
whose signature appears below hereby constitutes and appoints Alton E. Yother
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 21st day of March, 2000.
/s/ WILLIAM A. COLEY
-----------------------------------
William A. Coley
<PAGE> 9
STATE OF ALABAMA )
COUNTY OF JEFFERSON )
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director
whose signature appears below hereby constitutes and appoints Alton E. Yother
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 21st day of March, 2000.
/s/ J. ALLEN KEESLER, JR.
-----------------------------------
J. Allen Keesler, Jr.
<PAGE> 10
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 Alton E. Yother
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 21st day of March, 2000.
/s/ CARL F. BAILEY
-----------------------------------
Carl F. Bailey
<PAGE> 1
EXHIBIT 24(b)
ACTION BY WRITTEN CONSENT OF
BOARD OF DIRECTORS
OF SOUTHTRUST CORPORATION
IN LIEU OF A MEETING
The undersigned, being all the directors of SouthTrust Corporation,
a corporation organized under the laws of the State of Delaware (the "Company"),
acting by written consent in lieu of a meeting, do hereby adopt the following
resolutions:
RESOLVED, that the Board of Directors of the Company hereby finds,
determines and declares that it is advisable, subject to appropriate market
conditions as determined by the Special Committee (as defined below), for the
Company to register $1,000,000,000 of securities, comprised of debt securities,
preferred stock and common stock in such amounts and on such terms as the
Special Committee may allocate (the "Securities"), at a net price to be
determined by the Special Committee, to one or more persons acting as
underwriter (the "Underwriter"), said Underwriter to be determined by the
Special Committee at a later date; and
RESOLVED FURTHER, by the Board of Directors of the Company that
there be, and there hereby is, established a Special Committee which shall
consist of two (2) persons and shall be designated the Special Committee; and
RESOLVED FURTHER, by the Board of Directors of the Company that the
following persons are hereby appointed as the initial members of the Special
Committee:
Wallace D. Malone, Jr.
Alton E. Yother
RESOLVED FURTHER, by the Board of Directors of the Company that the
Special Committee is hereby authorized from time to time to authorize the
issuance and sale of Securities as the Special Committee shall determine, and
with respect to each issuance of the Securities, the Special Committee is hereby
authorized to take all such action as may be necessary or desirable to issue and
sell such Securities, including without limitation:
(i) to determine the price or prices at which said
Securities shall be sold;
(ii) subject to the above, to determine the number of shares
of Securities to be sold;
(iii) subject to the above, to determine the allocation, if
any, of the authorized issuance and sale of Securities
to over-allotment options granted to the Underwriter;
(iv) to determine the members of the selling syndicate;
(v) to approve the form and terms of the Underwriting
Agreement or any subscription or other agreement;
(vi) to approve the execution and delivery of any document,
agreement or instrument which may be necessary or
desirable in connection with the issuance and sale of
the Securities; and
RESOLVED FURTHER, by the Board of Directors of the Company, that the
execution by any member of the Special Committee of consents, agreements,
certificates or other documents or instruments reflecting
<PAGE> 2
determinations to be made by the Special Committee shall be conclusive evidence
of the Special Committee's approval of the matters delegated to the Special
Committee hereunder; and
RESOLVED FURTHER, by the Board of Directors of the Company that the
appropriate officers of the Company are hereby authorized to cause to be
prepared a Registration Statement on Form S-3, including one or more
Prospectuses and Prospectus Supplements, relating to the registration under the
Securities Act of 1933, as amended (the "Act"), of the Securities, it being
understood that the Special Committee or any executive officer or other officer
of the Company designated by the Special Committee, is hereby authorized and
empowered to approve the form and terms of such changes in and amendments to the
Registration Statement, and the Prospectus and Prospectus Supplements as the
Special Committee or such persons shall deem necessary or appropriate (the
execution and filing by such persons on behalf of the Company of such
Registration Statement on Form S-3 being conclusive evidence of their approval
of such Registration Statement including any such changes or amendments); and
each member of the Special Committee or such other persons is hereby authorized
and empowered to execute, in the name of and on behalf of the Company, such
Registration Statement, and to execute any and all amendments thereto as they
deem necessary or advisable; and
RESOLVED FURTHER, by the Board of Directors of the Company that upon
the execution of said Registration Statement of any amendments thereto, by the
directors and officers, as required by law, either in person or by a duly
authorized attorney or attorneys, the appropriate officers of the Company be,
and each of them hereby is, authorized to cause such Registration Statement and
any amendments thereto, together with appropriate schedules and exhibits, to be
filed with the Securities and Exchange Commission (the "Commission") and to
execute and file all such instruments, make all such payments, and do such other
acts and things as, in their opinion or in the opinion of any of them, may be
necessary or desirable in order to effect such filing and to cause such
Registration Statement to become effective; and
RESOLVED FURTHER, by the Board of Directors of the Company that the
Secretary of the Company be, and he hereby is, appointed agent of the Company
for the receipt of notice or communications from the Commission with respect to
the aforesaid Registration Statement or any amendment thereto, with all powers
set forth in the rules and regulations of the Commission under the Act; and
RESOLVED FURTHER, by the Board of Directors of the Company that the
firm of Bradley Arant Rose & White LLP be, and it hereby is, appointed counsel
for the Company to pass upon all legal matters in behalf of and to render all
legal opinions to the Company and to the purchasers in connection with the
issuance and sale by the Company of the Securities; and
RESOLVED FURTHER, by the Board of Directors of the Company that the
Chairman of the Board, the President or the Treasurer of the Company or any
Executive Vice President of the Company and the Secretary of the Company be, and
they each hereby are, authorized and empowered to execute, seal, attest and
deliver such underwriting agreement as is approved by the Special Committee in
the name of and on behalf of the Company (such being the "Underwriting
Agreement"); and
RESOLVED FURTHER, by the Board of Directors of the Company that the
appropriate officers of the Company be, and they each hereby are, authorized to
prepare, execute, seal, attest and deliver the certificates representing the
Securities to be sold by the Company upon payment of the purchase price therefor
pursuant to the Underwriting Agreement; and
RESOLVED FURTHER, by the Board of Directors of the Company that the
Special Committee be, and it hereby is, authorized and directed to make, or
cause to be made, such filings as shall be necessary or desirable under any
state's Blue Sky, securities or similar laws; that the Special Committee is
hereby authorized to perform on behalf of this Company any and all such acts as
they may deem necessary or advisable in order to comply with the applicable laws
of any such states, and, in connection therewith, to execute and file all
requisite papers and documents, including, but not limited to, applications,
reports, surety bonds, irrevocable consents and appointments of attorneys or
agents for service of process; and the execution by such officers of any such
paper or documents or the doing by them of any act in connection with the
foregoing matters shall conclusively establish their authority,
<PAGE> 3
therefor from this Company and the approval and ratification by the Company of
the papers and documents so executed and the action so taken; and
RESOLVED FURTHER, by the Board of Directors of the Company that the
proper officers of the Company be, and each of them hereby is, authorized to do
all acts and things and to give all instructions to the Company transfer agent
and registrar in their judgment necessary to effectuate the purposes of the
preceding resolutions and said transfer agent and registrar shall be fully
protected in relying upon such instructions; and
RESOLVED FURTHER, by the Board of Directors of the Company that the
officers of the Company be, and they each hereby are, authorized and directed to
take any and all actions to execute any and all documents, agreements and
instruments and to take any and all other or further steps which they deem to be
necessary or desirable to carry out the purpose and intent of, and to consummate
any of the transactions contemplated by, any of the foregoing resolutions.
<PAGE> 1
EXHIBIT 99
DELAWARE GENERAL CORPORATION LAW SECTION 145: INDEMNIFICATION OF OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS; INSURANCE
(a) A corporation shall have power 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, whether civil,
criminal, administrative or investigative (other than an action by
or in the right of the corporation) by reason of the fact that the
person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person acted
in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable
cause to believe the person's conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which the person reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that the person's conduct was
unlawful.
(b) A corporation shall have the power 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 or suit by or in the right
of the corporation to procure a judgment in its favor by reason of
the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonable
incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification
shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in the
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections
(a) and (b) of this section, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the present or former director, officer, employee
or agent is proper in the circumstances because the person has met
the applicable standard of conduct set forth in subsections (a) and
(b) of this section. Such determination shall be made, with respect
to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a
quorum, or (2) by a committee of such directors designated by
majority vote of such directors, even though less than a quorum, or
(3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the
stockholders.
<PAGE> 2
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses (including
attorneys' fees) incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions,
if any, as the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not
be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and
as to action in another capacity which holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have
the power to indemnify such person against such liability under this
section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or a merger which, if its separate
existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of
such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under this
section with respect to the resulting or surviving corporation as
such person would have with respect to such constituent corporation
if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to any
employee benefit plan; and references to "serving at the request of
the corporation" shall include any service as a director, officer,
employee or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner
such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests
of the corporation" as referred to in this section.
(j) This indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of
expenses or indemnification brought under this section or under any
bylaw, agreement, vote of stockholders or disinterested directors,
or otherwise. The Court of Chancery may summarily determine a
corporation's obligation to advance expenses (including attorneys'
fees).
