Exhibit 1.3
6,000,000 Shares
5.625% Series Preference Stock
Non-Cumulative, Par Value $1 Per
Share
(Stated Capital $25 Per Share)
ALABAMA POWER
COMPANY
UNDERWRITING AGREEMENT
December 5, 2006
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
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As Representatives of the Several
Underwriters
|
Ladies and Gentlemen:
Alabama Power Company, an Alabama
corporation (the “Company”), confirms its agreement
(the “Agreement”) with you and the other Underwriters
named in Schedule I hereto (collectively, the
“Underwriters”, which term shall also include any
underwriter substituted as hereinafter provided in Section 11
hereof) for whom you are acting as representatives (in such
capacity you shall hereinafter be referred to as the
“Representatives”), with respect to the sale by the
Company and the purchase by the Underwriters, acting severally and
not jointly, of 6,000,000 shares of 5.625% Series Preference Stock,
Non-Cumulative, Par Value $1 Per Share (Stated Capital $25 Per
Share) of the Company (the “Preference Stock”) as set
forth in Schedule I hereto.
The Company understands that the
Underwriters are making a public offering of the Preference
Stock.
SECTION 1. REPRESENTATIONS
AND WARRANTIES . The Company represents and warrants to the
Underwriters as follows:
(a) A registration statement
on Form S-3 (File Nos. 333-126348, 333-126348-01, 333-126348-02 and
333-126348-03) in respect of the Preference Stock and certain other
securities has been prepared and filed in accordance with the
provisions of the Securities Act of 1933, as amended (the
“1933 Act”), with the Securities and Exchange
Commission (the “Commission”); such registration
statement and any post-effective amendment thereto, each in the
form heretofore delivered or to be delivered to the Underwriters,
has been declared effective by
the Commission in such form (except
that copies of the registration statement and any post-effective
amendment delivered to the Underwriters need not include exhibits
but shall include all documents incorporated by reference therein);
and no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose or
pursuant to Section 8A of the 1933 Act against the Company or
related to the offering has been initiated or, to the best
knowledge of the Company, threatened by the Commission (any
preliminary prospectus, as supplemented by a preliminary prospectus
supplement, included in such registration statement or filed with
the Commission pursuant to Rule 424(a) of the rules and regulations
of the Commission under the 1933 Act, being hereinafter called a
“Preliminary Prospectus”); such registration statement,
as used with respect to the Preference Stock, including the
information deemed a part thereof pursuant to Rule 430B(f)(1) under
the 1933 Act on the date of such registration statement’s
effectiveness for purposes of Section 11 of the 1933 Act, as such
Section applies to the Company and the Underwriters for the
Preference Stock pursuant to Rule 430B(f)(2) under the 1933 Act
(the “Effective Date”), including the exhibits thereto
and all documents incorporated by reference therein pursuant to
Item 12 of Form S-3 at the Effective Date, being hereinafter called
the “Registration Statement;” the base prospectus
relating to the Preference Stock and certain other securities of
the Company, in the form in which it has most recently been filed
with the Commission on or prior to the date of this Agreement
relating to the Preference Stock, being hereinafter called the
“Basic Prospectus;” the Basic Prospectus as amended and
supplemented by a preliminary prospectus supplement dated December
4, 2006 relating to the Preference Stock and as further amended and
supplemented immediately prior to the Applicable Time (as defined
below) and has been filed with the Commission pursuant to Rule
424(b) under the 1933 Act (such document is hereinafter called the
“Pricing Prospectus”); the Basic Prospectus as amended
or supplemented in final form, including by a prospectus supplement
relating to the Preference Stock in the form in which it is filed
with the Commission, pursuant to Rule 424(b) under the 1933 Act in
accordance with Section 4(e) hereof is hereinafter called the
“Final Supplemented Prospectus;” any reference herein
to any Preliminary Prospectus, the Basic Prospectus, the Pricing
Prospectus or the Final Supplemented Prospectus shall be deemed to
refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, as of
the date of such Preliminary Prospectus, Basic Prospectus, Pricing
Prospectus or Final Supplemented Prospectus, as the case may be;
any reference to any amendment or supplement to any Preliminary
Prospectus, the Basic Prospectus, the Pricing Prospectus or the
Final Supplemented Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary
Prospectus, Basic Prospectus, Pricing Prospectus or Final
Supplemented Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the “1934 Act”), and
incorporated by reference in such Preliminary Prospectus, Basic
Prospectus, Pricing Prospectus or Final Supplemented Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual
report
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of the Company filed pursuant to
Section 13(a) or 15(d) of the 1934 Act after the effective date of
the Registration Statement that is incorporated by reference in the
Registration Statement.
For purposes of this Agreement, the
“Applicable Time” is 10:30 AM (New York Time) on the
date of this Agreement; the documents listed in Schedule III, taken
together and attached hereto, are collectively referred to as the
“Pricing Disclosure Package.”
(b) The documents incorporated
by reference in the Registration Statement or the Pricing
Prospectus, when they were filed with the Commission, complied in
all material respects with the applicable provisions of the 1934
Act and the rules and regulations of the Commission thereunder, and
as of such time of filing, when read together with the Pricing
Prospectus and any Permitted Free Writing Prospectus (as defined in
Section 3(a) hereof), none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and
incorporated by reference in the Final Supplemented Prospectus or
any further amendment or supplement thereto, when such documents
are filed with the Commission, will comply in all material respects
with the applicable provisions of the 1934 Act and the rules and
regulations of the Commission thereunder and, when read together
with the Final Supplemented Prospectus as it otherwise may be
amended or supplemented, will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, except that the Company makes no warranty or
representation to the Underwriters with respect to: (A) any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriters through the Representatives expressly for use in the
Pricing Prospectus, any Permitted Free Writing Prospectus and the
Final Supplemented Prospectus; or (B) any information set forth in
the Pricing Prospectus or the Final Supplemented Prospectus under
the caption “Certain Terms of the New Preference Stock -
Book-Entry-Only Issuance - The Depository Trust
Company.”
(c) The Registration Statement
and the Final Supplemented Prospectus comply, and any further
amendments or supplements thereto, when any such amendments become
effective or supplements are filed with the Commission, as the case
may be, will comply, in all material respects with the applicable
provisions of the 1933 Act, the 1934 Act, the 1939 Act (as
hereinafter defined) and the General Rules and Regulations of the
Commission thereunder and the Registration Statement, the Pricing
Disclosure Package and the Final Supplemented Prospectus do not and
will not, (i) as of the Effective Date as to the Registration
Statement and any amendment thereto, (ii) as of the Applicable Time
as to the Pricing Disclosure Package and (iii) as of the date of
the Final Supplemented Prospectus as to the Final Supplemented
Prospectus or as of the date when any supplement is filed
as
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to the Final Supplemented Prospectus
as further supplemented, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the case of the
Registration Statement and any amendment thereto, and, in the light
of the circumstances under which they were made, not misleading in
the case of the Pricing Disclosure Package and the Final
Supplemented Prospectus as further supplemented; except that the
Company makes no warranties or representations with respect to (A)
that part of the Registration Statement which shall constitute the
Statements of Eligibility (Form T-1) under the Trust Indenture Act
of 1939, as amended (the “1939 Act”), (B) statements or
omissions made in a Permitted Free Writing Prospectus, the
Registration Statement, the Pricing Prospectus or the Final
Supplemented Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriters
through the Representatives expressly for use therein or (C) any
information set forth in the Pricing Prospectus or the Final
Supplemented Prospectus under the caption “Certain Terms of
the New Preference Stock - Book-Entry-Only Issuance - The
Depository Trust Company.”
(d) Each Permitted Free
Writing Prospectus listed on Schedule III hereto does not include
anything that conflicts with the information contained in the
Registration Statement, the Pricing Prospectus or the Final
Supplemented Prospectus and each such Permitted Free Writing
Prospectus, as supplemented by and taken together with the Pricing
Disclosure Package as of the Applicable Time, did not contain an
untrue statement of a material fact or 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, except that the Company makes no warranty or
representation to the Underwriters with respect to any statement or
omissions made in a Permitted Free Writing Prospectus in reliance
upon and in conformity with information furnished in writing to the
Company by the Underwriters through the Representatives expressly
for use therein.
(e) With respect to the
Registration Statement, the conditions for use of Form S-3, as set
forth in the General Instructions thereof, have been
satisfied.
(f) At the determination date
for purposes of the Preference Stock within the meaning of Rule
164(h) under the 1933 Act, the Company was not an “ineligible
issuer” as defined in Rule 405 under the 1933 Act.
(g) Since the respective dates
as of which information is given in the Registration Statement and
the Pricing Prospectus, except as otherwise stated therein, there
has been no material adverse change in the business, properties or
financial condition of the Company, whether or not arising in the
ordinary course of business.
(h) The Company is a
corporation duly organized and existing under the laws of the State
of Alabama and has due corporate authority to carry on the public
utility
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business in which it is engaged and
to own and operate the properties used by it in such business, to
enter into and perform its obligations under this Agreement and the
Indenture and to issue and sell the shares of the Preference Stock
to the Underwriters.
(i) This Agreement has been
duly authorized, executed and delivered by the Company.
(j) The issuance and delivery
of the Preference Stock has been duly authorized by the Company
and, on the Closing Date, the Preference Stock will have been duly
executed by the Company and, when issued and delivered against
payment therefor as described in the Final Supplemented Prospectus,
will be validly issued and fully paid and non-assessable and will
conform in all material respects to all statements relating thereto
in the Pricing Disclosure Package and the Final Supplemented
Prospectus.
(k) The execution, delivery
and performance by the Company of this Agreement and the
consummation by the Company of the transactions contemplated herein
and compliance by the Company with its obligations hereunder shall
have been duly authorized by all necessary corporate action on the
part of the Company and do not and will not result in any violation
of the charter or bylaws of the Company, and do not and will not
conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company under (A) any contract,
indenture, mortgage, loan agreement, note, lease or other agreement
or instrument to which the Company is a party or by which it may be
bound or to which any of its properties may be subject (except for
conflicts, breaches or defaults which would not, individually or in
the aggregate, be materially adverse to the Company or materially
adverse to the transactions contemplated by this Agreement), or (B)
any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court,
domestic or foreign, or any regulatory body or administrative
agency or other governmental body having jurisdiction over the
Company, or any of its properties.
(l) No authorization,
approval, consent or order of any court or governmental authority
or agency is necessary in connection with the issuance and sale by
the Company of the Preference Stock or the transactions by the
Company contemplated in this Agreement, except (A) such as may be
required under the 1933 Act or the rules and regulations
thereunder; (B) such as may be required under the Federal Power
Act; (C) the approval of the Alabama Public Service Commission (the
“Alabama Commission”); and (D) such consents,
approvals, authorizations, registrations or qualifications as may
be required under state securities or “blue sky”
laws.
(m) The financial statements
incorporated by reference in the Registration Statement, the
Pricing Prospectus and the Final Supplemented
Prospectus,
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together with the related schedules
and notes, present fairly, in all material respects, the financial
position, results of operations and cash flows of the Company as of
and for the dates indicated; said financial statements have been
prepared in conformity with accounting principles generally
accepted in the United States (“GAAP”) applied on a
consistent basis (except that the unaudited financial statements
may be subject to normal year-end adjustments) throughout the
periods involved and necessarily include amounts that are based on
the best estimates and judgments of management. The selected
financial data and the summary financial information included in
the Pricing Prospectus and the Final Supplemented Prospectus
present fairly the information shown therein and have been compiled
on a basis consistent with that of the audited and unaudited
financial statements incorporated by reference in the Registration
Statement.
SECTION 2. SALE AND
DELIVERY TO THE UNDERWRITERS; CLOSING .
(a) On the basis of the
representations and warranties herein contained and subject to the
terms and conditions herein set forth, (i) the Company agrees to
sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the
Company, the number of shares of the Preference Stock set forth in
Schedule I to this Agreement opposite the name of such Underwriter
(plus any additional shares of the Preference Stock that such
Underwriter may become obligated to purchase pursuant to the
provisions of Section 11 hereof), at a price equal to $25.00 per
share of Preference Stock and (ii) the Company agrees to pay each
Underwriter as compensation hereunder a commission equal to $0.4375
per share of Preference Stock purchased by such
Underwriter.
(b) Payment for and delivery
of certificates for the Preference Stock shall be made at the
offices of Dewey Ballantine LLP, 1301 Avenue of the Americas, New
York, New York 10019 at 10:00 A.M., New York Time, on
December 13, 2006 (unless postponed in accordance with
the provisions of Section 11) or such other time, place or date as
shall be agreed upon by the Representatives and the Company (such
time and date of payment and delivery being herein called the
“Closing Date”). Payment shall be made to the Company
by wire transfer in federal funds at the Closing Date against
delivery of certificates for the shares of Preference Stock to
Lehman Brothers Inc. It is understood that each Underwriter has
authorized Lehman Brothers Inc., for each Underwriter’s
account, to accept delivery of, receipt for, and make payment of,
the purchase price for the shares of the Preference Stock which
each Underwriter has agreed to purchase. Lehman Brothers Inc.,
individually and not as a representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price
for the shares of Preference Stock to be purchased by any
Underwriter whose payment has not been received by the Closing
Date, but such payment shall not relieve such Underwriter from its
obligations hereunder.
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The delivery of the Preference Stock
shall be made in fully registered form, registered in the name of
CEDE & CO., to the offices of The Depository Trust Company in
New York, New York or its designee, and the Representatives shall
accept such delivery.
The certificate(s) for the shares of
the Preference Stock will be made available for examination by the
Representatives not later than 12:00 Noon, New York time, on the
last business day prior to the Closing Date.
On the Closing Date the Company will
pay the commission payable to the Underwriters pursuant to
paragraph (a) of this Section 2 by wire transfer in federal funds
against receipt therefor by the Underwriters.
SECTION 3. FREE WRITING
PROSPECTUSES .
(a) The Company represents and
agrees that, without the prior consent of the Representatives, it
has not made and will not make any offer relating to the Preference
Stock that would constitute a “free writing prospectus”
as defined in Rule 405 under the 1933 Act, other than a Permitted
Free Writing Prospectus; each Underwriter, severally and not
jointly, represents and agrees that, without the prior consent of
the Company and the Representatives, it has not made and will not
make any offer relating to the Preference Stock that would
constitute a “free writing prospectus” as defined in
Rule 405 under the Act, other than a Permitted Free Writing
Prospectus or a free writing prospectus that is not required to be
filed by the Company pursuant to Rule 433; any such free writing
prospectus (which shall include the pricing term sheet discussed in
Section 3(b) hereof), the use of which has been consented to by the
Company and the Representatives, is listed on Schedule III and
herein called a “Permitted Free Writing
Prospectus.”
(b) The Company agrees to
prepare a pricing term sheet, substantially in the form of Schedule
II hereto and approved by the Representatives, and to file such
pricing term sheet pursuant to Rule 433(d) under the 1933 Act
within the time period prescribed by such Rule.
(c) The Company and the
Representatives have complied and will comply with the requirements
of Rule 433 under the 1933 Act applicable to any free writing
prospectus, including timely Commission filing where required and
legending.
(d) The Company agrees that if
at any time following issuance of a Permitted Free Writing
Prospectus any event occurred or occurs as a result of which such
Permitted Free Writing Prospectus would conflict with the
information in the Registration Statement, the Pricing Prospectus
or the Final Supplemented Prospectus or include an untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances
then prevailing, not misleading, the Company will give prompt
notice thereof to the Representatives and, if requested by the
Representatives, will prepare and furnish without charge to each
Underwriter a free writing prospectus
7
or other document, the use of which
has been consented to by the Representatives, which will correct
such conflict, statement or omission; provided, however, that this
representation and warranty shall not apply to any statements or
omissions in a Permitted Free Writing Prospectus made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives, expressly
for use therein.
(e) The Company agrees that if
there occurs an event or development as a result of which the
Pricing Disclosure Package would include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in light of the circumstances then
prevailing, not misleading, the Company will notify the
Representatives so that any use of the Pricing Disclosure Package
may cease until it is amended or supplemented.
SECTION 4. COVENANTS OF THE
COMPANY . The Company covenants with the Underwriters as
follows:
(a) The Company, on or prior
to the Closing Date, will deliver to the Underwriters conformed
copies of the Registration Statement as originally filed and of all
amendments thereto, heretofore or hereafter made, including any
post-effective amendment (in each case including all exhibits filed
therewith, and including unsigned copies of each consent and
certificate included therein or filed as an exhibit thereto, except
exhibits incorporated by reference, unless specifically requested).
As soon as the Company is advised thereof, it will advise the
Representatives orally of the issuance of any stop order under the
1933 Act with respect to the Registration Statement, or the
institution of any proceedings for that purpose or pursuant to
Section 8A of the 1933 Act against the Company or related to the
offering, of which the Company shall have received notice, and will
use its best efforts to prevent the issuance of any such stop order
and to secure the prompt removal thereof, if issued. The Company
will deliver to the Representatives sufficient conformed copies of
the Registration Statement, the Basic Prospectus, the Pricing
Prospectus and the Final Supplemented Prospectus and of all
supplements and amendments thereto (in each case without exhibits)
for distribution to the Underwriters and, from time to time, as
many copies of the Basic Prospectus, the Pricing Prospectus and the
Final Supplemented Prospectus as the Underwriters may reasonably
request for the purposes contemplated by the 1933 Act or the 1934
Act.
(b) The Company will furnish
the Underwriters with written or electronic copies of each
amendment and supplement to the Final Supplemented Prospectus
relating to the offering of the Preference Stock in such quantities
as the Underwriters may from time to time reasonably request. If,
during the period (not exceeding nine months) when the delivery of
a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the 1933 Act) shall be required by law in connection
with the sale of any Preference Stock by an Underwriter, any event
relating to or affecting the Company, or of which the Company shall
be advised in writing by the Representatives, shall occur, which in
the opinion of the Company
8
or of Underwriters’ counsel
should be set forth in a supplement to or an amendment of the Final
Supplemented Prospectus, as the case may be, in order to make the
Final Supplemented Prospectus not misleading in the light of the
circumstances when it (or in lieu thereof, the notice referred to
in Rule 173(a) under the 1933 Act) is delivered, or if for any
other reason it shall be necessary during such period to amend or
supplement the Final Supplemented Prospectus or to file under the
1934 Act any document incorporated by reference in the Final
Supplemented Prospectus in order to comply with the 1933 Act or the
1934 Act, the Company forthwith will (i) notify the Underwriters to
suspend solicitation of purchases of the Preference Stock and (ii)
at its expense, make any such filing or prepare and furnish to the
Underwriters a reasonable number of copies of a supplement or
supplements or an amendment or amendments to the Final Supplemented
Prospectus which will supplement or amend the Final Supplemented
Prospectus so that, as supplemented or amended, it will not contain
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances when the Final Supplemented
Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the 1933 Act) is delivered, not misleading or which
will effect any other necessary compliance. In case any Underwriter
is required to deliver a prospectus in connection with the sale of
any Preference Stock after the expiration of the period specified
in the preceding sentence, the Company, upon the request of such
Underwriter, will furnish to such Underwriter, at the expense of
such Underwriter, a reasonable quantity of a supplemented or
amended prospectus, or supplements or amendments to the Final
Supplemented Prospectus, complying with Section 10(a) of the 1933
Act. During the period specified in the second sentence of this
subsection, the Company will continue to prepare and file with the
Commission on a timely basis all documents or amendments required
under the 1934 Act and the rules and regulations thereunder;
provided, that the Company shall not file such documents or
amendments without also furnishing copies thereof prior to such
filing to the Representatives and Dewey Ballantine LLP.
(c) The Company will endeavor,
in cooperation with the Underwriters, to qualify the Preference
Stock for offering and sale under the applicable securities laws of
such states and the other jurisdictions of the United States as the
Representatives may designate; provided, however, that the Company
shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file a consent
to service of process or to file annual reports or to comply with
any other requirements in connection with such qualification deemed
by the Company to be unduly burdensome.
(d) The Company will make
generally available to its security holders as soon as practicable
but not later than 45 days after the close of the period covered
thereby, an earnings statement of the Company (in form complying
with the provisions of Rule 158 of the rules and regulations under
the 1933 Act) covering a twelve-month period beginning not later
than the first day of the Company’s fiscal
9
quarter next following the
“effective date” (as defined in Rule 158) of the
Registration Statement.
(e) As soon as practicable
after the date of this Agreement, and in any event within the time
prescribed by Rule 424 under the 1933 Act, the Company will file
the Final Supplemented Prospectus, in a form approved by the
Representatives, such approval not to be unreasonably withheld,
with the Commission and will advise the Representatives of such
filing and to confirm such advice in writing. Furthermore, the
Company will make any other required filings pursuant to Rule
433(d)(1) of the 1933 Act within the time required by such
Rule.
(f) During a period of 15 days
from the date of this Agreement, the Company will not, without the
Representatives’ prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of,
or otherwise dispose of, any share of Preference Stock or any
security convertible into or exchangeable into or exercisable for
preference stock of the Company or any securities substantially
similar to the Preference Stock (except for the Preference Stock
issued pursuant to this Agreement).
(g) The Company will file in
the office of the Secretary of the State of Alabama a charter
amendment creating the Preference Stock.
SECTION 5. PAYMENT OF
EXPENSES . The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, including but
not limited to, the expenses of (i) the printing and filing of the
Registration Statement as originally filed and of each amendment
thereto, (ii) the preparation, issuance and delivery of the
certificate(s) for the shares of the Preference Stock to the
Underwriters, (iii) the fees and disbursements of the
Company’s counsel and accountants, (iv) the qualification of
the Preference Stock under securities laws in accordance with the
provisions of Section 3(c) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of
any blue sky survey (such fees and disbursements of counsel shall
not exceed $3,500), (v) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally
filed and of each amendment thereto and of the Pricing Prospectus,
any Permitted Free Writing Prospectus, the Final Supplemented
Prospectus, and any amendments or supplements thereto, (vi) the
printing and delivery to the Underwriters of copies of any blue sky
survey, (vii) the fee of the National Association of Securities
Dealers, Inc. in connection with its review of the offering
contemplated by this Agreement, if applicable, (viii) any fees
payable in connection with the rating of the Preference Stock, (ix)
the cost and charges of any transfer agent or registrar, and
(x) the cost of qualifying the Preference Stock with The
Depository Trust Company.
Except as otherwise provided in
Section 10 hereof, the Underwriters shall pay all other expenses
incurred by them in connection with their offering of the
Preference Stock, including fees and disbursements of their
counsel, Dewey Ballantine LLP.
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SECTION 6. CONDITIONS OF
UNDERWRITERS’ OBLIGATIONS . The obligations of the
Underwriters to purchase and pay for the shares of the Preference
Stock are subject to the following conditions:
(a) No stop order suspending
the effectiveness of the Registration Statement shall be in effect
on the Closing Date and no proceedings for that purpose or pursuant
to Section 8A of the 1933 Act against the Company or related to the
offering shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of
the Pricing Prospectus or the Final Supplemented Prospectus, or any
supplement thereto, is required pursuant to Rule 424, the Pricing
Prospectus and the Final Supplemented Prospectus, and any such
supplement, as applicable, shall have been filed in the manner and
within the time period required by Rule 424. The pricing term sheet
contemplated by 3(b) hereto, and any other material required to be
filed by the Company pursuant to Rule 433(d) under the 1933 Act,
shall have been filed by the Company with the Commission within the
applicable time periods prescribed for such filings by Rule
433.
(b) Any required orders of the
Alabama Commission permitting the transactions contemplated hereby
substantially in accordance with the terms and conditions hereof
shall be in full force and effect and shall contain no provision
unacceptable to the Underwriters or the Company (but all provisions
of such order or orders heretofore entered, copies of which have
heretofore been delivered to the Representatives, are deemed
acceptable to the Underwriters and the Company and all provisions
of such order or orders hereafter entered shall be deemed
acceptable to the Underwriters and the Company unless within 24
hours after receiving a copy of any such order any party to this
Agreement shall give notice to the other parties to the effect that
such order contains an unacceptable provision).
(c) On the Closing Date the
Representatives shall have received:
(1) The opinion, dated the
Closing Date, of Balch & Bingham LLP, general counsel for the
Company, substantially in the form attached hereto as Schedule
IV-A.
(2) The opinion, dated the
Closing Date, of Troutman Sanders LLP, counsel for the Company,
substantially in the form attached hereto as Schedule
IV-B.
(3) The opinion, dated the
Closing Date, of Dewey Ballantine LLP, counsel for the
Underwriters, substantially in the form attached hereto as Schedule
V.
(d) At the Closing Date, there
shall not have been, since the date hereof or since the respective
dates as of which information is given in the Registration
Statement and the Final Supplemented Prospectus, any material
adverse change in the business, properties or financial condition
of the Company, whether or not arising
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in the ordinary course of business,
and the Representatives shall have received a certificate of the
President or any Vice President of the Company, and dated as of the
Closing Date, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of the Closing Date,
(iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied on or prior
to the Closing Date and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose or pursuant to Section 8A of the 1933
Act against the Company or related to the offering have been
initiated or, to the knowledge of the Company, threatened by the
Commission.
(e) The Representatives shall
have received on the date hereof and shall receive on the Closing
Date from Deloitte & Touche LLP, a letter or letters addressed
to the Representatives (which may refer to letters previously
delivered to the Representatives) dated the respective dates of
delivery thereof to the effect that: (A) they are an independent
registered public accounting firm with respect to the Company
within the meaning of the 1933 Act and the rules and regulations
under the 1933 Act; (B) in their opinion, the financial statements
audited by them and incorporated by reference in the Registration
Statement and the Pricing Prospectus or the Registration Statement,
the Pricing Prospectus and the Final Supplemented Prospectus, as
applicable, comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the rules
and regulations under the 1934 Act; and (C) on the basis of certain
limited procedures performed through a specified date not more than
three business days prior to the date of such letter, namely (i)
reading the minute books of the Company; (ii) performing the
procedures specified by the standards of the Public Company
Accounting Oversight Board (United States) (“PCAOB”)
for a review of interim financial statement information as
described in Statement on Auditing Standards No. 100,
“Interim Financial In
