As filed with the Securities and Exchange Commission on December 5, 2001
Registration No. 333-72712
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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AMENDMENT NO. 2 TO FORM S-3
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
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BANCORPSOUTH CAPITAL TRUST I
BANCORPSOUTH CAPITAL TRUST II
BANCORPSOUTH CAPITAL TRUST III
BANCORPSOUTH, INC. BANCORPSOUTH CAPITAL TRUST IV
(Exact Name of Registrant as Specified in Its Charter) (Exact Name of Registrant as Specified in Its Charter)
MISSISSIPPI DELAWARE
(State or Other Jurisdiction of (State or Other Jurisdiction of
Incorporation or Organization) Incorporation or Organization)
64-0659571 APPLIED FOR
(IRS Employer Identification No.) (IRS Employer Identification Nos.)
ONE MISSISSIPPI PLAZA ONE MISSISSIPPI PLAZA
TUPELO, MISSISSIPPI 38801 TUPELO, MISSISSIPPI 38801
(662) 680-2000 (662) 680-2000
(Address, Including Zip Code, and Telephone Number, Including (Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices) Area Code, of Registrant's Principal Executive Offices)
--------------
With copies to:
AUBREY B. PATTERSON RALPH W. DAVIS, ESQ.
BANCORPSOUTH, INC. WALLER LANSDEN DORTCH & DAVIS,
ONE MISSISSIPPI PLAZA A PROFESSIONAL LIMITED LIABILITY COMPANY
TUPELO, MISSISSIPPI 38801 2100 NASHVILLE CITY CENTER
(662) 680-2000 511 UNION STREET
(Name, Address, Including Zip Code, and Telephone Number, NASHVILLE, TENNESSEE 37219-1760
Including Area Code, of Agent For Service) (615) 244-6380
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Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this form is used to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ______________________
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ] ________________________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
==================================================================================================================================
PROPOSED PROPOSED AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE AMOUNT TO BE MAXIMUM AGGREGATE OFFERING MAXIMUM AGGREGATE REGISTRATION
REGISTERED REGISTERED (1) PRICE PER UNIT (1)(2) OFFERING PRICE (1)(2) FEE
----------------------------------------------------------------------------------------------------------------------------------
Debt Securities of BancorpSouth, Inc. (3)... -- -- -- --
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Common Stock of BancorpSouth, Inc., par value -- -- -- --
$2.50 per share (4).........................
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Trust Preferred Securities of BancorpSouth -- -- -- --
Capital Trust I, BancorpSouth Capital Trust II,
BancorpSouth Capital Trust III and BancorpSouth
Capital Trust IV............................
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BancorpSouth, Inc. Guarantees with respect to -- -- -- --
Trust Preferred Securities (5)..............
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Total ...................................... $500,000,000 100% $500,000,000 $125,000
==================================================================================================================================
(1) Pursuant to General Instruction II (D) of Form S-3, such indeterminate
number or principal amount of Debt Securities (including Debt
Securities and Junior Subordinated Debt Securities) and Common Stock of
BancorpSouth, Inc. (the "Company") and Trust Preferred Securities (the
"Trust Preferred Securities") of BancorpSouth Capital Trust I,
BancorpSouth Capital Trust II, BancorpSouth Capital Trust III and
BancorpSouth Capital Trust IV (collectively, the "BXS Trusts") not to
exceed $500,000,000 maximum aggregate offering price exclusive of
accrued interest and dividends, if any (collectively, the "Offered
Securities").
(2) The proposed maximum offering price per unit will be determined from
time to time in connection with the issuance of the Offered Securities
registered hereunder. The maximum aggregate offering price will be such
amount in U.S. dollars as shall result in a maximum aggregate offering
price for all securities of $500,000,000. Estimated solely for the
purpose of calculating the registration fee pursuant to Rule 457(o)
under the Securities Act of 1933, as amended, and exclusive of accrued
interest and dividends, if any.
(3) Junior Subordinated Debt Securities may be purchased by any of the BXS
Trusts with the proceeds of the sale of the Trust Preferred Securities
of that BXS Trust, together with the proceeds received from the Company
for the common securities to be issued by that BXS Trust to the
Company. No additional consideration will be received by the Company
for such Junior Subordinated Debt Securities. Such Junior Subordinated
Debt Securities may later be distributed for no additional
consideration to the holders of Trust Preferred Securities of the
applicable BXS Trust upon certain events described in the applicable
Trust Agreement of such BXS Trust.
(4) Includes Common Stock Purchase Rights. Prior to the occurrence of
certain events, such Rights will not be exercisable or evidenced
separately from the Common Stock.
(5) The Company is also registering pursuant to this Registration Statement
the Company's Guarantees and other obligations that it may have with
respect to Trust Preferred Securities issued by any of the BXS Trusts.
Pursuant to Rule 457(n) under the Securities Act of 1933, as amended,
no separate consideration will be received for any such Guarantee or
any other such obligations.
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
SUBJECT TO COMPLETION, DATED ________, 2001
PROSPECTUS
$500,000,000
BANCORPSOUTH, INC.
Debt Securities
Junior Subordinated Debt Securities
Common Stock
BANCORPSOUTH CAPITAL TRUST I
BANCORPSOUTH CAPITAL TRUST II
BANCORPSOUTH CAPITAL TRUST III
BANCORPSOUTH CAPITAL TRUST IV
Trust Preferred Securities
(fully and unconditionally guaranteed on a subordinated basis, as described
herein, by BancorpSouth, Inc.)
BancorpSouth, Inc. and the BXS Trusts may offer and sell from time to
time, in one or more series, up to $500,000,000 of the securities listed above
in connection with this prospectus.
Each of the BXS Trusts is a Delaware business trust which may sell
trust preferred securities in one or more offerings to the public and common
securities to BancorpSouth, Inc. In the event of such sales, the BXS Trusts will
use the proceeds to buy an equal principal amount of junior subordinated debt
securities of BancorpSouth, Inc.
The common stock of BancorpSouth, Inc. is listed on the New York Stock
Exchange under the symbol "BXS."
This prospectus contains a general description of the securities which
may be offered. The specific terms of the securities will be contained in one or
more supplements to this prospectus. Read the prospectus and any supplement
carefully before you invest. The supplement may also add, update or change
information contained in this prospectus.
THE SECURITIES COVERED BY THIS PROSPECTUS WILL NOT BE SAVINGS ACCOUNTS,
DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK OR NONBANK SUBSIDIARY OF BANCORPSOUTH
AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK
INSURANCE FUND OR ANY OTHER GOVERNMENT AGENCY.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is ____________, 2001.
This prospectus may not be used to consummate sales of securities
unless accompanied by a prospectus supplement.
TABLE OF CONTENTS
HEADING PAGE
------- ----
About this Prospectus.............................................................................................3
Ratio of Earnings to Fixed Charges................................................................................4
Where You Can Find More Information...............................................................................5
The Company.......................................................................................................6
The BXS Trusts....................................................................................................6
Certain Regulatory Considerations.................................................................................9
Use of Proceeds..................................................................................................10
Description of Debt Securities...................................................................................10
Description of Junior Subordinated Debt Securities...............................................................17
Description of Trust Preferred Securities........................................................................28
Description of Guarantees........................................................................................38
Relationship Among the Trust Preferred Securities, the Corresponding Junior Subordinated
Debt Securities and the Guarantees...............................................................................40
Description of Common Stock......................................................................................42
Book-Entry Issuance..............................................................................................47
Legal Matters....................................................................................................50
Experts..........................................................................................................50
Plan of Distribution.............................................................................................50
2
ABOUT THIS PROSPECTUS
This document is called a prospectus. This summary highlights selected
information from this prospectus and may not contain all of the information that
is important to you. To understand the terms of the securities, you should
carefully read this prospectus with the attached prospectus supplement. This
prospectus and the prospectus supplement together give the specific terms of the
securities being offered. You should also read the documents referred to under
the heading "Where You Can Find More Information" for information on
BancorpSouth, Inc. and its financial statements. The Company has its principal
offices at One Mississippi Plaza, Tupelo, Mississippi 38804 (telephone: (662)
680-2000). Certain capitalized terms used in this summary are defined elsewhere
in this prospectus.
BancorpSouth, Inc. (also referred to as the "Company" or "we") and
BancorpSouth Capital Trust I, BancorpSouth Capital Trust II, BancorpSouth
Capital Trust III and BancorpSouth Capital Trust IV have filed a registration
statement with the Securities and Exchange Commission under a "shelf"
registration procedure. Under this procedure, the Company and the BXS Trusts may
offer and sell from time to time, in one or more series, up to an aggregate of
$500,000,000 of any of the following securities:
(i) unsecured debt securities of the Company;
(ii) shares of common stock of the Company;
(iii) trust preferred securities of a BXS Trust;
(iv) unsecured junior subordinated debt securities of the Company
relating to the trust preferred securities; and
(v) guarantees of the Company relating to the trust preferred
securities.
This prospectus provides you with a general description of the
securities the Company or a BXS Trust may offer. Each time the Company or a BXS
Trust offers securities, we will provide you with a prospectus supplement that
will describe the specific amounts, prices and terms of the securities being
offered. The prospectus supplement may also add, update or change information
contained in this prospectus.
The prospectus supplement may also contain information about certain
U.S. federal income tax considerations relating to the securities covered by the
prospectus supplement.
The Company and each BXS Trust may sell securities to underwriters who
will sell the securities to the public on terms fixed at the time of sale. In
addition, the securities may be sold by the Company and each BXS Trust directly
or through dealers or agents designated from time to time, which agents may be
affiliates of the Company and each BXS Trust. If the Company, directly or
through agents, solicits offers to purchase the securities, the Company reserves
the sole right to accept and, together with its agents, to reject, in whole or
in part, any such offer.
The prospectus supplement will also contain, with respect to the
securities being sold, the names of the underwriters, dealers or agents, if any,
together with the terms of offering, the compensation of the underwriters and
the net proceeds to the Company and each BXS Trust.
Any underwriters, dealers or agents participating in the offering may
be deemed "underwriters" within the meaning of the Securities Act of 1933, as
amended.
3
RATIO OF EARNINGS TO FIXED CHARGES
For the nine months ended September 30, 2001 and 2000 and for the five
years ended December 31, 2000, the ratio of earnings to fixed charges of the
Company, computed as set forth below, was as follows:
Nine months ended Year ended December 31:
----------------------- -----------------------------------------------------
9/30/2001 9/30/2000 2000 1999 1998 1997 1996
--------- --------- ------ ------ ------ ------- ----
Earnings to Fixed Charges:
Excluding Interest on Deposits 5.10 4.69 4.08 7.29 7.59 10.05 9.09
Including Interest on Deposits 1.38 1.38 1.32 1.53 1.47 1.46 1.52
For purposes of computing the ratio of earnings to fixed charges,
earnings represent net income (loss) before extraordinary items plus applicable
income taxes and fixed charges. Fixed charges, excluding interest on deposits,
include interest expense (other than on deposits) and the proportion deemed
representative of the interest factor of rent expense, net of income from
subleases. Fixed charges, including interest on deposits, include all interest
expense and the proportion deemed representative of the interest factor of rent
expense, net of income from subleases.
4
WHERE YOU CAN FIND MORE INFORMATION
The Company and the BXS Trusts have filed a registration statement with
the SEC. This prospectus is part of the registration statement but the
registration statement also contains additional information and exhibits. The
Company also files proxy statements, annual, quarterly and special reports and
other information with the SEC. You may read and copy the registration statement
and any reports, proxy statements and other information at the public reference
room maintained by the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549.
You can call the SEC for further information about its public reference room at
1-800-732-0330. The SEC also maintains an Internet website that contains
reports, proxy statements and other information about issuers, like the Company,
that file electronically with the SEC. The address of the SEC's website is
"http://www.sec.gov."
The Company's common stock is listed on the New York Stock Exchange
under the symbol "BXS." Reports and other information concerning the Company can
be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
The SEC allows the Company to incorporate documents by reference in
this prospectus. This means that by listing or referring to a document which the
Company has filed with the SEC in this prospectus, that document is considered
to be a part of this prospectus and should be read with the same care. When the
Company updates the information contained in documents which have been
incorporated by reference by making future filings with the SEC, the information
incorporated by reference in this prospectus is considered to be automatically
updated.
The documents listed below are incorporated by reference into this
prospectus:
- The Company's Annual Report on Form 10-K for the year ended
December 31, 2000;
- The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2001;
- The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2001;
- The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2001;
- The Company's Current Report on Form 8-K, dated March 28, 2001;
- The description of the Company's Common Stock and Common Stock
Purchase Rights contained in the Company's Registration
Statements on Form 8-A filed pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including any amendment or report filed for the purpose
of updating such description; and
- Any documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of the
initial filing of this registration statement of which this
prospectus is a part and before the effective date of that
registration statement and after the date of this prospectus
and before the termination of the offering of the securities.
You may request a free copy of any or all of these filings by writing
or telephoning us at the following address:
BancorpSouth, Inc.
One Mississippi Plaza
Tupelo, Mississippi 38804
Attention: Corporate Secretary
Telephone number: (662) 680-2000
5
No separate financial statements of any BXS Trust are included in this
prospectus. The Company and the BXS Trusts do not consider that such financial
statements would be material to holders of the Trust Preferred Securities
because each BXS Trust is a special purpose entity, has no operating history or
independent operations and is not engaged in and does not propose to engage in
any activity other than holding as trust assets the Corresponding Junior
Subordinated Debt Securities (as defined below under the heading "The BXS
Trusts") of the Company and issuing the Trust Securities. Furthermore, taken
together, the Company's obligations under each series of Corresponding Junior
Subordinated Debt Securities, the Junior Indenture pursuant to which the
Corresponding Junior Subordinated Debt Securities will be issued, the related
Trust Agreement and the related Guarantee provide, in the aggregate, a full,
irrevocable and unconditional guarantee of payments of Distributions and other
amounts due on the related Trust Preferred Securities of a BXS Trust. For a more
detailed discussion see "The BXS Trusts," "Description of Trust Preferred
Securities," "Description of Junior Subordinated Debt Securities--Corresponding
Junior Subordinated Debt Securities" and "Description of Guarantees." In
addition, the Company does not expect that any of the BXS Trusts will be filing
reports under the Exchange Act with the SEC.
You should only rely on the information contained in this prospectus
and any applicable prospectus supplement or incorporated by reference. Neither
the Company nor any BXS Trust has authorized anyone to provide you with
different information. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of a later date than the
date of this prospectus or the applicable prospectus supplement. The financial
condition, results of operations or business prospects of the Company may have
changed since those dates.
THE COMPANY
The Company is a bank holding company and Mississippi corporation with
commercial banking and financial services operations in Mississippi, Tennessee,
Alabama, Arkansas, Texas and Louisiana. Its principal subsidiary is BancorpSouth
Bank, a Mississippi banking corporation (the "Bank"). The Company's principal
office is located at One Mississippi Plaza, Tupelo, Mississippi 38804 and its
telephone number is (662) 680-2000.
The Bank has its principal office in Tupelo, Lee County, Mississippi,
and conducts a general commercial banking and trust business through offices in
over 100 municipalities or communities in Mississippi, Tennessee, Alabama,
Arkansas, Texas and Louisiana. The Bank has grown through the acquisition of
other banks, the purchase of assets from federal regulators and through the
opening of new branches and offices.
The Bank and its subsidiaries provide a range of financial services to
individuals and small-to-medium size businesses. The Bank operates investment
services, consumer finance, credit life insurance and insurance agency
subsidiaries which engage in investment brokerage services, consumer lending,
credit life insurance sales and sales of other insurance products. The Bank's
trust department offers a variety of services including personal trust and
estate services, certain employee benefit accounts and plans, including
individual retirement accounts, and limited corporate trust functions.
THE BXS TRUSTS
Each BXS Trust is a statutory business trust created under Delaware law
and is governed by:
(i) a trust agreement, in effect as of the date hereof, as
Depositor of the BXS Trust, and the Delaware Trustee of such
BXS Trust; and
6
(ii) a certificate of trust, in effect as of the date hereof, filed
with the Delaware Secretary of State.
Unless otherwise specified in the applicable prospectus supplement:
- Each BXS Trust will have a term of approximately 55 years from
the date it issues its Trust Securities, but may dissolve
earlier as provided in the applicable Trust Agreement.
- Each BXS Trust's business and affairs will be conducted by its
trustees.
- The trustees will be appointed by the Company as holder of the
Trust Common Securities.
- The trustees will be The Bank of New York, as the Property
Trustee (the "Property Trustee"), The Bank of New York
(Delaware), as the Delaware Trustee (the "Delaware Trustee"),
and two individual trustees (the "Administrative Trustees")
who are employees or officers of or affiliated with the
Company (collectively, the "BXS Trust Trustees"). The Bank of
New York, as Property Trustee, will act as sole indenture
trustee under each Trust Agreement for purposes of compliance
with the Trust Indenture Act. The Bank of New York will also
act as trustee under the Guarantees and the Junior Indenture.
See "Description of Guarantees" and "Description of Junior
Subordinated Debt Securities."
- If an event of default under the Trust Agreement for a BXS
Trust has occurred and is continuing, the holder of the Trust
Common Securities of that BXS Trust, or the holders of a
majority in Liquidation Amount of the Related Trust Preferred
Securities, will be entitled to appoint, remove or replace the
Property Trustee or the Delaware Trustee for such BXS Trust.
- Under all circumstances, only the holder of the Trust Common
Securities has the right to vote to appoint, remove or replace
the Administrative Trustees.
- The duties and obligations of each BXS Trust Trustee are
governed by the applicable Trust Agreement.
- The Company will pay all fees and expenses related to each BXS
Trust and the offering of the Trust Preferred Securities and
will pay, directly or indirectly, all ongoing costs, expenses
and liabilities of each BXS Trust.
Each trust agreement of a BXS Trust in effect on the date hereof will
be amended and restated in its entirety (each, as so amended and restated, a
"Trust Agreement") substantially in the form filed as an exhibit to the
registration statement of which this prospectus forms a part.
Each Trust Agreement will be qualified as an indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
Each BXS Trust may offer to the public, from time to time, preferred
securities (the "Trust Preferred Securities") representing preferred beneficial
interests in the applicable BXS Trust. In addition to Trust Preferred Securities
offered to the public, each BXS Trust will sell common securities representing
common ownership interests in such BXS Trust to the Company (the "Trust Common
Securities"). All of the Trust Common Securities of each BXS Trust will be owned
by the Company. The Trust Common Securities and the Trust Preferred Securities
together are also referred to as the "Trust Securities."
Each BXS Trust exists for the exclusive purposes of:
(i) issuing and selling its Trust Securities;
7
(ii) using the proceeds from the sale of such Trust Securities to
acquire a series of Corresponding Junior Subordinated Debt
Securities issued by the Company;
(iii) making distributions; and
(iv) engaging in only those other activities necessary or
incidental thereto (such as registering the transfer of the
Trust Securities).
When any BXS Trust sells its Trust Preferred Securities to the public,
it will use the money it receives together with the money it receives from the
sale of its Trust Common Securities to buy a series of the Company's Junior
Subordinated Debt Securities (the "Corresponding Junior Subordinated Debt
Securities"). The payment terms of the Corresponding Junior Subordinated Debt
Securities will be virtually the same as the payment terms of that BXS Trust's
Trust Preferred Securities (the "Related Trust Preferred Securities").
Each BXS Trust will own only the applicable series of Corresponding
Junior Subordinated Debt Securities. The only source of funds for each BXS Trust
will be the payments it receives from the Company on the Corresponding Junior
Subordinated Debt Securities. Each BXS Trust will use such funds to make cash
payments to holders of the Trust Preferred Securities.
The Trust Common Securities of a BXS Trust will rank equally, and
payments will be made thereon pro rata, with the Trust Preferred Securities of
such BXS Trust, except that upon the occurrence and continuance of an event of
default under a Trust Agreement resulting from an event of default under the
Junior Indenture, the rights of the Company, as holder of the Trust Common
Securities, to payment in respect of Distributions and payments upon liquidation
or redemption will be subordinated to the rights of the holders of the Trust
Preferred Securities of such BXS Trust. See "Description of Trust Preferred
Securities--Subordination of Trust Common Securities." The Company will acquire
Trust Common Securities in an aggregate Liquidation Amount equal to not less
than 3% of the total capital of each BXS Trust.
The prospectus supplement relating to any Trust Preferred Securities
will contain the details of the cumulative preferential cash distributions
("Distributions") to be made periodically to the holders of the Trust
Securities.
Under certain circumstances, the Company may redeem the Corresponding
Junior Subordinated Debt Securities which it sold to a BXS Trust. If it does
this, the BXS Trust will redeem a like amount of the Trust Preferred Securities
which it sold to the public and the Trust Common Securities which it sold to the
Company.
Under certain circumstances, the Company may dissolve each BXS Trust
and cause the Corresponding Junior Subordinated Debt Securities to be
distributed to the holders of the Related Trust Preferred Securities. If this
happens, owners of the Related Trust Preferred Securities will no longer have
any interest in such BXS Trust and will only own the Corresponding Junior
Subordinated Debt Securities.
Generally, the Company needs the approval of the Board of Governors of
the Federal Reserve System (the "Federal Reserve Board") to redeem the
Corresponding Junior Subordinated Debt Securities or to dissolve one or more of
the BXS Trusts. A more detailed description is provided under the heading
"Description of Trust Preferred Securities--Liquidation Distribution Upon
Dissolution."
The principal executive office of each BXS Trust is One Mississippi
Plaza, Tupelo, Mississippi 38804 and the telephone number of each is (662)
680-2000.
8
CERTAIN REGULATORY CONSIDERATIONS
GENERAL. As a bank holding company, the Company is subject to the
regulation, supervision and examination of the Federal Reserve Board under the
Bank Holding Company Act of 1956, as amended by the Gramm-Leach-Bliley Act,
which became effective March 11, 2000.
The Company's subsidiary bank is also subject to regulation,
supervision and examination by applicable federal and state banking agencies.
The Bank, the Company's principal banking subsidiary, is a Mississippi chartered
banking corporation and is subject to regulation, supervision and examination by
the Mississippi Department of Banking and Consumer Finance and the Federal
Deposit Insurance Corporation. The Bank is not a member of the Federal Reserve.
Depository institutions, such as the Bank, are also affected by various state
and federal laws, including those related to consumer protection and similar
matters.
For a discussion of the material elements of the regulatory framework
applicable to bank holding companies and their subsidiaries, which is
information relevant to the Company, please refer to the Company's Annual Report
on Form 10-K for the year ended December 31, 2000 and the other reports filed
subsequently with the SEC by the Company, which are incorporated by reference in
this prospectus. This regulatory framework is intended primarily for the
protection of depositors and the federal deposit insurance funds and not for the
protection of investors.
DIVIDENDS. The Company is a legal entity separate and distinct from its
subsidiaries (including the Bank), although the principal source of the
Company's cash revenues are payments of interest and dividends from the Bank.
There are various legal and regulatory limitations on the extent to which the
Bank can finance or otherwise supply funds to the Company and certain of its
other affiliates.
Various federal and state laws limit the amount of dividends that the
Bank may pay to the Company without regulatory approval. Under Mississippi law,
the Bank must obtain written approval of the Commissioner of the Mississippi
Department of Banking and Consumer Finance prior to paying any dividend on the
Bank's common stock. Under the Federal Deposit Insurance Corporation Improvement
Act of 1991, the Bank may not pay any dividends if, after paying the dividend,
it would be undercapitalized under applicable capital requirements. The FDIC
also has the authority to prohibit the Bank from engaging in business practices
which the FDIC considers to be unsafe or unsound, which, depending on the
financial condition of the Bank, could include the payment of dividends.
Consistent with its policy regarding bank holding companies serving as
a source of financial strength for their subsidiary banks, the Federal Reserve
Board has indicated that, as a matter of prudent banking, a bank holding company
generally should not maintain a rate of cash dividends unless its net income
available to common shareholders has been sufficient to fully fund the
dividends, and the prospective rate of earnings retention appears consistent
with the bank holding company's capital needs, asset quality and overall
financial condition.
9
USE OF PROCEEDS
Except as may be set forth in a prospectus supplement, the Company will
use the net proceeds from the sale of the securities offered hereby for general
corporate purposes, including refinancing of debt, investments in, or extensions
of credit to, the Bank and, to a lesser extent, other existing or future
subsidiaries. Pending such use, the net proceeds may be temporarily invested in
short-term obligations. The precise amounts and timing of the application of
proceeds used for general corporate purposes will depend upon funding
requirements of the Company and its subsidiaries and the availability of other
funds.
DESCRIPTION OF DEBT SECURITIES
SUMMARY. The following description of the terms of the debt securities
other than the Junior Subordinated Debt Securities (the "Debt Securities") sets
forth certain general terms and provisions. The particular terms of any offering
of Debt Securities will be contained in a prospectus supplement. The prospectus
supplement will describe the:
- specific designation;
- priority in rights of payment, if any;
- aggregate principal amount;
- denominations;
- maturity;
- premium, if any;
- interest rate, if any (which may be fixed or variable);
- dates interest is paid;
- terms for redemption at the option of the Company or the
holder, if any;
- terms for sinking or purchase fund payments, if any;
- currency or currencies of denomination and payment, if other
than U.S. dollars;
- securities exchanges, if any, on which the Debt Securities are
to be listed;
- initial public offering price;
- principal amounts, if any, to be purchased by underwriters;
and
- other terms in connection with the offering and sale of the
Debt Securities being sold.
All or a portion of the Debt Securities may be issued in global form.
This means that you will not receive a paper certificate. Instead, you will
receive a statement showing your ownership of the Debt Securities that you
purchased. A more detailed discussion of the depositary arrangements that will
apply appears under the heading "Book-Entry Issuance."
Debt Securities may be sold at a substantial discount below their
stated principal amount, bearing no interest or interest at a rate which at the
time of issuance is below market rates. Certain United States federal income tax
consequences and special considerations applicable to any such Debt Securities
will be described in the applicable prospectus supplement.
If any index is used to determine the amount of payments of principal
of, premium, if any, or interest on any series of Debt Securities, special
United States federal income tax, accounting and other considerations applicable
thereto will be described in the applicable prospectus supplement.
10
The Debt Securities are to be issued under an Indenture, as it may be
supplemented from time to time (the "Debt Securities Indenture"), between the
Company and The Bank of New York, as Trustee (the "Debt Securities Trustee").
The form of the Debt Securities Indenture has been filed as an exhibit to the
registration statement of which this prospectus forms a part. The Debt
Securities Indenture is qualified under the Trust Indenture Act.
The following summaries of certain provisions of the Debt Securities
and the Debt Securities Indenture are not complete. For a complete description
of the Debt Securities, you should read the Debt Securities Indenture applicable
to a particular series of Debt Securities (the "Applicable Indenture"),
including the definitions therein of certain terms.
Wherever we refer to particular sections, articles or defined terms of
the Applicable Indenture, we are incorporating those sections, articles or
defined terms into this prospectus by reference. Capitalized terms not otherwise
defined herein shall have the meaning given to them in the Applicable Indenture.
GENERAL. The aggregate principal amount of Securities which may be
authenticated and delivered under the Debt Securities Indenture is unlimited.
The Securities may be issued up to the aggregate principal amount of Securities
from time to time authorized by or pursuant to a Company Board Resolution.
The Securities may be issued in one or more series. All Securities of
each series issued under the Debt Securities Indenture shall in all respects be
equally and ratably entitled to the benefits thereof with respect to such series
without preference, priority or distinction on account of the actual time or
times of the authentication and delivery or Maturity of the Securities of such
series. There shall be established in or pursuant to a Company Board Resolution,
and set forth in an Officers' Certificate of the Company, or established in one
or more indentures supplemental to the Debt Securities Indenture, which shall be
delivered to the Trustee prior to the issuance of Securities of any series:
(1) the form of the Securities of the series and the Coupons, if
any, appertaining thereto;
(2) the title of the Securities of the series;
(3) any limit upon the aggregate principal amount of the
Securities of the series;
(4) the date or dates on which the Securities may be issued;
(5) the date or dates, which may be serial, on which the principal
of, and premium, if any, on the Securities of such series
shall be payable;
(6) the rate or rates, or the method of determination thereof, at
which the Securities of such series shall bear interest, if
any;
(7) whether Securities under the Debt Securities Indenture are to
be designated as Senior Debt Securities or Subordinated Debt
Securities;
(8) the place or places where the principal of, and premium, if
any, and interest, if any, on Securities of the series shall
be payable;
(9) the provisions, if any, establishing the price or prices at
which, the period or periods within which and the terms and
conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(10) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to the sinking fund or
analogous provisions or at the option of a Holder thereof and
the price or prices, in the currency or currency unit in which
the Securities of such series are payable, at which and the
period or periods within which
11
and the terms and conditions upon which Securities of the
series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;
(11) the denominations in which such series of Debt Securities will
be issuable, if other than denominations of $1000 and any
integral multiple thereof;
(12) the portion of the principal amount of Securities of such
series which shall be payable upon declaration of acceleration
of the Maturity, if other than the principal amount thereof;
(13) whether payment of the principal of, premium, if any, and
interest, if any, on the Securities of such series shall be
with or without deduction for taxes, assessments or
governmental charges, and with or without reimbursement of
taxes, assessments or governmental charges paid by Holders;
(14) any Events of Default or Defaults with respect to the
Securities of such series;
(15) the applicable dates for the list of names and addresses of
the Holders of Registered Securities in case the Securities of
such series do not bear interest;
(16) whether the Securities of such series are to be issued as
Registered Securities (with or without Coupons) or
Unregistered Securities or both, and, if Unregistered
Securities or Coupon Securities are issued, whether
Unregistered Securities or Coupon Securities of such series
may be exchanged for Registered Securities or Fully Registered
Securities of such series and whether Registered Securities or
Fully Registered Securities of such series may be exchanged
for Unregistered Securities of such series and the
circumstance under which and the place or places where any
such exchanges, if permitted, may be made;
(17) the currency or currencies in which the principal of, and
premium, if any, and interest, if any, on the Securities of
such series are to be denominated, payable, redeemable or
repurchaseable;
(18) provisions for the satisfaction and discharge of the
indebtedness represented by the Securities of such series;
(19) whether the Securities of such series are issuable as a Global
Security and, in such case, the identity of the Depositary for
such series;
(20) if the amount of payment of principal of (and premium, if any)
or interest on the Securities of such series may be determined
with reference to an index, formula or other method based on a
coin, currency or currency unit other than that in which the
Securities are stated to be payable or otherwise, the manner
in which such amounts shall be determined;
(21) any other terms of such series; and
(22) any trustees, paying agents, transfer agents or registrars
with respect to the Securities of such series, and, if the
Securities of such series are to be denominated and payable in
any currency other than Dollars, the initial Dollar
Determination Agent.
Unless otherwise provided in the prospectus supplement:
(i) principal of (and premium, if any) and interest on the Debt
Securities will be payable, and the Debt Securities will be
exchangeable and transfers thereof will be registerable, at
the office or agency of the Company, except that, at the
option of the Company, interest may be paid by mailing a check
to the address of the person entitled thereto as it appears in
the Security Register; and
12
(ii) the Debt Securities will be issued only in registered form and
in denominations of $1,000 or any integral multiple thereof,
and shall be payable in Dollars.
No service charge will be made for any transfer or exchange of the Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Debt Securities may be issued as Original Issue Discount Securities to
be sold at a substantial discount below their principal amount. "Original Issue
Discount Security" means any security which provides for an amount less than the
principal amount thereof to be due and payable upon the declaration of
acceleration of the maturity thereof upon the occurrence and continuance of an
Event of Default.
The Debt Securities Indenture does not contain any provisions that
would provide protection to holders of the Debt Securities against a sudden and
dramatic decline in credit quality of the Company resulting from any highly
leveraged transaction, takeover, merger, recapitalization or similar
restructuring or change in control.
The Debt Securities Indenture allows the Company to merge or
consolidate with another company, or to sell all or substantially all of its
assets to another company. If these events occur, the other company will be
required to assume the Company's responsibilities relating to the Debt
Securities and the Company will be released from all liabilities and
obligations. See "--Merger, Consolidation and Sale of Assets" for a more
detailed discussion.
DEFAULTS. The Debt Securities Indenture defines an Event of Default
with respect to any Senior Debt Securities as any one of the following events:
(1) default in the payment of any interest upon any Security of
such series when such interest becomes due and payable, and
continuance of such default for a period of 30 days;
(2) default in the payment of the principal of (including any
sinking fund payment or analogous obligation) or premium, if
any, on any Security of such series as and when the same shall
become due and payable either at Maturity, upon redemption, by
declaration or otherwise;
(3) default in the performance, or breach, of any covenant or
warranty of the Company in respect of the Securities of such
series (other than a covenant or warranty a default in the
performance of which or the breach of which is specifically
dealt with elsewhere), and continuance of such default or
breach for a period of 90 days after there has been given to
the Company by the Trustee, by registered or certified mail,
or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of such
series, a written notice specifying such default or breach and
requiring it to be remedied;
(4) the entry of a decree or order by a court having jurisdiction
in the premises for relief in respect of the Company under
Title 11 of the United States Code, as now constituted or as
hereafter amended, or any other applicable bankruptcy law or
other similar law, or appointing a receiver, trustee or other
similar official of the Company or ordering the winding-up or
liquidation of its affairs and the continuance of any such
decree or order unstayed and in effect for a period of 60
consecutive days;
(5) the filing by the Company a petition or answer or consent
seeking relief under Title 11 of the United States Code, as
now constituted or as hereinafter amended, or any other
applicable Federal or State bankruptcy law or other similar
law, or the consent by it to the institution of proceedings
thereunder or to the filing of any such petition
13
or to the appointment or taking possession of a receiver,
trustee, custodian or other similar official of the Company
shall fail generally to pay its debts as such debts become due
or shall take any corporate action in furtherance of any such
action; or
(6) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or
in the form of Securities for such series.
The Debt Securities Indenture defines an Event of Default with respect
to any Subordinated Debt Securities as any one of the following events:
(1) the entry of a decree or order by a court having jurisdiction
in the premises for relief in respect of the Company under
Title 11 of the United States Code, as now constituted or as
hereafter amended, or any other applicable Federal or State
bankruptcy law or other similar law, or appointing a receiver,
trustee or other similar official of the Company or ordering
the winding-up or liquidation of its affairs and the
continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days;
(2) the filing by the Company of a petition or answer or consent
seeking relief under Title 11 of the United States Code, as
now constituted or as hereinafter amended, or any other
applicable Federal or State bankruptcy law or other similar
law, or the consent by it to the institution of proceedings
thereunder or to the filing of any such petition or to the
appointment or taking possession of a receiver, trustee,
custodian or other similar official of the Company, shall fail
generally to pay its debts as such debts become due or shall
take any corporate action in furtherance of any such action;
or
(3) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or
in the form of Security for such series.
If an Event of Default with respect to any series of Securities occurs
and is continuing, then and in every such case the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Securities outstanding of
such series may declare the principal (or, if Securities of such series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of the Securities of such series) of all the
Securities of such series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders of Securities),
and upon any such declaration the same shall become immediately due and payable.
The Debt Securities Indenture provides that the applicable Trustee
will, within 90 days after the occurrence of any default under the Debt
Securities Indenture with respect to any series of Securities, transmit in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of such default under the Debt Securities Indenture known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of or premium,
if any, or interest on any Security of such series, or in the payment of any
sinking fund installment or analogous obligation with respect to the Securities
of such series, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interests of the Holders of
Securities of such series and any Coupons appertaining thereto; and provided,
further, that in the case of any default in the performance, or breach, of any
covenant or warranty of the Company in respect of the Securities of such series,
no such notice to Holders of Securities of such series shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default or a Default.
14
The Debt Securities Indenture provides that the Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders of Securities or
Coupons, if any, appertaining thereto pursuant to this Indenture, unless such
Holders of Securities or Coupons, if any, appertaining thereto shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.
SUPPLEMENTAL INDENTURES. From time to time, without the consent of the
Holders of any Securities, the Company, when authorized by a Board Resolution,
and the Trustee for the Securities of any or all series, at any time and from
time to time, may enter into one or more indentures supplemental to the Debt
Securities Indenture, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the
covenants and obligations of the Company and in the Securities
contained;
(2) to evidence and provide for the acceptance of appointment by
another corporation as a successor trustee with respect to one
or more series of Securities;
(3) to add to the covenants and agreements of the Company for the
benefit of the Holders of all or any series of Securities and
the Coupons, if any, appertaining thereto (if such covenants
are for less than all series, stating that such covenants are
for the benefit of such series), or to surrender any right or
power conferred upon the Company by the Debt Securities
Indenture, provided that such action shall not adversely
affect the interests of the Holders of Securities of any
series then Outstanding and the Holders of the Coupons, if
any, appertaining thereto;
(4) to cure any ambiguity, to correct or supplement any provision
of the Debt Securities Indenture which may be defective or
inconsistent with any other provision therein, or to make any
other provisions with respect to matters or questions arising
under the Debt Securities Indenture, provided such other
provisions shall not adversely affect the interests of the
Holders of Securities of any series then Outstanding and
Coupons, if any, appertaining thereto;
(5) to establish any additional form of Security and to provide
for the issuance of any additional series of Securities and
Coupons, if any, appertaining thereto and to set forth the
terms thereof;
(6) to permit payment in the United States of principal, premium
or interest on Unregistered Securities or of interest on
Coupon Securities; or
(7) to provide for the issuance of uncertificated Securities of
one or more series in the place of certificated Securities.
From time to time, with the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities of all series (voting
as one class) affected by such supplemental indenture or indentures, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental to the Debt Securities Indenture for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Debt Securities Indenture or of modifying in any manner the
rights of the Holders of the Securities of each such series under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby:
(1) change the Maturity of the principal of, or the Stated
Maturity of, or any installment of interest on, any Security,
or reduce the principal amount thereof (including in the
15
case of an Original Issue Discount Security the amount payable
upon acceleration of the Maturity thereof) or any premium
thereon or the rate of interest thereon, or change the method
of computing the amount of principal thereof on any date, or
eliminate a Place of Payment where, or the coin or currency in
which, any Security or any premium thereon or the interest
thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Maturity
or the Stated Maturity, as the case may be, thereof (or, in
the case of redemption or a repayment, on or after the
Redemption Date or the Repayment Date, as the case may be);
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is
required for any such supplemental indenture or the consent of
whose Holders is required for any waiver (of compliance with
certain provisions of the Debt Securities Indenture or certain
defaults hereunder and their consequences) provided for in the
Debt Securities Indenture; or
(3) modify any of the provisions of the "Supplemental Indentures",
"Waiver of Covenants" or "Waiver of Past Defaults" sections of
the Debt Securities Indenture, except to increase any such
percentage or to provide that certain other provisions of the
Debt Securities Indenture cannot be modified or waived without
the consent of the Holder of each Security affected thereby.
MERGER, CONSOLIDATION AND SALE OF ASSETS. The Company shall not
consolidate with or merge into any other corporation or convey or transfer its
properties and assets substantially as an entirety, to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance
or transfer the properties and assets of the Company
substantially as an entirety shall be a corporation organized
and existing under the laws of the United States of America or
any State or the District of Columbia, and shall expressly
assume, by an indenture supplemental to the Debt Securities
Indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of
the principal of and premium, if any, and interest on all the
Securities of each series and the Coupons, if any,
appertaining thereto and the performance of every covenant of
the Debt Securities Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no Event
of Default or Default, and no event which, after notice or
lapse of time or both, would become an Event of Default or a
Default, shall have happened and be continuing; and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such
supplemental indenture comply with these requirements and that
all conditions precedent provided for the Debt Securities
Indenture relating to such transaction have been complied
with.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
the Debt Securities Indenture with the same effect as if such successor
corporation had been named as the Company therein.
In the event of any such conveyance or transfer, the Person named as
the Company or any successor which shall theretofore have become such may be
dissolved, wound-up and liquidated at
16
any time thereafter, and such Person thereafter shall be released from its
liabilities as obligor and maker of all the securities and from its obligations
under the Debt Securities Indenture.
OUTSTANDING DEBT SECURITIES. The Debt Securities Indenture provides
that, in determining whether the holders of the requisite principal amount of
outstanding Debt Securities have given any request, demand, authorization,
direction, notice, consent or waiver under the Applicable Indenture:
(a) the principal amount of an Original Issue Discount Security
that shall be deemed to be Outstanding shall be the amount of
the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration
of the Maturity thereof; and
(b) Securities owned by the Company or any other obligor upon the
Securities or by any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other
obligor.
TRUSTEE. The Bank of New York is the Trustee under the Debt Securities
Indenture.
DESCRIPTION OF JUNIOR SUBORDINATED DEBT SECURITIES
SUMMARY. The following description of the terms of the Junior
Subordinated Debt Securities sets forth certain general terms and provisions.
The particular terms of any Junior Subordinated Debt Securities will be
contained in a prospectus supplement. The prospectus supplement will describe
the following terms of the Junior Subordinated Debt Securities:
(1) the title of the series of Junior Subordinated Debt
Securities;
(2) any limit upon the aggregate principal amount of the Junior
Subordinated Debt Securities and the Company's right to
increase such amount;
(3) the date or dates on which the principal of the Junior
Subordinated Debt Securities is payable (the "Stated
Maturity") or the method of determination thereof and the
Company's right to shorten or extend such date or dates;
(4) the rate or rates, if any, at which the Junior Subordinated
Debt Securities shall bear interest;
(5) the dates on which any such installment of interest shall be
payable (the "Interest Payment Dates");
(6) the right, if any, of the Company to defer or extend an
Interest Payment Date;
(7) the Regular Record Date for the interest payable on any
Interest Payment Date or the method by which any of the
foregoing shall be determined;
(8) the place or places where the principal of (and premium, if
any) and interest on the Junior Subordinated Debt Securities
will be payable and the place or places where notices and
demands to or upon the Company in respect of the Junior
Subordinated Debt Securities may be made ("Place of Payment");
17
(9) any period or periods within which or the date or dates on
which, the price or prices at which and the terms and
conditions upon which Junior Subordinated Debt Securities may
be redeemed, in whole or in part, at the option of the
Company;
(10) the obligation or the right, if any, of the Company to redeem,
repay or purchase the Junior Subordinated Debt Securities
pursuant to any sinking fund, amortization or analogous
provisions, or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which,
the currency or currencies (including currency unit or units)
in which and the other terms and conditions upon which the
Junior Subordinated Debt Securities shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such
obligations;
(11) the denominations in which any Junior Subordinated Debt
Securities shall be issuable, if other than denominations of
$25.00 and any integral multiple thereof;
(12) if other than in U.S. Dollars, the currency or currencies
(including currency unit or units) in which the principal of
(and premium, if any) and interest, if any, on the Junior
Subordinated Debt Securities shall be payable, or in which the
Junior Subordinated Debt Securities shall be denominated;
(13) any additions, modifications or deletions in the events of
default under the Junior Indenture or covenants of the Company
specified in the Junior Indenture with respect to the Junior
Subordinated Debt Securities;
(14) if other than the principal amount thereof, the portion of the
principal amount of Junior Subordinated Debt Securities that
shall be payable upon declaration of acceleration of the
Maturity thereof;
(15) any additions or changes to the Junior Indenture with respect
to a series of Junior Subordinated Debt Securities as shall be
necessary to permit or facilitate the issuance of such series
in bearer form, registerable or not registerable as to
principal, and with or without interest coupons;
(16) any index or indices used to determine the amount of payments
of principal of and premium, if any, on the Junior
Subordinated Debt Securities and the manner in which such
amounts will be determined;
(17) the terms and conditions relating to the issuance of a
temporary Global Security representing all of the Junior
Subordinated Debt Securities of such series and the exchange
of such temporary global security for definitive Junior
Subordinated Debt Securities of such series;
(18) subject to the terms described herein under "--Global Junior
Subordinated Debt Securities," whether the Junior Subordinated
Debt Securities of the series shall be issued in whole or in
part in the form of one or more Global Securities and, in such
case, the Depositary for such Global Securities, which
Depositary shall be a clearing agency registered under the
Exchange Act;
(19) the appointment of any Paying Agent or Agents;
(20) the terms and conditions of any right to convert or exchange
the Junior Subordinated Debt Securities into other Company
securities;
(21) the transfer restrictions and legends required to be on the
Junior Subordinated Debt Securities;
(22) the form of Trust Agreement and Guarantee Agreement;
(23) the relative degree, if any, to which the Junior Subordinated
Debt Securities of the series shall be senior to or be
subordinated to other series of Junior Subordinated
18
Debt Securities or other indebtedness of the Company in right
of payment, whether such other series of Junior Subordinated
Debt Securities or other indebtedness are outstanding or not;
and
(24) any other terms of the Junior Subordinated Debt Securities not
inconsistent with the provisions of the Junior Indenture.
Unless otherwise provided in the related prospectus supplement, the
Junior Subordinated Debt Securities will be issued in global (book-entry) form
to a BXS Trust. The Corresponding Junior Subordinated Debt Securities will be
registered in the name of The Depository Trust Company ("DTC") or a nominee of
DTC.
The Junior Subordinated Debt Securities are to be issued in one or more
series under a Junior Subordinated Indenture, as supplemented from time to time
(as so supplemented, the "Junior Indenture"), between the Company and The Bank
of New York, as trustee (the "Junior Indenture Trustee"). Certain U.S. federal
income tax consequences and special considerations applicable to any such Junior
Subordinated Debt Securities will be described in the applicable prospectus
supplement.
The following summary of certain terms and provisions of the Junior
Subordinated Debt Securities, Corresponding Junior Subordinated Debt Securities
and the Junior Indenture is not complete. For a complete description, you should
read the Junior Indenture. The form of the Junior Indenture has been filed as an
exhibit to the registration statement of which this prospectus forms a part. The
Junior Indenture will be qualified under the Trust Indenture Act.
References herein to particular sections, articles or defined terms of
the Junior Indenture incorporate those sections, articles or defined terms into
this prospectus by reference. Capitalized terms not otherwise defined herein
shall have the meaning given to them in the Junior Indenture.
GENERAL. Each series of Junior Subordinated Debt Securities will rank
equally with all other series of Junior Subordinated Debt Securities and will be
unsecured and subordinate and junior in right of payment to the extent and in
the manner set forth in the Junior Indenture to all Senior Debt of the Company,
including the Debt Securities. See "--Subordination."
Except as otherwise provided in the applicable prospectus supplement,
the Junior Indenture does not limit the incurrence or issuance of other secured
or unsecured debt of the Company, including Senior Debt, whether under the
Junior Indenture, any other existing indenture or any other indenture that the
Company may enter into in the future or otherwise.
The Junior Subordinated Debt Securities will be issuable in one or more
series pursuant to an indenture supplemental to the Junior Indenture or a
resolution of the Company's Board of Directors or a committee thereof.
Junior Subordinated Debt Securities may provide for an amount less than
the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof. Certain U.S. federal income tax
consequences and special considerations applicable to any such Junior
Subordinated Debt Securities will be described in the applicable prospectus
supplement.
If any index is used to determine the amount of payments of principal
of and premium, if any, on the Junior Subordinated Debt Securities, special U.S.
federal income tax, accounting and other considerations applicable thereto will
be described in the applicable prospectus supplement.
The Junior Indenture does not limit the aggregate principal amount of
the Junior Subordinated Debt Securities that may be authenticated and delivered
thereunder and provides that Junior Subordinated Debt Securities may be issued
in one or more series.
19
The Junior Indenture allows the Company to merge or consolidate with
another company or to transfer or lease all or substantially all of its assets
to another company. If these events occur, the other company shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under the Junior Indenture and the Company shall be discharged from all
obligations and covenants under the Junior Indenture and the Junior Subordinated
Debt Securities and may be dissolved and liquidated. See "Consolidation, Merger,
Sale of Assets and Other Transactions" for a more detailed discussion.
The Junior Indenture provides that the Company, when authorized by its
Board of Directors, and the Junior Indenture Trustee, at any time and from time
to time, may enter into one or more indentures supplemental thereto to, among
other things, change certain of the Company's obligations or certain of the
holder's rights concerning the Junior Subordinated Debt Securities of that
series without such holder's consent. The Company and the Junior Indenture
Trustee may enter into an indenture supplement to change the principal amount or
Stated Maturity of principal of or any installment of interest on (other than as
described herein under "--Option to Defer Interest Payments") the Junior
Subordinated Debt Securities, however, with the consent of the Holders of not
less than a majority in principal amount of the outstanding Junior Subordinated
Debt Securities of each series affected by such supplemental indenture. See
"Modification of the Junior Indenture" for a more detailed discussion.
DENOMINATIONS, REGISTRATION AND TRANSFER. Unless otherwise specified in
the applicable prospectus supplement, the Junior Subordinated Debt Securities
will be issuable only in registered form without coupons in denominations of
$25.00 and any integral multiple thereof. See "Book-Entry Issuance." Subject to
restrictions relating to Junior Subordinated Debt Securities represented by
global certificates, Junior Subordinated Debt Securities of any series will be
exchangeable for other Junior Subordinated Debt Securities of the same series,
of authorized denominations, of a like aggregate principal amount, of the same
Original Issue Date and Stated Maturity and having the same terms.
Subject to restrictions relating to Junior Subordinated Debt Securities
represented by global certificates, Junior Subordinated Debt Securities may be
presented for exchange as provided above and may be surrendered by or on behalf
of the Depositary or its nominee to the Securities Registrar, accompanied by
registration instructions, without service charge and upon payment of any taxes
or other governmental charges as described in the Junior Indenture. The Company
will appoint the Junior Indenture Trustee as Securities Registrar under the
Junior Indenture.
In the event of any redemption, neither the Company nor the Junior
Indenture Trustee shall be required to (i) issue, transfer or exchange Junior
Subordinated Debt Securities of any series during a period beginning at the
opening of business 15 days before the day of mailing of a notice of redemption
and ending at the close of business on the day of mailing of a notice of
redemption or (ii) transfer or exchange any Junior Subordinated Debt Securities
so selected for redemption in whole or in part, except, in the case of any
Junior Subordinated Debt Securities to be redeemed in part, any portion thereof
not to be redeemed.
GLOBAL JUNIOR SUBORDINATED DEBT SECURITIES. Unless otherwise stated in
a prospectus supplement or unless issued to a BXS Trust as Corresponding Junior
Subordinated Debt Securities, each series of the Junior Subordinated Debt
Securities will be issued as global Junior Subordinated Debt Securities to be
deposited with a Depositary designated by the Company and registered in the name
of such Depositary or its nominee. The depositary arrangements that will apply,
including the manner in which principal of and premium, if any, and interest on
Junior Subordinated Debt Securities and other payments will be payable are
discussed in more detail under the heading "Book-Entry Issuance."
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PAYMENT AND PAYING AGENTS. The applicable prospectus supplement will
specify the place or places where the principal of (and premium, if any) and
interest on any series of Junior Subordinated Debt Securities shall be payable.
Unless otherwise indicated in the applicable prospectus supplement, payment of
any interest on any series of Junior Subordinated Debt Securities will be made
to the Person in whose name such Junior Subordinated Debt Security is registered
at the close of business on the Regular Record Date for such interest, except in
the case of Defaulted Interest. The Company may designate one or more Paying
Agents.
Any money deposited with the Junior Indenture Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal of
(and premium, if any) or interest on any Junior Subordinated Debt Security and
remaining unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall (unless otherwise required by
applicable law), at the request of the Company, be paid to the Company or (if
held by the Company) be discharged from such trust and all liability of the
Junior Indenture Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease.
OPTION TO DEFER INTEREST PAYMENTS. If provided in the applicable
prospectus supplement, so long as no Debenture Event of Default has occurred and
is continuing, the Company will have the right, at any time or from time to time
during the term of any series of Junior Subordinated Debt Securities, to defer
payment of interest for up to such number of consecutive interest payment
periods as may be specified in the applicable prospectus supplement (each, an
"Extension Period"), subject to the terms, conditions and covenants, if any,
specified in such prospectus supplement, provided that no Extension Period may
extend beyond the Stated Maturity of such series of Junior Subordinated Debt
Securities. During any such Extension Period, the Company may not (i) declare or
pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital stock; (ii)
make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu
with or junior in interest to the Corresponding Junior Subordinated Debt
Securities, or (iii) make any guarantee payments with respect to any guarantee
by the Company of the debt securities of any subsidiary of the Company if such
guarantee ranks pari passu with or junior in interest to the Junior Subordinated
Debt Securities (other than (a) dividends or distributions in Common Stock of
the Company, (b) any declaration of a dividend in connection with the
implementation of a shareholder rights plan, or the issuance of stock under any
such plan in the future, or the redemption or repurchase of any rights under
such plan, (c) payments under the Guarantee, (d) purchases or acquisitions of
shares of Common Stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plan or other contractual obligation of
the Company, (e) as a result of a reclassification of the Company's capital
stock or the exchange or conversion of one class or series of the Company's
capital stock for another class or series of the Company's capital stock, or (f)
the purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged).
Prior to the termination of any such applicable Extension Period, the
Company may further defer the payment of interest.
REDEMPTION. Unless otherwise indicated in the applicable prospectus
supplement, the Company may at any time, at its option and subject to receipt of
prior approval of the Federal Reserve Board if such approval is then required
under applicable capital guidelines or policies, redeem the Junior Subordinated
Debt Securities of any series in whole or in part at any time or from time to
time prior to Maturity. If the Junior Subordinated Debt Securities of any series
are so redeemable only on or after a specified date or upon the satisfaction of
additional conditions, the applicable prospectus supplement will specify such
date or describe such conditions. Unless
21
otherwise indicated in the applicable prospectus supplement, Junior Subordinated
Debt Securities may be redeemed in part but only in integral multiples of
$25.00. Except as otherwise specified in the applicable prospectus supplement,
the redemption price for any Junior Subordinated Debt Security so redeemed shall
equal any accrued and unpaid interest (including Additional Interest) thereon to
the redemption date, plus 100% of the principal amount thereof.
Unless otherwise specified in the applicable prospectus supplement, if
a Tax Event in respect of a series of Junior Subordinated Debt Securities, an
Investment Company Event or a Capital Treatment Event shall occur and be
continuing, the Company may, at its option and subject to receipt of prior
approval by the Federal Reserve Board if such approval is then required under
applicable capital guidelines or policies, prepay such series of Junior
Subordinated Debt Securities in whole (but not in part) within 90 days following
the occurrence of such Tax Event, Investment Company Event or Capital Treatment
Event, at a prepayment price equal to 100% of the principal amount of such
Junior Subordinated Debt Securities then outstanding plus accrued and unpaid
interest to the date fixed for redemption, except as otherwise specified in the
applicable prospectus supplement.
"Tax Event" means the receipt by the Company of an opinion of
independent counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced proposed change) in, the
laws or any regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which proposed change, pronouncement or decision is announced on or after the
date of issuance of the Junior Subordinated Debt Securities or of the related
Trust Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk that (i) such BXS Trust is, or will be within 90 days of the
date of such opinion of independent counsel, subject to U.S. federal income tax
with respect to income received or accrued on the Corresponding Junior
Subordinated Debt Securities or subject to more than a de minimis amount of
other taxes, duties or other governmental charges as determined by such counsel,
or (ii) interest payable by the Company on such series of Corresponding Junior
Subordinated Debt Securities is not, or within 90 days of the date of such
opinion of independent counsel, will not be, deductible by the Company, in whole
or in part, for U.S. federal income tax purposes.
A "Capital Treatment Event" means the reasonable determination by the
Company that, as a result of the occurrence of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or such pronouncement, action or decision
is announced on or after the date of issuance of the related Trust Preferred
Securities under the Trust Agreement, there is more than an insubstantial risk
that the Company will not be entitled to treat an amount equal to the
liquidation amount of the Trust Preferred Securities as "Tier 1 Capital" (or the
then equivalent thereof) for purposes of the capital adequacy guidelines of the
Federal Reserve, as then in effect and applicable to the Company.
An "Investment Company Event" means the receipt by the Company of an
opinion of counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a change (including any
announced prospective change) in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the affected BXS Trust
is or will be considered an "investment company" that is required to be
registered under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), which change or prospective change becomes effective or would
become effective, as the case may be, on or after the date of original issuance
of the Trust Preferred Securities of such affected BXS Trust.
22
Notice of any redemption will be mailed not later than 30 days and not
earlier than 60 days prior to the date fixed for redemption, to each Holder of
Junior Subordinated Debt Securities to be redeemed, at the address of such
Holder as it appears in the Securities Register. Unless the Company defaults in
payment of the redemption price, on and after the redemption date interest shall
cease to accrue on such Junior Subordinated Debt Securities or portions thereof
called for redemption.
MODIFICATION OF THE JUNIOR INDENTURE. From time to time, the Company
and the Junior Indenture Trustee may, without the consent of the Holders of any
series of Junior Subordinated Debt Securities, supplement the Junior Indenture
for specified purposes, including, among other things, curing ambiguities or
inconsistencies (provided that any such action does not materially adversely
affect the interest of the Holders of any series of Junior Subordinated Debt
Securities or, in the case of Corresponding Junior Subordinated Debt Securities,
the Holders of the Related Trust Preferred Securities so long as they remain
outstanding) and complying with the requirements of the SEC in order to effect
or maintain the qualification of the Junior Indenture under the Trust Indenture
Act. The Junior Indenture contains provisions permitting the Company and the
Junior Indenture Trustee, with the consent of the holders of not less than a
majority in principal amount of each outstanding series of Junior Subordinated
Debt Securities affected, to supplement the Junior Indenture for the purpose of
modifying in any manner the rights of the Holders of such series of the Junior
Subordinated Debt Securities under the Junior Indenture; provided, however, that
no such supplement may, without the consent of the holder of each outstanding
Junior Subordinated Debt Security so affected, among other things, (i) change
the Stated Maturity of the principal of, or any installment of interest on
(other than as described herein under "--Option to Defer Interest Payments") any
series of Junior Subordinated Debt Securities (except as otherwise specified in
the applicable prospectus supplement), or reduce the principal amount thereof or
of interest thereon or reduce any premium payable upon the redemption thereof,
or change the place of payment where any Junior Subordinated Debt Securities or
interest thereon is payable or (ii) reduce the percentage of principal amount of
Junior Subordinated Debt Securities of any series, the Holders of which are
required to consent to any such supplement; provided that, in the case of
Corresponding Junior Subordinated Debt Securities, so long as any of the Related
Trust Preferred Securities remain outstanding, no such amendment may be made
that adversely affects the holders of such Trust Preferred Securities, and no
termination of the Junior Indenture may occur, and no waiver of any Debenture
Event of Default or compliance with any covenant under the Junior Indenture may
be effective, without the prior consent of the holders of at least a majority of
the aggregate Liquidation Amount of all outstanding Related Trust Preferred
Securities unless and until the principal (and premium, if any) of the
Corresponding Junior Subordinated Debt Securities and all accrued and unpaid
interest thereon have been paid in full and certain other conditions have been
satisfied.
In addition, the Company and the Junior Indenture Trustee may execute,
without the consent of any holder of Junior Subordinated Debt Securities, any
supplemental Junior Indenture for the purpose of establishing the form or terms
of any new series of Junior Subordinated Debt Securities.
JUNIOR SUBORDINATED DEBT SECURITY EVENTS OF DEFAULT. The Junior
Indenture provides that any one or more of the following described events (with
grace and cure periods) with respect to a series of Junior Subordinated Debt
Securities that has occurred and is continuing constitutes a "Debenture Event of
Default" with respect to such series of Junior Subordinated Debt Securities:
(i) default in the payment of any interest on such series of
Junior Subordinated Debt Securities, including any Additional
Interest in respect thereof, when it becomes due and payable
and continuance of such default for a period of 30 days
(subject to the deferral of any due date in the case of an
Extension Period);
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(ii) default in the payment of the principal of (or premium, if
any, on) such series of Junior Subordinated Debt Securities
when due, whether at Maturity, upon redemption, by declaration
of acceleration or otherwise;
(iii) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Company in the
Junior Indenture and continuance of such default or breach for
90 days after written notice specifying such default or breach
and requiring it to be remedied to the Company from the Junior
Indenture Trustee or the Holders of at least 25% in aggregate
outstanding principal amount of such affected series of
outstanding Junior Subordinated Debt Securities; or
(iv) certain events in bankruptcy, insolvency or reorganization of
the Company.
The Holders of a majority in principal amount of outstanding Junior
Subordinated Debt Securities of any series have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Junior Indenture Trustee. The Junior Indenture Trustee or the Holders of not
less than 25% in aggregate principal amount of outstanding Junior Subordinated
Debt Securities of each series affected may declare the principal (or, if the
Junior Subordinated Debt Securities of such series are Discount Securities, such
portion of the principal amount as may be specified in a prospectus supplement)
due and payable immediately upon a Debenture Event of Default, and, in the case
of Corresponding Junior Subordinated Debt Securities, should the Junior
Indenture Trustee or such Holders of such Corresponding Junior Subordinated Debt
Securities fail to make such declaration, the Holders of at least 25% in
aggregate Liquidation Amount of the Related Trust Preferred Securities shall
have such right by a notice in writing to the Company and the Junior Indenture
Trustee. The Holders of a majority in aggregate principal amount of outstanding
Junior Subordinated Debt Securities of each series affected may annul such
declaration and waive the default by written notice to the Property Trustee, the
Company and the Junior Indenture Trustee, subject to certain limitations. In the
case of Corresponding Junior Subordinated Debt Securities, should the holders of
such Corresponding Junior Subordinated Debt Securities fail to annul such
declaration and waive such default, the holders of a majority in aggregate
Liquidation Amount of the Related Trust Preferred Securities shall have such
right.
The holders of a majority in aggregate outstanding principal amount of
each series of Junior Subordinated Debt Securities affected thereby may, on
behalf of the Holders of all the Junior Subordinated Debt Securities of such
series, waive any past default, except a default in the payment of principal of
(or premium, if any) or interest (including any Additional Interest) (unless
such default has been cured and a sum sufficient to pay all matured installments
of interest (including any Additional Interest) and principal due otherwise than
by acceleration has been deposited with the Junior Indenture Trustee) or a
default in respect of a covenant or provision which under the Junior Indenture
cannot be modified or amended without the consent of the Holder of each
outstanding Junior Subordinated Debt Security of such series. In the case of
Corresponding Junior Subordinated Debt Securities, should the holders of such
Corresponding Junior Subordinated Debt Securities fail to annul such declaration
and waive such default, the holders of a majority in aggregate Liquidation
Amount of the Related Trust Preferred Securities shall have such right. The
Company is required to file annually with the Junior Indenture Trustee a
certificate as to whether or not the Company is in compliance with all the
conditions and covenants applicable to it under the Junior Indenture.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST PREFERRED SECURITIES.
If a Debenture Event of Default with respect to a series of Corresponding Junior
Subordinated Debt Securities has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest or principal on such
Corresponding Junior Subordinated Debt Securities on the date such interest or
principal is due and payable, a holder of the Related Trust Preferred Securities
may institute a suit directly against the Company for enforcement of payment to
such
24
holder of principal of (and premium, if any) and interest (including any
Additional Interest) on such Corresponding Junior Subordinated Debt Securities
having a principal amount equal to the aggregate Liquidation Amount of the
Related Trust Preferred Securities of such holder (a "Direct Action"). The
Company may not amend the Junior Indenture to remove the foregoing right to
bring a Direct Action without the prior consent of the holders of all of the
Related Trust Preferred Securities outstanding until the principal (and premium,
if any) of the Corresponding Junior Subordinated Debt Securities and all accrued
unpaid interest (including Additional Interest) thereon have been paid in full.
The holders of such Related Trust Preferred Securities will not be able
to exercise directly any remedies other than those set forth in the preceding
paragraph available to the holders of the Junior Subordinated Debt Securities
unless there shall have been an event of default under the Trust Agreement. See
"Description of Trust Preferred Securities--Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS. The
Junior Indenture provides that the Company shall not consolidate with or merge
with or into any other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, and no Person shall
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(i) in case the Company consolidates with or merges with or into
another Person or conveys, transfers or leases its properties
and assets substantially as an entirety to any Person, the
successor Person is a corporation, partnership, limited
liability company or trust organized and existing under the
laws of the United States or any State or the District of
Columbia, and such successor Person expressly assumes the due
and punctual payment of the principal of (and premium, if any)
and interest (including the Additional Interest) on the Junior
Subordinated Debt Securities and the performance of every
covenant and every obligation of the Junior Indenture on the
part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no
Debenture Event of Default, and no event which, after notice
or lapse of time or both, would become a Debenture Event of
Default, shall have occurred and be continuing; and
(iii) certain other conditions as prescribed by the Junior Indenture
are met.
SATISFACTION AND DISCHARGE. The Junior Indenture shall cease to be of
further effect and the Junior Indenture Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of the Junior Indenture, when
(1) either (a) all Junior Subordinated Debt Securities theretofore
authenticated and delivered have been delivered to the Junior
Indenture Trustee for cancellation or (b) all such Securities
not theretofore delivered to the Trustee for cancellation have
become due and payable, or will become due and payable at
their Stated Maturity within one year of the date of deposit,
and the Company has deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose, an
amount in the currency or currencies in which the Securities
of such series are payable sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest (including any Additional
Interest) to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity;
(2) the Company has paid or caused to be paid all other sums
payable under the Junior Indenture by the Company; and
25
(3) the Company has delivered to the Junior Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating
that all conditions precendent of the Junior Indenture have
been complied with.
TRANSFER OR EXCHANGE. At the option of the holder, Junior Subordinated
Debt Securities may be exchanged for other Securities of the same series of any
authorized denominations, of a like aggregate principal amount, of the same
Original Issue Date and Stated Maturity and having the same terms, upon
surrender of the Junior Subordinated Debt Securities to be exchanged at such
office or agency. Whenever any securities are so surrendered for exchange, the
Company shall execute, and the Junior Indenture Trustee shall authenticate and
deliver, the Securities which the holder making the exchange is entitled to
receive. All Securities issued upon any transfer or exchange of the Junior
Subordinated Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under the Junior
Indenture, as the Securities surrendered upon such transfer or exchange.
SUBORDINATION. The Company covenants and agrees, and each holder of a
Junior Subordinated Debt Security, by its acceptance thereof, likewise covenants
and agrees, that the payment of the principal of (and premium, if any) and
interest (including any Additional Interest) on each and all of the Junior
Subordinated Debt Securities are hereby expressly made subordinate and junior in
right of payment to the prior payment in full of all amounts then due and
payable in respect of all Senior Debt. As used herein, "Senior Debt" with
respect to any series of Securities means the principal of (and premium, if any)
and interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt of the Company, whether incurred on or prior to the date of this Indenture
or thereafter incurred, unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Securities or the Other
Debentures. Senior Debt does not include (a) any Debt of the Company which, when
incurred and without respect to any election under Section 1111(b) of the U.S.
Bankruptcy Code of 1978, as amended, was without recourse to the Company; (b)
any Debt of the Company to any of its Subsidiaries; (c) Debt to any employee of
the Company; (d) Debt which by its terms is subordinated to trade accounts
payable or accrued liabilities arising in the ordinary course of business to the
extent that payments made to the holders of such Debt by the Holders as a result
of the subordination provisions of the Junior Indenture would be greater than
such payments otherwise would have been as a result of any obligation of such
holders of such Debt to pay amounts over to the obligees on such trade accounts
payable or accrued liabilities arising in the ordinary course of business as a
result of the subordination provisions to which such Debt is subject; and (e)
any other debt securities issued pursuant to the Junior Indenture.
In the event of:
(i) any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, its creditors or
its property,
(ii) any proceeding for the liquidation, dissolution, or other
winding up of the Company, voluntary or involuntary, whether
or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Company for the benefit of creditors or
(iv) any other marshaling of the assets of the Company (each such
event, if any, herein sometimes referred to as a
"Proceeding"),
26
then the holders of Senior Debt shall be entitled to receive payment in full of
principal of (and premium, if any) and interest, if any, on such Senior Debt, or
provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, before the
Holders of the Securities are entitled to receive or retain any payment or
distribution of any kind or character, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of the Company (including any series of
the Securities) subordinated to the payment of the Securities, such payment or
distribution being hereinafter referred to as a "Junior Subordinated Payment"),
on account of principal of (or premium, if any) or interest (including any
Additional Interest) on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any Subsidiary and to that end the
holders of Senior Debt shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or character, whether
in cash, property or securities, including any Junior Subordinated Payment,
which may be payable or deliverable in respect of the Securities in any such
Proceeding; provided, however, that holders of Senior Debt shall not be entitled
to receive payment of any such amounts to the extent that such holders would be
required by the subordination provisions of such Senior Debt to pay such amounts
over to the obligees on trade accounts payable or other liabilities arising in
the ordinary course of business. In the event that, notwithstanding the
foregoing provisions of this Section, the Junior Indenture Trustee or the Holder
of any Junior Subordinated Debt Security shall have received any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, including any Junior Subordinated Payment, before all
Senior Debt is paid in full or payment thereof is provided for in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior Debt,
and if such fact shall, at or prior to the time of such payment or distribution,
have been made known to a Responsible Officer of the Junior Indenture Trustee
or, as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Debt remaining unpaid, to the extent necessary to
pay all Senior Debt in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
TRUST EXPENSES. The Company, as holder of the Trust Common Securities,
covenants to pay all debts and obligations and all costs and expenses of each
BXS Trust, including, but not limited to, all costs and expenses relating to the
organization of each BXS Trust, the fees and expenses of the Trustees and all
costs and expenses relating to the operation of such BXS Trust, and to pay any
and all taxes, duties, assessments or other governmental charges of whatever
nature imposed on each BXS Trust by the United States or any other taxing
authority.
GOVERNING LAW. The Junior Indenture and the Junior Subordinated Debt
Securities will be governed by and construed in accordance with the laws of the
State of New York, without regard to principles of conflicts of laws.
INFORMATION CONCERNING THE JUNIOR INDENTURE TRUSTEE. The Junior
Indenture Trustee undertakes to perform such duties and only such duties as are
specifically set forth in the Junior Indenture, and no implied covenants or
obligations shall be read into the Junior Indenture against the Trustee. The
Junior Indenture Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by the Junior Indenture at the request or
direction of any of the holders of Junior Subordinated Debt Securities pursuant
to the Junior Indenture, unless such holders shall have offered to the Junior
Indenture Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.
27
DESCRIPTION OF TRUST PREFERRED SECURITIES
This summary of certain provisions of the Trust Preferred Securities
and each Trust Agreement is not complete. For a complete description, you should
read each Trust Agreement and the applicable prospectus supplement. Wherever
particular defined terms of a Trust Agreement are referred to herein or in a
prospectus supplement, such defined terms are incorporated herein or therein by
reference. The form of each Trust Agreement has been filed as an exhibit to the
registration statement of which this prospectus forms a part. The applicable
prospectus supplement will also describe certain U.S. federal income tax
considerations applicable to any offering of the Trust Preferred Securities.
Pursuant to the terms of the applicable Trust Agreement, each BXS Trust
will sell Trust Preferred Securities to the public and Trust Common Securities
to the Company. The Trust Preferred Securities represent preferred beneficial
interests in the BXS Trust that sold them. Holders of such Trust Preferred
Securities will be entitled to receive Distributions and amounts payable on
redemption or liquidation ahead of holders of the Trust Common Securities. A
more complete discussion appears under the heading "-- Subordination of Trust
Common Securities." Holders of the Trust Preferred Securities will also be
entitled to other benefits as described in the corresponding Trust Agreement.
Each of the BXS Trusts is a legally separate entity and the assets of
one are not available to satisfy the obligations of any of the others.
GENERAL. The Trust Preferred Securities of a BXS Trust will rank on a
parity, and payments will be made thereon pro rata, with the Trust Common
Securities of that BXS Trust except as described under "--Subordination of Trust
Common Securities." Legal title to the Corresponding Junior Subordinated Debt
Securities will be held and administered by the Property Trustee in trust for
the benefit of the holders of the Related Trust Preferred Securities and Trust
Common Securities.
DISTRIBUTIONS. Distributions on the Trust Securities will be
cumulative, will accumulate whether or not there are funds of the related BXS
Trust available, will accrue from the date of original issuance and will be
payable in arrears, subject to the Company's right to defer payment of interest
on the Junior Subordinated Debt Securities as described under "Description of
Junior Subordinated Debt Securities--Option to Defer Interest Payments," on such
dates as specified in the applicable prospectus supplement. In the event that
any date on which Distributions are payable on the Trust Securities is not a
Business Day, payment of the Distribution payable on such date will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect to any such delay) except that, if such Business Day is
in the next succeeding calendar year, payment of such Distribution shall be made
on the immediately preceding Business Day, in either case with the same force
and effect as if made on such date (each date on which Distributions are payable
in accordance with the foregoing, a "Distribution Date"). A "Business Day" shall
mean any day other than a Saturday or a Sunday, or a day on which banking
institutions in the City of New York are authorized or required by law or
executive order to remain closed or a day on which the corporate trust office of
the Property Trustee or the Junior Indenture Trustee is closed for business.
Each BXS Trust's Trust Preferred Securities represent preferred
beneficial interests in the applicable BXS Trust and the Distributions on each
Trust Preferred Security will be payable at a rate specified in the applicable
prospectus supplement for such Trust Preferred Securities. Distributions to
which holders of Trust Preferred Securities are entitled will accumulate
additional Distributions at the rate per annum if and as specified in the
applicable prospectus supplement. The
28
term "Distributions" as used herein includes any such additional Distributions
unless otherwise stated.
If an Extension Period occurs with respect to the Corresponding Junior
Subordinated Debt Securities, distributions on the Related Trust Preferred
Securities will be correspondingly deferred. See "Description of Junior
Subordinated Debt Securities--Option to Defer Interest Payments."
The revenue of each BXS Trust available for distribution to holders of
its Trust Securities will be limited to payments it receives under the
Corresponding Junior Subordinated Debt Securities in which the BXS Trust will
invest the proceeds from the issuance and sale of its Trust Securities. See
"Description of Junior Subordinated Debt Securities--Corresponding Junior
Subordinated Debt Securities." If the Company does not make interest payments on
such Corresponding Junior Subordinated Debt Securities, the Property Trustee
will not have funds available to pay Distributions on the related Trust
Securities. The payment of Distributions (if and to the extent the BXS Trust has
funds legally available for the payment of such Distributions and cash
sufficient to make such payments) is guaranteed by the Company on a limited
basis as set forth herein under "Description of Guarantees."
Distributions on the Trust Preferred Securities will be payable to the
holders thereof as they appear on the register of such BXS Trust at the close of
business on the relevant record dates for the related Distribution Dates.
Subject to any applicable laws and regulations and the provisions of the
applicable Trust Agreement, each such payment will be made as described under
"Book-Entry Issuance."
REDEMPTION OR EXCHANGE
MANDATORY REDEMPTION. Upon the repayment or redemption, in whole or in
part, of any Corresponding Junior Subordinated Debt Securities, whether at
maturity or upon earlier redemption as provided in the Junior Indenture, the
proceeds from such repayment or redemption shall be applied by the Property
Trustee to redeem a Like Amount of the Trust Securities, upon not less than 30
nor more than 60 days notice, at a redemption price (the "Redemption Price")
equal to the aggregate Liquidation Amount of such Trust Securities plus
accumulated and unpaid Distributions thereon to the date of redemption (the
"Redemption Date") and the related amount of the premium, if any, paid by the
Company upon the concurrent redemption of such Corresponding Junior Subordinated
Debt Securities, allocated on a pro rata basis (based on Liquidation Amounts)
among the Trust Securities. See "Description of Junior Subordinated Debt
Securities--Redemption." If less than all the Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated on a pro rata basis (based on
Liquidation Amounts) among the Trust Securities. The Redemption Price will be
payable on each Redemption Date only to the extent that the BXS Trust has funds
then on hand and available in the Payment Account for the payment of such
Redemption Price.
DISTRIBUTION OF CORRESPONDING JUNIOR SUBORDINATED DEBT SECURITIES.
Subject to the Company having received prior approval of the Federal Reserve
Board to do so, if such approval is then required under applicable capital
guidelines or policies of the Federal Reserve Board, the Company has the right
at any time (including upon the occurrence and continuation of a Tax Event,
Investment Company Event or Capital Treatment Event in respect of the BXS Trust)
to dissolve any BXS Trust and, after satisfaction of liabilities to creditors of
such BXS Trust as provided by applicable law, cause a Like Amount of the
Corresponding Junior Subordinated Debt Securities in respect of the Trust
Securities issued by such BXS Trust to be distributed to the holders of such
Trust Securities in liquidation of such BXS Trust.
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"Like Amount" means (i) with respect to a redemption of any series of
Trust Securities, Trust Securities of such series having a Liquidation Amount
equal to that portion of the principal amount of Corresponding Junior
Subordinated Debt Securities to be contemporaneously redeemed in accordance with
the Junior Indenture, the proceeds of which will be used to pay the Redemption
Price of such Trust Securities allocated to the Trust Securities based upon
their relative Liquidation Amounts and the proceeds of which will be used to pay
the redemption price of such Trust Securities, and (ii) with respect to a
distribution of Corresponding Junior Subordinated Debt Securities to Holders of
any series of Trust Securities in connection with a dissolution or liquidation
of the related BXS Trust, Corresponding Junior Subordinated Debt Securities
having a principal amount equal to the Liquidation Amount of the Trust
Securities of the Holder to whom such Corresponding Junior Subordinated Debt
Securities are distributed.
"Liquidation Amount" means the stated liquidation amount per Trust
Security of $25 (or such other stated amount as is set forth in the applicable
prospectus supplement).
There can be no assurance as to the market prices for the Trust
Preferred Securities or the Corresponding Junior Subordinated Debt Securities
that may be distributed in exchange for Trust Preferred Securities if a
dissolution and liquidation of a BXS Trust were to occur. Accordingly, the Trust
Preferred Securities that an investor may purchase, or the Corresponding Junior
Subordinated Debt Securities that the investor may receive on dissolution and
liquidation of a BXS Trust, may trade at a discount to the price that the
investor paid to purchase the Trust Preferred Securities offered hereby.
If the Property Trustee gives a notice of redemption in respect of any
Trust Securities, then, while the Trust Preferred Securities are in
book-entry-only form, by 12:00 noon, New York City time, on the Redemption Date,
to the extent funds are available in the Payment Account, the Property Trustee
will irrevocably deposit with DTC funds sufficient to pay the applicable
Redemption Price and will give DTC irrevocable instructions and authority to pay
the Redemption Price to the holders of such Trust Preferred Securities. See
"Book-Entry Issuance." If such Trust Preferred Securities are held in
certificated form, the Property Trustee, to the extent funds are available in
the Payment Account, will irrevocably deposit with the Paying Agent for such
Trust Preferred Securities funds sufficient to pay the applicable Redemption
Price and will give such Paying Agent irrevocable instructions and authority to
pay the Redemption Price to the Holders thereof upon surrender of their
certificates evidencing such Trust Preferred Securities. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register on the relevant
record dates for the related Distribution Dates. If notice of redemption shall
have been given and funds deposited as required, then upon the date of such
deposit, all rights of the holders of such Trust Securities so called for
redemption will cease, except the right of the holders of such Trust Securities
to receive the applicable Redemption Price and any Distribution payable on or
prior to the Redemption Date, but without interest, and such Trust Preferred
Securities will cease to be outstanding. In the event that any date on which any
applicable Redemption Price is payable is not a Business Day, then payment of
the applicable Redemption Price payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day falls
in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made
on such date. In the event that payment of the applicable Redemption Price in
respect of any Trust Securities called for redemption is improperly withheld or
refused and not paid either by a BXS Trust or by the Company pursuant to the
related Guarantee (as described under "Description of Guarantees"),
Distributions on such Trust Securities will continue to accrue at the then
applicable rate from the Redemption Date originally established by such BXS
Trust for such Trust Securities to the date such applicable Redemption Price is
actually paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the applicable Redemption Price.
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If less than all of the outstanding Trust Securities issued by a BXS
Trust are to be redeemed on a Redemption Date, then the aggregate Liquidation
Amount of such Trust Securities to be redeemed shall be allocated on a pro rata
basis (based on Liquidation Amounts) among the Trust Securities. The particular
Trust Securities to be redeemed shall be selected on a pro rata basis (based
upon Liquidation Amounts) not more than 60 days prior to the Redemption Date by
the Property Trustee from the outstanding Trust Securities not previously called
for redemption, by such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $25 or an integral multiple of $25 in excess thereof, unless a
different amount is specified in the applicable prospectus supplement) of the
Liquidation Amount of Trust Securities of a denomination larger than $25 (or
such other denomination as is specified in the applicable prospectus
supplement). The Property Trustee shall promptly notify the Securities Registrar
in writing of the Trust Securities selected for redemption and, in the case of
any Trust Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of each Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of Trust
Securities shall relate, in the case of any Trust Securities redeemed or to be
redeemed only in part, to the portion of the Liquidation Amount of Trust
Preferred Securities which has been or is to be redeemed. Notice of any
redemption will be mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Trust Securities to be redeemed; at such
Holder's address appearing in the Security Register.
SUBORDINATION OF TRUST COMMON SECURITIES. Payment of Distributions on,
and the Redemption Price of, each BXS Trust's Trust Securities, as applicable,
shall generally be made pro rata to the holders of the Trust Securities based on
the Liquidation Amount of such Trust Securities; provided, however, that if on
any Distribution Date or Redemption Date, a Debenture Event of Default or other
Event of Default shall have occurred and be continuing, no payment of any
Distribution on, Redemption Price of, any of such BXS Trust's Trust Common
Securities, and no other payment on account of the redemption, liquidation or
other acquisition of such Trust Common Securities, shall be made unless payment
in full in cash of all accumulated and unpaid Distributions on all of such BXS
Trust's outstanding Trust Preferred Securities for all Distribution Dates
occurring on or prior thereto, or in the case of payment of the applicable
Redemption Price the full amount of such Redemption Price on all of such BXS
Trust's outstanding Trust Preferred Securities, shall have been made or provided
for, and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions on, or the
Redemption Price of, such BXS Trust's Trust Preferred Securities then due and
payable.
In the case of the occurrence of any Event of Default under the
applicable Trust Agreement resulting from a Debenture Event of Default, the
Company as holder of such BXS Trust's Trust Common Securities will be deemed to
have waived any right to act with respect to any such Event of Default under the
applicable Trust Agreement until the effect of all such Events of Default with
respect to such Trust Preferred Securities have been cured, waived or otherwise
eliminated. Until all such Events of Default under the applicable Trust
Agreement with respect to the Trust Preferred Securities have been so cured,
waived or otherwise eliminated, the Property Trustee shall act solely on behalf
of the Holders of such Trust Preferred Securities and not on behalf of the
Company as Holder of such BXS Trust's Trust Common Securities, and only the
Holders of such Trust Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION. Pursuant to each Trust
Agreement, each BXS Trust shall dissolve on the first to occur of:
(i) the expiration of its term;
(ii) certain events of bankruptcy, dissolution or liquidation of
the Company or the Holder of the Trust Common Securities;
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(iii) the written direction from the Company, as Depositor, to the
Property Trustee to dissolve such BXS Trust (which direction
by the Company is optional and solely within the discretion of
the Company, subject to the Company having received prior
approval of the Federal Reserve if then so required under
applicable capital guidelines or policies) and, after
satisfaction of liabilities to creditors of such BXS Trust as
provided by applicable law, to distribute a Like Amount of the
Corresponding Junior Subordinated Debt Securities to the
holders of its Trust Securities;
(iv) redemption of all of such BXS Trust's Trust Securities in
connection with the redemption of all the Corresponding Junior
Subordinated Securities (including upon the occurrence and
continuation of a Tax Event, Capital Treatment Event or
Investment Company Event); and
(v) the entry of an order for the dissolution of such BXS Trust by
a court of competent jurisdiction.
If an early dissolution occurs as described in clause (ii), (iii) or
(v) above, the relevant BXS Trust shall be liquidated by the related BXS Trust
Trustees as expeditiously as such BXS Trust Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of such BXS Trust
as provided by applicable law, to the holders of such Trust Securities a Like
Amount of the Corresponding Junior Subordinated Debt Securities; provided,
however, in the event that such distribution is determined by the Property
Trustee not to be practical, the Trust Property of such BXS Trust will be
liquidated, and such BXS Trust will be dissolved, wound-up or terminated by the
Property Trustee and the holders of such Trust Securities will be entitled to
receive out of the assets of such BXS Trust available for distribution to
holders, after satisfaction of liabilities to creditors of such BXS Trust as
provided by applicable law, an amount equal to the aggregate of the Liquidation
Amount plus accumulated and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"). If such Liquidation
Distribution can be paid only in part because such BXS Trust has insufficient
assets available to pay in full the aggregate Liquidation Distribution, then the
amounts payable by such BXS Trust on the Trust Securities shall be paid on a pro
rata basis (based upon Liquidation Amounts). The Holder(s) of such BXS Trust's
Trust Common Securities will be entitled to receive Liquidation Distributions
upon any such liquidation pro rata with the holders of the Trust Preferred
Securities, except that if a Debenture Event of Default has occurred and is
continuing, the Trust Preferred Securities shall have a priority over the Trust
Common Securities with respect to any such Liquidation Distribution, and no
payments shall be made with respect to the Trust Common Securities until holders
of Trust Preferred Securities have been paid in full.
EVENTS OF DEFAULT; NOTICE. Any one of the following events constitutes
an "Event of Default" under each Trust Agreement with respect to the Trust
Preferred Securities issued thereunder (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default under the
Junior Indenture (see "Description of Junior Subordinated Debt
Securities--Junior Subordinated Debt Security Events of
Default"); or
(ii) default by such BXS Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(iii) default by such BXS Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable;
or
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(iv) default in the performance, or breach, in any material
respect, of any covenant or warranty of the BXS Trust Trustees
in such Trust Agreement (other than a covenant or warranty, a
default in the performance or breach of which is dealt with in
clause (ii) or (iii) above), and continuation of such default
or breach for a period of 60 days after there has been given,
by registered or certified mail, to the defaulting BXS Trust
Trustee or Trustees by the Holders of at least 25% in
aggregate Liquidation Amount of the outstanding Trust
Preferred Securities of the applicable BXS Trust, a written
notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of
Default" under such Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency
with respect to the Property Trustee and the failure by the
Company, as Depositor, to appoint a successor Property Trustee
within 60 days thereof.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Event of Default to the holders of such BXS Trust's Trust
Securities, the Administrative Trustees and the Company, as Depositor, unless
such Event of Default shall have been cured or waived. The Company, as
Depositor, and the Administrative Trustees are required to file annually with
the Property Trustee a certificate as to whether or not they are in compliance
with all the conditions and covenants applicable to them under each Trust
Agreement.
REMOVAL OF BXS TRUST TRUSTEES. Unless a Debenture Event of Default
shall have occurred and be continuing, any BXS Trust Trustee may be removed at
any time by the holder of the Trust Common Securities. If a Debenture Event of
Default has occurred and is continuing, the Property Trustee or the Delaware
Trustee, or both of them, may be removed at such time by an action of the
Holders of a majority in Liquidation Amount of the outstanding Trust Preferred
Securities, delivered to the Relevant Trustee. An Administrative Trustee may be
removed by the holder of the Trust Common Securities at any time and only such
holder shall have the right to remove any Administrative Trustee. No resignation
or removal of a BXS Trust Trustee and no appointment of a successor trustee
shall be effective until the acceptance of appointment by the successor trustee
in accordance with the provisions of the applicable Trust Agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE. Unless an Event of Default
shall have occurred and be continuing, at any time or times, for the purpose of
meeting the legal requirements of the Trust Indenture Act or of any jurisdiction
in which any part of the Trust Property of a BXS Trust may at the time be
located, the Company, as Depositor, and the Administrative Trustees shall have
power to appoint one or more persons approved by the Property Trustee either to
act as a co-trustee, jointly with the Property Trustee, of all or any part of
such Trust Property, or to the extent required by law to act as separate trustee
of any such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of the applicable Trust Agreement. In case a Debenture
Event of Default has occurred and is continuing, the Property Trustee alone
shall have power to make such appointment.
MERGER OR CONSOLIDATION OF BXS TRUST TRUSTEES. Any person into which
the Property Trustee, the Delaware Trustee or any Administrative Trustee that is
not a natural person may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which such Trustee shall be a party, or any Person succeeding
to all or substantially all the corporate trust business of such Trustee, shall
be the successor of such Trustee under each Trust Agreement, provided such
Person shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE BXS
TRUSTS. A BXS Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or
33
lease all or substantially all of its properties and assets substantially as an
entirety to any Person, except as described below. A BXS Trust may, at the
request of the Company, with the consent of the Administrative Trustees and
without the consent of the Holders of the related Trust Preferred Securities,
merge with or into, consolidate, amalgamate, or be replaced by or convey,
transfer or lease all or substantially all of its properties and assets
substantially as an entirety to a trust organized as such under the laws of any
State; provided, that:
(i) such successor entity either (a) expressly assumes all of the
obligations of such BXS Trust with respect to such Trust
Securities or (b) substitutes for such Trust Securities other
securities having substantially the same terms as such Trust
Securities (the "Successor Securities") so long as the
Successor Securities rank the same as such Trust Securities in
priority with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) the Company expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property
Trustee as the holder of the Corresponding Junior Subordinated
Debt Securities;
(iii) the Successor Securities (if Trust Preferred Securities) are
listed or traded, or any Successor Securities will be listed
or traded upon notification of issuance, on any national
securities exchange or other organization on which such Trust
Preferred Securities are then listed or traded, if any;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Trust
Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating
organization;
(v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the
material rights, preferences and privileges of the holders of
the Trust Securities (including any Successor Securities) in
any material respect;
(vi) such successor entity has a purpose substantially identical
and limited to that of the BXS Trust;
(vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Company has
received an opinion from independent counsel to the BXS Trust
experienced in such matters to the effect that (a) such
merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Trust
Securities (including any Successor Securities) in any
material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer
or lease, neither the BXS Trust nor such successor entity will
be required to register as an investment company under the
Investment Company Act; and
(viii) the Company or any permitted successor or assignee owns all of
the common securities of such successor entity and guarantees
the obligations of such successor entity under the Successor
Securities at least to the extent provided by the related
Guarantee.
Notwithstanding the foregoing, a BXS Trust shall not, except with the
consent of holders of 100% in Liquidation Amount of the related Trust
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other entity or permit any other Person to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the BXS Trust or the
successor entity to be classified as other than a grantor trust for U.S. federal
income tax purposes.
34
VOTING RIGHTS; AMENDMENT OF EACH TRUST AGREEMENT. Except as provided
below and in the Junior Indenture and as otherwise required by law and the
applicable Trust Agreement, the holders of the Trust Preferred Securities will
have no voting rights.
Each Trust Agreement may be amended from time to time by the Company,
as Depositor, the Property Trustee and the Administrative Trustees, without the
consent of the holders of the Trust Preferred Securities (i) to cure any
ambiguity, correct or supplement any provisions in such Trust Agreement that may
be inconsistent with any other provision therein, or to make any other
provisions with respect to matters or questions arising under such Trust
Agreement, which shall not be inconsistent with the other provisions of such
Trust Agreement, provided that any such amendment does not adversely affect in
any material respect the interests of any holder of Trust Securities, or (ii) to
modify, eliminate or add to any provisions of such Trust Agreement to such
extent as shall be necessary to ensure that the relevant BXS Trust will be
classified for U.S. federal income tax purposes as a grantor trust at all times
that any Trust Securities are outstanding or to ensure that such BXS Trust will
not be required to register as an "investment company" under the Investment
Company Act. Any amendments of such Trust Agreement shall become effective when
notice thereof is given to the holders of Trust Securities. Each Trust Agreement
may be amended by the related BXS Trust Trustees and the Company, as Depositor,
with (i) the consent of holders of Trust Securities representing not less than a
majority (based upon Liquidation Amounts) of the outstanding Trust Securities,
and (ii) receipt by such BXS Trust Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to such BXS
Trust Trustees in accordance with such amendment will not affect such BXS
Trust's status as a grantor trust for U.S. federal income tax purposes or such
BXS Trust's exemption from status as an "investment company" under the
Investment Company Act, provided that without the consent of each affected
holder of Trust Securities, such Trust Agreement may not be amended to (i)
change the amount or timing of any Distribution on the Trust Securities or
otherwise adversely affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date or (ii) restrict the
right of a holder of Trust Securities to institute suit for the enforcement of
any such payment on or after such date.
So long as any Corresponding Junior Subordinated Debt Securities are
held by the Property Trustee, the related BXS Trust Trustees shall not (i)
direct the time, method and place of conducting any proceeding for any remedy
available to the Junior Indenture Trustee, or executing any trust or power
conferred on the Property Trustee with respect to such Corresponding Junior
Subordinated Debt Securities, (ii) waive any past default that is waivable under
the Junior Indenture, (iii) exercise any right to rescind or annul a declaration
that the principal of all the Corresponding Junior Subordinated Debt Securities
shall be due and payable or (iv) consent to any amendment, modification or
termination of the Junior Indenture or such Corresponding Junior Subordinated
Debt Securities, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of at least a majority in aggregate
Liquidation Amount of all outstanding Trust Preferred Securities; provided,
however, that where a consent under the Junior Indenture would require the
consent of each holder of Corresponding Junior Subordinated Debt Securities
affected thereby, no such consent shall be given by the Property Trustee without
the prior written consent of each Holder of the Related Trust Preferred
Securities. The BXS Trust Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of the Trust Preferred
Securities except by subsequent vote of the Holders of such Trust Preferred
Securities. The Property Trustee shall notify each Holder of Trust Preferred
Securities of any notice of default received from the Junior Indenture Trustee
with respect to the Corresponding Junior Subordinated Debt Securities. In
addition to obtaining the foregoing approvals of the Holders of the Trust
Preferred Securities, prior to taking any of the foregoing actions, the BXS
Trust Trustees shall, at the expense of the Company as Depositor, obtain an
Opinion of Counsel experienced in such matters to the effect that the BXS Trust
will not fail to be classified as a grantor trust for U.S. federal income tax
purposes on account of such action.
35
Notwithstanding that holders of Trust Preferred Securities are entitled
to vote or consent under the circumstances set forth in the applicable Trust
Agreement, any of the Trust Preferred Securities that are owned by the Company,
as Depositor, the BXS Trust Trustees or any affiliate of the Company or any BXS
Trust Trustees, shall generally, for purposes of such vote or consent, be
disregarded and deemed not to be outstanding.
GLOBAL TRUST PREFERRED SECURITIES. Unless otherwise set forth in a
prospectus supplement, any Trust Preferred Securities will be represented by
fully registered global certificates issued as global Trust Preferred Securities
to be deposited with a depositary with respect to that series, instead of paper
certificates issued to each individual holder. The depositary arrangements that
will apply, including the manner in which principal of and premium, if any, and
interest on global Trust Preferred Securities and other payments will be payable
are discussed in more detail under the heading "Book-Entry Issuance."
PAYMENT AND PAYING AGENCY. Payments of Distributions in respect of
Trust Preferred Securities represented by global certificates shall be made to
DTC as described under "Book-Entry Issuance." If any Trust Preferred Securities
are not represented by global certificates, such payments shall be made by check
mailed to the address of the Person entitled thereto at such address as shall
appear on the Securities Register. Unless otherwise specified in the applicable
prospectus supplement, the paying agent (the "Paying Agent") shall initially be
the Property Trustee and any co-paying agent chosen by the Property Trustee and
acceptable to the Administrative Trustees and the Company, as Depositor. The
Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Administrative Trustees, Property Trustee and the Company. In the
event that the Property Trustee shall no longer be the Paying Agent, the
Administrative Trustees shall appoint a successor (which shall be a bank or
trust company) that is acceptable to the Property Trustee and the Company to act
as Paying Agent.
REGISTRAR AND TRANSFER AGENT. Unless otherwise specified in the
applicable prospectus supplement, the Property Trustee will act as registrar and
transfer agent for the Trust Preferred Securities. No service charge shall be
made to a Holder for any transfer or exchange of Trust Preferred Securities, but
the Property Trustee or the Securities Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Trust Preferred Securities. Neither
the BXS Trusts nor the Property Trustee will be required to register the
transfer or exchange of any Trust Preferred Securities selected for redemption
in whole or in part.
INFORMATION CONCERNING THE PROPERTY TRUSTEE. The Property Trustee is
under no obligation to exercise any of the rights or powers vested in it by the
applicable Trust Agreement at the request or direction of any of the holders of
Trust Preferred Securities unless such holders have offered to the Property
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities that might be incurred thereby. If the Property Trustee (i) is
required to decide between alternative courses of action in performing its
duties under the applicable Trust Agreement, (ii) must construe ambiguous or
inconsistent provisions in the applicable Trust Agreement or (iii) is unsure of
the application of any provision of the applicable Trust Agreement, and the
matter is not one on which holders of Trust Preferred Securities are entitled
under such Trust Agreement to vote, then the Property Trustee shall deliver
notice to the Company, as Depositor, requesting written instructions as to the
course of action to be taken and take such action as is instructed in writing by
the Company; provided, however, that if the Property Trustee does not receive
such instructions within ten Business Days after it has delivered such notice,
it may take such action as it deems advisable and in the best interests of the
holders of the Trust Securities and will have no liability except for its own
bad faith, negligence or willful misconduct.
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MISCELLANEOUS. The Administrative Trustees are authorized and directed
to conduct the affairs of and to operate the BXS Trusts in such a way that no
BXS Trust will be deemed to be an "investment company" required to be registered
under the Investment Company Act or fail to be classified as a grantor trust for
U.S. federal income tax purposes and so that the Corresponding Junior
Subordinated Debt Securities will be treated as indebtedness of the Company for
U.S. federal income tax purposes. In this connection, the Company and the
Administrative Trustees are authorized to take any action, not inconsistent with
applicable law, the certificate of trust of each BXS Trust or the applicable
Trust Agreement, that the Company and the Administrative Trustees determine in
their discretion to be necessary or desirable for such purposes, as long as such
action does not adversely affect any material respects the interests of the
holders of the Trust Securities.
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DESCRIPTION OF GUARANTEES
A Guarantee will be executed and delivered by the Company at the same
time each BXS Trust issues its Trust Preferred Securities. Each Guarantee is for
the benefit of the holders from time to time of such Trust Preferred Securities.
The Bank of New York will act as indenture trustee ("Guarantee Trustee") under
each Guarantee for the purposes of compliance with the Trust Indenture Act and
each Guarantee will be qualified as an indenture under the Trust Indenture Act.
The Guarantee Trustee will hold each Guarantee for the benefit of the holders of
the related BXS Trust's Trust Preferred Securities.
This summary of certain terms and provisions of the Guarantees is not
complete. For a complete description, you should read each Guarantee. The form
of the Guarantee has been filed as an exhibit to the registration statement of
which this prospectus forms a part.
Each Guarantee will be qualified under the Trust Indenture Act.
References to Trust Preferred Securities include the Trust Preferred
Securities issued by the related BXS Trust to which a Guarantee relates.
GENERAL. The Company will irrevocably and unconditionally agree to pay
in full to the extent set forth herein, the Guarantee Payments to the holders of
the Trust Preferred Securities, as and when due, regardless of any defense,
right of set-off or counterclaim that such BXS Trust may have or assert. The
following payments or distributions with respect to the Trust Preferred
Securities, to the extent not paid by or on behalf of the related BXS Trust (the
"Guarantee Payments"), will be subject to the related Guarantee:
(i) any accrued and unpaid Distributions required to be paid on
such Trust Preferred Securities, to the extent that such BXS
Trust has funds on hand available therefor at such time;
(ii) the redemption price, including all accrued and unpaid
Distributions to the date of redemption (the "Guarantee
Redemption Price"), with respect to any Trust Preferred
Securities called for redemption, to the extent that such BXS
Trust has funds on hand available therefor at such time by a
BXS Trust; and
(iii) upon a voluntary or involuntary dissolution, winding up or
liquidation of such BXS Trust, unless the Corresponding Junior
Subordinated Debt Securities are distributed to holders of
such Trust Preferred Securities or all of the Trust Preferred
Securities are redeemed, the lesser of (a) the Liquidation
Distribution and (b) the amount of assets of such BXS Trust
remaining available for distribution to holders of Trust
Preferred Securities in liquidation of such BXS Trust.
The Company's obligation to make a Guarantee Payment may be satisfied
by direct payment of the required amounts by the Company to the holders of the
applicable Trust Preferred Securities or by causing the BXS Trust to pay such
amounts to such holders.
Each Guarantee will be an irrevocable and unconditional guarantee on a
subordinated basis of the related BXS Trust's obligations under the Trust
Preferred Securities and will rank subordinate and junior in right of payment to
all Senior Debt of the Company. See "--Status of the Guarantees."
STATUS OF THE GUARANTEES. Each Guarantee will constitute an unsecured
obligation of the Company and will rank subordinate and junior in right of
payment to all Senior Debt of the Company in the same manner as Corresponding
Junior Subordinated Debt Securities.
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Each Guarantee will rank pari passu with any other Guarantees issued by
the Company. Each Guarantee will constitute a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding directly
against the Company to enforce its rights under the Guarantee without first
instituting a legal proceeding against any other person or entity). Each
Guarantee will be held for the benefit of the holders of the related Trust
Preferred Securities. Each Guarantee will not be discharged except by payment of
the Guarantee Payments in full to the extent not paid by the BXS Trust or upon
distribution to the holders of the Trust Preferred Securities of the
Corresponding Junior Subordinated Debt Securities.
AMENDMENTS AND ASSIGNMENT. Except with respect to any changes which do
not materially adversely affect the material rights of holders of the related
Trust Preferred Securities (in which case no consent of the holders will be
required), each Guarantee may only be amended with the prior approval of the
holders of not less than a Majority of the aggregate Liquidation Amount of such
outstanding Trust Preferred Securities. All guarantees and agreements contained
in each Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Company and shall inure to the benefit of the holders of
the related Trust Preferred Securities then outstanding. Except in connection
with a consolidation, merger or sale involving the Company that is permitted
under the terms of the corresponding Indentures and pursuant to which the
assignee agrees in writing to perform the Company's obligations thereunder, the
Company may not assign its obligations under each Guarantee.
EVENTS OF DEFAULT. An event of default under each Guarantee will occur
upon the failure of the Company to perform any of its payment or other
obligations thereunder or to perform any non-payment obligations if such
non-payment default remains unremedied for 60 days after receipt of notice
thereof. The holders of a Majority in Liquidation Amount of the related Trust
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of such Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under such Guarantee.
The holders of a Majority in Liquidation Amount of the related Trust
Preferred Securities may, by vote, on behalf of the holders, waive any past
Event of Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of each Guarantee, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent therefrom.
Any holder of the Trust Preferred Securities may institute a legal
proceeding directly against the Company to enforce its rights under such
Guarantee without first instituting a legal proceeding against the BXS Trust,
the Guarantee Trustee or any other person or entity.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE. The Guarantee Trustee,
before the occurrence of any Event of Default and after the curing of all Events
of Default that may have occurred, shall undertake to perform only such duties
as are specifically set forth in each Guarantee, and no implied covenants shall
be read into a Guarantee against the Guarantee Trustee. In case an Event of
Default has occurred which has not been cured or waived, the Guarantee Trustee
shall exercise such of the rights and powers vested in it by each Guarantee, and
use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs. Subject to this provision, the Guarantee Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by each
Guarantee at the request or direction of any holder of the Trust Preferred
Securities, unless such holder shall have provided to the Guarantee Trustee such
security and indemnity reasonably satisfactory to it, against the costs,
expenses and liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be requested by
the
39
Guarantee Trustee. Such a requirement, however, does not relieve the Guarantee
Trustee of its obligations to exercise its rights and powers under each
Guarantee upon the occurrence of an Event of Default..
TERMINATION OF THE GUARANTEES. Each Guarantee will terminate and be of
no further force and effect upon full payment of the Guarantee Redemption Price
of the related Trust Preferred Securities, upon full payment of the amounts
payable upon liquidation of the related BXS Trust or upon distribution of
Corresponding Junior Subordinated Debt Securities to the holders of the related
Trust Preferred Securities in exchange therefor. Not withstanding the foregoing,
each Guarantee will continue to be effective or will be reinstated, as the case
may be, if at any time any holder of the related Trust Preferred Securities must
restore payment of any sums paid under such Trust Preferred Securities or such
Guarantee.
GOVERNING LAW. Each Guarantee will be governed by and construed in
accordance with the laws of the State of New York.
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES, THE
CORRESPONDING JUNIOR SUBORDINATED DEBT SECURITIES AND THE
GUARANTEES
FULL AND UNCONDITIONAL GUARANTEE. Payments of Distributions and other
amounts due on the Trust Preferred Securities (to the extent the related BXS
Trust has funds available for the payment of such Distributions) are irrevocably
guaranteed by the Company as and to the extent set forth under "Description of
Guarantees." Taken together, the Company's obligations under each series of
Corresponding Junior Subordinated Debt Securities, the Junior Indenture, the
related Trust Agreement and the related Guarantee provide, in the aggregate, a
full, irrevocable and unconditional guarantee of payments of Distributions and
other amounts due on the Related Trust Preferred Securities. No single document
standing alone or operating in conjunction with fewer than all of the other
documents constitutes such guarantee. It is only the combined operation of these
documents that has the effect of providing a full, irrevocable and unconditional
guarantee of the related BXS Trust's obligations under the Related Trust
Preferred Securities. If and to the extent that the Company does not make
payments on any series of Corresponding Junior Subordinated Debt Securities,
such BXS Trust will not pay Distributions or other amounts due on its Related
Trust Preferred Securities. The Guarantees do not cover payment of Distributions
when the related BXS Trust does not have sufficient funds to pay such
Distributions. In such event, the remedy of a holder of any Trust Preferred
Securities is to institute a legal proceeding directly against the Company
pursuant to the terms of the Junior Indenture for enforcement of payment of
amounts of such Distributions to such holder after the applicable due dates. The
obligations of the Company under each Guarantee are subordinate and junior in
right of payment to all Senior Debt of the Company.
SUFFICIENCY OF PAYMENTS. As long as payments of interest and other
payments are made when due on each series of Corresponding Junior Subordinated
Debt Securities, such payments will be sufficient to cover Distributions and
other payments due on the Related Trust Preferred Securities, primarily because:
(i) the aggregate principal amount of each series of Corresponding
Junior Subordinated Debt Securities will be equal to the sum
of the aggregate stated Liquidation Amount of the Related
Trust Preferred Securities and related Trust Common
Securities;
(ii) the interest rate and interest and other payment dates on each
series of Corresponding Junior Subordinated Debt Securities
will match the Distribution rate and Distribution and other
payment dates for the Related Trust Preferred Securities;
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(iii) the Company shall pay for all and any costs, expenses and
liabilities of such BXS Trust except the BXS Trust's
obligations to holders of its Trust Preferred Securities under
such Trust Preferred Securities; and
(iv) each Trust Agreement provides that the BXS Trust will not
engage in any activity that is not consistent with the limited
purposes of such BXS Trust.
Notwithstanding anything to the contrary in the Junior Indenture, the
Company has the right to set-off any payment it is otherwise required to make
thereunder with and to the extent the Company has theretofore made, or is
concurrently on the date of such payment making, a payment under the related
Guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF TRUST PREFERRED SECURITIES. A holder
of any related Trust Preferred Security may institute a legal proceeding
directly against the Company to enforce its rights under the related Guarantee
without first instituting a legal proceeding against the Guarantee Trustee, the
related BXS Trust or any other person or entity.
A default or event of default under any Senior Debt of the Company
would not constitute a default or Event of Default under the Junior Indenture.
However, in the event of payment defaults under, or acceleration of, Senior Debt
of the Company, the subordination provisions of the Junior Indenture provide
that no payments may be made in respect of the Corresponding Junior Subordinated
Debt Securities until such Senior Debt has been paid in full or any payment
default thereunder has been cured or waived. Failure to make required payments
on any series of Corresponding Junior Subordinated Debt Securities would
constitute a Debenture Event of Default under the applicable Trust Agreement.
LIMITED PURPOSE OF BXS TRUSTS. Each BXS Trust's Trust Preferred
Securities evidence a preferred and undivided beneficial interest in such BXS
Trust, and each BXS Trust exists for the sole purpose of issuing its Trust
Preferred Securities and Trust Common Securities and investing the proceeds
thereof in Corresponding Junior Subordinated Debt Securities and engaging in
only those other activities necessary or incidental thereto. A principal
difference between the rights of a holder of a Trust Preferred Security and a
holder of a Corresponding Junior Subordinated Debt Security is that a holder of
a Corresponding Junior Subordinated Debt Security is entitled to receive from
the Company the principal amount of and interest accrued on Corresponding Junior
Subordinated Debt Securities held, while a holder of Trust Preferred Securities
is entitled to receive Distributions from such BXS Trust (or from the Company
under the applicable Guarantee) if and to the extent such BXS Trust has funds
available for the payment of such Distributions.
RIGHTS UPON DISSOLUTION. Upon any voluntary or involuntary dissolution
or termination, winding-up or liquidation of any BXS Trust not involving the
distribution of the Corresponding Junior Subordinated Debt Securities, the
holders of the related Trust Preferred Securities will be entitled to receive,
out of the assets held by such BXS Trust, the Liquidation Distribution in cash.
See "Description of Trust Preferred Securities--Liquidation Distribution Upon
Dissolution." Upon any voluntary or involuntary liquidation or bankruptcy of the
Company, the Property Trustee, as holder of the Corresponding Junior
Subordinated Debt Securities, would be a subordinated creditor of the Company,
subordinated in right of payment to all Senior Debt as set forth in the Junior
Indenture, but entitled to receive payment in full of principal and interest,
before any shareholders of the Company receive payments or distributions. Since
the Company is the guarantor under each Guarantee and has agreed to pay for all
costs, expenses and liabilities of each BXS Trust (other than the BXS Trust's
obligations to the holders of its Trust Preferred Securities), the positions of
a holder of such Trust Preferred Securities and a holder of such Corresponding
Junior Subordinated Debt Securities relative to other creditors and to
shareholders of the Company in the event of liquidation or bankruptcy of the
Company are expected to be substantially the same.
41
DESCRIPTION OF COMMON STOCK
The following summary is not complete. You should refer to the
applicable provisions of the Company's Restated Articles of Incorporation, as
amended, and to the Mississippi Business Corporation Act for a complete
statement of the terms and rights of the Common Stock.
The Company has authorized 500 million shares of Common Stock, $2.50
par value. The Common Stock is listed on the New York Stock Exchange. Its symbol
is "BXS."
DIVIDEND RIGHTS. Holders of outstanding shares of Common Stock are
entitled to receive such dividends, if any, as may be declared by the Board of
Directors of the Company, in its discretion, out of funds legally available
therefor.
VOTING RIGHTS. Holders of Common Stock are entitled to one vote per
share on all matters to be voted on by the shareholders of the Company,
including the election of directors, and do not have cumulative voting rights.
Under the Mississippi Business Corporation Act, an affirmative vote of the
majority of the shareholders present at a meeting is sufficient in order to take
most shareholder actions. Certain extraordinary actions require greater
percentages of affirmative shareholder votes, including an increase, without a
recommendation by the Board of Directors of such increase, in the maximum number
of members of the Board of Directors of the Company or an amendment or repeal of
the anti-takeover provision described below.
LIQUIDATION RIGHTS. In the event of the liquidation of the Company, the
holders of Common Stock are entitled to receive pro rata any assets distributed
to shareholders with respect to their shares, after payment of all debts and
payments to holders of preferred stock of the Company, if any.
PREEMPTIVE RIGHTS. Holders of Common Stock have no right to subscribe
to additional shares of capital stock that may be issued by the Company.
CERTAIN ANTI-TAKEOVER PROVISIONS. The Company's Restated Articles of
Incorporation, as amended, generally require the affirmative vote of the holders
of 80% of the outstanding shares of Common Stock to approve (i) a merger or
consolidation of the Company with, or (ii) a sale, exchange or lease of all or
substantially all of the assets (as defined in the Restated Articles of
Incorporation) of the Company to any person or entity, unless such transaction
is approved by the Board of Directors of the Company.
The Restated Articles of Incorporation of the Company also require the
affirmative vote of the holders of 80% of the outstanding shares of the Common
Stock, and the affirmative vote of the holders of 67% of the shares of Common
Stock held by shareholders other than a Controlling Party (as defined below),
for the approval or authorization of any merger, consolidation, sale, exchange
or lease of all or substantially all of the assets of the Company if such
transaction involves any shareholders owning or controlling 20% or more of the
Common Stock outstanding at the time of the proposed transaction (a "Controlling
Party"); provided, however, that these voting requirements are not applicable in
transactions in which: (a) the cash or fair market value of the property,
securities or other consideration to be received (which includes Common Stock
retained by the Company's existing shareholders in a transaction in which the
Company is the surviving entity) per share by holders of Common Stock in such
transaction is not less than the highest per share price (with appropriate
adjustments for recapitalizations, stock splits, stock dividends and
distributions) paid by the Controlling Party in the acquisition of any of its
holdings of the Common Stock in the three years preceding the announcement of
the proposed transaction, or (b) the transaction is approved by a majority of
the Board of Directors of the Company.
42
Neither of these provisions of the Restated Articles of Incorporation
may be repealed or amended except by the affirmative vote of 80% of the total
voting power of the Company.
COMMON STOCK PURCHASE RIGHTS
On April 23, 1991, the shareholders of the Company adopted a
shareholder rights plan. The terms of the shareholder rights plan are set forth
in a Rights Agreement, dated April 24, 1991 (the "Rights Agreement"), between
the Company and the Bank, as Rights Agent. On March 28, 2001, the Board of
Directors of the Company approved an amendment to the Rights Agreement (the
Rights Agreement, as so amended, the "Amended Rights Agreement"), which
amendment is set forth in a First Amendment to Rights Agreement, dated as of
March 28, 2001 (the "Amendment"), between the Company and the Bank, as Rights
Agent. The Amended Rights Agreement is incorporated by reference as an exhibit
to the registration statement of which this prospectus is a part. The Common
Stock Purchase Rights are the rights to purchase shares of the Company's Common
Stock, par value $2.50 per share, issued under the terms of the Amended Rights
Agreement.
The following descriptions of the provisions of the Amended Rights
Agreement are qualified in their entirety by reference to the Rights Agreement
and the Amendment (including the exhibits thereto).
DISTRIBUTION OF RIGHTS; EXERCISE PRICE. On April 24, 1991, each
shareholder of record at the close of business on April 24, 1991 (the "Record
Date") received a dividend distribution of one Common Stock purchase right (a
"Right") for each outstanding share of Common Stock. Each share of Common Stock
issued by the Company, including shares distributed from treasury, after April
24, 1991 and prior to the Distribution Date (as defined below) automatically has
had, or will have during the term of the Amended Rights Agreement, a Right
attached to it. Each Right entitles the registered holder, subject to the terms
of the Amended Rights Agreement, to purchase from the Company one share of
Common Stock at a purchase price per share of $60.00, subject to adjustment (the
"Purchase Price"). The Purchase Price is payable in cash or by certified or bank
check or bank draft payable to the order of the Company.
SEPARATION OF RIGHTS FROM COMMON STOCK. As of the date of this
prospectus, the Rights are incorporated in and represented by the certificates
representing shares of outstanding Common Stock, and no separate Rights
certificates have been distributed. The Rights will separate from the Common
Stock and separate Rights certificates will be distributed upon the earliest of
the following dates (the "Distribution Date"): (i) the close of business on the
tenth business day following a public announcement by the Company or an
Acquiring Person (as defined below) that an Acquiring Person has become such
(the "Stock Acquisition Date"); (ii) the close of business on the tenth business
day following the commencement of, or the announcement of an intent to commence,
a tender or exchange offer that would result in a person or group becoming an
Acquiring Person; or (iii) the close of business on the tenth business day after
a majority of the members of the Board of Directors who are not officers of the
Company determine that a person has, alone or together with his affiliates or
associates, become the beneficial owner of 10% or more of the outstanding shares
of Common Stock or voting power of the Company and is an "Adverse Person."
"Adverse Person" means any person declared to be an Adverse Person by a
majority of the Company's independent directors, upon a determination by such
directors that (a) such beneficial ownership by such person is intended to cause
the Company to repurchase the Common Stock or voting power of the Company
beneficially owned by such person or to cause pressure on the Company to take
action or enter into a transaction or series of transactions intended to provide
such person with short term financial gain under circumstances where these
directors determine that the best long term interests of the Company and the
shareholders would not be served by taking such action or entering into such
transaction or series of transactions or (b) such beneficial ownership is
43
causing or is reasonably likely to cause a material adverse impact on the
business or prospects of the Company (including, but not limited to, impairment
of the Company's relationships with customers, its ability to maintain its
competitive position, its capital position, its ability to meet the convenience
and needs of the communities it serves, or its business reputation or ability to
deal with governmental agencies) to the detriment of the shareholders.
"Acquiring Person" means any person which, together with all affiliates
and associates of such person, shall be the beneficial owner of 20% or more of
the Common Stock then outstanding, but shall not include the Company or any of
its subsidiaries or employee benefit plans, or any trustee or fiduciary with
respect to any such plan acting in such capacity. No person shall become an
"Acquiring Person" as the result of an acquisition of Common Stock by the
Company which, by reducing the number of shares outstanding, increases the
proportionate percentage of shares beneficially owned by such person to 20% or
more of the Common Stock of the Company then outstanding; provided, however,
that if a person becomes the beneficial owner of 20% or more of the Common Stock
of the Company then outstanding by reason of share purchases by the Company and
shall, after such share purchases by the Company, become the beneficial owner of
any additional Common Stock, then such person shall be deemed to be an
"Acquiring Person." Notwithstanding the foregoing, no person shall become an
"Acquiring Person" if a majority of the members of the Company's Board of
Directors, with the concurrence of a majority of the independent directors,
determines in good faith that such person who would otherwise be an Acquiring
Person has become such inadvertently and without any intention of changing or
influencing control of the Company, and if such person, after being advised of
such determination and within a period of time set by a majority of the
independent directors, divests himself or itself of a sufficient number of
shares of Common Stock so that such person shall not be deemed to be or have
become an "Acquiring Person" for any purpose under the Amended Rights Agreement.
EXERCISABILITY OF RIGHTS. The Rights are not exercisable until the
Distribution Date and will expire at the close of business on March 28, 2011
(the "Final Expiration Date") unless earlier redeemed by the Company as
described below.
SEPARATED RIGHTS EVIDENCED BY CERTIFICATES. Until the Distribution
Date, (i) the Rights will be evidenced by Common Stock certificates and will be
transferred with and only with such Common Stock certificates, (ii) new Common
Stock certificates issued after the Record Date, including shares distributed
from treasury, will contain a notation incorporating the Rights Agreement by
reference, and (iii) the surrender for transfer of any certificates representing
outstanding Common Stock also will constitute the transfer of the Rights
associated with the Common Stock represented by such certificate. As soon as
practicable after the Distribution Date, Rights certificates will be mailed to
holders of record of Common Stock as of the close of business on the
Distribution Date and, thereafter, the separate Rights certificates alone will
represent the Rights.
TRIGGERING EVENTS FOR RIGHT TO BUY COMMON STOCK AT DECREASED PURCHASE
PRICE; NULLIFICATION OF CERTAIN RIGHTS. In the event that (i) a person or group
(other than the Company, any of its subsidiaries, or any employee benefit plan
of the Company) becomes an Acquiring Person, or (ii) the Board has determined
the existence of an Adverse Person (either of such events being a "Triggering
Event"), then, in each such case, each holder of a Right shall have the right to
receive, upon exercise of such Right, shares of Common Stock (or, in certain
circumstances, cash, property or other Securities of the Company) having a value
equal to two times the Purchase Price. Notwithstanding any of the foregoing,
following the occurrence of one of the foregoing events, all Rights that are, or
(under certain circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person or an Adverse Person will be null and
void.
44
OPTIONAL EXCHANGE OF RIGHTS. At any time after the occurrence of a
Triggering Event, the Board of Directors of the Company may exchange the Rights
(other than Rights owned by an Acquiring Person or Adverse Person which have
become void), in whole or in part, at an exchange ratio of one share of Common
Stock per Right (subject to adjustment).
TRIGGERING EVENTS FOR PURCHASE OF ACQUIROR'S SHARES. In the event that,
at any time following the earlier of the Stock Acquisition Date or Distribution
Date, (i) the Company is acquired in a merger or other business combination
transaction and the Company is not the surviving corporation, (ii) any person or
group effects a share exchange or merger with the Company and all or part of the
Company's Common Stock is converted or exchanged for securities, cash, or
property of any other person or group, or (iii) 50% or more of the Company's
assets or earning power is sold or transferred (any of such events also being a
"Triggering Event"), then, in each such case, proper provision will be made so
that each holder of a Right shall have the right to receive, upon exercise, the
number of shares of common stock of the "Principal Party" (as defined below)
having a value equal to two times the Purchase Price.
"Principal Party" means (i) in the case of any transaction described in
clause (i) or (ii) in the preceding paragraph, (A) the person that is the issuer
of any securities into which shares of the Company's Common Stock are converted
in such merger or share exchange, or, if there is more than one such issuer, the
issuer of Common Stock that has the highest aggregate current market price and
(B) if no securities are so issued, the person that is the other party to such
merger or share exchange, or, if there is more than one such person, the person
the Common Stock of which has the highest aggregate current market price; and
(ii) in the case of any transaction described in clause (iii) in the preceding
paragraph, the person that is the party receiving the largest portion of the
assets or earning power transferred pursuant to such transaction or
transactions, or, if each person that is a party to such transaction or
transactions receives the same portion of the assets or earning power
transferred pursuant to such transaction or transactions or if the person
receiving the largest portion of the assets or earning power cannot be
determined, whichever person the Common Stock of which has the highest aggregate
current market price; provided, however, that in any such case, (1) if the
Common Stock of such person is not at such time and has not been continuously
over the preceding twelve-month period registered under Section 12 of the
Exchange Act ("Registered Common Stock"), or such person is not a corporation,
and such person is a direct or indirect subsidiary of another person that has
Registered Common Stock outstanding, "Principal Party" shall refer to such other
person; (2) if the Common Stock of such person is not Registered Common Stock or
such person is not a corporation, and such person is a direct or indirect
subsidiary of another person but is not a direct or indirect subsidiary of
another person which has Registered Common Stock outstanding, "Principal Party"
shall refer to the ultimate parent entity of such first-mentioned person; (3) if
the Common Stock of such person is not Registered Common Stock or such person is
not a corporation, and such person is directly or indirectly controlled by more
than one person, and one or more of such other persons has Registered Common
Stock outstanding, "Principal Party" shall refer to whichever of such other
persons is the issuer of the Registered Common Stock having the highest
aggregate current market price; and (4) if the Common Stock of such person is
not Registered Common Stock or such person is not a corporation, and such person
is directly or indirectly controlled by more than one person, and none of such
other persons have Registered Common Stock outstanding, "Principal Party" shall
refer to whichever ultimate parent entity is the corporation having the greatest
shareholders equity or, if no such ultimate parent entity is a corporation,
shall refer to whichever ultimate parent entity is the entity having the
greatest net assets.
ANTI-DILUTION ADJUSTMENTS. The Purchase Price payable, and the number
of shares of Common Stock or other securities or property issuable, upon
exercise of the Rights are subject to adjustment from time to time to prevent
dilution in the event the Company shall (i) declare a dividend on the Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding
45
Common Stock, (iii) combine the outstanding Common Stock into a smaller number
of shares, or (iv) issue any shares of its capital stock in a reclassification
of the Common Stock, including any such reclassification in connection with a
share exchange or merger in which the Company is the continuing or surviving
corporation. With certain exceptions, no adjustment in the Purchase Price will
be required until cumulative adjustments amount to at least 1% of the Purchase
Price. The Company is not required to issue fractional shares of Common Stock.
In lieu thereof, an adjustment in cash may be made based on the market price of
the Common Stock prior to the date of exercise.
REDEMPTION OF RIGHTS. The Rights are redeemable at $0.01 per Right (the
"Redemption Price"), subject to adjustment, by a majority of the Company's
independent directors, payable, at the election of such majority of independent
directors, in cash or shares of Common Stock, at any time prior to the close of
business on the Distribution Date (the "Right of Redemption"). Immediately upon
any redemption of the Rights, the right to exercise the Rights will become a
right to receive the Redemption Price. Unless earlier redeemed, the Rights will
expire on the Final Expiration Date. Common Stock purchasable upon exercise of
the Rights will not be redeemable.
NO SHAREHOLDER RIGHTS UNTIL EXERCISE. Until a Right is exercised, the
holder thereof, as such, will have no rights as a shareholder of the Company,
including, without limitation, the right to vote or to receive dividends.
AMENDMENT TO AMENDED RIGHTS AGREEMENT. Any of the provisions of the
Amended Rights Agreement may be supplemented or amended by the Company's Board
of Directors at any time prior to the Distribution Date without the consent of
the shareholders. After the Distribution Date, the provisions of the Amended
Rights Agreement may be supplemented or amended without the consent of the
holders of the Rights in order to (i) cure any ambiguity, defect, or
inconsistency, (ii) make changes that are consistent with the objectives of the
Board of Directors in adopting the Amended Rights Agreement (except that from
and after such time as any person becomes an Acquiring Person and/or an Adverse
Person, no such amendment may adversely affect the interests of holders of
Rights), or (iii) shorten or lengthen any time period under the Amended Rights
Agreement, although no amendment to adjust the time period governing redemption
shall be made at such time as the Rights are not redeemable.
ANTI-TAKEOVER EFFECTS. The Rights approved by the Company's Board of
Directors are designed to protect and maximize the value of the outstanding
equity interests in the Company in the event of an unsolicited attempt by an
acquiror to take over the Company in a manner or on terms not approved by the
Board of Directors. Takeover attempts frequently include coercive tactics to
deprive a company's board of directors and its shareholders of any real
opportunity to determine the destiny of the company. The Rights have been
declared by the Company's Board of Directors in order to deter such tactics,
including a gradual accumulation of shares in the open market of a 20% or
greater position to be followed by a merger or a partial or two-tier tender
offer that does not treat all shareholders equally. These tactics can unfairly
pressure shareholders, squeeze them out of their investment without giving them
any real choice and deprive them of the full value of their shares.
The Rights are not intended to prevent a takeover of the Company on
appropriate terms and will not do so. Subject to certain exceptions discussed
above, the Rights may be redeemed by the Company at $0.01 per Right prior to the
Distribution Date (or such later date as may be determined by the Board of
Directors). Accordingly, the Rights should not interfere with any merger or
business combination approved by the Board of Directors.
Issuance of the Rights does not in any way weaken the financial
strength of the Company or interfere with its business plans. The issuance of
the Rights has no dilutive effect, will not affect reported earnings per share,
should not be taxable to the Company or to its shareholders and will not change
the way in which the Company's shares are presently traded. The Company's Board
of
46
Directors believes that the Rights represent a sound and reasonable means of
addressing the complex issues of corporate policy created by the current
takeover environment.
However, the Rights may have the effect of rendering an acquisition
more difficult or discouraging an acquisition of the Company in a manner deemed
undesirable by the Board of Directors. The Rights may cause substantial dilution
to a person or group that attempts to acquire the Company on terms or in a
manner not approved by the Company's Board of Directors, except pursuant to an
offer conditioned upon the negation, purchase or redemption of the Rights.
BOOK-ENTRY ISSUANCE
If any Debt Securities or Trust Preferred Securities (collectively,
"Book Entry Securities") are to be represented by global certificates, The
Depository Trust Company ("DTC") will act as securities depositary for all of
the Book Entry Securities, unless otherwise referred to in the prospectus
supplement relating to an offering of the particular series of Book Entry
Securities.
The following is a summary of the depository arrangements applicable to
such securities issued in global form and for which DTC acts as depositary. If
there are any changes from this summary, they will appear in a prospectus
supplement.
If any securities are to be issued in global form, you will not receive
a paper certificate representing the Debt Securities you have purchased.
Instead, the Company will deposit with DTC or its custodian one or more
fully-registered global certificates registered in the name of Cede & Co. (DTC's
nominee) for the Book Entry Securities, representing in the aggregate the total
number of a BXS Trust's Trust Preferred Securities, aggregate principal balance
of Junior Subordinated Debt Securities or aggregate principal amount of Debt
Securities, respectively.
Since the global certificate is registered in the name of DTC or its
nominee, DTC or its nominee is said to have legal or record ownership of the
global certificate. Persons who buy interests in the global security by
purchasing securities are said to own a beneficial interest in the global
security.
Only institutions (sometimes referred to as "participants") that have
accounts with DTC or its nominee or persons that may hold interests through
participants, such as individual members of the public, may own beneficial
interests in a global certificate.
Ownership of beneficial interests in a global certificate by
participants will be evidenced only by, and the transfer of that ownership
interest will be effected only through, records maintained by DTC or its
nominee.
Ownership of beneficial interests in a global certificate by persons
that hold through participants will be evidenced only by, and the transfer of
that ownership interest within that participant will be effected only through,
records maintained by that participant.
DTC has no knowledge of the actual beneficial owners of the Book Entry
Securities. Beneficial owners will not receive written confirmation from DTC of
their purchase, but beneficial owners are expected to receive written
confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the participants through which the beneficial
owners purchased the securities.
DTC alone is responsible for any aspect of its records, any nominee or
any participant relating to, or payments made on account of, beneficial
interests in a global certificate or for
47
maintaining, supervising or reviewing any of the records of DTC, any nominee or
any participant relating to such beneficial interests.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
laws may impair the ability to transfer beneficial interests in a global
certificate.
We have been advised by DTC that upon the issuance of a global
certificate and the deposit of that global certificate with DTC, DTC will
immediately credit, on its book-entry registration and transfer system, the
respective principal amounts represented by that global certificate to the
accounts of its participants.
The Company will pay principal of, and interest or premium on,
securities represented by a global certificate registered in the name of or held
by DTC or its nominee to the relevant Trustee who in turn will make payments to
DTC or its nominee, as the case may be, as the registered owner and holder of
the global certificate representing those securities in immediately available
funds. Upon receipt of any payment of principal of, or interest or premium on, a
global certificate, DTC will immediately credit, on its book-entry registration
and transfer system, accounts of participants with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of that global certificate as shown in the records of DTC. Payments by
participants to owners of beneficial interests in a global certificate held
through those participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the sole
responsibility of those participants, subject to any statutory or regulatory
requirements as may be in effect from time to time.
A global certificate is exchangeable for definitive securities (paper
certificates) registered in the name of, and a transfer of a global certificate
may be registered to, any person other than DTC or its nominee, only if:
(a) DTC notifies us that it is unwilling or unable to continue as
depositary for that global certificate or if at any time DTC
ceases to be registered under the Exchange Act;
(b) we determine in our discretion that the global certificate
shall be exchangeable for definitive securities in registered
form; or
(c) in the case of Debt Securities, there shall have occurred and
be continuing an Event of Default or an event which, with
notice or the lapse of time or both, would constitute an Event
of Default with respect to the Debt Securities.
Any global certificate representing a Debt Security that is
exchangeable pursuant to the preceding paragraph will be exchangeable in whole
for definitive Debt Securities in registered form, of like tenor and of an equal
aggregate principal amount as the global certificate, in denominations specified
in the applicable prospectus supplement (if other than $1,000 and integral
multiples of $1,000). The definitive Debt Securities will be registered by the
registrar in the name or names instructed by DTC. Such instructions may be based
upon directions received by DTC from its participants with respect to ownership
of beneficial interests in the global certificate. Unless otherwise indicated in
a prospectus supplement any principal, premium and interest will be payable, the
transfer of the definitive Debt Securities will be registerable and the
definitive Debt Securities will be exchangeable at the corporate trust office of
The Bank of New York, provided that payment of interest may be made at the
option of the Company by check mailed to the address of the person entitled to
that interest payment as of the record date and as shown on the register for the
Debt Securities.
48
Any global certificate representing a Trust Preferred Security that is
exchangeable pursuant to (a) or (b) above will be exchangeable in whole for
definitive Trust Preferred Securities in registered form, of like tenor and of
an equal aggregate principal amount as the global certificate, in denominations
specified in the applicable prospectus supplement (if other than $25.00 and
integral multiples of $25.00). The definitive Trust Preferred Securities will be
registered by the registrar in the name or names instructed by DTC. Such
instructions may be based upon directions received by DTC from its participants
with respect to ownership of beneficial interests in the global certificate. Any
Distributions and other payments will be payable, the transfer of the definitive
Trust Preferred Securities will be registerable and the definitive Trust
Preferred Securities will be exchangeable at the corporate trust office of The
Bank of New York, provided that such payment may be made at the option of the
Company by check mailed to the address of the person entitled to that payment as
of the record date and as shown on the register for the Trust Preferred
Securities.
DTC may discontinue providing its services as securities depositary
with respect to any of the Book Entry Securities at any time by giving
reasonable notice to the relevant Trustee and the Company. In the event that a
successor securities depositary is not obtained, definitive Debt Security or
Trust Preferred Security or certificates representing such Debt Security or
Trust Preferred Security are required to be printed and delivered. The Company,
at its option, may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor depositary). After an Event of Default
under the applicable Indenture, the holders of a majority in liquidation amount
of Trust Preferred Securities or aggregate principal amount of Debt Securities
may determine to discontinue the system of book-entry transfers through DTC. In
any such event, definitive certificates for such Trust Preferred Securities or
Debt Securities will be printed and delivered.
Except as provided above, owners of the beneficial interests in a
global security will not be entitled to receive physical delivery of Debt
Securities in definitive form and will not be considered the holders of
securities for any purpose under the Debt Securities Indenture, and no global
security shall be exchangeable except for another global security of like
denomination and tenor to be registered in the name of DTC or its nominee.
Accordingly, each person owning a beneficial interest in a global security must
rely on the procedures of DTC and, if that person is not a participant, on the
procedures of the participant through which that person owns its interest, to
exercise any rights of a holder under the global security or the Debt Securities
Indenture.
Redemption notices will be sent to Cede & Co. as the registered holder
of the Book Entry Securities. If less than all of a series of the Debt
Securities or a BXS Trust's Trust Preferred Securities are being redeemed, DTC
will determine the amount of the interest of each direct participant to be
redeemed in accordance with its then current procedures.
Although voting with respect to the Book Entry Securities is limited to
the holders of record of the Book Entry Securities, in those instances in which
a vote is required, neither DTC nor Cede & Co. will itself consent or vote with
respect to Book Entry Securities. Under its usual procedures, DTC would mail an
omnibus proxy to the relevant Trustee as soon as possible after the record date.
The omnibus proxy assigns Cede & Co.'s consenting or voting rights to those
direct participants to whose accounts such Book Entry Securities are credited on
the record date (identified in a listing attached to the omnibus proxy).
DTC has advised us that DTC is a limited purpose trust company
organized under the laws of the State of New York, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code and a "clearing agency" registered under the Exchange Act. DTC
was created to hold securities of its participants and to facilitate the
clearance and settlement of securities transactions among its participants in
such securities through electronic book-entry changes in accounts of the
participants, thereby eliminating the need for physical movement of
49
securities certificates. DTC's participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. DTC is owned by a number of its participants and by the New York
Stock Exchange, Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc. Access to DTC's book-entry system is
also available to others, such as banks, brokers, dealers and trust companies
that clear through or maintain a custodial relationship with a participant,
either directly or indirectly. The rules applicable to DTC and its participants
are on file with the SEC.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that the BXS Trusts and the Company
believe to be accurate, but the BXS Trusts and the Company assume no
responsibility for the accuracy thereof. Neither the BXS Trusts nor the Company
has any responsibility for the performance by DTC or its Participants of their
respective obligations as described herein or under the rules and procedures
governing their respective operations.
LEGAL MATTERS
Unless otherwise indicated below or in the applicable prospectus
supplement, the legality of certain matters will be passed upon for the Company
by Waller Lansden Dortch & Davis, A Professional Limited Liability Company,
Nashville, Tennessee. Certain matters of Mississippi law will be passed upon for
the Company by Riley, Ford, Caldwell & Cork, P.A., Tupelo, Mississippi.
Unless otherwise indicated in the applicable prospectus supplement,
certain matters of Delaware law relating to the validity of the Trust Preferred
Securities, the enforceability of the Trust Agreements and the formation of the
BXS Trusts will be passed upon by Richards, Layton & Finger, P.A., special
Delaware counsel to the Company and the BXS Trusts.
EXPERTS
The consolidated financial statements of BancorpSouth, Inc. and
subsidiaries as of December 31, 2000 and 1999, and for each of the years in the
three-year period ended December 31, 2000, have been incorporated by reference
herein and in the registration statement in reliance upon the report of KPMG
LLP, independent accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
PLAN OF DISTRIBUTION
SECURITIES OFFERED BY THE COMPANY AND EACH BXS TRUST. The securities to
be offered by the Company and each BXS Trust may be sold in a public offering to
or through agents, underwriters or dealers designated from time to time or
directly to purchasers. The Company and each BXS Trust may sell its securities
as soon as practicable after effectiveness of the registration statement of
which this prospectus forms a part. The names of any underwriters or dealers
involved in the sale of the securities in respect of which this prospectus is
delivered, the amount or number of securities to be purchased by any such
underwriters and any applicable commissions or discounts will be set forth in
the applicable prospectus supplement.
Underwriters may offer and sell securities at a fixed price or prices,
which may be changed, or from time to time at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. In connection with the sale of Debt Securities and Trust
Preferred Securities, underwriters may be deemed to have received compensation
from the Company or the applicable BXS Trust in the form of underwriting
discounts or commissions and may also receive commissions. Underwriters may sell
securities to or through dealers, and such dealers
50
may receive compensation in the form of discounts, concessions or commissions
from the underwriters.
Any underwriters utilized may engage in stabilizing transactions and
syndicate covering transactions in accordance with Rule 104 under the Exchange
Act. Stabilizing transactions permit bids to purchase the underlying security so
long as the stabilizing bids do not exceed a specified maximum. Syndicate
covering transactions involve purchases of the securities in the open market
after the distribution has been completed in order to cover syndicate short
positions. Such stabilizing transactions and syndicate covering transactions may
cause the price of the securities to be higher than it would otherwise be in the
absence of such transactions.
Any underwriting compensation paid by the Company or the applicable BXS
Trust to underwriters in connection with the offering of securities, and any
discounts, concessions or commissions allowed by such underwriters to
participating dealers, will be described in an accompanying prospectus
supplement. Dealers and agents participating in the distribution of securities
may be deemed to be underwriters, and any discounts and commissions received by
them and any profit realized by them on resale of such securities may be deemed
to be underwriting discounts and commissions, under the Securities Act.
Underwriters and dealers may be entitled under agreements with the Company or a
BXS Trust to indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Act, and to
reimbursement by the Company for certain expenses.
In connection with the offering of the securities of the Company or any
BXS Trust, the Company or such BXS Trust may grant to the underwriters an option
to purchase additional securities to cover over-allotments, if any, at the
initial public offering price (with an additional underwriting commission), as
may be set forth in the accompanying prospectus supplement. If the Company or
such BXS Trust grants any over-allotment option, the terms of such
over-allotment option will be set forth in the prospectus supplement for such
securities.
Underwriters and dealers may engage in transactions with, or perform
services for, the Company and/or the applicable BXS Trust and/or any of their
affiliates in the ordinary course of business. Certain of the underwriters and
their associates may be customers of (including borrowers from) engage in
transactions with, and perform services for, the Company, the Bank and other
subsidiaries of the Company in the ordinary course of business.
Securities other than the Common Stock will have no established trading
market. Any underwriters to whom such securities are sold for public offering
and sale may make a market in such securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. Such securities may or may not be listed on a national securities
exchange or quoted on the Nasdaq National Market. No assurance can be given as
to the liquidity of or the existence of trading markets for any securities other
than the Common Stock.
51
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
Registration fee under the Securities Act of 1933, as amended $125,000
Legal fees and expenses **
Blue Sky fees and expenses (including counsel fees) **
Fees of rating agencies **
Printing and engraving expenses **
Accounting services fees and expenses **
Trustees expenses **
Miscellaneous **
Total $**
===
---------------
* All expenses except the SEC registration fee are estimated.
** To be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The bylaws of the Company (Article V) provide the following:
Any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Company) by reason of the fact that he is or was a director,
officer, employee, or agent of the Company or is or was serving at the request
of the Company as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, shall be indemnified by the Company against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding to the fullest extent provided in the Restated Articles of
Incorporation and by law. The termination of any action, suit, or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed, in the case of
conduct in his official capacity, to be in the best interests of the Company and
in all other cases, that his conduct was not opposed to the Company's best
interests or, with respect to any criminal proceeding, that he had reasonable
cause to believe that his conduct was unlawful.
Any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the Company, or is or was serving
at the request of the Company as a director, officer, partner, trustee, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other
II-1
enterprise, shall be indemnified by the Company against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit except that no indemnification
shall be made in respect of any claim, issue, or matter as to which such person
shall have been adjudged to have breached his duty to the Company to discharge
his duties in good faith and with the care which an ordinarily prudent person in
a like position would exercise under similar circumstances, and in a manner he
reasonably believes to be in the best interests of the Company, unless and only
to the extent that the court in which such action or suit has been brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
To the extent that a person specified above has been successful on the
merits or otherwise in defense of any action, suit or proceeding, or in defense
of any claim, issue, or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
Any indemnification under this Article (unless ordered by a court)
shall be made by the Company only as authorized in the specific case upon a
determination that indemnification is proper in the circumstances because the
indemnitee has met the standard of conduct set forth in the applicable section.
Such determination shall be made (a) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (b) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested directors so directs, by independent
legal counsel (who may be the regular counsel of the Company) in a written
opinion, or (c) by the holders of a majority of each class of stock outstanding.
Expenses incurred by a party to a proceeding may be paid by the Company
in advance of the final disposition of such action, suit, or proceeding as
authorized by the Board of Directors in the manner provided above upon receipt
of an undertaking by or on behalf of the payee to repay such amount unless it
shall ultimately be determined that he is entitled to be indemnified by the
Company as authorized herein.
The indemnification provided herein shall not be deemed exclusive of
any other rights to which a party seeking indemnification may be entitled under
any bylaw, agreement, vote of shareholders or disinterested directors, or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent, and shall inure to
the benefit of the heirs, executors and administrators of such a person.
The Company may purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the Company, or is or
was serving at the request of the corporation as a director, officer, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Company would have the power to indemnify him
against such liability under the provisions hereof.
With certain limitations, Sections 79-4-8.50 through 79-4-8.59 of the
Mississippi Business Corporation Act permit a corporation to indemnify a
director or officer made a party to an action (i) by a corporation or in its
right in order to procure a judgment in its favor unless he shall have breached
his duties, or (ii) other than an action by or in the right of the corporation
in order to procure a judgment in its favor if such director or officer acted in
good faith and in a manner he reasonably believed to be in or, in certain cases,
not opposed to such corporation's best interests, and additionally, in criminal
actions, has no reasonable cause to believe his conduct was unlawful.
II-2
In addition, the Company maintains a directors' and officers' liability
insurance policy.
Reference is made to the indemnity provisions in the Form or
Underwriting Agreement which is filed as Exhibit 1.1 to this Registration
Statement.
Under each Trust Agreement, the Company will agree to indemnify each of
the Trustees of the BXS Trusts with respect thereto or any predecessor Trustee
for the BXS Trusts, and to hold such Trustees harmless against any loss, damage,
claims, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the Trust Agreements, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties under the Trust Agreements.
ITEM 16. EXHIBITS
Exhibit
Number Description of Exhibit
------- ----------------------
1.1 Form of Underwriting Agreement related to Debt Securities.*
1.2 Form of Underwriting Agreement related to Common Stock.*
1.3 Form of Underwriting Agreement related to Trust Preferred
Securities.*
4.1 Restated Articles of Incorporation of the Company (filed as
Exhibit 3.1 to the Company's Registration Statement on Form
S-4 (Registration No. 33-88274) filed on January 5, 1995, and
incorporated herein by reference).
4.2 Amendment to Restated Articles of Incorporation of the Company
(filed as Exhibit 3.2 to the Company's Registration Statement
on Form S-4 (Registration No. 33-88274) filed on January 5,
1995, and incorporated herein by reference).
4.3 Amended and Restated Bylaws of the Company (filed as Exhibit
3(b) to the Company's Annual Report on Form 10-K for the year
ended December 31, 1998 (file No. 1-12991) and incorporated
herein by reference).
4.4 Amendment to Amended and Restated Bylaws (filed as Exhibit
3(c) to the Company's Annual Report on Form 10-K for the year
ended December 31, 2000 (file No. 1-12991) and incorporated
herein by reference).
4.5 Rights Agreement, dated as of April 24, 1991 including as
Exhibit A the forms of Rights Certificate and of Election to
Purchase and as Exhibit B the summary of Rights to Purchase
Common Shares (filed as Exhibit 1 to the Company's
registration statement on Form 8-A filed April 24, 1991 and
incorporated herein by reference).
4.6 First Amendment to Rights Agreement, dated as of March 28,
2001 (filed as Exhibit 2 to the Company's amended registration
statement on Form 8-A/A filed March 28, 2001 and incorporated
herein by reference).
4.7 Form of Debt Securities Indenture.**
4.8 Form of Junior Subordinated Debt Securities Indenture.**
II-3
4.9 Specimen Common Stock Certificate (filed as Exhibit 4 to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1994 (file number 0-10826) and incorporated
herein by reference).
4.10 Form of Debt Security.*
4.11 Form of Junior Subordinated Debt Security (included in
Article II of Exhibit 4.8 hereto).**
4.12 Amended and Restated Certificate of Trust of BancorpSouth
Capital Trust I.**
4.13 Amended and Restated Trust Agreement of BancorpSouth Capital
Trust I.**
4.14 Form of Second Amended and Restated Trust Agreement of
BancorpSouth Capital Trust I.**
4.15 Certificate of Trust of BancorpSouth Capital Trust II.**
4.16 Trust Agreement of BancorpSouth Capital Trust II.**
4.17 Form of Amended and Restated Trust Agreement of BancorpSouth
Capital Trust II.**
4.18 Certificate of Trust of BancorpSouth Capital Trust III.**
4.19 Trust Agreement of BancorpSouth Capital Trust III.**
4.20 Form of Amended and Restated Trust Agreement of BancorpSouth
Capital Trust III.**
4.21 Certificate of Trust of BancorpSouth Capital Trust IV.**
4.22 Trust Agreement of BancorpSouth Capital Trust IV.**
4.23 Form of Amended and Restated Trust Agreement of BancorpSouth
Capital Trust IV.**
4.24 Form of Trust Preferred Security Certificate for BancorpSouth
Capital Trust I, II, III and IV (included as Exhibit B of
Exhibits 4.14, 4.17, 4.20 and 4.23 hereto, respectively).**
4.25 Form of Trust Preferred Securities Guarantee Agreement
relating to BancorpSouth Capital Trust I, II, III and IV.**
5.1 Opinion of Riley, Ford, Caldwell & Cork, P.A. as to the
legality of the Common Stock, Debt Securities, Junior
Subordinated Debt Securities and the Guarantees.**
5.2 Opinion of Richards, Layton & Finger, P.A., special Delaware
counsel, as to the legality of the Trust Preferred Securities
of BancorpSouth Capital Trust I.**
5.3 Opinion of Richards, Layton & Finger, P.A., special Delaware
counsel, as to the legality of the Trust Preferred Securities
of BancorpSouth Capital Trust II.**
5.4 Opinion of Richards, Layton & Finger, P.A., special Delaware
counsel, as to the legality of the Trust Preferred Securities
of BancorpSouth Capital Trust III.**
II-4
5.5 Opinion of Richards, Layton & Finger, P.A., special Delaware
counsel, as to the legality of the Trust Preferred Securities
of BancorpSouth Capital Trust IV.**
8.1 Opinion of Waller Lansden Dortch & Davis, PLLC, as to certain
federal income tax matters.*
12.1 Statement Regarding Computation of Ratio of Earnings to Fixed
Charges.
23.1 Consent of KPMG LLP, independent certified public
accountants.
23.2 Consent of Waller Lansden Dortch & Davis, PLLC.**
23.3 Consent of Riley, Ford, Caldwell & Cork, P.A. (included in
opinion filed as Exhibit 5.1).**
23.4 Consent of Richards, Layton & Finger, P.A. (included in
opinion filed as Exhibit 5.2).**
23.5 Consent of Richards, Layton & Finger, P.A. (included in
opinion filed as Exhibit 5.3).**
23.6 Consent of Richards, Layton & Finger, P.A. (included in
opinion filed as Exhibit 5.4).**
23.7 Consent of Richards, Layton & Finger, P.A. (included in
opinion filed as Exhibit 5.5).**
24.1 Power of Attorney.**
25.1 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Debt Securities Indenture.**
25.2 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Trust Agreement of BancorpSouth
Capital Trust I.**
25.3 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Trust Agreement of BancorpSouth
Capital Trust II.**
25.4 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Trust Agreement of BancorpSouth
Capital Trust III.**
25.5 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Trust Agreement of BancorpSouth
Capital Trust IV.**
25.6 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Guarantees for the benefit of the
holders of Trust Preferred Securities of BancorpSouth Capital
Trust I.**
25.7 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Guarantees for the benefit of the
holders of Trust Preferred Securities of BancorpSouth Capital
Trust II.**
II-5
25.8 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Guarantees for the benefit of the
holders of Trust Preferred Securities of BancorpSouth Capital
Trust III.**
25.9 Form T-1 Statement of Eligibility of The Bank of New York to
act as trustee under the Guarantees for the benefit of the
holders of Trust Preferred Securities of BancorpSouth Capital
Trust IV.**
---------------------
* To be filed by amendment or as an exhibit to a document to be
incorporated by reference.
** Previously filed in this registration statement.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post- effective amendment thereto)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in this registration
statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high end of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than a 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
registration statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the
II-6
offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(4) To provide to the underwriter at the closing
specified in the underwriting agreement, certificates
in such denominations and registered in such names as
required by the underwriter to permit prompt delivery
to each purchaser.
(b) The undersigned registrants hereby undertake that, for
purposes of determining any liability under the Securities Act
of 1933, as amended, each filing of the registrants' annual
report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of each registrant pursuant to the
provisions described under Item 15 above, or otherwise, each
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by each registrant of expenses incurred or paid by a
director, officer or controlling person of each registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, each
registrant will, unless in the opinion of its counsel the
matter has been settled by the controlling precedent, submit
to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
(d) The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from
the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the
registrants pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be
part of the registration statement as of the time it
was declared effective.
(2) For the purposes of determining any liability under
the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to
the securities offered therein, and the offering of
such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(e) The undersigned registrants hereby undertake to file an
application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section
305(b)(2) of the Act.
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
BancorpSouth, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Tupelo, state of Mississippi, on December 4,
2001.
BANCORPSOUTH, INC.
(Registrant)
By: /s/ L. Nash Allen, Jr.
----------------------------------
L. Nash Allen, Jr.,
Treasurer and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
* Chairman of the Board and Chief Executive Officer December 4, 2001
----------------------- (Principal Executive Officer) and Director
Aubrey B. Patterson
/s/ L. Nash Allen, Jr. Treasurer and Chief Financial Officer (Principal December 4, 2001
----------------------- Financial and Accounting Officer)
L. Nash Allen, Jr.
* Director December 4, 2001
-----------------------
Shed H. Davis
* Director December 4, 2001
-----------------------
Hassell H. Franklin
* Director December 4, 2001
-----------------------
W.G. Holliman, Jr.
* Director December 4, 2001
-----------------------
A. Douglas Jumper
* President, Chief Operating Officer and Director December 4, 2001
-----------------------
James V. Kelley
* Director December 4, 2001
-----------------------
Turner O. Lashlee
SIGNATURE TITLE DATE
--------- ----- ----
* Director December 4, 2001
-------------------
R. Madison Murphy
* Director December 4, 2001
-------------------
Robert C. Nolan
Director
-------------------
W. Cal Partee, Jr.
* Director December 4, 2001
-------------------
Alan W. Perry
* Director December 4, 2001
-------------------
Travis E. Staub
* L. Nash Allen, Jr. hereby signs this Registration Statement on Form
S-3 on the 4th day of December, 2001 on behalf of each of the indicated persons
for whom he is attorney-in-fact pursuant to a power of attorney filed herein.
By: /s/ L. Nash Allen, Jr.
------------------------------------
L. Nash Allen, Jr., Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, as amended,
BancorpSouth Capital Trust I certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Tupelo, state of Mississippi, on
December 4, 2001.
BancorpSouth Capital Trust I
By: BancorpSouth, Inc.,
as Depositor
By: /s/ L. Nash Allen, Jr.
------------------------------------
L. Nash Allen, Jr.
Pursuant to the requirements of the Securities Act of 1933, as amended,
BancorpSouth Capital Trust II certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Tupelo, state of
Mississippi, on December 4, 2001.
BancorpSouth Capital Trust II
By: BancorpSouth, Inc.,
as Depositor
By: /s/ L. Nash Allen, Jr.
---------------------------------
L. Nash Allen, Jr.
Pursuant to the requirements of the Securities Act of 1933, as amended,
BancorpSouth Capital Trust III certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Tupelo, state of
Mississippi, on December 4, 2001.
BancorpSouth Capital Trust III
By: BancorpSouth, Inc.,
as Depositor
By: /s/ L. Nash Allen, Jr.
---------------------------------
L. Nash Allen, Jr.
Pursuant to the requirements of the Securities Act of 1933, as amended,
BancorpSouth Capital Trust IV certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Tupelo, state of
Mississippi, on December 4, 2001.
BancorpSouth Capital Trust IV
By: BancorpSouth, Inc.,
as Depositor
By: /s/ L. Nash Allen, Jr.
---------------------------------
L. Nash Allen, Jr.
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
------- ----------------------
12.1 Statement Regarding Computation of Ratio of Earnings to Fixed
Charges.
23.1 Consent of KPMG LLP, independent certified public accountants.