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Exhibit 1.1
REGIONS FINANCING TRUST
III
$300,000,000
8.875% Trust Preferred
Securities
(liquidation amount $25 per
security)
fully and unconditionally
guaranteed by
REGIONS FINANCIAL
CORPORATION
UNDERWRITING
AGREEMENT
April 25,
2008
M ORGAN S
TANLEY & C O . I
NCORPORATED
M ORGAN K
EEGAN & C OMPANY , I
NC .
C ITIGROUP G
LOBAL M ARKETS I NC
.
M ERRILL L
YNCH , P IERCE , F
ENNER & S MITH I
NCORPORATED
As Representatives of the Several
Underwriters
c/o Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
1. Introductory .
Regions Financing Trust III, a statutory trust created under the
laws of the State of Delaware (the “ Trust ”),
and Regions Financial Corporation, a Delaware corporation (the
“ Guarantor ”), as depositor of the Trust and as
Guarantor under the Guarantee Agreement referred to herein, agree
with the several underwriters named in Schedule A hereto (the
“ Underwriters ”), for whom you are acting as
representatives (the “ Representatives ”),
subject to the terms and conditions stated herein, to issue and
sell to the several Underwriters 12,000,000 of the Trust’s
8.875% Trust Preferred Securities, liquidation amount $25 per
security (the “Firm Trust Preferred Securities
”) and, at the election of the Underwriters, up to 1,800,000
additional Trust Preferred Securities (the “ Optional
Trust Preferred Securities ”) (the Firm Trust Preferred
Securities and the Optional Trust Preferred Securities which the
Underwriters elect to purchase pursuant to Section 3 hereof
are herein collectively called the “ Trust Preferred
Securities ”). The proceeds of the sale of the Trust
Preferred Securities and of the common securities of the Trust (the
“ Trust Common Securities ”) to be sold by the
Trust to the Guarantor are to be invested in $300,010,000 principal
amount of the Guarantor’s 8.875% Junior Subordinated Notes
due 2078 (the “ Junior Subordinated Notes ” and,
together with the Trust Preferred Securities and the associated
Guarantee, the “ Securities ”), to be issued
pursuant to the indenture for subordinated debt securities between
the Guarantor and Deutsche Bank Trust Company Americas (the “
Indenture Trustee ,” and such Junior Subordinated
Indenture, the “ Base Indenture ”), as amended
and supplemented by a fourth supplemental indenture between the
Guarantor and the Indenture Trustee (the “ Supplemental
Indenture ” and, together with the Base Indenture, the
“ Indenture ”), each to be entered into at or
before the Closing Date. If the Underwriters elect to purchase any
Optional Trust Preferred Securities, the proceeds thereof are to be
invested in additional Junior Subordinated Notes having an
aggregate principal amount equal to the aggregate liquidation
amount of such Optional Trust Preferred Securities.
Capitalized terms used herein
and not otherwise defined but that are defined in the Declaration
of Trust (as defined in Section 2(a)(8)) have the meanings
specified in the Declaration of Trust.
2. Representations and
Warranties . (a) Each of the Guarantor and the Trust
jointly and severally represents and warrants as of the Applicable
Time, the Firm Closing Date and the Optional Closing Date, as the
case may be, to, and agrees with, the several Underwriters
that:
(1) Filing and
Effectiveness of Registration Statement; Certain Defined Terms
. A registration statement on Form S-3 (No. 333-142839), and a
post-effective amendment thereto, including a related prospectus or
prospectuses, covering the registration of the Securities, has been
filed with the Commission under the Act and has become effective.
“ Registration Statement ” at any particular
time means such registration statement in the form then filed with
the Commission, including any amendment thereto, any document
incorporated by reference therein and all 430B Information and all
430C Information with respect to such registration statement, that
in any case has not been superseded or modified. “
Registration Statement ” without reference to a time
means the Registration Statement as of the Effective Time. For
purposes of this definition, 430B Information shall be considered
to be included in the Registration Statement as of the time
specified in Rule 430B.
For purposes of this
Agreement:
“ 430B
Information ” means information included in a prospectus
then deemed to be a part of the Registration Statement pursuant to
Rule 430B(e) or retroactively deemed to be a part of the
Registration Statement pursuant to Rule 430B(f).
“ 430C
Information ” means information included in a prospectus
then deemed to be a part of the Registration Statement pursuant to
Rule 430C.
“ Act ”
means the Securities Act of 1933, as amended.
“ Applicable
Time ” means 3:20 pm (Eastern time) on the date of this
Agreement.
“ Closing Date
” has the meaning defined in Section 3
hereof.
“ Commission
” means the Securities and Exchange Commission.
“ Effective Time
” of the Registration Statement means the time of the first
contract of sale for the Securities.
“ Exchange Act
” means the Securities Exchange Act of 1934.
“ Final
Prospectus ” means the Statutory Prospectus that
discloses the public offering price, other 430B Information and
other final terms of the Securities and otherwise satisfies
Section 10(a) of the Act.
“ Firm Closing
Date ” has the meaning defined in Section 3
hereof.
“ General Use Issuer
Free Writing Prospectus ” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being so specified in Schedule B to
this Agreement.
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“ Issuer Free
Writing Prospectus ” means any “issuer free writing
prospectus,” as defined in Rule 433, relating to the
Securities in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in
the Trust’s and the Guarantor’s records pursuant to
Rule 433(g).
“ Limited Use Issuer
Free Writing Prospectus ” means any Issuer Free Writing
Prospectus that is not a General Use Issuer Free Writing
Prospectus.
“ Optional Closing
Date ” has the meaning defined in Section 3
hereof.
“ Rules and
Regulations ” means the rules and regulations of the
Commission.
“ Securities
Laws ” means, collectively, the Sarbanes-Oxley Act of
2002 (“ Sarbanes-Oxley ”), the Act, the Exchange
Act, the Trust Indenture Act, the Rules and Regulations, the
auditing principles, rules, standards and practices applicable to
auditors of “issuers” (as defined in Sarbanes-Oxley)
promulgated or approved by the Public Company Accounting Oversight
Board and, as applicable, the rules of the New York Stock Exchange
and the NASDAQ Stock Market.
“ Statutory
Prospectus ” with reference to any particular time means
the prospectus relating to the Securities that is included in the
Registration Statement immediately prior to that time, including
all 430B Information and all 430C Information with
respect to the Registration Statement. For purposes of the
foregoing definition, 430B Information shall be considered to
be included in the Statutory Prospectus only as of the actual time
that form of prospectus (including a prospectus supplement) is
filed with the Commission pursuant to Rule 424(b) and not
retroactively.
“ Trust Indenture
Act ” means the Trust Indenture Act of 1939.
Unless otherwise specified, a
reference to a “rule” is to the indicated rule under
the Act.
(2) Compliance with
Securities Act Requirements . (i) (A) At the time the
Registration Statement initially became effective, (B) at the
time of each amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether by post-effective
amendment, incorporated report or form of prospectus), (C) at
the Effective Time relating to the Securities and (D) on each
Closing Date, the Registration Statement conformed and will conform
in all material respects to the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations and did not and will
not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading and (ii) (A) on
its date, (B) at the time of filing the Final Prospectus
pursuant to Rule 424(b) and (C) on each Closing Date, the
Final Prospectus will conform in all material respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and will not include any untrue statement of a
material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under
which they are made, not misleading. The preceding sentence does
not apply to statements in or omissions from any such document
based upon written information furnished to the Guarantor by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information is that described as such in Section 8(b)
hereof.
(3) Automatic Shelf
Registration Statement . (i) Well-Known Seasoned
Issuer Status . (A) At the time of initial filing of the
Registration Statement, (B) at the time of the most recent
amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (C) at the time the Guarantor or any
person
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acting on its behalf (within
the meaning, for this clause only, of Rule 163(c)) made any offer
relating to the Securities in reliance on the exemption of Rule
163, the Guarantor was a “well known seasoned issuer”
as defined in Rule 405, including not having been and not being an
“ineligible issuer” as defined in Rule 405.
(ii) Effectiveness of
Automatic Shelf Registration Statement . The Registration
Statement is an “automatic shelf registration
statement,” as defined in Rule 405, that initially became
effective within three years of the date of this Agreement. If
immediately prior to the Renewal Deadline (as hereinafter defined),
any of the Trust Preferred Securities remain unsold by the
Underwriters, the Guarantor will prior to the Renewal Deadline
file, if it has not already done so and is eligible to do so, a new
automatic shelf registration statement relating to the Securities,
in a form satisfactory to the Representatives. If the Guarantor is
no longer eligible to file an automatic shelf registration
statement, the Guarantor will prior to the Renewal Deadline, if it
has not already done so, file a new shelf registration statement
relating to the Securities, in a form satisfactory to the
Representatives, and will use its best efforts to cause such
registration statement to be declared effective within 180 days
after the Renewal Deadline. The Guarantor will take all other
action necessary or appropriate to permit the public offering and
sale of the Securities to continue as contemplated in the expired
registration statement relating to the Securities. References
herein to the Registration Statement shall include such new
automatic shelf registration statement or such new shelf
registration statement, as the case may be. “ Renewal
Deadline ” means the third anniversary of the initial
effective time of the Registration Statement.
(iii) Eligibility to Use
Automatic Shelf Registration Form . The Guarantor has not
received from the Commission any notice pursuant to Rule 401(g)(2)
objecting to use of the automatic shelf registration statement
form. If at any time when Trust Preferred Securities remain unsold
by the Underwriters the Guarantor receives from the Commission a
notice pursuant to Rule 401(g)(2) or otherwise ceases to be
eligible to use the automatic shelf registration statement form,
the Guarantor will (i) promptly notify the Representatives,
(ii) promptly file a new registration statement or
post-effective amendment on the proper form relating to the
Securities, in a form satisfactory to the Representatives,
(iii) use its best efforts to cause such registration
statement or post-effective amendment to be declared effective as
soon as practicable, and (iv) promptly notify the
Representatives of such effectiveness. The Guarantor will take all
other action necessary or appropriate to permit the public offering
and sale of the Trust Preferred Securities to continue as
contemplated in the registration statement that was the subject of
the Rule 401(g)(2) notice or for which the Guarantor has otherwise
become ineligible. References herein to the Registration Statement
shall include such new registration statement or post-effective
amendment, as the case may be.
(iv) Filing Fees . The
Guarantor has paid or shall pay the required Commission filing fees
relating to the Securities within the time required by Rule
456(b)(1) without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r).
(4) Ineligible Issuer
Status . (i) At the earliest time after the filing of the
Registration Statement that the Trust, the Guarantor or another
offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2)) of the Trust Preferred Securities and (ii) at
the date of this Agreement, neither the Trust nor the Guarantor
was, and neither is, an “ineligible issuer,” as defined
in Rule 405.
(5) General Disclosure
Package . As of the Applicable Time, neither (i) the
General Use Issuer Free Writing Prospectus(es) issued at or prior
to the Applicable Time and the preliminary
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prospectus supplement, dated
April , 2008, including the base
prospectus, dated May 11, 2007 (which is the most recent
Statutory Prospectus distributed to investors generally), and the
other information, if any, stated in Schedule B to this Agreement
to be included in the General Disclosure Package, all considered
together (collectively, the “ General Disclosure
Package ”), nor (ii) any individual Limited Use
Issuer Free Writing Prospectus, when considered together with the
General Disclosure Package, included any untrue statement of a
material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions
from any Statutory Prospectus or any Issuer Free Writing Prospectus
in reliance upon and in conformity with written information
furnished to the Guarantor by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any
Underwriter consists of the information described as such in
Section 8(b) hereof.
(6) Issuer Free Writing
Prospectuses . Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of
the public offer and sale of the Trust Preferred Securities or
until any earlier date that the Guarantor notified or notifies the
Representatives as described in the next sentence, did not, does
not and will not include any information that conflicted, conflicts
or will conflict with the information then contained in the
Registration Statement. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information then
contained in the Registration Statement or as a result of which
such Issuer Free Writing Prospectus, if republished immediately
following such event or development, would include an untrue
statement of a material fact or omitted or would omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, (i) the Guarantor has promptly notified or will
promptly notify the Representatives and (ii) the Guarantor has
promptly amended or will promptly amend or supplement such Issuer
Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission.
(7) Good Standing of the
Trust. The Trust has been duly created and is validly existing
as a statutory trust in good standing under the laws of the State
of Delaware and, at the Firm Closing Date and the Optional Closing
Date, will have the power and authority (trust and other) to own
its property and conduct its business as described in the
Registration Statement, General Disclosure Package and the Final
Prospectus and to execute and deliver and perform its obligations
under the Expense Agreement.
(8) Declaration of
Trust . The Trust has conducted and will conduct no business
other than the transactions contemplated by this Agreement and the
Amended and Restated Declaration of Trust in substantially the form
previously provided to you and to be entered into at or before the
Firm Closing Date among the Guarantor, as Depositor, Deutsche Bank
Trust Company Americas, as Property Trustee, Deutsche Bank Trust
Company Delaware, as Delaware Trustee, and the individuals named
therein, as Administrative Trustees (collectively, the “
Trustees ,” and such Amended and Restated Declaration
of Trust, the “ Declaration of Trust ”) and
described in the General Disclosure Package and the Final
Prospectus; the Trust is not, and at each Closing Date will not be,
a party to or bound by any agreement or instrument other than this
Agreement, the Declaration of Trust and the Expense Agreement; and
the Trust has no liabilities or obligations other than those
arising out of the transactions contemplated by this Agreement and
the Expense Agreement and described in the General Disclosure
Package and the Final Prospectus.
(9) Authorization of Trust
Preferred Securities . At the Firm Closing Date, the Firm Trust
Preferred Securities, and Optional Closing Date, the Optional Trust
Preferred Securities, will have been duly authorized and, when
issued, delivered and paid for pursuant to this Agreement, will
have been duly and validly issued and will be fully paid and
non-assessable beneficial interests in
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the Trust entitled to the
benefits of the Declaration of Trust and the Firm Trust Preferred
Securities or the Optional Trust Preferred Securities, as the case
may be, will conform in all material respects to the description
thereof in the General Disclosure Package and the Final
Prospectus.
(10) Authorization of
Trust Common Securities . At the Firm Closing Date and the
Optional Closing Date, the Trust Common Securities will have been
duly authorized and will have been duly and validly issued and will
be fully paid and non-assessable beneficial interests in the Trust
entitled to the benefits of the Declaration of Trust and will
conform in all material respects to the description thereof
contained in the General Disclosure Package and the Final
Prospectus; the issuance of the Trust Common Securities is not
subject to preemptive or other similar rights; at each Closing
Date, all of the issued and outstanding Trust Common Securities
will be directly owned by the Guarantor, free and clear of all
liens, encumbrances, equities or claims; and the Trust Common
Securities and the Trust Preferred Securities are the only
beneficial interests in the Trust authorized to be issued by the
Trust.
(11) Limitation of
Liability . The holders of the Trust Preferred Securities will
be entitled to the same limitation on personal liability that is
extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of
Delaware.
(12) Trust Transaction
Agreements . At the Firm Closing Date, the Expense Agreement
(collectively with this Agreement, the “ Trust Transaction
Agreements ”) will have been duly authorized, executed
and delivered by the Trust and will constitute a valid and legally
binding instrument of the Trust, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles; and the Trust Transaction Agreements
will conform in all material respects to the descriptions thereof
contained in the General Disclosure Package and the Final
Prospectus.
(13) Authorization of
Agreement . This Agreement has been duly authorized, executed
and delivered by the Trust.
(14) Absence of Defaults
and Conflicts Resulting From Transaction . At the Firm Closing
Date and the Optional Closing Date, the Trust will have all power
and authority necessary to execute and deliver this Agreement, the
Trust Preferred Securities, the Trust Common Securities and the
Expense Agreement, and to perform its obligations hereunder and
thereunder; the issuance by the Trust of the Trust Preferred
Securities and the Trust Common Securities in accordance with the
Declaration of Trust, the purchase by the Trust of the Junior
Subordinated Notes, and the execution and delivery by the Trust of
the Trust Transaction Agreements and the performance by it of its
obligations thereunder will not (i) conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
Guarantor or any of its subsidiaries or the Trust is a party or by
which the Guarantor or any of its subsidiaries or the Trust is
bound or to which any of the property or assets of the Guarantor or
any of its subsidiaries or the Trust is subject; (ii) result
in any violation of the provisions of the Declaration of Trust, the
Restated Certificate of Incorporation, as amended, or By-laws of
the Guarantor or (iii) result in any violation of any statute
or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Guarantor or any of its
Significant Subsidiaries (as defined herein) or the Trust or any of
their properties, which conflict, violation or breach or default in
the case of clauses (i) and (iii) above, either
individually or in the aggregate along with all other violations
and defaults referred to in this paragraph (14) reasonably be
expected to result in a material adverse effect on the condition
(financial or otherwise), results of operations, business,
properties or prospects of the Guarantor and its subsidiaries,
taken as a whole (a “ Material Adverse Effect
”); and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the execution, delivery
and
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performance by the issue and
sale of the Trust Preferred Securities and the Trust Common
Securities by the Trust in accordance with the terms of the
Declaration of Trust, the purchase by the Trust of the Junior
Subordinated Notes, or the execution, delivery or performance by
the Trust of the Expense Agreement or the consummation by the Trust
of the transactions contemplated thereby, except such as have been
obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Trust Preferred Securities by the
Underwriters.
(15) Investment Company
Act. The Trust is not, and after giving effect to the offering
and sale of the Trust Preferred Securities will not be, an
“investment company” or an entity
“controlled” by an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as
amended (the “ Investment Company Act
”).
(b) The Guarantor represents
and warrants as of the Applicable Time, the Firm Closing Date, and
the Optional Closing Date, as the case may be, to, and agrees with,
the several Underwriters that:
(1) Good Standing of the
Guarantor . The Guarantor has been duly incorporated and is
existing and in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the General
Disclosure Package and the Final Prospectus; and the Guarantor is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such
qualification, except for such failures to be so qualified as would
not reasonably be expected to result in a Material Adverse
Effect.
(2) Bank Holding
Company . The Guarantor is duly registered as a bank holding
company and a financial holding company under the Bank Holding
Company Act of 1956, as amended.
(3) Good Standing of
Regions Bank . Regions Bank is a duly organized and validly
existing Alabama state chartered bank and continues to hold a valid
certificate to do business as such.
(4) Subsidiaries .
Each significant subsidiary of the Guarantor (as such term is
defined in Rule 1-02 of Regulation S-X) (each a “
Significant Subsidiary ” and collectively, the “
Significant Subsidiaries ”) has been duly formed and
is existing and in good standing under the laws of the jurisdiction
of its formation, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
General Disclosure Package and the Final Prospectus; and each
Significant Subsidiary of the Guarantor is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification (except in any
case in which the failure to so qualify or be in good standing
would not reasonably be expected to result in a Material Adverse
Effect; all of the issued and outstanding capital stock of each
Significant Subsidiary of the Guarantor has been duly authorized
and validly issued and is fully paid and nonassessable (except as
provided in statutes pursuant to which depository institutions are
subject); and the capital stock of each Significant Subsidiary
owned by the Guarantor, directly or through subsidiaries, is owned
free from liens, encumbrances and defects.
(5) Compliance with
Laws . The Guarantor and each of its subsidiaries are in
compliance with all laws administered by the Board of Governors of
the Federal Reserve System (the “ Federal Reserve
Board ”), the Federal Deposit Insurance Corporation (the
“ FDIC ”), the Alabama Department of Banking
(the “ Department ”) and any other federal or
state bank regulatory authorities (together with the Federal
Reserve Board, the FDIC and the Department, the “ Bank
Regulatory Authorities ”) with jurisdiction over the
Guarantor and its subsidiaries, except for such failures to be in
compliance as would not reasonably be expected to result in a
Material
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Adverse Effect. Except to the
extent disclosed in the General Disclosure Package, the Guarantor,
its Significant Subsidiaries and Morgan Keegan & Company,
Inc. are in compliance with all laws administered by the Commission
and the Financial Industry Regulatory Authority (“
FINRA ”), except for such failures to be in compliance
as would not reasonably be expected to result in a Material Adverse
Effect. The deposit accounts of each bank subsidiary of the
Guarantor are insured up to applicable limits by the FDIC and no
proceedings for the termination or revocation of such insurance are
pending or, to the knowledge of the Guarantor, threatened. Neither
the Guarantor nor any of its subsidiaries is a party to or
otherwise subject to any consent decree, memorandum of
understanding, written commitment or other supervisory agreement
with any of the Bank Regulatory Authorities, nor have the Guarantor
or any of its subsidiaries been advised by any of the Bank
Regulatory Authorities that it is contemplating issuing or
requesting any of the foregoing.
(6) Administrative
Trustees . Each of the Administrative Trustees is an employee
of or affiliated with the Guarantor and, at the Firm Closing Date,
the Declaration of Trust will have been duly executed and delivered
by each Administrative Trustee and will constitute a valid and
legally binding instrument of the Guarantor, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles.
(7) Execution and Delivery
of Guarantor Transaction Documents . The Junior Subordinated
Notes have been duly authorized by the Guarantor, and, when issued,
delivered and paid for at the Firm Closing Date and the Optional
Closing Date, as the case may be, as contemplated by the General
Disclosure Package, will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding
obligations of the Guarantor entitled to the benefits provided by
the Indenture; each of the Indenture, the Declaration of Trust and
the Guarantee Agreement (the Declaration of Trust and the Guarantee
Agreement, collectively, the “ Other Guarantor Transaction
Agreements ” and, together with this Agreement, the
Indenture and the Junior Subordinated Notes, the “
Guarantor Transaction Agreements ”) has been duly
authorized by the Guarantor and, at each Closing Date, each of the
Indenture, the Guarantee Agreement and the Declaration of Trust
will be duly qualified under the Trust Indenture Act and will
constitute a valid and legally binding instrument of the Guarantor,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and the
Junior Subordinated Notes, the Indenture and the Other Guarantor
Transaction Agreements will conform in all material respects to the
descriptions thereof in the General Disclosure Package and the
Final Prospectus.
(8) Authorization of
Agreement . This Agreement has been duly authorized, executed
and delivered by the Guarantor.
(9) Statements. The
statements set forth in the General Disclosure Package and the
Final Prospectus under the captions “The Trust,”
“Description of the Trust Preferred Securities,”
“Description of the Junior Subordinated Notes,”
“Description of the Guarantee of the Trust Preferred
Securities,” “Relationship Among Trust Preferred
Securities, Junior Subordinated Notes and Guarantee,” and
“Replacement Capital Covenant,” insofar as they are
descriptions of contracts, agreements or other legal documents or
describe Federal statutes, rules and regulations, and under the
caption “Underwriting,” insofar as they purport to
describe the provisions of the documents referred to therein,
constitute an accurate summary of the matters set forth therein in
all material respects; the statements set forth in the General
Disclosure Package and the Final Prospectus under the caption
“Certain United States Federal Income Tax Consequences”
and “ERISA Considerations,” insofar as they purport to
constitute a summary of matters of U.S. federal income tax law or
the U.S. Employee Retirement Income Security Act of 1974, as
amended, and regulations or legal conclusions with respect thereto,
constitute an accurate summary of the matters set forth therein in
all material respects.
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(10) Absence of Defaults
and Conflicts Resulting from Transaction . The execution,
delivery and performance of the Guarantor Transaction Agreements
and this Agreement, and the issuance and sale of the Trust
Preferred Securities and Junior Subordinated Notes and compliance
with the terms and provisions thereof will not result in a breach
or violation of any of the terms and provisions of, or constitute a
default under, or result in the imposition of any lien, charge or
encumbrance upon any property or assets of the Guarantor or any of
its Significant Subsidiaries pursuant to, (i) the charter or
by-laws of the Guarantor or any of its Significant Subsidiaries,
(ii) any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Guarantor or any of its Significant
Subsidiaries or any of their properties, or (iii) any
agreement or instrument to which the Guarantor or any of its
Significant Subsidiaries is a party or by which the Guarantor or
any of its Significant Subsidiaries is bound or to which any of the
properties of the Guarantor or any of its Significant Subsidiaries
is subject, except in the case of clauses (ii) and
(iii) above, for any such breach, violation, default or
imposition of any lien, charges or encumbrances that would not,
individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect.
(11) Absence of Existing
Defaults and Conflicts . Neither the Guarantor nor any of its
subsidiaries is (i) in violation of its respective charter or
by-laws or (ii) in default (or with the giving of notice or
lapse of time would be in default) under any existing obligation,
agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument to
which any of them is a party or by which any of them is bound or to
which any of the properties of any of them is subject, except such
defaults that would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse
Effect.
(12) Possession of
Licenses and Permits . The Guarantor and its Significant
Subsidiaries possess, and are in compliance with the terms of, all
certificates, authorizations, franchises, licenses and permits
(“ Licenses ”) necessary to conduct their
respective businesses now conducted or proposed in the General
Disclosure Package and the Final Prospectus to be conducted by
them, except those the failure of which to possess or to be in
noncompliance with would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and have
not received any notice of proceedings relating to the revocation
or modification of any Licenses that, if determined adversely to
the Guarantor or any of its Significant Subsidiaries, would
individually or in the aggregate reasonably be expected to have a
Material Adverse Effect.
(13) Absence of Labor
Dispute. No labor dispute with the employees of the Guarantor
or any of its Significant Subsidiaries exists or, to the knowledge
of the Guarantor, is imminent that could have a Material Adverse
Effect.
(14) Environmental
Laws . The Guarantor and its Significant Subsidiaries are to
their knowledge (i) in substantial compliance with any and all
applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants
or contaminants (“ Environmental Laws ”),
(ii) have received and are in substantial compliance with all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) have not received any unresolved notice
of any actual or potential liability for the investigation or
remediation of any unpermitted disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except
where such non-compliance with Environmental Laws, failure to
receive required permits, licenses or other approvals, or liability
would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.
9
(15) Absence of
Manipulation . The Guarantor has not taken, directly or
indirectly, any action that is designed to or that has constituted
or that would reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the
Guarantor to facilitate the sale or resale of the Trust Preferred
Securities.
(16) Internal Controls and
Compliance with the Sarbanes-Oxley Act. The Guarantor has
established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15 and 15d-15 under the Exchange
Act) that (A) are designed to ensure that material information
relating to the Guarantor, including its consolidated subsidiaries,
is made known to the Guarantor’s Chief Executive Officer and
its Chief Financial Officer by others within those entities,
particularly during the periods in which the filings made by the
Guarantor with the Commission which it may make under
Section 13(a), 13(c) or 15(d) of the Exchange Act are being
prepared, (B) have been evaluated for effectiveness as of the
Guarantor’s most recent fiscal quarter and (C) are
effective to perform the functions for which they were
established.
The Guarantor has established
and maintains internal control over financial reporting (as such
term is defined in Rule 13a-15 and 15d-15 under the Exchange Act)
that (a) provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally
accepted accounting principles and (b) have been evaluated by
the management of the Guarantor (including the Guarantor’s
Chief Executive Officer and Chief Financial Officer) for
effectiveness as of the end of the Guarantor’s most recent
fiscal year. The management of the Guarantor (including the
Guarantor’s Chief Executive Officer and Chief Financial
Officer) has evaluated any change that has materially affected, or
is reasonably likely to affect, the Guarantor’s internal
control over financial reporting as of the end of the
Guarantor’s most recent fiscal quarter. In addition, not
later than the date of the filing with the Commission of the
Guarantor’s most recent Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, each of the
accountants and the audit committee of the board of directors of
the Guarantor have been advised of (A) all significant
deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably
likely to adversely affect the Guarantor’s ability to record,
process, summarize and report financial information and
(B) any fraud, whether or not material, that involves
management or other employees who have a significant role in
Guarantor’s internal control over financial reporting. Except
as described in the General Disclosure Package and the Final
Prospectus, since the end of the Guarantor’s most recent
audited fiscal year, there has been (I) no material weakness
in the Guarantor’s internal control over financial reporting
(whether or not remediated) and (II) no change in the
Guarantor’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially
affect, the Guarantor’s internal control over financial
reporting.
(17) Financial
Statements . The consolidated historical financial statements
of (i) the Guarantor and its consolidated subsidiaries
included in the General Disclosure Package, the Final Prospectus
and the Registration Statement present fairly in all material
respects the financial condition of the Guarantor and its
consolidated subsidiaries as of the dates shown and their results
of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States
applied on a consistent basis (except as otherwise noted therein),
and (ii) AmSouth Bancorporation (“ AmSouth
”) and its consolidated subsidiaries included in the General
Disclosure Package, the Final Prospectus and the Registration
Statement present fairly in all material respects the financial
condition of AmSouth and its consolidated subsidiaries as of the
dates shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis (except as otherwise
noted therein); and the schedules included in the Registration
Statement present fairly the information required to be stated
therein. The pro forma financial statements and the related notes
thereto included in the General Disclosure
10
Package, the Registration
Statement and the Final Prospectus present fairly the information
shown therein, have been prepared in accordance with the
Commission’s rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein.
(18) No Material Adverse
Change in Business . Except as disclosed in the General
Disclosure Package and the Final Prospectus, since the end of the
period covered by the latest audited financial statements included
in the General Disclosure Package and the Final Prospectus,
(i) there has been no Material Adverse Effect, and
(ii) there has been no material adverse change in the capital
stock or long-term indebtedness of the Guarantor and its
subsidiaries, taken as a whole.
(19) Investment Company
Act . The Guarantor is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the General Disclosure Package and
the Final Prospectus, will not be an “investment
company” as defined in the Investment Company Act.
(20) Ratings . No
“nationally recognized statistical rating organization”
as such term is defined for purposes of Rule 436(g)(2)
(i) has imposed (or has informed the Guarantor that it is
considering imposing) any condition (financial or otherwise) on the
Guarantor’s retaining any rating assigned to the Guarantor or
any securities of the Guarantor or (ii) has indicated to the
Guarantor that it is considering any of the actions described in
Section 7(c)(ii) hereof.
(21) Absence of Further
Requirements . No consent, approval, authorization, filing with
or order of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such
as have been obtained under the Act and the Exchange Act and such
as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Trust
Preferred Securities by the Underwriters in the manner contemplated
herein, in the General Disclosure Package and the Final
Prospectus.
(22) Absence of
Proceedings . There is no action, suit or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator involving the Guarantor or any of its Significant
Subsidiaries or its or their property is pending or, to the best
knowledge of the Guarantor, threatened that (i) would
reasonably be expected to have a material adverse effect on the
performance of this Agreement or the Guarantor Transaction
Agreements or the consummation of any of the transactions
contemplated hereby or (ii) would reasonably be expected to
result in a Material Adverse Effect.
(23) Tax Compliance .
The Guarantor has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would
not reasonably be expected to have a Material Adverse Effect) and
has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that
any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in
good faith or as would not reasonably be expected to result in a
Material Adverse Effect.
(24) Insurance . The
Guarantor and each of its Significant Subsidiaries are insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; all policies of insurance and
fidelity or surety bonds insuring the Guarantor or any of its
Significant Subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect; the
Guarantor and its Significant Subsidiaries are in compliance with
the terms of such policies and instruments in all material
respects; and there are no claims by the Guarantor or any of
its
11
Significant Subsidiaries in
excess of $2,500,000 individually or $15,000,000 in the aggregate
under any such policy or instrument as to which any insurance
company is denying liability; neither the Guarantor nor any of its
Significant Subsidiaries has been refused any insurance coverage
sought or applied for; and neither the Guarantor nor any such
Significant Subsidiary has any reason to believe that it will not
be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost
that would not reasonably be expected to result in a Material
Adverse Effect.
(25) Dividends and
Distributions . No subsidiary of the Guarantor is currently
prohibited, directly or indirectly, from paying any dividends to
the Guarantor, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Guarantor
any loans or advances to such subsidiary from the Guarantor or from
transferring any of such subsidiary’s property or assets to
the Guarantor or any other subsidiary of the Guarantor, except as
described in or contemplated by the General Disclosure Package and
the Final Prospectus and applicable banking laws and
regulations.
(26) Use of Proceeds .
Except as disclosed in the Registration Statement, the General
Disclosure Package and the Final Prospectus, the Guarantor does not
intend to use any of the proceeds from the sale of the Junior
Subordinated Notes hereunder to repay any outstanding debt owed to
any affiliate of any of the Underwriters.
(27) AML Compliance .
The operations of the Guarantor and its subsidiaries are currently
in compliance with applicable financial record keeping and
reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of
all United States jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency of the United States (collectively, the “ Money
Laundering Laws ”), except where the failure to so comply
would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect; and there are no material
actions, suits or proceedings by or before any court or
governmental agency, authority or body or any arbitrator involving
the Guarantor or any of its subsidiaries with respect to the Money
Laundering Laws that are pending or, to the knowledge of the
Guarantor, threatened.
(28) Dealings with OFAC
Restricted Persons . Neither the Guarantor nor any of its
affiliates does business with the government of, or any person
located in, any country, or with any other person, targeted by any
of the economic sanctions of the United States administered by the
United States Treasury Department’s Office of Foreign Assets
Control; the Guarantor is not controlled (within the meaning of the
regulations promulgating such sanctions or the laws authorizing
such promulgation) by any such government or person; and the
proceeds from the offering will not be used to fund any operations
in, finance any investments or activities in or make any payments
to, any country, or to make any payments to any person, targeted by
any of such sanctions.
3. Purchase, Sale and
Delivery of Trust Preferred Securities . On the basis of the
representations, warranties and agreements and subject to the terms
and conditions set forth herein, (a) the Guarantor and the
Trust agree that the Trust will sell to the several Underwriters,
and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $25.00 per Trust
Preferred Security, plus accumulated distributions, if any, from
the date of the original issuance, the number of Firm Trust
Preferred Securities set forth opposite the names of such
Underwriters in Schedule A hereto and (b) in the event and to
the extent that the Underwriters shall exercise the election to
purchase Optional Trust Preferred Securities as provided below, the
Guarantor and the Trust agree to sell to the several Underwriters,
and each of the Underwriters agrees, severally, and not jointly, to
purchase from the Trust at a purchase price of $25.00 per Trust
Preferred Security, plus accumulated distributions, if any, from
the date of the original issuance, that portion of the number of
Optional Trust Preferred Securities as to which such election shall
have been exercised up to the number of Optional Trust Preferred
Securities set forth opposite the names of such Underwriters in
Schedule A hereto.
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The Trust hereby grants to
the Underwriters the right to purchase at their election up to the
number of Optional Trust Preferred Securities set forth opposite
the name of such Underwriter in Schedule A hereto on the terms
referred to in the first paragraph of this Section 3 for the
sole purpose of covering sales of securities in excess of the
aggregate principal amount of Firm Trust Preferred Securities. Any
such election to purchase Optional Trust Preferred Securities may
be exercised by written notice from the Representatives to the
Trust, given within a period of 30 calendar days after the date of
this Agreement, setting forth the aggregate number of Optional
Trust Preferred Securities to be purchased and the date on which
such Optional Trust Preferred Securities are to be delivered, as
determined by the Representatives but in no event earlier than the
Firm Closing Date or, unless the Representatives and the Trust
otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice.
As compensation to the
Underwriters for their commitments hereunder, and in view of the
fact that the proceeds from the sale of the Trust Preferred
Securities will be used by the Trust to purchase the Junior
Subordinated Notes, the Guarantor on the applicable Closing Date
will pay by wire transfer of immediately available funds to Morgan
Stanley & Co. Incorporated, for the accounts of the
several Underwriters, $0.50 (institutional) per Trust Preferred
Security and $0.7875 (retail) per Trust Preferred Security in
respect of the Trust Preferred Securities to be delivered by the
Trust hereunder on the Firm Closing Date with respect to the Firm
Trust Preferred Securities and on the Optional Closing Date with
respect to the Optional Trust Preferred Securities.
The Trust will deliver the
Firm Trust Preferred Securities to or as instructed by the
Representatives for the accounts of the several Underwriters in a
form reasonably acceptable to the Representatives against payment
of the purchase price by the Underwriters through Morgan
Stanley & Co. Incorporated in Federal (same day) funds by
wire transfer to an account at a bank designated by the Guarantor
at the office of Alston & Bird LLP, 90 Park Avenue, New
York, New York 10016, at 10:00 A.M., New York time, on
April 30, 2008, or at such other time not later than seven
full business days thereafter as the Representatives and the
Guarantor determine, such time being herein referred to as the
“ Firm Closing Date ”. Delivery with respect to
the Optional Trust Preferred Securities, if any, shall be made on
the date and at the time given by the Representatives of the
Underwriters’ election to purchase the Optional Trust
Preferred Securities, or at such other time and date as the
Representatives, the Trust and the Guarantor may agree upon in
writing (such time and date, if not the Firm Closing Date, is
herein called the “ Optional Closing Date” , and
each such time and date for delivery, including the Firm Closing
Date, is herein called a “ Closing Date ”). For
purposes of Rule 15c6-1 under the Securities Exchange Act of
1934, the Closing Date (if later than the otherwise applicable
settlement date) shall be the settlement date for payment of funds
and delivery of securities for all the Trust Preferred Securities
sold pursuant to the offering. The Trust Preferred Securities so to
be delivered or evidence of their issuance will be made available
for checking at the above office of Alston & Bird LLP at
least 24 hours prior to each Closing Date.
4. Offering by
Underwriters . It is understood that the several Underwriters
propose to offer the Trust Preferred Securities for sale to the
public as set forth in the Final Prospectus.
5. Certain Agreements
. The Trust and the Guarantor agree with the several Underwriters
that:
(a) Filing of
Prospectuses. The Guarantor has filed or will file each
Statutory Prospectus (including the Final Prospectus) pursuant to
and in accordance with Rule 424(b)(2) (or, if applicable and
consented to by the Representatives, subparagraph (5)) not
later than the second business day following the earlier of the
date it is first used or the execution and delivery of this
Agreement. The Guarantor has complied and will comply with
Rule 433 with respect to an Issuer Free Writing
Prospectus.
13
(b) Filing of Amendments;
Response to Commission Requests . During the period when a
prospectus relating to the Securities is required to be delivered
under the Act by any Underwriter or dealer, the Guarantor will
promptly notify the Representatives (i) when any
post-effective amendment to the Registration Statement or new
registration statement relating to the Securities shall become
effective, or any supplement to the Final Prospectus or any amended
Final Prospectus shall have been filed, (ii) any request by
the Commission or its staff for any amendment to the Registration
Statement, for any supplement to any Statutory Prospectus or any
document incorporated by reference therein or otherwise deemed to
be a part thereof or for any additional information, (iii) the
institution by the Commission of any stop order proceedings in
respect of the Registration Statement or the threatening of any
proceeding for that purpose, and (iv) the receipt by the
Guarantor or the Trust of any notification with respect to the
suspension of the qualification of any of the Securities in any
jurisdiction or the institution or threatening of any proceedings
for such purpose. The Guarantor and the Trust will use its best
efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as
soon as possible the withdrawal thereof.
(c) Continued Compliance
with Securities Laws . If, at any time when a prospectus
relating to the Securities is (or but for the exemption in
Rule 172 would be) required to be delivered under the Act by
any Underwriter or dealer, any event occurs as a result of which
the Final Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the
Registration Statement or supplement the Final Prospectus to comply
with the Act, the Guarantor will promptly notify the
Representatives of such event and will promptly prepare and file
with the Commission and furnish, at its own expense, to the
Underwriters and the dealers and any other dealers upon request of
the Representatives, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance. Neither the Representatives’ consent to, nor the
Underwriters’ delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in
Section 7 hereof.
(d) Rule 158. The
Guarantor will timely file such reports pursuant to the Exchange
Act as are necessary in order to make generally available to its
securityholders as soon as practicable, but not later than 16
months after the date of this Agreement, an earnings statement for
the purposes of, and to provide to the Underwriters the benefits
contemplated by, the last paragraph of Section 11(a) of the
Act.
(e) Furnishing of
Prospectuses . The Guarantor will furnish to the
Representatives copies of the
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