EXHIBIT 1.3
CONFORMED COPY
BANCORPSOUTH CAPITAL TRUST I
5,000,000
8.15% Trust Preferred Securities
($25 Liquidation Amount)
fully and unconditionally guaranteed,
as described herein, by
BANCORPSOUTH, INC.
Underwriting Agreement
New York, New York
January 18, 2002
Salomon Smith Barney Inc.
A.G. Edwards & Sons, Inc.
Morgan Stanley & Co. Incorporated
Stephens Inc.
Stifel, Nicolaus & Company, Incorporated
As Representatives of the several Underwriters
in care of Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
BancorpSouth Capital Trust I, a Delaware statutory business
trust (the "Trust"), and BancorpSouth, Inc., a Mississippi corporation (the
"Company"), as depositor of the Trust and as guarantor, propose to sell to the
underwriters named in Schedule II hereto (the "Underwriters"), for whom you
(the "Representatives") are acting as representatives, 5,000,000 of the Trust's
8.15% Trust Preferred Securities, liquidation amount $25 per Trust Preferred
Security (the "Capital Securities" and,
together with the related Guarantee (as defined), being hereinafter called the
"Securities"). The Securities will represent undivided beneficial interests in
the assets of the Trust, will be guaranteed by the Company as to the payment of
distributions, and as to payments on liquidation or redemption, to the extent
set forth in a guarantee agreement (the "Guarantee") dated as of January 28,
2002, between the Company and The Bank of New York, a New York banking
corporation validly existing under the laws of the State of New York, as
trustee (the "Guarantee Trustee" and, together with the Property Trustee, the
Administrative Trustees and the Delaware Trustee (as respectively defined),
being hereinafter referred to as the "Trustees"). The Securities are to be
issued pursuant to the Second Amended and Restated Declaration of Trust of the
Trust (the "Declaration") dated as of January 28, 2002, among Aubrey B.
Patterson, an individual, and L. Nash Allen, Jr., an individual (each, an
"Administrative Trustee" and, collectively, the "Administrative Trustees"), The
Bank of New York, as property trustee (the "Property Trustee"), The Bank of New
York (Delaware), a Delaware banking corporation, as Delaware trustee (the
"Delaware Trustee") and the Company, as depositor. The proceeds of the sale by
the Trust of the Securities and its Common Securities, liquidation amount $25
per Common Security (the "Common Securities"), are to be invested in the 8.15%
Junior Subordinated Debt Securities (the "Debt Securities") of the Company
having an aggregate principal amount equal to the aggregate principal amount of
the Capital Securities and the Common Securities, to be issued pursuant to a
Junior Subordinated Indenture, as supplemented from time to time (the
"Indenture"), dated as of January 28, 2002, between the Company and The Bank of
New York, as trustee (the "Indenture Trustee"). To the extent there are no
additional Underwriters listed on Schedule II other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as
the context requires. Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act
on or
before the Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be; and any reference herein to the terms "amend", "amendment"
or "supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange
Act after the Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, deemed to be incorporated therein by reference. Certain
terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. Each of the Company
and the Trust represents and warrants to, and agrees with, each Underwriter as
set forth below in this Section 1:
(a) The Company and the Trust meet the requirements for
use of Form S-3 under the Act and have prepared and filed with the
Commission a registration statement (file number 333-72712), including
a related Basic Prospectus, for the registration under the Act of the
offering and sale of the Securities. The Registration Statement has
been declared effective by the Commission under the Act. The Company
and the Trust may have filed one or more amendments thereto, including
a Preliminary Final Prospectus, each of which has previously been
furnished to you. The Company and the Trust will next file with the
Commission one of the following: (i) a Final Prospectus supplement
relating to the Securities in accordance with Rules 430A and 424(b) or
(ii) a final prospectus in accordance with Rules 415 and 424(b). In
the case of clause (i), the Company and the Trust have included in
such registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and
the Final Prospectus. As filed, such Final Prospectus supplement or
such amendment and form of Final Prospectus supplement shall contain
all Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company and the Trust have advised you, prior to
the Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in
Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement
did or will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date (as
defined herein),
and on any date on which Option Securities are purchased, if such date
is not the Closing Date (a "settlement date"), the Final Prospectus
(and any supplement thereto) will, comply in all material respects
with the applicable requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement
did not or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; on
the Effective Date, on the Closing Date, and any settlement date the
Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date and any settlement
date, the Final Prospectus (together with any supplement thereto) will
not, include any 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; provided, however, that neither the Trust nor the Company
makes any representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustees or (ii) the information contained in or omitted from
the Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto). Any
certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and
warranty by the
Company, as to matters covered thereby, to each Underwriter.
(c) Neither the Company nor the Trust is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (together with the rules and regulations thereunder, the
"Investment Company Act"), and after giving effect to the offer and
sale of the Securities and the application of the proceeds thereof as
described in the Basic Prospectus, Preliminary Final Prospectus or the
Final Prospectus filed in contemplation of this offering, neither will
be an "investment company" as defined in the Investment Company Act.
(d) The Company is subject to and in compliance in all
material respects with the reporting requirements of Section 13 or
Section 15(d) of the Exchange Act.
(e) Neither the Company nor the Trust has paid or agreed
to pay to any person any compensation for soliciting another to
purchase any of the Securities (except as contemplated by this
Agreement).
(f) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act, 12 Del. C. 3801, et seq. (the "Business Trust
Act") with the power and authority to own property and to conduct its
business as described in any Preliminary Final Prospectus or the Final
Prospectus and to enter into and perform its obligations under this
Agreement, the Indenture, the Declaration and the Securities. The
Trust is duly qualified to transact business as a foreign entity and
is in good standing in each jurisdiction in which such qualification
is necessary, except where the failure to so qualify or be in good
standing would not have a material adverse effect on the Trust. The
Trust is not a party to or otherwise bound by any agreement other than
this Agreement, the Indenture, the Declaration, related documents or
agreements and the Securities.
(g) The Declaration has been duly authorized by the
Company and, on the Closing Date, will have been duly executed and
delivered by the Company and the Administrative Trustees, and,
assuming due authorization, execution and delivery by the Delaware
Trustee and the Property Trustee, be a valid and binding obligation of
the Company and the Administrative Trustees, enforceable against them
in accordance with its terms, subject to applicable bankruptcy,
insolvency, and similar laws affecting creditors' rights generally and
to general principles of equity ("Bankruptcy and Equity") and except
that the indemnification provisions may be limited by Federal or state
securities laws or the public policy underlying such laws ("Public
Policy"). Each of the Administrative Trustees of the Trust is an
employee of the Company and has been duly authorized by the Company to
execute and deliver the Declaration.
(h) Each of the Guarantee and the Indenture has been
duly authorized by the Company and, on the Closing Date, will have
been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Guarantee Trustee, in the
case of the Guarantee and by the Indenture Trustee, in the case of the
Indenture, will be a valid and binding obligation of the Company
enforceable against it in accordance with its terms, subject to
Bankruptcy and Equity, and except that the indemnification provisions
may be limited by Federal or state laws or Public Policy.
(i) The Capital Securities, the Common Securities and
the Option Securities have been duly authorized by the Declaration
and, when issued and delivered against payment therefor on the Closing
Date to the Underwriters, in the case of the Capital Securities, and
to the Company, in the case of the Common Securities, will be validly
issued and represent undivided beneficial interests in the assets of
the Trust. The issuance of neither the Capital Securities nor the
Common Securities is subject to preemptive or other similar rights. On
the Closing Date, all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company free and
clear of any pledge, security interest, claim, lien or other
encumbrance.
(j) The Debt Securities have been duly authorized by the
Company and, at the Closing Date, will have been duly executed and
delivered to the Indenture Trustee for authentication in accordance
with the Indenture and, when authenticated in the manner provided for
in the Indenture and delivered against payment therefor as described
in any Preliminary Final Prospectus or the Final Prospectus, will
constitute valid and binding obligations of the Company entitled to
the benefits of the Indenture enforceable against the Company in
accordance with their terms, subject to Bankruptcy and Equity.
(k) This Agreement has been duly executed and delivered
by the Company and the Trust.
(l) This Agreement, the Indenture, the Declaration, and
the Securities will on the Closing Date conform in all material
respects to the descriptions thereof contained in any Preliminary
Final Prospectus or the Final Prospectus.
(m) The Trust is not in violation of the Declaration or
any provision of the Business Trust Act. The execution, delivery and
performance of this Agreement, the Indenture, the Declaration and the
Securities to which it is a party by the Company or the Trust, and the
consummation of the transactions contemplated herein or therein, will
not conflict with or constitute a breach of, or a default under, or
result in the creation or imposition of any lien, charge or other
encumbrance upon any property or assets of the Trust, the Company or
any of the Company's subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note lease or other instrument to which the
Trust, the Company or any of its subsidiaries is a party or by which
it or any of them may be bound, or to which any of the property or
assets of any of them is subject, except for a conflict, breach,
default, lien, charge or
encumbrance which could not reasonably be expected to have a material
adverse effect on the consummation of the transactions contemplated
herein or therein, nor will such action result in a violation of the
Declaration or the Business Trust Act.
(n) The Company is a duly organized and validly existing
corporation in good standing under the laws of the State of
Mississippi and is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended, and has the corporate
power and authority to own its properties and conduct its business as
described in any Preliminary Final Prospectus or the Final Prospectus;
BancorpSouth Bank (the "Bank") is a duly organized and validly
existing Mississippi chartered commercial bank and continues to hold a
valid certificate to do business as such and has full power and
authority to conduct its business as such; and, except as set forth in
any Preliminary Final Prospectus or the Final Prospectus, each of the
Company and the Bank is in all material respects in compliance with
all laws, rules, regulations, directives and published interpretations
issued or administered by, all conditions imposed in writing by and
all agreements entered into with, any bank regulatory agency,
authority or body having jurisdiction over the Company or the Bank or
any of their respective assets, operations or businesses; each of the
Company and the Bank holds all material licenses, certificates and
permits from governmental authorities necessary for the conduct of its
business as described in any Preliminary Final Prospectus or the Final
Prospectus; and other than the Bank, there is no significant
subsidiary of the Company, as that term is defined in Rule 1-02(v) of
Regulation S-X, and there are no other subsidiaries of the Company
which, individually or in the aggregate, own or lease property or
conduct business which is material to the properties or business of
the Company and its subsidiaries taken as a whole.
(o) The Bank is duly authorized, and the Company is duly
qualified as a foreign corporation, to do business, and are in good
standing in all
jurisdictions in which such authorization or qualification is required
and in which the failure to be so authorized or to qualify, as the
case may be, could reasonably be expected to, in the aggregate, have
any material adverse effect upon the business, condition or properties
of the Company and its subsidiaries taken as a whole.
(p) There are no contracts or documents which are
required to be described in the Registration Statement, the Final Prospectus or
the documents incorporated by reference therein or to be filed as exhibits
thereto that have not been so described and filed as required.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Company and the Trust agree that the Trust will sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $25 per Security, plus accrued
distributions, if any, on the Securities from January 28, 2002, to the Closing
Date, the number of Securities set forth opposite such Underwriter's name in
Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for
the Securities shall be made at 10:00 a.m., New York City time, on January 28,
2002, or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement among the Representatives, the Trust and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the "Closing Date"). Delivery of
the Securities shall be made to the Representatives for the respective accounts
of the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of the
Trust by wire transfer payable in same-day funds to an account specified by the
Company. The Securities shall be delivered in definitive global form through
the facilities of The Depository Trust Company.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Final Prospectus.
5. Agreements. Each of the Company and the Trust agrees
with the several Underwriters that:
(a) The Company and the Trust will use their best
efforts to cause the Registration Statement, if not effective at the
Execution Time, and any amendment thereof, to become effective. Prior
to the termination of the offering of the Securities, neither the
Company nor the Trust will file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any
Preliminary Final Prospectus) to the Basic Prospectus or any Rule
462(b) Registration Statement unless the Company and the Trust have
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Final Prospectus is otherwise required under Rule
424(b), the Company and the Trust will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. The Company and the Trust
will promptly advise the Representatives (i) when the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, shall have become effective, (ii) when the Final Prospectus,
and any supplement thereto, shall have been filed (if required) with
the Commission pursuant to Rule 424(b), or when any Rule 462(b)
Registration Statement shall have been filed with the Commission;
(iii) when prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or
become effective; (iv) of any request by the Commission or its staff
for any amendment of the Registration Statement, or when any Rule
462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information; (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose; and (vi) of the receipt by the Company or
the Trust of any notification with
respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company and the Trust will use their
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.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
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 were made, not misleading, or if
it shall be necessary to amend the Registration Statement or
supplement the Final Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Company and the Trust
promptly will (i) notify the Representatives of such event, (ii)
prepare and file with the Commission, subject to the second sentence
of paragraph (a) of this Section 5, an amendment or supplement which
will correct such statement or omission or effect such compliance and
(iii) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the Representatives
an earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 under the Act.
(d) The Company and the Trust will furnish to the
Representatives and counsel for the Underwriters, without charge,
signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of each
Preliminary Final Prospectus and the Final Prospectus and any
supplement thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities and will arrange for the determination of the legality
of the Securities for purchase by institutional investors; provided
that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to
take any action that would subject it to service of process in suits,
other than arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject.
(f) The Company will not, until the first Business Day
following the Closing Date, without prior written consent of the
Representatives, offer, sell or contract to sell, pledge, or otherwise
dispose of,(or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of
the Company) directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Exchange Act, any debt securities
issued or guaranteed by the Company (other than the Securities) or
publicly announce an intention to effect any such transaction.
(g) Neither the Company nor the Trust will take any
action designed to or that would constitute or that might reasonably
be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of the Securities.
6. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy of the representations and warranties on the part of the
Company and the Trust contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company and the Trust made in
any certificates pursuant to the provisions hereof, to the performance by the
Company and the Trust of their obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the
Representatives agree in writing to a later time, the Registration
Statement will become effective not later than (i) 6:00 p.m. New York
City time, on the date of determination of the public offering price,
if such determination occurred at or prior to 3:00 p.m. New York City
time on such date or (ii) 9:30 a.m. on the Business Day following the
day on which the public offering price was determined, if such
determination occurred after 3:00 p.m. New York City time on such
date. If filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company and the Trust shall have requested and
caused Waller Lansden Dortch & Davis, PLLC, special counsel to the
Company and the Trust, Riley, Ford, Caldwell & Cork, P.A., counsel to
the Company, to have furnished to the Representatives one or more
opinions, dated the Closing Date and addressed to the Representatives,
to the effect that:
(i) the Company has been duly incorporated and
is a validly existing corporation in good standing under the
laws of the State of Mississippi and is duly registered as a
bank holding company under the Bank Holding Company Act of
1956, as amended, and has full corporate power and authority
to own or lease its properties and conduct its business as
described in the Final Prospectus; the Bank is a validly
existing Mississippi chartered commercial bank, and continues
to hold a valid certificate to do business as such and has
full corporate power and authority to conduct its business as
such; each of the Company and the Bank holds all material
licenses, certificates and permits from governmental
authorities necessary for the conduct of its business as
described in the Final Prospectus or any Preliminary Final
Prospectus; and other than the Bank, to the knowledge of such
counsel, there is no significant subsidiary of the Company,
as that term is defined in Rule 1-02(v) of Regulation S-X;
(ii) the Bank is duly authorized, and the
Company is duly qualified as a foreign corporation, to do
business and is in good standing in all jurisdictions in
which such authorization or qualification is required and in
which the failure to be so authorized or to qualify, as the
case may be, could reasonably be expected to, in the
aggregate, have any material adverse effect upon the
business, condition or properties of the Company and its
direct and indirect Subsidiaries taken as a whole;
(iii) all the outstanding shares of capital stock
of the Bank have been duly and validly authorized and issued
and are fully paid and nonassessable and are owned by the
Company either directly or through wholly owned Subsidiaries
free and clear of any perfected security interest and, to the
knowledge of such counsel, after due
inquiry, any other security interests, claims, liens or
encumbrances;
(iv) the Company's authorized equity
capitalization is as set forth in the Final Prospectus or any
Preliminary Final Prospectus and the Securities, the Debt
Securities and the Common Securities conform to the
description thereof contained in the Final Prospectus or any
Preliminary Final Prospectus; the holders of the outstanding
shares of capital stock of the Company are not entitled to
any preemptive or other rights to subscribe for the
Securities, the Debt Securities or the Common Securities
pursuant to Mississippi law or the Company's charter, and to
the knowledge of such counsel after due inquiry, such counsel
is not aware of the existence of such rights pursuant to any
agreement;
(v) to the knowledge of such counsel, after due
inquiry, (A) there is no pending or threatened action, suit
or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company,
the Trust or the Bank of a character required to be disclosed
in the Final Prospectus or any Preliminary Final Prospectus
which is not so disclosed; (B) there is no franchise,
contract or other document of a character required to be
described in the Final Prospectus or any Preliminary Final
Prospectus, which is not so described; and (C) the statements
included or incorporated by reference in the Final Prospectus
under the heading "Certain Regulatory Considerations" insofar
as such statements summarize legal matters, agreements,
documents or proceedings discussed therein, are accurate and
fair summaries of such legal matters, agreements, documents
or proceedings;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company and has been duly
executed and delivered by the Trust;
(vii) the Registration Statement has become
effective under the Act; any required filing of the Final
Prospectus or any Preliminary Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) have been made
in the manner and within the time period required by Rule
424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement
has been issued, no proceedings for that purpose have been
instituted or threatened and the Registration Statement and
the Final Prospectus or any Preliminary Final Prospectus
(other than the financial statements and other financial and
statistical information and Forms T-1 contained therein as to
which such counsel need express no opinion) comply as to form
in all material respects with the applicable requirements of
the Act, the Exchange Act and the Trust Indenture Act and the
respective rules thereunder; and although such counsel does
not pass upon and Assume Responsibility for the accuracy,
fairness, or completeness of statements contained in the
Registration Statement such counsel has no reason to believe
that at the Effective Date the Registration Statement
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Final Prospectus or any Preliminary Final Prospectus
includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
(viii) the Indenture has been duly authorized,
executed and delivered, and constitutes a valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors'
rights generally from time to time in effect and to general
principles of equity); the Debt Securities have been duly and
validly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered
to and paid for by the Trust, will constitute legal, valid
and binding obligations of the Company entitled to the
benefits of the Indenture (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
right generally from time to time in effect and to general
principles of equity);
(ix) the Guarantee has been duly authorized,
executed and delivered, and constitutes a valid and binding
instrument enforceable against the Company in accordance with
its terms (subject (a) as to the enforcement of remedies, as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting rights of creditors generally or by general
principles of equity and (b) as to the effect of Federal or
state law or public policy on the indemnification provisions
contained therein);
(x) upon the Closing, all the issued and
outstanding Common Securities will be owned directly by the
Company free and clear of any security interest, claims,
liens or encumbrances;
(xi) no consent, approval, authorization or
order of any court or governmental agency or body is required
for the consummation by the Company or the Trust of the
transactions contemplated by this Agreement, the Declaration,
the Indenture and the Guarantee, except such as may be
required under the blue sky or securities laws of any
jurisdiction in connection with the purchase and sale of the
Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained, and
except in connection with the registration of the Securities
and the Debt Securities;
(xii) neither the issue and sale of the
Securities or the Debt Securities, the execution and delivery
of the Declaration, the Indenture or the Guarantee, the
consummation of any other of the transactions herein or
therein contemplated nor the fulfillment of the terms hereof
or thereof will conflict with, result in a breach or
violation of or imposition of any lien, charge or encumbrance
upon any property or assets of the Company, the Trust, or any
of the Company's Subsidiaries pursuant to, (A) the charter or
by-laws of the Company, the Trust, the Banks, or any
subsidiary of the Company, (B) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition,
covenant or any other instrument to which the Company, the
Banks, or the Trust is subject, or (C) any statute, law,
rule, regulation, judgment, order or decree applicable to the
Company, the Trust, the Banks or the Company's Subsidiaries
of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company, the Trust, the Banks, or the
Company's subsidiaries or any of their properties;
(xiii) neither the Company nor the Trust is an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended, and after giving effect to
the offer and sale of the Securities and the application of
the proceeds thereof as described in the Final Prospectus or
any Preliminary Final Prospectus, neither will be an
"investment company" as defined in the Investment Company Act
of 1940, as amended;
(xiv) the Securities, the Common Securities, the
Debt Securities and each of the Guarantee, the Indenture and
the Declaration conform in all material respects
to the descriptions thereof contained in the Final
Prospectus;
(xv) the statements of legal matters, documents
or proceedings, and legal conclusions, if any, set forth in
the Final Prospectus or any Preliminary Final Prospectus
under the headings "Description of Capital Securities",
"Description of Junior Subordinated Debt Securities",
"Relationship Among the Capital Securities, the Junior
Subordinated Debt Securities and the Guarantee" and
"Description of the Guarantee" fairly present the information
called for and fairly summarize in all material respects the
matters referred to therein; and
(xvi) no holders of securities of the Company
have rights to the registration of such securities under the
Registration Statement.
In rendering such opinion, such counsel may rely (1) as to
matters involving the application of the laws of any jurisdiction other than
the State of Tennessee, the State of New York or the Federal laws of the United
States, to the extent they deem proper, upon the opinion of other counsel of
good standing whom they believe to be reliable and who are satisfactory to
counsel for the Underwriters and (2) as to matters of fact, to the extent they
deem proper, on certificates of responsible officers of the Company and the
Trust.
All references in this Section 6(b) to the Final Prospectus
shall be deemed to include any amendment or supplement thereto at the Closing
Date.
(c) The Company and the Trust shall have furnished to
the Representatives the opinion of Waller Lansden Dortch & Davis,
PLLC, special tax counsel to the Company and the Trust, dated the
Closing Date, to the effect that:
(i) the Trust will be classified as a grantor
trust and not as an association taxable as a corporation for
United States Federal income tax purposes;
(ii) the Debt Securities will be classified for
United States Federal income tax purposes as indebtedness of
the Company; and
(iii) although the statements set forth under the
heading "Certain United States Federal Income Tax
Consequences" in the Final Prospectus or any Preliminary
Final Prospectus do not purport to discuss all possible
United States Federal income tax consequences of the
purchase, ownership and disposition of the Securities, such
statements, in all material respects, fairly and accurately
summarize the United States Federal income tax consequences
of the purchase, ownership and disposition of the Securities
with respect to the types of investors identified therein.
(d) The Company and the Trust shall have furnished to
the Representatives the opinion of Richards, Layton & Finger, P.A.,
special Delaware counsel to the Trust, dated the Closing Date, to the
effect that:
(i) the Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act, and all filings required
under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as business trust
have been made;
(ii) under the Delaware Business Trust Act and
the Declaration, the Trust has the trust power and authority
to own its property and conduct its business, all as
described in the Declaration;
(iii) the Declaration constitutes a valid and
binding obligation of the Company
and the Trustees of the Trust, and is enforceable against the
Company and the Trustees of the Trust in accordance with its
terms, subject to Bankruptcy and Equity and Public Policy;
(iv) under the Delaware Business Trust Act and
the Declaration, the Trust has the trust power and authority
(A) to execute and deliver, and to perform its obligations
under, this Agreement, and (B) to issue and perform its
obligations under the Capital Securities and the Common
Securities;
(v) under the Delaware Business Trust Act and
the Declaration, the execution and delivery by the Trust of
this Agreement, and the performance by the Trust of its
obligations hereunder, have been duly authorized by all
necessary trust action on the part of the Trust;
(vi) the Capital Securities have been duly
authorized by the Declaration and, when authenticated and
paid for, will be duly and validly issued and fully paid and
nonassessable undivided beneficial interests in the assets of
the Trust, entitled to the benefits of the Declaration; the
holders of the Capital Securities, as beneficial owners of
the Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private
corporations for profit organized under the General
Corporation Law of the State of Delaware; provided, however,
that the holders of the Capital Securities may be obligated,
pursuant to the Declaration, (A) to provide indemnity and/or
security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of Capital
Securities certificates and the issuance of replacement
Capital Securities certificates, and (B) to provide security
or indemnity in connection with requests of or directions to
the Property Trustee to exercise its rights and powers under
the Declaration.
(vii) under the Delaware Business Trust Act and
the Declaration, the issuance of the Capital Securities and
the Common Securities is not subject to preemptive rights;
(viii) the Common Securities have been duly
authorized by the Declaration and, when authenticated and
paid for, will be duly and validly issued and fully paid
undivided beneficial interests in the assets of the Trust,
entitled to the benefits of the Declaration; provided,
however, that the holders of the Common Securities may be
obligated, pursuant to the Declaration, (A) to provide
indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of
Securities certificates and the issuance of replacement
Securities certificates, and (B) to provide security or
indemnity in connection with requests of or directions to the
Property Trustee to exercise its rights and powers under the
Declaration; and
(ix) the (A) purchase of the Debt Securities by
the Trust, (B) the distribution of the Debt Securities by the
Trust in the circumstances contemplated by the Declaration,
and (C) the performance by the Trust of this Agreement and
the consummation of the transactions contemplated hereunder,
will not conflict with or result in a breach or violation of
any of the terms or provisions of the certificate of trust of
the Trust, as amended through the date hereof, or the
Declaration or any statute, order, rule or regulation of the
State of Delaware or any governmental agency or body of the
State of Delaware having jurisdiction over the Trust or any
of its properties.
(e) The Bank of New York shall have furnished to the
Representatives the opinion of Emmett Marvin & Martin, special counsel
to The Bank of New York, dated the Closing Date, to the effect that:
(i) The Bank of New York has been duly
incorporated and is validly existing as a banking corporation
in good standing under the laws of the State of New York;
(ii) no consent, approval, authorization or
order of any Federal or New York State banking authority is
required for the consummation of the transactions
contemplated by the Declaration, the Indenture or the
Guarantee by the Property Trustee, the Indenture Trustee or
the Guarantee Trustee, respectively; and
(iii) neither the execution and delivery of the
Declaration, the Indenture or the Guarantee, the consummation
of any other of the transactions herein or therein
contemplated nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach or violation
of, or constitute a default under the charter or by-laws of
The Bank of New York.
(f) The Bank of New York (Delaware) shall have furnished
to the Representatives the opinion of Richards, Layton & Finger, P.A.,
special Delaware counsel to the Trust, dated the Closing Date, to the
effect that The Bank of New York (Delaware) has been duly incorporated
and is validly existing as a banking corporation in good standing
under the laws of the State of Delaware; and has full corporate power
and authority to act as trustee of a statutory business trust under
the laws of the State of Delaware.
(g) The Representatives shall have received from
Cravath, Swaine & Moore, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
with respect to the issuance and sale of the Securities, the
Indenture, the Registration Statement, the Final Prospectus (together
with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(h) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the Chairman
of the Board or the President and the principal financial or
accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined
the Registration Statement, the Final Prospectus, any supplements to
the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company and the Trust in this Agreement are true and correct
on and as of the Closing Date with the same effect as if made
on the Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus (exclusive of any supplement thereto), there has
been no material adverse effect in the condition (financial
or otherwise), prospects, earnings, business or properties of
the Company and its Subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(i) The Company shall have requested and caused KPMG LLP
to have furnished to the Representatives, at the Execution Time and at
the Closing Date, letters
(which may refer to letters previously delivered to one or more of the
Representatives), dated respectively as of the Execution Time and as
of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable rules and regulations adopted by the Commission thereunder
and that they have performed a review of the unaudited interim
financial information of the Company for the nine-month period ended
September 30, 2001, and as at September 30, 2001, in accordance with
the Statement on Auditing Standards No. 71, and stating in effect,
except as provided in Schedule I hereto, that:
(i) in their opinion the audited financial
statements and financial statement schedules included or
incorporated by reference in the Registration Statement and
the Final Prospectus and reported on by them comply as to
form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related
rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its Subsidiaries; their limited review, in accordance
with standards established under Statement on Auditing
Standards No. 71, of the unaudited interim financial
information for the nine-month period ended September 30,
2001 and as at September 30, 2001; carrying out certain
specified procedures (but not an examination in accordance
with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to
the comments set forth in such letter; a reading of the
minutes of the meetings of the stockholders, directors and
the compensation and audit committees of the Company and the
Subsidiaries; and inquiries of certain officials of the
Company who have responsibility for
financial and accounting matters of the Company and its
Subsidiaries as to transactions and events subsequent to
September 30, 2001, nothing came to their attention which
caused them to believe that:
(A) any unaudited financial statements
included or incorporated by reference in the
Registration Statement and the Final Prospectus do
not comply as to form in all material respects with
applicable accounting requirements of the Act and
with the related rules and regulations adopted by
the Commission with respect to financial statements
included or incorporated by reference in quarterly
reports on Form 10-Q under the Exchange Act; and
said unaudited financial statements are not in
conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated by reference in
the Registration Statement and the Final Prospectus;
(B) with respect to the period
subsequent to September 30, 2001, if there were any
changes, at a specified date not more than five days
prior to the date of the letter, in the capital
stock of the Company or decreases in the
stockholders' equity (deficit) of the Company as
compared with the amounts shown on the September 30,
2001 consolidated balance sheet included or
incorporated by reference in the Registration
Statement and the Final Prospectus, or for the
period from September 30, 2001 to such specified
date there were any decreases, as compared with the
period ended September 30, 2001 in net revenues or
income before income taxes, or in total or per share
amounts of net income of the Company and its
Subsidiaries, except in all
instances for changes or decreases set forth in such
letter, in which case the letter shall be
accompanied by an explanation by the Company as to
the significance thereof unless said explanation is
not deemed necessary by the Representatives; and
(C) the information included or
incorporated by reference in the Registration
Statement and Final Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data),
Item 302 (Supplementary Financial Information), Item
402 (Executive Compensation) and Item 503(d) (Ratio
of Earnings to Fixed Charges) is not in conformity
with the applicable disclosure requirements of
Regulation S-K;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of
the Company and its Subsidiaries) set forth in the
Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the
information set forth under the captions "Summary", "Risk
Factors", "Use of Proceeds", "Capitalization", "Selected
Financial Data", "Description of the Preferred Securities"
and "Description of the Junior Subordinated Debt Securities"
in the Final Prospectus, the information included or
incorporated by reference in Items 1, 2, 6, and 7 of the
Company's Annual Report on Form 10-K, incorporated by
reference in the Registration Statement and the Final
Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q, incorporated by
reference in the Registration
Statement and the Final Prospectus, agrees with the
accounting records of the Company and its Subsidiaries,
excluding any questions of legal interpretation.
References to the Final Prospectus in this paragraph (i)
include any supplement thereto at the date of the letter.
(j) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (A)
any change or decrease specified in the letter or letters referred to
in paragraph (i) of this Section 6 or (B) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its Subsidiaries the effect
of which, in any case referred to in clause (A) or (B) above, is, in
the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(k) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act)
or any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(l) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this
Section 6 shall not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancelation shall be given to the
Company in writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 6
shall be delivered at the offices of Cravath, Swaine & Moore, counsel for the
Underwriters, at 825 Eighth Avenue, New York, New York, 10019-7475, on the
Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of the Company or the Trust to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally through Salomon Smith Barney Inc. on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
the registration statement for the registration of the Securities as originally
filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each
of its officers who signs the Registration Statement, and each person
who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by
or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of
the cover page regarding delivery of the Securities and, under the
heading "Underwriting" or "Plan of Distribution", (i) the list of
Underwriters and their respective participation in the sale of the
Securities, (ii) the sentence related to concessions and reallowances
and (iii) the paragraph related to stabilization, syndicate covering
transactions and penalty bids in Preliminary Final Prospectus and the
Final Prospectus constitute the only information furnished in writing
by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph
(a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except
as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party for any reason, the
Company and the Underwriters severally agree to contribute to the
aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively
"Losses") to which the Company and one or more of the Underwriters may
be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the
offering of the Securities) be responsible for any amount in excess of
the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the
Company and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand
and of the Underwriters on the other in connection with the statements
or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on
the cover page of the Final Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the
other, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
liquidation amount of Securities set forth opposite their names in Schedule II
hereto bears to the principal liquidation amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate liquidation amount of Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate liquidation amount of Securities set forth in
Schedule II hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and
any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal, New York
State, Mississippi or Tennessee authorities or (iii) there shall have occurred
any outbreak or escalation of hostilities, declaration by the United States of
a national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus (exclusive
of any supplement thereto).
11. Representations and Indemnities To Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company and the Trust or their officers or Trustees and of
the Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or the Company or the Trust or any of the officers, directors,
employees, agents or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancelation of this
Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representatives,
will be mailed, delivered or telefaxed to Salomon Smith Barney Inc., General
Counsel (fax no: (212) 816-7912), and confirmed to the General Counsel, Salomon
Smith Barney Inc., at 388 Greenwich
Street, New York, New York 10013, Attention of General Counsel; or if sent to
the Company, will be mailed, delivered or telefaxed to Cathy S. Freeman,
Secretary (fax no.: (662) 680-2006), and confirmed to Cathy S. Freeman,
Secretary, BancorpSouth, Inc., One Mississippi Plaza, Tupelo, Mississippi
38801.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers, directors, employees, agents and controlling persons referred to
in Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in
this Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New
York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or becomes
effective.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule
424(b) after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registration
statement referred to in paragraph 1(a) above, including exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or
any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so
amended or such Rule 462(b) Registration Statement, as the case may
be. Such term shall include any Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the Act.
"Rule 430A Information" shall mean information with respect
to the Securities and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to
Rule 430A.
"Rule 462(b) Registration Statement" shall mean a
registration statement and any amendments thereto filed pursuant to
Rule 462(b) relating to the offering covered by the registration
statement referred to in Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission
promulgated thereunder.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
BANCORPSOUTH CAPITAL TRUST I,
by BancorpSouth, Inc., as depositor,
by /s/ L. Nash Allen, Jr.
-----------------------------------------
Name: L. Nash Allen, Jr.
Title: Treasurer and CFO
BANCORPSOUTH, INC.,
by: /s/ L. Nash Allen, Jr.
----------------------------------------
Name: L. Nash Allen, Jr.
Title: Treasurer and CFO
The foregoing Agreement is hereby confirmed
and accepted as of the date specified in
Schedule I hereto.
SALOMON SMITH BARNEY INC.,
by: /s/ Eric M. Corrigan
------------------------------
Name: Eric M. Corrigan
Title: Director
For itself and the other several
Underwriters, if any, named in Schedule II
to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated January 18, 2001.
Registration Statement No. 333-72712
Representatives: Salomon Smith Barney Inc.
A.G. Edwards & Sons, Inc.
Morgan Stanley & Co. Incorporated
Stephens Inc.
Stifel, Nicolaus & Company, Incorporated
Title, Purchase Price and Description of Securities:
Title: 5,000,000 8.15% Trust Preferred Securities
Liquidation amount: $25.00 per Preferred Security.
Purchase price: 96.85% of the principal aggregate
liquidation amount of the Preferred
Securities plus accrued interest from
January 28, 2001
Interest: Payable on March 31, June 30, September 30
and December 31, commencing on March 31,
2002
Sinking fund provisions: None.
Redemption provisions: The Preferred Securities are redeemable by
the Company in whole, but not in part, upon
the occurrence of certain tax events as
described in the prospectus supplement,
dated the date of this Agreement and at the
option of the Company, in whole or in part,
at any time on or after January 28, 2007.
Other provisions: None.
Closing Date, Time
and Location: January 28, 2002, at 10:00 a.m. at the
offices of Cravath, Swaine & Moore, 825
Eighth Avenue, New York, New York,
10019-7475.
Modification of items to be covered by the letter from KPMG LLP delivered
pursuant to Section 6(i) at the Execution Time:
SCHEDULE II
Number of
Preferred
Securities
to be
Underwriters Purchased
----------
Salomon Smith Barney Inc. 917,000
A.G. Edwards & Sons, Inc. 900,000
Morgan Stanley & Co. Incorporated 900,000
Stephens Inc. 900,000
Stifel, Nicolaus & Company, Incorporated 900,000
Bear, Stearns & Co. Inc. 30,000
CIBC World Markets Corp. 30,000
Deutsche Bank Alex. Brown Inc. 30,000
First Union Securities, Inc. 30,000
McDonald Investments Inc., A KeyCorp Company 30,000
Prudential Securities Incorporated 30,000
RBC Dain Ranscher Inc. 30,000
Robert W. Baird & Co. Incorporated 30,000
SunTrust Capital Markets, Inc. 30,000
U.S. Bancorp Piper Jaffray Inc. 30,000
Advest, Inc. 13,000
BB&T Capital Markets, A Division of Scott & Stringfellow 13,000
D.A. Davidson & Co. 13,000
Fahenstock & Co. Inc. 13,000
Gibraltar Securities Co. 13,000
Gruntal & Co., LLC 13,000
J.J.B. Hilliard, W.L. Lyons, Inc. 13,000
Janney Montgomery Scott LLC 13,000
Legg Mason Wood Walker, Incorporated 13,000
Mesirow Financial, Inc. 13,000
Morgan Keegan & Company, Inc. 13,000
Quick & Reilly, Inc. 13,000
Sterne, Agee & Leach, Inc. 13,000
Tucker Anthony Incorporated 13,000
Southwest Securities, Inc. 1,000
---------
Total 5,000,000
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