SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 1, 1996
First Union Corporation
(Exact name of registrant as specified in its charter)
North Carolina 1-10000 56-0898180
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
One First Union Center
Charlotte, North Carolina 28288-0013
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (704)374-6565
(Former name or former address, if changed since last report.)
<PAGE>
INFORMATION TO BE INCLUDED IN THE REPORT
Item 2. Acquisition or Disposition of Assets.
On January 1, 1996, First Union Corporation ("FUNC") acquired
First Fidelity Bancorporation ("FFB") by means of a merger of FFB with and into
a wholly-owned subsidiary of FUNC (the "Merger"). FFB is a New Jersey-based
multi-bank holding company with banking offices in New Jersey, Maryland,
Connecticut, New York and Delaware. As of September 30, 1995, FFB had $35.3
billion in assets.
As a result of the merger, each of the 78.7 million net
outstanding shares of FFB common stock was converted into 1.35 shares of FUNC
common stock, with cash being paid for fractional share interests. In addition,
the 3.0 million net outstanding shares of FFB Series B Convertible Preferred
Stock ("FFB Series B") were converted into a like number of shares of FUNC
Series B Convertible Class A Preferred Stock ("FUNC Series B") having
substantially identical terms as the FFB Series B, the 350,000 outstanding
shares of FFB Series D Adjustable Rate Cumulative Preferred Stock ("FFB Series
D") were converted into a like number of shares of FUNC Series D Adjustable Rate
Cumulative Class A Preferred Stock ("FUNC Series D") having substantially
identical terms as the FFB Series D, and the 3.0 million net outstanding FFB
Depositary Receipts (each representing a 1/40th interest in a share of FFB
Series F 10.64% Preferred Stock ("FFB Series F")) were converted into a like
number of FUNC Depositary Receipts (each representing 1/40th interest in FUNC
Series F 10.64% Class A Preferred Stock ("FUNC Series F")) having substantially
identical terms as the FFB Series F.
The terms of the FUNC Series B, FUNC Series D and FUNC Series
F are set forth in FUNC's Articles of Amendment to its Articles of Incorporation
(the "Amendment"), a copy of which is being filed as an exhibit to this report.
A copy of a deposit agreement, dated as of January 1, 1996, between FUNC and
First Union National Bank of North Carolina, as Depositary ("Deposit
Agreement"), relating to the FUNC Depositary Receipts, is also being filed as an
exhibit to this report. The foregoing discussion is qualified in its entirely by
reference to the Amendment and the Deposit Agreement.
In connection with the Merger, Anthony P. Terracciano,
Juan Rodriguez Inciarte, Edward E. Barr, Arthur M. Goldberg, Frank M. Henry and
Joseph Neubauer, who formally were directors of FFB, have been elected directors
of FUNC by the FUNC Board of Directors. Mr. Terracciano, the former Chairman,
President and Chief Executive Officer of FFB, has also been elected President of
FUNC.
The information set forth under "THE MERGER - Interests of
Certain Persons" in the Joint Proxy Statement/Prospectus, dated September 5,
1995 and included in FUNC's Registration Statement No. 33-62307, is incorporated
herein by reference as additional information in response to this Item.
<PAGE>
Item 7. Financial Statements and Exhibits.
(a) Financial Statements. In response to this Item, the financial state-
ments of FFB for the year ended December 31, 1994, are incorporated
herein by reference in Exhibit (99)(a).
(b) Pro Forma Financial Information. In response to this Item, certain pro
forma financial information with respect to the Merger and certain
other acquisitions for the period ended September 30, 1995, is
incorporated herein by reference in Exhibit (99)(b).
(c) Exhibits.
Exhibit No. Description
(2) Agreement and Plan of
Merger, dated as of June
18, 1995, by and among
FUNC, FFB and First Union
Corporation of New Jersey.
(Incorporated by reference
to Exhibit (99) to FUNC's
Current Report on Form 8-K
dated June 21, 1995.)
(4)(a) Articles of Amendment to
the Registrant's Articles
of Incorporation, relating
to the shares of
Registrant's Series B
Convertible Class A
Preferred Stock, Series D
Adjustable Rate Cumulative
Class A Preferred Stock and
Series F 10.64% Class A
Preferred Stock, issued in
connection with the
acquisition of FFB.
(4)(b) Deposit Agreement, dated as
of January 1, 1996, between
FUNC and First Union
National Bank of North
Carolina, relating to the
Registrant's Depositary
Receipts, each representing
a 1/40th interest in a
share of Registrant's
Series F 10.64% Class A
Preferred Stock.
(99)(a) Financial statements of
FFB. (Incorporated by
reference to Exhibit
(99)(b) to FUNC's
current Report on Form 8-K
dated June 30, 1995.)
(99)(b) Pro forma financial infor-
mation. (Incorporated by
reference to Exhibit
(99)(b) to FUNC's 1995
Third Quarter Report on
Form 10-Q.)
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FIRST UNION CORPORATION
Date: January 10, 1996 By: /s/ James H. Hatch
------------------------
James H. Hatch
Senior Vice President and Corporate Controller
(Principal Accounting Officer)
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
(2) Agreement and Plan of
Merger, dated as of June
18, 1995, by and among
FUNC, FFB and First Union
Corporation of New Jersey.
(Incorporated by reference
to Exhibit (99) to FUNC's
Current Report on Form 8-K
dated June 21, 1995.)
(4)(a) Articles of Amendment to
the Registrant's Articles
of Incorporation, relating
to the shares of
Registrant's Series B
Convertible Class A
Preferred Stock, Series D
Adjustable Rate Cumulative
Class A Preferred Stock and
Series F 10.64% Class A
Preferred Stock, issued in
connection with the
acquisition of FFB.
(4)(b) Deposit Agreement, dated as
of January 1, 1996, between
FUNC and First Union
National Bank of North
Carolina, relating to the
Registrant's Depositary
Receipts, each representing
a 1/40th interest in a
share of Registrant's
Series F 10.64% Class A
Preferred Stock.
(99)(a) Financial statements of
FFB. (Incorporated by
reference to Exhibit
(99)(b) to FUNC's
current Report on
Form 8-K dated June 30,
1995.)
(99)(b) Pro forma financial infor-
mation. (Incorporated by
reference to Exhibit
(99)(b) to FUNC's 1995
Third Quarter Report on
Form 10-Q.)
<PAGE>
<PAGE>
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
FIRST UNION CORPORATION
The undersigned corporation hereby submits these Articles of Amendment for
the purpose of amending its Articles of Incorporation:
I. The name of the corporation is First Union Corporation.
II. On December 19, 1995, pursuant to N.C. Gen. Stat. 55-6-02, the
following amendment to the Articles of Incorporation of the corporation was duly
adopted by the board of directors of the corporation (shareholder approval was
not required because the action was taken before issuance of any shares of the
series affected):
There is added to the end of Article 4 a new Section FFB as follows:
SECTION FFB
There is hereby created three separate series of Class A Preferred Stock of
the Corporation (the "FFB Series"), each of which shall have such relative
rights, preferences and limitations as hereinafter set forth. For purposes of
this Section FFB, the term "Preferred Stock" shall mean the FFB Series and such
other series of Class A Preferred Stock as hereafter may be created which are on
a parity with the FFB Series, which are designated as a series of FFB Series
Preferred Stock in the resolutions creating such series and which in the
aggregate, together with other outstanding FFB Series, do not exceed 10,000,000
shares. For purposes of this Section FFB, the term "Preferred Stock" does not
refer to the 10,000,000 shares of preferred stock authorized in the first
paragraph of Section 4 of the Articles of Incorporation of the Corporation. No
shares of the Preferred Stock shall be issued for a consideration of less than
$1.00.
DESIGNATIONS OF SERIES B, D, AND F PREFERRED STOCK
(1) SERIES B CONVERTIBLE CLASS A PREFERRED STOCK
There is hereby established a series of Class A Preferred Stock which is
designated "Series B Convertible Class A Preferred Stock" (hereinafter called
"Series B" or "Series B Shares"). Each share of Series B shall be identical in
all respects with the other shares of Series B. The number of shares which will
constitute such series shall be 4,892,837. Shares of this series will have a
stated value of $1.00 per share.
A. DIVIDENDS.
(1) The holders of Series B Shares shall be entitled to receive, when and
as declared by the Board, but only out of funds legally available therefor,
cumulative cash dividends at the annual rate of $2.15 per share, without
interest, and no more, payable in quarter-annual installments on the 1st day of
January, April, July, and October in each year commencing (commencing April 1,
1996), to shareholders of record on the respective dates, not exceeding fifty
days preceding such dividend payment date, fixed for that purpose by the Board
in advance of payment of each particular dividend. The first dividend payable on
the Series B Shares after the original issue of the shares of Series B shall be
cumulative from the last dividend payment date of the security for which the
Series B shares are exchanged and shall include any arrearage on the security
for which the Series B Shares are exchanged.
(2) So long as any Series B Share remains outstanding, no dividend whatever
shall be paid or declared and no other distribution made on any junior stock
other than a dividend payable in junior stock, and no shares of junior stock
shall be purchased, redeemed or otherwise acquired for consideration by the
Corporation, directly or indirectly (other than as a result of a
reclassification of junior stock or the exchange or conversion of one junior
stock for or into another junior stock, or other than through the use of the
proceeds of a substantially contemporaneous sale of other junior stock) unless
(i) all dividends on shares of the Preferred Stock of all series for all
quarterly dividend periods ended prior to such action shall have been paid and
(ii) all prior sinking fund requirements, if any, with respect to all series of
the Preferred Stock shall have been complied with. Subject to the foregoing, and
not otherwise, such dividends (payable in cash, stock or otherwise) as may be
determined by the Board may be declared and paid on any junior stock from time
to time out of any funds legally available therefor, and the Series B Shares
shall not be entitled to participate in any such dividends, whether payable in
cash, stock or otherwise. No
1
<PAGE>
dividends shall be paid or declared upon any shares of any class or series of
stock of the Corporation ranking on a parity with the Series B Shares in the
payment of dividends for any period unless at or prior to the time of such
payment or declaration all dividends payable on the Series B Shares for all
quarterly dividend periods ended prior to the date of such payment or
declaration shall have been paid.
B. LIQUIDATION RIGHTS.
(1) In the event of any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Corporation, then before any distribution or
payment shall be made to the holders of any junior stock, the holders of Series
B shall be entitled to be paid in full an amount equal to $25.00 per share
(which amount is hereinafter referred to as the "liquidation amount"), together
with accrued dividends to such distribution or payment date whether or not
earned or declared. In the event that, upon any such voluntary or involuntary
liquidation, dissolution or winding up, the available assets of the Corporation
are insufficient to pay such liquidation amount on all outstanding Series B
Shares and the corresponding amounts payable on all shares of other classes or
series of stock of the Corporation ranking on a parity with the Series B Shares
in the distribution of assets, then the holders of Series B and of all other
such classes or series shall share ratably in any distribution of assets in
proportion to the full amounts to which they would otherwise be respectively
entitled.
(2) If such payment shall have been made in full to all holders of shares
of the Preferred Stock, the remaining assets of the Corporation shall be
distributed among the holders of junior stock, according to their respective
rights and preferences and in each case according to their respective number of
shares. For the purposes of this Section B, the consolidation or merger of the
Corporation with any other corporation shall not be deemed to constitute a
liquidation, dissolution or winding up of the Corporation.
C. REDEMPTION.
Subject to Section E(3), the Corporation, at the option of the Board, may
redeem the whole or any part of the shares of Series B at the time outstanding,
at any time or from time to time, upon notice given as hereinafter specified, at
$25.00 per share, together with accrued dividends to the redemption date.
(1) Notice of every redemption of shares of Series B shall be given by
publication at least once in a newspaper printed in the English language and
customarily published on each business day and of general circulation in
Philadelphia, Pennsylvania, such publication to be at least 30 days and not more
than 60 days prior to the date fixed for redemption. Notice of every such
redemption shall also be mailed by first class mail, postage prepaid, addressed
to the holders of record of the shares to be redeemed at their respective last
addresses as they shall appear on the books of the Corporation. Such mailing
shall be at least 30 days and not more than 60 days prior to the date fixed for
redemption; but failure to mail such notice or any defect therein or in the
mailing thereof shall not affect the validity of the proceedings for the
redemption of any shares so to be redeemed.
(2) In case of redemption of a part only of the shares of Series B at the
time outstanding, the redemption may be either pro rata or by lot. The Board
shall have full power and authority, subject to the provisions herein contained,
to prescribe the terms and conditions upon which shares of Series B shall be
redeemed from time to time.
(3) If notice of redemption shall have been duly given or if the
Corporation shall have given to the bank or trust company hereinafter referred
to irrevocable and unconditional authorization and direction to give such notice
at least 30 days and not more than 60 days prior to the date fixed for
redemption (which date shall be not more than 60 days after the date of such
authorization and direction), and if on or before the redemption date specified
therein the funds necessary for such redemption shall have been deposited by the
Corporation with such bank or trust company in trust with irrevocable
instruction and authority, subject to Section C(4), to pay the redemption price
to the holders of the shares of Series B called for redemption upon surrender of
the certificate therefor, then, notwithstanding that any certificate for shares
of Series B so called for redemption shall not have been surrendered for
cancellation, from and after the time of such deposit, all shares of Series B so
called for redemption shall no longer be deemed to be outstanding and all rights
with respect to such shares shall forthwith cease and terminate, except only the
right of the holders thereof to receive from such bank or trust company at any
time after the close of business on the date fixed for redemption the funds so
deposited, without interest, and the right to exercise, before the close of
business on the date fixed for redemption, privileges of conversion, if any, not
theretofore expiring. The aforesaid bank or trust company shall be organized and
in good standing under the laws of the United States of America or the
Commonwealth of Pennsylvania, shall be doing business in Philadelphia,
Pennsylvania, shall have capital, surplus and undivided profits aggregating at
least $25,000,000 according to its last published statement of condition, and
shall be identified in the notice of redemption. Any interest accrued on such
funds shall be paid to the Corporation from time to time.
2
<PAGE>
(4) Any funds so set aside or deposited by the Corporation which shall not
be required for such redemption because of the exercise of any right of
conversion subsequent to the date of such deposit shall be released or repaid to
the Corporation forthwith. Any funds so set aside or deposited, as the case may
be, and unclaimed at the end of three years from such redemption date shall, to
the extent permitted by law, be released or repaid to the Corporation, after
which repayment the holders of the shares so called for redemption shall look
only to the Corporation for payment thereof.
D. CONVERSION RIGHTS
(1) Subject to the provisions for adjustment hereinafter set forth, each
share of Series B shall be convertible, at the option of the holder thereof,
upon surrender, at the principal office of the Corporation, or at such other
office or offices as the Board may designate, of the certificate for the share
of Series B so to be converted, duly endorsed or assigned to the Corporation in
blank, into 1.0531 validly issued, fully paid and nonassessable shares of common
stock of the Corporation. The right to convert shares of Series B called for
redemption shall terminate at the close of business on the date fixed for
redemption. Upon conversion no allowance or adjustment shall be made for
dividends on either class of stock.
(2) The number of shares of common stock and the number of any other shares
of the Corporation, if any, into which each share of Series B is convertible
shall be adjusted from time to time as follows:
(a) In case the Corporation shall (i) pay a dividend on its common
stock in shares of common stock, (ii) subdivide its outstanding common
stock, (iii) combine its outstanding common stock into a smaller number of
shares of common stock, or (iv) issue by reclassification of its common
stock (whether pursuant to a merger or consolidation or otherwise) any
other shares of the Corporation, then the holder of each share of Series B
shall be entitled to receive upon the conversion of such share the number
of shares of the Corporation which he would have owned or have been
entitled to receive after the happening of any of the events described
above had such share of Series B been converted immediately prior to the
happening of such event. Such adjustment shall be made whenever any of the
events listed above shall occur. Any adjustment made pursuant to this
paragraph (a) shall become effective retroactively with respect to
conversions made subsequent to the record date in the case of a dividend,
and shall become effective immediately after the effective date in the case
of a subdivision, combination or reclassification;
(b) In case the Corporation shall issue rights or warrants to all
holders of its common stock as such entitling them (for a period expiring
within 90 days after the record date for the determination of shareholders
entitled to receive such rights or warrants) to subscribe for or purchase
shares of common stock at a price per share less than the current market
price per share (as defined in Section D(3) below) on such record date,
then in each such case the number of shares of common stock into which each
share of Series B shall thereafter be convertible shall be determined by
multiplying the number of shares of common stock into which such share of
Series B was theretofore convertible by a fraction, of which the numerator
shall be the number of shares of common stock outstanding on the date of
issuance of such rights or warrants plus the number of additional shares of
common stock so offered for subscription or purchase, and of which the
denominator shall be the number of shares of common stock outstanding on
the date of issuance of such rights or warrants plus the number of shares
of common stock which the aggregate offering price of the total number of
shares so offered for subscription or purchase would purchase at such
current market price. For the purposes of this paragraph (b), the issuance
of rights or warrants to subscribe for or purchase securities convertible
into common stock shall be deemed to be the issuance of rights or warrants
to purchase the shares of common stock into which such securities are
convertible at an aggregate offering price equal to the aggregate offering
price of such securities plus the minimum aggregate amount (if any) payable
upon conversion of such securities into shares of common stock. Such
adjustment shall be made whenever any such rights or warrants are issued,
and shall become effective retroactively with respect to conversions made
subsequent to the record date for the determination of shareholders
entitled to receive such rights or warrants;
(c) In case the Corporation shall distribute to holders of shares of
its common stock (whether pursuant to a merger or consolidation or
otherwise) evidence of its indebtedness or assets (including securities
issued by the Corporation or by any other entity, but excluding (x) any
shares referred to in paragraph (a) above, (y) any rights or warrants
referred to in paragraph (b) above and (z) cash distributions after January
1, 1996 not exceeding (i) the aggregate net earnings of the Corporation and
its subsidiaries on a consolidated basis after such date determined in
accordance with generally accepted accounting principles, less (ii)
dividends paid after such date on shares other than common stock), then in
each such case the number of shares of common stock into which each share
of Series B shall thereafter be convertible shall be determined by
multiplying the number of shares of common stock into which such share of
Series B was theretofore convertible by a fraction, of which the numerator
shall be the current market price per share of common stock (as defined in
Section D(3) below) on the record date for the determination of
shareholders entitled to receive such distribution, and of which the
denominator shall be such current market price per share of common stock
less the fair value (as
3
<PAGE>
determined by a resolution of the Board of the Corporation filed with each
transfer agent for the Series B, which determination shall be conclusive)
of the portion of the evidences of indebtedness or assets or rights to
subscribe applicable to one share of common stock. Such adjustment shall be
made whenever any such distribution is made, and shall become effective
retroactively with respect to conversions made subsequent to the record
date for the determination of shareholders entitled to receive such
distribution; and
(d) In case the Corporation shall issue shares of common stock to
holders of shares of common stock pursuant to any dividend reinvestment
plan at a price less than 95% of the current market price per share of
common stock (as defined in Section D(3) below) on the date of issuance of
such shares pursuant to such dividend reinvestment plan, then in each such
case the number of shares of common stock into which each share of Series B
shall thereafter be convertible shall be determined by multiplying the
number of shares of common stock into which such share of Series B was
theretofore convertible by a fraction whose numerator shall be the number
of shares of common stock outstanding on the date of issuance of such
shares plus the number of additional shares of common stock issued pursuant
to such dividend reinvestment plan and whose denominator shall be the
number of shares of common stock outstanding on such date of issuance plus
the number of shares of common stock which the aggregate purchase price of
shares being purchased on such date of issuance pursuant to such dividend
reinvestment plan would purchase at such current market price. Such
adjustment shall be made whenever such shares are issued and shall be
effective as of the date immediately after such date of issuance.
(3) For the purpose of any computation under Section D(2) above, the
current market price per share of common stock on any date shall be deemed to be
the average of the daily Closing Prices for 20 consecutive Trading Days selected
by the Corporation commencing not more than 30 Trading Days before the date in
question. The term "Closing Price" on any day shall mean the reported last sale
price per share of common stock regular way on such day or, in case no such sale
takes place on such day, the average of the reported closing bid and asked
prices regular way, in each case on the principal national securities exchange
on which the common stock is listed or admitted to trading, or, if the common
stock is not listed or admitted to trading on any national securities exchange,
the average of the closing bid and asked prices in the over-the-counter market
as reported by the National Association of Securities Dealers' Automated
Quotation System, or, if not so reported, as reported by the National Quotation
Bureau, Incorporated, or any successor thereof, or, if not so reported, the
average of the closing bid and asked prices as furnished by any member of the
National Association of Securities Dealers, Inc. selected from time to time by
the Corporation for that purpose; and the term "Trading Day" shall mean a day on
which the principal national securities exchange on which the common stock is
listed or admitted to trading is open for the transaction of business or, if the
common stock is not listed or admitted to trading on any national securities
exchange, a Monday, Tuesday, Wednesday, Thursday, or Friday on which banking
institutions in the City of Philadelphia, Commonwealth of Pennsylvania are not
authorized or obligated by law or executive order to close.
(4) No adjustment in the conversion rate shall be required unless such
adjustment (plus any adjustments not previously made by reason of this Section
D(4)) would require an increase or decrease of at least 1% in the number of
shares of common stock into which each share of Series B is then convertible;
PROVIDED, HOWEVER, that any adjustments which by reason of this Section D(4) are
not required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section D shall be made to
the nearest one-hundred thousandth of a share.
(5) The Board may make such adjustments in the conversion rate, in addition
to those required by this Section D, as shall be determined by the Board, as
evidenced by a Board resolution, to be advisable in order to avoid, so far as
practicable, taxation to the recipients of any dividend of stock or stock rights
or any event treated as such for Federal income tax purposes. The Board shall
have the power to resolve any ambiguity or correct any error in this Section D,
in a manner consistent with the intent of the provisions of this Section D, and
its action in so doing, as evidenced by a Board resolution, shall be final and
conclusive.
(6) In the event that at any time, as a result of an adjustment made
pursuant to clause (a) or (c) of Section D(2) above, the holder of any shares of
Series B thereafter surrendered for conversion shall become entitled to receive
any shares of capital stock of the Corporation other than common stock,
thereafter the number of such shares so receivable upon conversion of such
shares of Series B shall be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions with respect
to the common stock contained in paragraphs (a) through (d) inclusive of Section
D(2) above, and the other provisions of this Section D with respect to the
common stock shall apply on like terms to any such other shares.
(7) Whenever any adjustment is required in the number of shares of common
stock into which each share of Series B is convertible, the Corporation shall
forthwith (i) file with each Transfer Agent of the Series B a statement of the
Corporation's
4
<PAGE>
independent accountants describing in reasonable detail the adjustment and the
method of calculation used, and (ii) cause a copy of such statement to be mailed
to the holders of record of the Series B as of the effective date of such
adjustment. The certificate of any independent firm of public accountants of
recognized standing selected by the Board shall be presumptive evidence of the
correctness of any computation made under this Section D.
(8) The Corporation shall at all times reserve and keep available out of
its authorized but unissued shares of common stock, for the purpose of issuance
upon conversion of the Series B, the full number of shares of common stock then
deliverable upon the conversion of all shares of Series B then outstanding.
(9) The Corporation will pay any and all taxes that may be payable in
respect of the issuance or delivery of shares of common stock on conversion of
Series B Shares. The Corporation shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issuance and
delivery of shares of common stock in a name other than that in which the Series
B Shares so converted were registered, and no such issuance or delivery shall be
made unless and until the person requesting such issuance has paid to the
Corporation the amount of any such tax or has established to the satisfaction of
the Corporation that such tax has been paid or is not payable.
(10) For the purpose of this Section D, the term "common stock" shall
include any shares of the Corporation of any class or series which has no
preference or priority in the payment of dividends or in the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of the Corporation and which is not subject to redemption by the Corporation.
However, shares of common stock issuable upon conversion of Series B Shares
shall include only shares of the class designated as common stock as of the
original date of issuance of the Series B Shares, or shares of the Corporation
of any classes or series resulting from any reclassification or
reclassifications thereof and which have no preference or priority in the
payment of dividends or in the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation and which
are not subject to redemption by the Corporation, PROVIDED that if at any time
there shall be more than one such resulting class or series, the shares of such
class or series then so issuable shall be substantially in the proportion which
the total number of shares of such class or series resulting from all such
reclassifications bears to the total number of shares of all such classes and
series resulting from all such reclassifications.
(11) No fractional shares or scrip representing fractional shares shall be
issued upon the conversion of Series B. If any such conversion would otherwise
require the issuance of a fractional share, an amount equal to such fraction
multiplied by the Closing Price of a share issuable (determined as provided in
Section D(3) above) on the day of conversion shall be paid to the holder in cash
by the Corporation.
E. VOTING RIGHTS.
The holders of Series B Shares shall vote on all matters on which the
holders of common stock vote, voting together with the common stock as a single
class. For purposes of such voting, each holder of Series B Shares shall be
entitled to one-half of such number of votes as is equal to the number of shares
of common stock into which the Series B Shares being voted by such holder is
then convertible. In addition to such voting rights, the holders of Series B
Shares shall have the voting rights set forth in this Section E and as provided
by applicable law. For purposes of determining the voting rights of holders of
Series B in relation to those of holders of other series of the Preferred Stock,
each holder of Series B will be entitled to one vote for each $25.00 of
involuntary liquidation preference in respect of such series.
(1) If and whenever six quarterly dividends (whether or not consecutive)
payable on any series of the Preferred Stock shall be in arrears in whole or in
part whether or not earned or declared, the number of directors then
constituting the Board shall be increased by two and the holders of shares of
Series B, together with the holders of shares of every other series of the
Preferred Stock similarly entitled to vote for the election of two additional
directors, voting separately as a class, regardless of series, shall be entitled
to elect the two additional directors at any annual meeting of shareholders or
special meeting held in place thereof, or at a special meeting of the holders of
such series of the Preferred Stock called as hereinafter provided.
(a) Whenever all arrears in dividends on shares of the Preferred Stock
then outstanding shall have been paid and dividends thereon for the current
quarterly dividend period shall have been paid or declared and set apart
for payment, then the right of the holders of such series of the Preferred
Stock to elect two additional directors shall cease (but subject always to
the same provisions for the vesting of voting rights in the case of any
similar future arrearages in dividends), and the terms of office of all
persons elected as directors by the holders of such series of the Preferred
Stock shall terminate on the date of the first meeting of shareholders
following the date of payment, or the date of declaration and setting aside
for payment, and the number of members of the Board shall be reduced
accordingly.
5
<PAGE>
(b) At any time after voting power shall have been so vested in the
holders of the shares of Series B and of any other such series of the
Preferred Stock, the secretary of the Corporation may, and upon the written
request of any holder of Series B (addressed to the secretary at the
principal office of the Corporation) shall, call a special meeting of the
holders of Series B and of such other series of the Preferred Stock for the
election of the two directors to be elected by them as herein provided, the
call to be made by notice similar to that provided in the by-laws for a
special meeting of the shareholders or as required by law. If any special
meeting required to be called as above provided shall not be called by the
secretary within 20 days after receipt of the request, then any holder of
shares of Series B may call the meeting, upon the notice above provided,
and for that purpose shall have access to the stock books of the
Corporation.
(c) The directors elected at any such special meeting shall hold
office until the next annual meeting of shareholders, or special meeting
held in place thereof, and until their successors shall have been elected
and qualified, if those offices shall not have previously terminated as
above provided. In case any vacancy shall occur among the directors elected
by the holders of shares of such series of the Preferred Stock, a successor
shall be elected by the Board to serve until the next annual meeting of
shareholders, or special meeting held in place thereof, and until their
successors shall have been elected and qualified, upon the nomination of
the then remaining director elected by the holders of such series or the
successor of the remaining director.
(d) At any meeting of shareholders held while holders of the Preferred
Stock have the voting power to elect an additional two directors, the
holders of a majority of the outstanding shares of the Preferred Stock so
entitled to vote who are present in person or by proxy shall be sufficient
to constitute a quorum for the election of the two additional directors as
herein provided.
(e) The two additional directors elected by the holders of the
Preferred Stock shall hold office only until the next annual meeting of
shareholders, and until their successors shall have been elected and
qualified, unless their term of office is earlier terminated as provided
herein.
(f) Any new series of the Preferred Stock shall be entitled to
participate with this Series and any other series so entitled in voting for
the election of the two additional directors to the extent and under the
conditions set forth in the resolutions creating such series.
(2) So long as any shares of Series B are outstanding, in addition to any
other vote or consent of shareholders required by law or by the Articles of
Incorporation, the consent of the holders of at least sixty-six and two-thirds
percent of the shares of Series B and of all other series of the Preferred Stock
similarly entitled to vote upon the matter then being considered, acting as a
single class regardless of series, given in person or by proxy, either in
writing without a meeting or by vote at any meeting called for the purpose,
shall be necessary for effecting or validating:
(a) Any amendment, alteration or repeal of any of the provisions of
the Articles of Incorporation (whether pursuant to a merger or
consolidation or otherwise) or of the by-laws of the Corporation which
affects adversely the voting rights, designations, preferences,
qualifications, privileges, limitations, conversion rights or other special
rights, if any, of the holders of shares of the Preferred Stock; PROVIDED,
HOWEVER, that, for purposes of this paragraph (a), the amendment of the
provisions of the Articles of Incorporation so as to authorize or create,
or to increase the authorized amount of, any junior stock or any shares of
any class ranking on a parity with the Preferred Stock shall not be deemed
to affect adversely the voting rights, designations, preferences,
qualifications, privileges, limitations, conversion rights or other special
rights, if any, of the holders of the Preferred Stock, and PROVIDED FURTHER
that if any such amendment, alteration or repeal would affect adversely any
voting rights, designations, preferences, qualifications, privileges,
limitations, conversion rights or other special rights, if any, of the
holders of the Series B which are not enjoyed by some or all of the other
series otherwise entitled to vote in accordance with this paragraph (2),
the consent of the holders of at least sixty-six and two-thirds percent of
the Series B and of all other series, if any, similarly affected, similarly
given, shall be required in lieu of the consent of the holders of at least
sixty-six and two thirds percent of the shares of Series B and of all other
series of the Preferred Stock otherwise entitled to vote in accordance with
this paragraph (2); or
(b) The authorization or creation of, or the increase in the
authorized amount of, any shares of any class or series, or any security
convertible into shares of any class or series, ranking prior to the
Preferred Stock in the distribution of assets on any liquidation,
dissolution, or winding up of the Corporation or in the payment of
dividends;
PROVIDED, HOWEVER, that no such consent of the holders of Series B pursuant to
paragraphs 2(a) and 2(b) above shall be required if, at or prior to the time
when any such action is to take effect or when the issuance of any such priority
shares or convertible securities is to be made, as the case may be, provision is
made pursuant to Section C hereof for the redemption of all shares of Series B
at the time outstanding.
6
<PAGE>
(3) If dividends for all past quarter yearly dividend periods shall not
have been paid on all outstanding shares of Series B, the consent of the holders
of at least sixty-six and two-thirds percent of the then outstanding shares of
Series B, given in person or by proxy, either in writing without a meeting or by
vote at any meeting called for the purpose, shall be necessary as a condition to
the Corporation's right to purchase or redeem less than all then outstanding
shares of Series B.
(4) So long as any shares of Series B are outstanding, in addition to any
other vote or consent of shareholders required by law or by the Articles of
Incorporation, the consent of the holders of at least a majority of Series B and
of all other series of the Preferred Stock similarly entitled to vote upon the
matter then being considered, acting as a single class regardless of series,
given in person or by proxy, either in writing without a meeting or by vote at
any meeting called for the purpose, shall be necessary for effecting or
validating any increase in the authorized number of shares of the Preferred
Stock (whether pursuant to a merger or consolidation or otherwise), or the
authorization or creation of, or the increase in the authorized amount of, any
shares of any class or any security convertible into shares of any class,
ranking on a parity with the Preferred Stock in the distribution of assets on
any liquidation, dissolution or winding up of the Corporation or in the payment
of dividends; PROVIDED, HOWEVER, that no such consent shall be required if, at
or prior to the time such increase, authorization or creation of parity shares
is to be made, provision is made pursuant to Section C hereof for the redemption
of all Series B Shares at the time outstanding.
(5) So long as any shares of Series B are outstanding, the Corporation
shall not issue any shares of the preferred stock authorized in the first
paragraph of Section 4 of the Articles of Incorporation of the Corporation and
shall not have issued and outstanding at any time in the aggregate more than
10,000,000 shares of Class A Preferred Stock, unless, prior thereto, the
Corporation obtains, in addition to any other vote or consent of shareholders
required by law or by the Articles of Incorporation, the consent of a majority
of Series B, acting as a single class, given in person or by proxy, either in
writing without a meeting or by vote at any meeting called for that purpose.
F. DEFINITIONS.
As used herein with respect to the Series B, D and F Shares, the following
terms shall have the following meanings:
(1) The term "junior stock" shall mean the common stock, and any other
class or series of shares of the Corporation hereafter authorized over which the
Series B, D and F have preference or priority in the payment of dividends and in
the distribution of assets on any liquidation, dissolution or winding up of the
Corporation.
(2) The term "accrued dividends", with respect to any share of any class or
series shall mean an amount computed at the annual dividend rate for the class
or series of which the particular share is a part, from the date on which
dividends on such share became cumulative to and including the date on which
such dividends are to be accrued, less the aggregate amount of all dividends
theretofore paid thereon. The amount accrued subsequent to the most recent full
quarterly dividend period shall be computed by dividing the quarterly dividend
payment by the actual number of days in the uncompleted quarter, and thereafter
multiplying this figure by the number of days in such quarter up to and
including the date to which dividends are to be accrued.
G. The Series B Shares shall not have any relative, participating, optional
or other special rights and powers other than as set forth herein. Unless these
Articles of Incorporation provide otherwise, each series of the Preferred Stock
shall be on a parity with each other series with respect to dividends and
liquidation.
7
<PAGE>
(2) SERIES D ADJUSTABLE RATE
CUMULATIVE CLASS A PREFERRED STOCK
There is hereby established a series of Class A Preferred Stock which is
designated "Series D Adjustable Rate Class A Preferred Stock" (referred to
herein as "Adjustable Class A Preferred Stock"). Each share of Adjustable Class
A Preferred Stock shall be identical in all respects with the other shares of
Adjustable Class A Preferred Stock. The number of shares which will constitute
such series shall be 350,000. Shares of this series will have a stated value of
$100.00 per share.
A. DIVIDEND RATE.
(1) Dividend rates on the shares of this Series shall be: (i) for the
period (the "Initial Dividend Period") from the date of their original issue
through the day prior to the first day of the succeeding Quarterly Dividend
Period (as hereinafter defined) at the per annum rate equal to the rate
applicable to the security for which the shares of the Adjustable Class A
Preferred Stock are exchanged during the dividend period ending immediately
prior to the issuance of the Adjustable Class A Preferred Stock, and (ii) for
each quarterly dividend period (hereinafter referred to as a "Quarterly Dividend
Period" and the Initial Dividend Period or in any Quarterly Dividend Period
being hereinafter individually referred to as a "Dividend Period" and
collectively referred to as "Dividend Periods") thereafter, which quarterly
dividend periods shall commence on January 2, April 2, July 2 and October 2 in
each year and shall end on and include the day next preceding the first day of
the next quarterly dividend period, at a rate per annum of the stated value
thereof equal to the Applicable Rate in respect of such Quarterly Dividend
Period. Such dividends shall be cumulative from the last dividend payment date
of the security for which the shares of the Adjustable Class A Preferred Stock
are exchanged, shall include any arrearage on the security for which the
Adjustable Class A Preferred Stock shares are exchanged, and shall be payable,
when and as declared by the Board, on January 1, April 1, July 1 and October 1
of each year commencing on the last day of the Initial Dividend Period. Each
such dividend shall be paid to the holders of record of shares of this Series as
they appear on the stock register of the Corporation on such record date, not
exceeding 60 days preceding the payment date thereof, as shall be fixed by the
Board. Dividends on account of arrears for any past Dividend Periods may be
declared and paid at any time, without reference to any regular dividend payment
date, to holders of record on such date, not exceeding 60 days preceding the
payment date thereof, as may be fixed by the Board.
(2) Except as provided below in this paragraph, the "Applicable Rate" for
any Quarterly Dividend Period shall be (a) .75% (the "Basic Percentage") less
than (b) the highest of the Treasury Bill Rate, the Ten Year Constant Maturity
Rate and the Twenty Year Constant Maturity Rate (each as hereinafter defined)
for such Dividend Period. In the event that the Corporation determines in good
faith for any reason
(i) that any one of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Twenty Year Constant Maturity Rate cannot be
determined for any Quarterly Dividend Period, then the Applicable Rate for
such Dividend Period shall be .75% (the "First Supplemental Percentage")
less than the higher of whichever two of such Rates can be so determined;
(ii) that only one of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Twenty Year Constant Maturity Rate can be determined
for any Quarterly Dividend Period, then the Applicable Rate for such
Dividend Period shall be .75% (the "Second Supplemental Percentage") less
than whichever such Rate can be so determined; or
(iii) that none of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Twenty Year Constant Maturity Rate can be determined
for any Quarterly Dividend Period, then the Applicable Rate in effect for
the preceding Dividend Period shall be continued for such Dividend Period.
Anything herein to the contrary notwithstanding, the Applicable Rate for
any Quarterly Dividend Period shall in no event be less than 6.25% (the "Minimum
Dividend Rate") per annum or greater than 12.75% (the "Maximum Dividend Rate")
per annum.
(3) Except as provided below in this paragraph, the "Treasury Bill Rate"
for each Quarterly Dividend Period shall be the arithmetic average of the two
most recent weekly per annum market discount rates (or the one weekly per annum
market discount rate, if only one such rate shall be published during the
relevant Calendar Period as provided below) for three-month U.S. Treasury Bills,
as published weekly by the Federal Reserve Board during the Calendar Period
immediately prior to the last ten calendar days immediately preceding the
January 1, April 1, July 1 or October 1, as the case may be, prior to the
Quarterly Dividend Period for which the dividend rate on this Series is being
determined. In the event that the Federal Reserve Board does not publish such a
weekly per annum market discount rate during such Calendar Period, then the
Treasury Bill Rate for such Dividend Period shall be the arithmetic average of
the two most recent weekly per annum market
8
<PAGE>
discount rates (or the one weekly per annum market discount rate, if only one
such rate shall be published during the relevant Calendar Period as provided
below) for three-month U.S. Treasury Bills, as published weekly during such
Calendar Period by any Federal Reserve Bank or by any U.S. Government department
or agency selected by the Corporation. In the event that a per annum market
discount rate for three-month U.S. Treasury Bills shall not be published by the
Federal Reserve Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Treasury Bill Rate
for such Dividend Period shall be the arithmetic average of the two most recent
weekly per annum market discount rates (or the one weekly per annum market
discount rate, if only one such rate shall be published during the relevant
Calendar Period as provided below) for all of the U.S. Treasury Bills then
having maturities of not less than 80 nor more than 100 days, as published
during such Calendar Period by the Federal Reserve Board or, if the Federal
Reserve Board shall not publish such rates, by any Federal Reserve Bank or by
any U.S. Government department or agency selected by the Corporation. In the
event that the Corporation determines in good faith that for any reason no such
U.S. Treasury Bill rates are published as provided above during such Calendar
Period, then the Treasury Bill Rate for such Dividend Period shall be the
arithmetic average of the per annum market discount rates based upon the closing
bids during such Calendar Period for each of the issues of marketable
non-interest bearing U.S. Treasury securities with a maturity of not less than
80 nor more than 100 days from the date of each such quotation, as chosen and
quoted daily for each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Corporation by at least
three recognized dealers in U.S. Government securities selected by the
Corporation. In the event that the Corporation determines in good faith that for
any reason the Corporation cannot determine the Treasury Bill Rate for any
Quarterly Dividend Period as provided above in this paragraph, the Treasury Bill
Rate for such Dividend Period shall be the arithmetic average of the per annum
market discount rates based upon the closing bids during such Calendar Period
for each of the issues of marketable interest-bearing U.S. Treasury securities
with a maturity of not less than 80 nor more than 100 days, as chosen and quoted
daily for each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Corporation by at least
three recognized dealers in U.S. Government securities selected by the
Corporation.
(4) Except as provided below in this paragraph, the "Ten Year Constant
Maturity Rate" for each Quarterly Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Ten Year Average Yields (or the
one weekly per annum Ten Year Average Yield, if only one such Yield shall be
published during the relevant Calendar Period as provided below), as published
weekly by the Federal Reserve Board during the Calendar Period immediately prior
to the last ten calendar days immediately preceding the January 1, April 1, July
1 or October 1, as the case may be, prior to the Quarterly Dividend Period for
which the dividend rate on this Series is being determined. In the event that
the Federal Reserve Board does not publish such a weekly per annum Ten Year
Average Yield during such Calendar Period, then the Ten Year Constant Maturity
Rate for such Dividend Period shall be the arithmetic average of the two most
recent weekly per annum Ten Year Average Yields (or the one weekly per annum Ten
Year Average Yield, if only one such Yield shall be published during the
relevant Calendar Period as provided below), as published weekly during such
Calendar Period by any Federal Reserve Bank or by any U.S. Government department
or agency selected by the Corporation. In the event that a per annum Ten Year
Average Yield shall not be published by the Federal Reserve Board or by any
Federal Reserve Bank or by any U.S. Government department or agency during such
Calendar Period, then the Ten Year Constant Maturity Rate for such Dividend
Period shall be the arithmetic average of the two most recent weekly per annum
average yields to maturity (or the one weekly average yield to maturity, if only
one such yield shall be published during the relevant Calendar Period as
provided below) for all of the actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities) then having maturities
of not less than eight nor more than twelve years, as published during such
Calendar Period by the Federal Reserve Board or, if the Federal Reserve Board
shall not publish such yields, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the event that
the Corporation determines in good faith that for any reason the Corporation
cannot determine the Ten Year Constant Maturity Rate for any Quarterly Dividend
Period as provided above in this paragraph, then the Ten Year Constant Maturity
Rate for such Dividend Period shall be the arithmetic average of the per annum
average yields to maturity based upon the closing bids during such Calendar
Period for each of the issues of actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities) with a final maturity
date not less than eight nor more than twelve years from the date of each such
quotation, as chosen and quoted daily for each business day in New York City (or
less frequently if daily quotations shall not be generally available) to the
Corporation by at least three recognized dealers in U.S. Government Securities
selected by the Corporation.
(5) Except as provided below in this paragraph, the "Twenty Year Constant
Maturity Rate" for each Quarterly Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Twenty Year Average Yields (or
the one weekly per annum Twenty Year Average Yield, if only one such Yield shall
be published during the relevant Calendar Period as provided below), as
published weekly by the Federal Reserve Board during the Calendar Period
immediately prior to the last ten calendar days immediately preceding the
January 1, April 1, July 1 or October 1, as the case may be, prior to the
9
<PAGE>
Quarterly Dividend Period for which the dividend rate on this Series is being
determined. In the event that the Federal Reserve Board does not publish such a
weekly per annum Twenty Year Average Yield during such Calendar Period, then the
Twenty Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum Twenty Year Average
Yields (or the one weekly per annum Twenty Year Average Yield, if only one such
Yield shall be published during the relevant Calendar Period as provided below),
as published weekly during such Calendar Period by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the Corporation. In the
event that a per annum Twenty Year Average Yield shall not be published by the
Federal Reserve Bank or by any U.S. Government department or agency during such
Calendar Period, then the Twenty Year Constant Maturity Rate for such Dividend
Period shall be the arithmetic average of the two most recent weekly per annum
average yields to maturity (or the one weekly average yield to maturity, if only
one such yield shall be published during the relevant Calendar Period as
provided below) for all of the actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities) then having maturities
of not less than eighteen nor more than twenty-two years, as published during
such Calendar Period by the Federal Reserve Board or, if the Federal Reserve
Board shall not publish such yields, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the event that
the Corporation determines in good faith that for any reason the Corporation
cannot determine the Twenty Year Constant Maturity Rate for any Quarterly
Dividend Period as provided above in this paragraph, then the Twenty Year
Constant Maturity Rate for such Dividend Period shall be the arithmetic average
of the per annum average yields to maturity based upon the closing bids during
such Calendar Period for each of the issues of actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special Securities) with a
final maturity date not less than eighteen nor more than twenty-two years from
the date of each such quotation, as chosen and quoted daily for each business
day in New York City (or less frequently if daily quotations shall not be
generally available) to the Corporation by at least three recognized dealers in
U.S. Government securities selected by the Corporation.
(6) The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the
Twenty Year Constant Maturity Rate shall each be rounded to the nearest five
hundredths of a percentage point.
(7) The Applicable Rate with respect to each Quarterly Dividend Period will
be calculated as promptly as practicable by the Corporation according to the
appropriate method described herein. The mathematical accuracy of each such
calculation will be confirmed in writing by independent accountants of
recognized standing. The Corporation will cause each Applicable Rate to be
published in a newspaper of general circulation in New York City prior to the
commencement of the new Quarterly Dividend Period to which it applies and will
cause notice of such Applicable Rate to be enclosed with the dividend payment
checks next mailed to the holders of shares of this Series.
(8) For purposes of this Section A, the term
(i) "Calendar Period" shall mean a period of 14 calendar days;
(ii) "Special Securities" shall mean securities which can, at the
option of the holder, be surrendered at face value in payment of any
Federal estate tax or which provide tax benefits to the holder and are
priced to reflect such tax benefits or which were originally issued at a
deep or substantial discount;
(iii) "Ten Year Average Yield" shall mean the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of ten years); and
(iv) "Twenty Year Average Yield" shall mean the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of 20 years).
(9) No full dividends shall be declared or paid or set apart for payment on
the Preferred Stock of any series ranking, as to dividends, on a parity with or
junior to this Series for any period unless full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on this Series for all dividend
payment periods terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full, as aforesaid, upon
the shares of this Series and any other series of the Preferred Stock ranking on
a parity as to dividends with this Series, all dividends declared upon shares of
this Series and any other series of the Preferred Stock ranking on a parity as
to dividends with this Series shall be declared pro rata so that the amount of
dividends declared per share on this Series and such other series of the
Preferred Stock shall in all cases bear to each other the same ratio that
accrued dividends per share on the shares of this Series and such other series
of the Preferred Stock bear to each other. Holders of shares of this Series
shall not be entitled to any dividend, whether payable in cash, property or
stock, in excess of full cumulative dividends, as herein provided, on this
Series. No interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments on this Series which may be in
arrears.
10
<PAGE>
(10) So long as any shares of this Series are outstanding, no dividends
(other than dividends or distributions paid in shares of, or options, warrants
or rights to subscribe for or purchase shares of common stock or any other stock
ranking junior to this Series as to dividends and upon liquidation and other
than as provided in paragraph (9) of this Section A) shall be declared or paid
or set aside for payment or other distribution declared or made upon the common
stock or upon any other stock ranking junior to or on a parity with this Series
as to dividends or upon liquidation, nor shall any common stock nor any other
stock of the Corporation ranking junior to or on a parity with this Series as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any shares of any such stock) by the Corporation (except
by conversion into or exchange for stock of the Corporation ranking junior to
this Series as to dividends and upon liquidation) unless, in each case, the full
cumulative dividends on all outstanding shares of this Series shall have been
paid for all past dividend payment periods.
(11) Dividends payable on this Series for each full Quarterly Dividend
Period shall be computed by annualizing the Applicable Rate and dividing by
four. Dividends payable on this Series for any period shorter or longer than a
full Quarterly Dividend Period, and for the Initial Dividend Period, shall be
computed on the basis of 30-day months, a 360-day year and the actual number of
days elapsed in the period.
B. REDEMPTION.
(1) Except as provided in subparagraph (3) of this Section B, the shares of
this Series shall not be redeemable prior to March 31, 1988 (the "Optional
Redemption Date"). On and after the Optional Redemption Date, the Corporation,
at its option, may redeem shares of this Series, as a whole or in part, at any
time or from time to time, at a redemption price (i) in the case of any
redemption on a redemption date occurring on or after the Optional Redemption
Date, and through March 31, 1993 (the "Subsequent Optional Redemption Date"), of
$103.00, and (ii) in the case of any redemption on a date occurring after the
Subsequent Optional Redemption Date, of $100.00 per share, plus in each case,
accrued and unpaid dividends thereon to the date fixed for redemption.
(2) In the event that fewer than all the outstanding shares of this Series
are to be redeemed, the number of shares to be redeemed shall be determined by
the Board and the shares to be redeemed shall be determined by lot or pro rata
as may be determined by the Board or by any other method as may be determined by
the Board in its sole discretion to be equitable.
(3) Notwithstanding the provisions of subparagraph (1) of this Section B,
the Corporation, at its option, may redeem all, but not less than all, of the
outstanding shares of this Series if the holders of the shares of this Series
shall be entitled to vote upon or consent to a merger or consolidation of the
Corporation as provided in Section D and all of the following conditions have
been satisfied: (i) the Corporation shall have requested the vote or consent of
the holders of the shares of this Series to the consummation of such merger or
consolidation stating in such request that failing the requisite favorable vote
or consent the Corporation will have the option to redeem the shares of this
Series, (ii) the Corporation shall not have received the favorable vote or
consent requisite to the consummation of the transaction within 60 days after
making such written request (which shall be deemed to have been made upon the
mailing of the notice of any meeting of holders of the shares of this Series to
vote upon granting such consent), and (iii) such transaction shall be
consummated on the date fixed for such redemption, which date shall be no more
than one year after such request is made. Any such redemption shall be on notice
as aforesaid (and on any additional notice in accordance with subparagraph 2 of
this Section B) at the redemption price of $105.00 per share, plus accrued and
unpaid dividends thereon, if any, to the date fixed for redemption.
(4) In the event the Corporation shall redeem shares of this Series, notice
of such redemption shall be given by first class mail, postage prepaid, mailed
not less than 30 nor more than 60 days prior to the redemption date, to each
holder of record of the shares to be redeemed, at such holder's address as the
same appears on the stock register of the Corporation. Each such notice shall
state: (i) the redemption date; (ii) the number of shares of this Series to be
redeemed and, if fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (iii) the
redemption price; (iv) the place or places where certificates for such shares
are to be surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date.
(5) If, on or prior to the date fixed for such redemption, the Corporation
shall deposit with any bank or trust company in the States of New Jersey or New
York as a trust fund a sum sufficient to redeem the shares of this Series thus
called for redemption, with irrevocable instructions and authority to such bank
or trust company to pay, on and after the date fixed for redemption, the
redemption price of the shares of this Series thus called for redemption to the
respective holders thereof upon the surrender of their share certificates, then
from and after the date fixed for redemption, the shares of this Series so
called shall be deemed to be redeemed, and dividends on those shares shall cease
to accrue after the date fixed for redemption. The deposit shall be deemed to
constitute full payment for the shares of this Series thus called for redemption
to their holders, and
11
<PAGE>
from and after the date of such deposit such shares shall be deemed to be no
longer outstanding, and the holders thereof (to whom notice has been given in
accordance with paragraph (4) of this Section B) shall cease to be shareholders
of the Corporation with respect to such shares and shall have no rights with
respect thereto except the right to receive from the bank or trust company
payment of the redemption price of the shares without interest upon surrender of
their certificates therefor. No interest shall be allowed or paid to the holders
of the redeemed shares of the Series on the funds so deposited, and any such
interest earned thereon shall be paid by such bank or trust company from time to
time on demand to the Corporation. In case fewer than all the shares represented
by a stock certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares without cost to the holder thereof.
(6) Any shares of this Series which shall at any time have been redeemed
shall, after such redemption, have the status of authorized but unissued shares
of Class A Preferred Stock of the Corporation.
(7) Notwithstanding the foregoing provisions of this Section B, if any
dividends on this Series are in arrears, no shares of this Series shall be
redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any shares
of this Series; PROVIDED, HOWEVER, that the foregoing shall not prevent the
purchase or acquisition of shares of this Series pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding shares of
this Series.
C. CONVERSION OR EXCHANGE.
The holders of shares of this Series shall not have any rights herein to
convert such shares into or exchange such shares for shares of any other class
or classes or of any other series of any class or classes of capital stock of
the Corporation.
D. VOTING.
The shares of this Series shall not have any voting powers either general
or special, except that:
(1) Unless the vote or consent of the holders of a greater number of shares
shall then be required by law, the consent of the holders of at least 66 2/3% of
all of the shares of this Series at the time outstanding, given in person or by
proxy, either in writing or by a vote at a meeting called for the purpose at
which the holders of shares of this Series shall vote together as a separate
class, shall be necessary for (a) authorizing, effecting or validating the
amendment, alteration or repeal of any of the provisions of the Corporation's
Articles of Incorporation or of the resolutions establishing this Series,
whether by merger, consolidation or otherwise, so as to materially and adversely
affect any relative preference, right, voting power or privilege of this Series
granted by this Section (PROVIDED, HOWEVER, that any increase in the amount of
the authorized Preferred Stock or the creation and issuance of any series of the
Preferred Stock ranking on a parity with this Series as to dividends and upon
liquidation shall not be deemed to materially or adversely affect such relative
preferences, rights, voting powers or privileges); and (b) authorizing,
effecting or validating the creation, authorization or issue (or the increase in
the authorized or issued amount) of any shares ("prior shares") of any class of
stock of the Corporation ranking prior to the shares of this Series as to
dividends or upon liquidation, or the reclassification of any authorized stock
of the Corporation into any such prior shares, or the creation, authorization or
issue of any obligation or security convertible into or evidencing the right to
purchase any such prior shares.
(2) If and whenever six quarterly dividends (whether or not consecutive)
payable on any series of the Preferred Stock shall be in arrears in whole or in
part whether or not earned or declared, the number of directors then
constituting the Board shall be increased by two and the holders of shares of
this Series, together with the holders of shares of every other series of the
Preferred Stock similarly entitled to vote for the election of two additional
directors, voting separately as a class, regardless of series, shall be entitled
to elect the two additional directors at any annual meeting of shareholders or
special meeting held in place thereof, or at a special meeting of the holders of
such series of the Preferred Stock called as hereinafter provided.
(a) Whenever all arrears in dividends on shares of the Preferred Stock
then outstanding shall have been paid and dividends thereon for the current
quarterly dividend period shall have been paid or declared and set apart
for payment, then the right of the holders of such series of the Preferred
Stock to elect two additional directors shall cease (but subject always to
the same provisions for the vesting of voting rights in the case of any
similar future arrearages in dividends), and the terms of office of all
persons elected as directors by the holders of such series of the Preferred
Stock shall terminate on the date of the first meeting of shareholders
following the date of payment, or the date of declaration and the setting
aside for payment, and the number of members of the Board shall be reduced
accordingly.
(b) At any time after voting power shall have been so vested in the
holders of shares of Adjustable Class A Preferred Stock and of any other
such series of the Preferred Stock the secretary of the Corporation may,
and upon the
12
<PAGE>
written request of any holder of Adjustable Class A Preferred Stock
(addressed to the secretary at the principal office of the Corporation)
shall, call a special meeting of the holders of Adjustable Class A
Preferred Stock and of such other series of the Preferred Stock for the
election of the two directors to be elected by them as herein provided, the
call to be made by notice similar to that provided in the by-laws for a
special meeting of the shareholders or as required by law. If any special
meeting required to be called as above provided shall not be called by the
secretary within 20 days after receipt of the request, then any holder of
shares of Adjustable Class A Preferred Stock may call the meeting, upon the
notice above provided, and for that purpose shall have access to the stock
books of the Corporation.
(c) The directors elected at any such special meeting shall hold
office until the next annual meeting of shareholders, or special meeting
held in place thereof, and until their successors shall have been elected
and qualified, if those offices shall not have been previously terminated
as above provided. In case any vacancy shall occur among the directors
elected by the holders of shares of such series of the Preferred Stock, a
successor shall be elected by the Board to serve until the next annual
meeting of shareholders, or special meeting held in place thereof, and
until their successors shall have been elected and qualified, upon the
nomination of the then remaining director elected by the holders of such
series or the successor of the remaining director.
(d) At any meeting of shareholders held while holders of the Preferred
Stock have the voting power to elect an additional two directors, the
holders of a majority of the outstanding shares of the Preferred Stock so
entitled to vote who are present in person or by proxy shall be sufficient
to constitute a quorum for the election of the two additional directors as
herein provided.
(e) The two additional directors elected by the holders of the
Preferred Stock shall hold office only until the next annual meeting of
shareholders, and until their successors shall have been elected and
qualified, unless their term of office is earlier terminated as provided
herein.
(f) Any new series of the Preferred Stock shall be entitled to
participate with this Series and any other series so entitled in voting for
the election of the two additional directors to the extent and under the
conditions set forth in the resolutions creating such series.
(g) In the event that a holder of shares of this Series shall be
entitled to vote in the manner described in this subparagraph (2), such
holder shall be entitled to three votes for each such share held by such
holder.
E. LIQUIDATION RIGHTS.
(1) Upon the dissolution, liquidation or winding up of the Corporation, the
holders of the shares of this Series shall be entitled to receive out of the
assets of the Corporation available for distribution to shareholders, before any
payment or distribution shall be made on the common stock or on any other class
of stock ranking junior to the Preferred Stock upon liquidation, the amount of
$100.00 per share plus a sum equal to all dividends (whether or not earned or
declared) on such shares accrued and unpaid thereon to the date of final
distribution.
(2) After the payment to the holders of the shares of this Series of the
full preferential amounts provided for in this Section E, the holders of this
Series as such shall have no right or claim to any of the remaining assets of
the Corporation.
(3) In the event the assets of the Corporation available for distribution
to the holders of shares of this Series upon any dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to paragraph (1) of this Section E, no such distribution shall be made
on account of any shares ("Parity Shares") of any other class or series of the
Preferred Stock ranking on a parity with the shares of this Series upon
dissolution, liquidation or winding up unless proportionate distributive amounts
shall be paid on account of the shares of this Series, ratably, in proportion to
the full distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up.
(4) Upon the dissolution, liquidation or winding up of the Corporation, the
holders of shares of this Series then outstanding shall be entitled to be paid
out of the assets of the Corporation available for distribution to its
shareholders all amounts to which such holders are entitled pursuant to
paragraph (1) of this Section E before any payment shall be made to the holders
of any class of capital stock of the Corporation ranking junior upon liquidation
to this Series.
F. RANK.
Unless these Articles of Incorporation expressly provide otherwise, each
series of the Preferred Stock shall be on a parity with each other series with
respect to dividends and liquidation.
13
<PAGE>
(3) SERIES F 10.64% CLASS A PREFERRED STOCK
(LIQUIDATION PREFERENCE $1,000.00 PER SHARE)
The shares of such series of Preferred Stock, stated value $1.00 per share,
of the Corporation shall be designated as "Series F 10.64% Class A Preferred
Stock" (hereinafter called "Series F" or "Series F Shares"). Each share of
Series F shall be identical in all respects with the other shares of Series F.
The number of shares which will constitute such series shall be 75,000 and each
share shall have the rights, preferences and limitations (in addition to the
provisions set forth in these Articles of Incorporation that are applicable to
the Preferred Stock of all series) as follows:
A. DIVIDENDS.
(1) The holders of Series F Shares shall be entitled to receive, when and
as declared by the Board, but only out of funds legally available therefor,
cumulative cash dividends at the annual rate per share of 10.64% of $1,000.00,
without interest, and no more, payable in quarter-annual installments on the 1st
day of January, April, July and October in each year commencing (commencing
April 1, 1996) to shareholders of record on the respective dates, not exceeding
sixty days preceding such dividend payment date, fixed for that purpose by the
Board in advance of payment of each particular dividend. The first dividend
payable on the Series F Shares after the original issue of the shares of Series
F shall be cumulative from the last dividend payment date of the security for
which the Series F shares are exchanged and shall include any arrearage on the
security for which the Series F Shares are exchanged.
(2) So long as any Series F Share remains outstanding, no dividend whatever
shall be paid or declared and no other distribution made on any junior stock
other than a dividend payable in junior stock, and no shares of junior stock
shall be purchased, redeemed or otherwise acquired for consideration by the
Corporation, directly or indirectly (other than as a result of a
reclassification of junior stock or the exchange or conversion of one junior
stock for or into another junior stock, or other than through the use of the
proceeds of a substantially contemporaneous sale of other junior stock) unless
(i) all dividends on shares of the Senior Preferred Stock of all series ranking
on a parity as to dividends with the Series F Shares for all quarterly dividend
periods ended prior to such action shall have been paid and (ii) all prior
sinking fund requirements, if any, with respect to all series of the Senior
Preferred Stock ranking on a parity as to dividends with the Series F Shares
shall have been complied with. Subject to the foregoing, and not otherwise, such
dividends (payable in cash, stock or otherwise) as may be determined by the
Board may be declared and paid on any junior stock from time to time out of any
funds legally available therefor, and the Series F Shares shall not be entitled
to participate in any such dividends, whether payable in cash, stock or
otherwise. No dividends shall be paid or declared upon any shares of any class
or series of stock of the Corporation ranking on a parity with the Series F
Shares in the payment of dividends for any period unless at or prior to the time
of such payment or declaration all dividends payable on the Series F Shares for
all quarterly dividend periods ended prior to the date of such payment or
declaration shall have been paid. When dividends are not paid in full, as
aforesaid, upon the Series F Shares and any other series of Senior Preferred
Stock ranking on a parity as to dividends with the Series F Shares, all
dividends declared upon the Series F shares and any other series of Senior
Preferred Stock ranking on a parity as to dividends with the Series F shares
shall be declared pro rata so that the amount of dividends declared per share on
the Series F shares and such other Senior Preferred Stock shall in all cases
bear to each other the same ratio that accrued dividends per share on the Series
F Shares and such other Senior Preferred Stock bear to each other. No interest,
or sum of money in lieu of interest, shall be payable in respect of any dividend
payment or payments on the Series F which may be in arrears.
B. LIQUIDATION RIGHTS.
(1) In the event of any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Corporation, then, before any distribution
or payment shall be made to the holders of any junior stock, the holders of
Series F shall be entitled to be paid in full an amount equal to $1,000.00 per
share (which amount is hereinafter referred to as the "liquidation amount"),
together with accrued dividends to such distribution or payment date whether or
not earned or declared. In the event that, upon any such voluntary or
involuntary liquidation, dissolution or winding up, the available assets of the
Corporation are insufficient to pay such liquidation amount on all outstanding
Series F Shares and the corresponding amounts payable on all shares of other
classes or series of stock of the Corporation ranking on a parity with the
Series F Shares in the distribution of assets, then the holders of Series F and
of all other such classes or series shall share ratably in any distribution of
assets in proportion to the full amounts to which they would otherwise be
respectively entitled.
(2) If such payment shall have been made in full to all holders of shares
of Senior Preferred Stock, the remaining assets of the Corporation shall be
distributed among the holders of junior stock, according to their respective
rights and preferences and in each case according to their respective number of
shares. For the purposes of this Section B, the consolidation or
14
<PAGE>
merger of the Corporation with any other entity shall not be deemed to
constitute a liquidation, dissolution or winding up of the Corporation.
C. REDEMPTION. Subject to Section D(3), on or after July 1, 1996, the
Corporation, at the option of the Board, may redeem the whole or any part of the
shares of Series F at the time outstanding, at any time or from time to time,
upon notice given as hereinafter specified, at $1,000.00 per share, together
with accrued dividends to the redemption date.
(1) Notice of every redemption of shares of Series F shall be given by
first class mail, postage prepaid, addressed to the holders of record of the
shares to be redeemed at their respective last addresses as they shall appear on
the books of the Corporation. Such mailing shall be at least 40 days and not
more than 70 days prior to the date fixed for redemption; but failure to mail
such notice or any defect therein or in the mailing thereof shall not affect the
validity of the proceedings for the redemption of any shares so to be redeemed.
(2) In case of redemption of a part only of the shares of Series F at the
time outstanding, the redemption may be either pro rata or by lot, at the option
of the Corporation. The Board shall have full power and authority, subject to
the provisions herein contained, to prescribe the terms and conditions upon
which shares of Series F shall be redeemed from time to time.
(3) If notice of redemption shall have been duly given or if the
Corporation shall have given to a bank or trust company designated to act as
redemption agent irrevocable and unconditional authorization and direction to
give such notice at least 40 days and not more than 70 days prior to the date
fixed for redemption (which date shall not be more than 70 days after the date
of such authorization and direction), and if on or before the redemption date
specified therein the funds necessary for such redemption shall have been
deposited by the Corporation with such bank or trust company in trust with
irrevocable instruction and authority, subject to Section C(4), to pay the
redemption price to the holders of the shares of Series F called for redemption
upon surrender of the certificate therefor, then, notwithstanding that any
certificate for shares of Series F so called for redemption shall not have been
surrendered for cancellation, from and after the time of such deposit, all
shares of Series F so called for redemption shall no longer be deemed to be
outstanding and all rights with respect to such shares shall forthwith cease and
terminate, except only the right of the holders thereof to receive from such
bank or trust company at any time after the close of business on the date fixed
for redemption the funds so deposited, without interest. Any bank or trust
company selected by the Corporation to act as redemption agent shall be
organized and in good standing under the laws of the United States of America or
any State thereof, shall have capital, surplus and undivided profits aggregating
at least $50,000,000 according to its last published statement of condition, and
shall be identified in the notice of redemption. Any interest accrued on such
funds shall be paid to the Corporation from time to time. In case fewer than all
the shares of Series F represented by a stock certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the holder thereof; provided, however, that such replacement certificate shall
be issuable only in denominations of whole shares and cash will be payable in
respect of fractional interests.
(4) Any funds so set aside or deposited, as the case may be, and unclaimed
at the end of three years from such redemption date shall, to the extent
permitted by law, be released or repaid to the Corporation, after which
repayment the holders of the shares so called for redemption shall look only to
the Corporation for payment thereof.
D. VOTING RIGHTS. The holders of Series F shares shall not have any voting
rights except as may be expressly provided for in this Section D or except as
may be expressly required by law. For purposes of determining the voting rights
of holders of Series F in relation to those of holders of other series of Senior
Preferred Stock, each holder of Series F will be entitled to forty votes for
each $1,000.00 of liquidation preference in respect of such share of Series F.
(1) If and whenever six quarterly dividends (whether or not consecutive)
payable on any series of Senior Preferred Stock shall be in arrears in whole or
in part, whether or not earned or declared, the number of directors then
constituting the Board shall be increased by two and the holders of shares of
Series F, together with the holders of shares of every other series of Senior
Preferred Stock similarly entitled to vote for the election of two additional
directors, voting separately as a class, regardless of series, shall be entitled
to elect the two additional directors at any annual meeting of shareholders or
special meeting held in place thereof, or at a special meeting of the holders of
such series of the Senior Preferred Stock called as hereinafter provided.
(a) Whenever all arrears in dividends on shares of the Senior
Preferred Stock then outstanding shall have been paid and dividends thereon
for the current quarterly dividend period shall have been paid or declared
and set apart for payment, then the right of the holders of such series of
the Senior Preferred Stock to elect two additional directors shall cease
(but subject always to the same provisions for the vesting of voting rights
in the case of any similar future arrearages in dividends), and the terms
of office of all persons elected as directors by the holders of such series
of the Senior
15
<PAGE>
Preferred Stock shall terminate on the date of the first meeting of
shareholders following the date of payment, or the date of declaration and
the setting aside for payment, and the number of members of the Board shall
be reduced accordingly.
(b) At any time after voting power shall have been so vested in the
holders of shares of Series F and of any other such series of the Senior
Preferred Stock, the secretary of the Corporation may, and upon the written
request of any holders of Series F (addressed to the secretary at the
principal office of the Corporation) shall, call a special meeting of the
holders of Series F and of such other series of the Senior Preferred Stock
for the election of the two directors to be elected by them as herein
provided, the call to be made by notice similar to that provided in the
by-laws for a special meeting of the shareholders or as required by law. If
any special meeting required to be called as above provided shall not be
called by the secretary within 20 days after receipt of the request, then
any holder of shares of Series F may call the meeting, upon the notice
above provided, and for that purpose shall have access to the stock books
of the Corporation.
(c) The directors elected at any such special meeting shall hold
office until the next annual meting of shareholders, or special meeting
held in place thereof, and until their successors shall have been elected
and qualified, if those offices shall not have previously terminated as
above provided. In case any vacancy shall occur among the directors elected
by the holders of shares of such series of the Senior Preferred Stock, a
successor shall be elected by the Board to serve until the next annual
meeting of shareholders, or special meeting held in place thereof, and
until their successors shall have been elected and qualified, upon the
nomination of the then remaining director elected by the holders of such
series or the successor of the remaining director.
(d) At any meeting of shareholders held while holders of Senior
Preferred Stock have the voting power to elect an additional two directors,
the holders of a majority of the outstanding shares of Senior Preferred
Stock so entitled to vote who are present in person or by proxy shall be
sufficient to constitute a quorum for the election of the two additional
directors as herein provided.
(e) The two additional directors elected by the holders of Senior
Preferred Stock shall hold office only until the next annual meeting of
shareholders, and until their successors shall have been elected and
qualified, unless their term of office is earlier terminated as provided
herein.
(f) Any new series of the Preferred Stock other than any junior stock
shall be entitled to participate with this Series and any other series so
entitled in voting for the election of the two additional directors to the
extent and under the conditions set forth in the resolutions creating such
series.
(2) So long as any shares of Series F are outstanding, in addition to any
other vote or consent of shareholders required by law or by these Articles of
Incorporation, the consent of the holders of at least sixty-six and two-thirds
percent of the shares of Series F and of all other series of the Senior
Preferred Stock similarly entitled to vote upon the matters then being
considered, acting as a single class regardless of series, given in person or by
proxy, either in writing without a meeting or by vote at any meeting called for
the purpose, shall be necessary for effecting or validating:
(a) Any amendment, alteration or repeal of any of the provisions of
these Articles of Incorporation which affect materially and adversely the
voting rights, designations, preferences, qualifications, privileges,
limitations, conversion rights or other special rights, if any, of the
holders of shares of Senior Preferred Stock; provided, however, that for
purposes of this paragraph (a), the amendment of the provisions of the
Articles of Incorporation so as to authorize or create, or to increase the
authorized amount of, any junior stock or any shares of any class ranking
on a parity with the Senior Preferred Stock with respect to liquidation or
the payment of dividends shall not be deemed to affect adversely the voting
rights, designations, preferences, qualifications, privileges, limitations,
conversion rights or other special rights, if any, of the holders of the
Senior Preferred Stock and provided, further, that if any such amendment,
alteration or repeal would affect materially and adversely any voting
rights, designations, preferences, qualifications, privileges, limitations
or other special rights, if any, of the holders of the Series F which are
not enjoyed by some or all of the other series otherwise entitled to vote
in accordance with this paragraph (2), the consent of the holders of at
least sixty-six and two-thirds percent of the Series F and of all other
series, if any, similarly affected, similarly given, shall be required in
lieu of the consent of the holders of at least sixty-six and two-thirds
percent of the shares of Series F and of all other series of the Senior
Preferred Stock otherwise entitled to vote in accordance with this
paragraph (2); or
(b) The authorization or creation of, or the increase in the
authorized amount of, any shares of any class or series, or any security
convertible into shares of any class or series, ranking prior to the Senior
Preferred Stock in the distribution of assets on any liquidation,
dissolution, or winding up of the Corporation or in the payment of
dividends; provided, however, that no such consent of the holders of shares
of Series F pursuant to paragraphs 2(a) and 2(b) above shall be
16
<PAGE>
required if, at or prior to the time when any such action is to take effect
or when the issuance of any such priority shares or convertible securities
is to be made, as the case may be, provision is made pursuant to Section C
hereof for the redemption of all shares of Series F at the time
outstanding.
(3) If dividends for any past quarterly dividend period shall not have been
paid on all outstanding shares of Series F, the consent of the holders of at
least sixty-six and two-thirds percent of the then outstanding shares of Series
F, given in person or by proxy, either in writing without a meeting or by vote
at any meeting called for the purpose, shall be necessary as a condition to the
Corporation's right to purchase or redeem less than all then outstanding shares
of Series F; provided, however, that the foregoing shall not prevent the
purchase or acquisition of Series F Shares pursuant to a purchase or exchange
offer made on the same terms to holders of all outstanding Series F Shares.
E. DEFINITIONS. As used herein with respect to the Series F Shares, the
following term shall have the following meaning:
(1) The term "Senior Preferred Stock" shall mean all outstanding shares of
all series of the Preferred Stock, except any series of the Preferred Stock
expressly excluded from the term "Senior Preferred Stock" as defined herein.
F. RANK.
The Series F Shares shall not have any relative, participating, optional or
other special rights and powers other than as set forth herein. Unless the
Articles of Incorporation provide otherwise, each series of Preferred Stock
shall be on a parity with each other series with respect to dividends and
liquidation.
This the 29th day of December, 1995.
FIRST UNION CORPORATION
By: /s/ MARION A. COWELL, JR.
Name: Marion A. Cowell, Jr.
Title: Executive Vice President,
Secretary and General Counsel
17
FIRST UNION CORPORATION
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED
HEREIN
-------------------
Deposit Agreement
-------------------
Dated as of January 1, 1996
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES........................................................................................................ 1
RECITALS....................................................................................................... 1
ARTICLE I
DEFINITIONS
Certificate.................................................................................................... 2
Company........................................................................................................ 2
Deposit Agreement.............................................................................................. 2
Depositary..................................................................................................... 3
Depositary Shares............................................................................................. 3
Depositary's Agent............................................................................................. 3
Depositary's Office............................................................................................ 3
Predecessor Depositary......................................................................................... 3
Predecessor Depositary Shares.................................................................................. 3
Predecessor Receipt............................................................................................ 3
Predecessor Stock.............................................................................................. 3
Receipt........................................................................................................ 3
record holder.................................................................................................. 4
Registrar...................................................................................................... 4
Stock.......................................................................................................... 4
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts................................................................ 4
SECTION 2.02. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof................................................... 7
SECTION 2.03. Redemption of Stock......................................................................... 9
SECTION 2.04. Registration of Transfer of Receipts......................................................... 11
SECTION 2.05. Split-ups and Combination of Receipts;
Surrender of Receipts and Withdrawal of
Stock............................................................................. 12
SECTION 2.06. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts.......................................................................... 14
SECTION 2.07. Lost Receipts, Etc........................................................................... 15
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts.......................................................................... 16
SECTION 2.09. Stock Purchase Plans......................................................................... 16
-i-
<PAGE>
Page
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information....................................................................... 16
SECTION 3.02. Payment of Taxes or Other Governmental
Charges........................................................................... 17
SECTION 3.03. Warranty as to Stock......................................................................... 17
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions........................................................................... 18
SECTION 4.02. Distributions Other than Cash................................................................ 18
SECTION 4.03. Subscription Rights, Preferences or
Privileges........................................................................ 19
SECTION 4.04. Notice of Dividends, Etc.; Fixing of
Record Date for Holders of Receipts............................................... 21
SECTION 4.05. Voting Rights................................................................................ 21
SECTION 4.06. Changes Affecting Deposited Securities
and Reclassifications,
Recapitalizations, Etc............................................................ 22
SECTION 4.07. Inspection of Reports........................................................................ 24
SECTION 4.08. Lists of Receipt Holders..................................................................... 24
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies, and
Transfer Books by the Depositary;
Registrar......................................................................... 25
SECTION 5.02. Prevention of or Delay in Performance
by the Depositary, the Depositary's
Agents, the Registrar or the Company.............................................. 26
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar
and the Company................................................................... 27
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary............................................... 28
SECTION 5.05. Corporate Notices and Reports................................................................ 30
SECTION 5.06. Indemnification by the Company............................................................... 30
SECTION 5.07. Charges and Expenses......................................................................... 31
-ii-
<PAGE>
Page
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment.................................................................................... 32
SECTION 6.02. Termination.................................................................................. 33
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts................................................................................. 33
SECTION 7.02. Exclusive Benefit of Parties................................................................. 33
SECTION 7.03. Invalidity Of Provisions..................................................................... 34
SECTION 7.04. Notices...................................................................................... 34
SECTION 7.05. Depositary's Agents.......................................................................... 35
SECTION 7.06. Holders of Receipts Are Parties.............................................................. 36
SECTION 7.07. Governing Law................................................................................ 36
SECTION 7.08. Inspection of Deposit Agreement.............................................................. 36
SECTION 7.09. Headings..................................................................................... 36
TESTIMONIUM.................................................................................................... 37
SIGNATURES..................................................................................................... 37
EXHIBIT A: Depositary Receipt
</TABLE>
-iii-
<PAGE>
DEPOSIT AGREEMENT
dated as of January 1, 1996
among
FIRST UNION CORPORATION
a North Carolina corporation,
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
a national banking association,
AND THE HOLDERS FROM TIME TO TIME
OF THE RECEIPTS DESCRIBED HEREIN
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of Series F 10.64% Class A
Preferred Stock, no-par value, of FIRST UNION CORPORATION with the Depositary
(as hereinafter defined) for the purposes set forth in this Deposit Agreement
and for the issuance hereunder of Receipts (as hereinafter defined) by the
Depositary evidencing Depositary Shares in respect of the Stock (as hereinafter
defined) so deposited; and
WHEREAS, effective as of the date hereof, First Fidelity
Bancorporation, a New Jersey corporation, is merging with and into First Union
Corporation of New Jersey, a New Jersey corporation and a wholly owned
subsidiary of First Union Corporation (the "Merger"); and, in consequence of the
Merger, the outstanding shares of Predecessor Stock (as hereinafter defined) and
the outstanding Predecessor Depositary Shares (as hereinafter defined) are being
exchanged for shares of Stock (as hereinafter defined) and Depositary Shares (as
hereinafter defined); and
WHEREAS, the Receipts are to be substantially in the form
of the Predecessor Receipts (as hereinafter defined), with
<PAGE>
appropriate insertions, modifications and omissions as hereinafter
provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained
herein and such other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective terms used in this Deposit
Agreement and the Receipts (as hereinafter defined):
"Certificate" shall mean the articles of amendment to the
Articles of Incorporation, as amended, of the Company filed with the Secretary
of State of the State of North Carolina establishing the Stock as a series of
preferred stock of the Company.
"Company" shall mean First Union Corporation, a North Carolina
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean First Union National Bank of North
Carolina, a national banking association, and any successor Depositary
hereunder.
-2-
<PAGE>
"Depositary Shares" shall mean the Depositary Shares, each
representing a one-fortieth (1/40th) interest in a share of Stock and which
shall be evidenced by Receipts.
"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the
Depositary at which at any particular time its depositary business shall be
administered.
"Predecessor Depositary" shall mean First Fidelity Bank, N.A.,
New Jersey and its successor, First Fidelity Bank, N.A., as depositary with
respect to the Predecessor Depositary Shares.
"Predecessor Depositary Shares" shall mean the Depositary
Shares, each representing a one-fortieth (1/40th) interest in a share of
Predecessor Stock and which heretofore have been represented by Predecessor
Receipts.
"Predecessor Receipt" shall mean one of the depositary
receipts issued by the Predecessor Depositary, each heretofore representing any
number of whole Predecessor Depositary Shares.
"Predecessor Stock" shall mean shares of the Series F 10.64%
Preferred Stock, par value $1.00 per share, of First Fidelity Bancorporation, a
New Jersey corporation.
"Receipt" shall mean one of the depositary receipts, whether
in definitive or temporary form, issued hereunder by the Depositary (or by the
Predecessor Depositary to the extent described in Section 2.01), each
representing any number of whole Depositary Shares.
-3-
<PAGE>
"record holder" with respect to a Receipt shall mean the
individual, entity or person in whose name a Receipt is registered on the books
of the Depositary or any register of any Registrar maintained for such purpose
at a given time.
"Registrar" shall mean any bank or trust company which shall
be appointed by the Depositary to register ownership and transfers of Receipts
as herein provided and which may include the Depositary.
"Stock" shall mean shares of the Company's Series F 10.64%
Class A Preferred Stock, no-par value.
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Definitive
Receipts shall be engraved or printed or lithographed on steel-engraved borders
and shall be substantially in the form of the Predecessor Receipts, with
appropriate insertions, modifications and omissions, as hereinafter provided.
Pending the preparation of definitive Receipts, the Depositary, upon the written
order of the Company delivered in compliance with Section 2.02, shall execute
and deliver temporary Receipts which shall be printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor of the
definitive Receipts in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the persons
executing such Receipts may determine, as evidenced by their execution of such
-4-
<PAGE>
Receipts; provided that such temporary Receipts may include Predecessor
Receipts, appropriately overprinted to reflect the occurrence of the Merger.
After the preparation of definitive Receipts, the temporary Receipts shall be
exchangeable for definitive Receipts upon surrender of the temporary Receipts at
the Depositary's Office, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary shall execute
and deliver in exchange therefor definitive Receipts representing the same
number of Depositary Shares as represented by the surrendered temporary Receipt
or Receipts registered in the name (and only the name) of the holder of the
temporary Receipt. Such exchange shall be made at the Company's expense and
without any charge therefor to the holder. Until so exchanged, the temporary
Receipts shall in all respects be entitled to the same benefits under this
Deposit Agreement and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary (or, in the case of
temporary Receipts that are Predecessor Receipts, of the Predecessor
Depositary); provided, that such signature may be a facsimile if a Registrar for
the Receipts (other than the Depositary) shall have been appointed and such
Receipts are countersigned by manual signature of a duly authorized officer of
the Registrar. No Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose unless it shall have been
executed manually by a duly
-5-
<PAGE>
authorized officer of the Depositary (or, in the case of Temporary Receipts that
are Predecessor Receipts, the Predecessor Depositary) or, if a Registrar for the
Receipts (other than the Depositary) shall have been appointed, by facsimile
signature of a duly authorized officer of the Depositary (or, in the case of
Temporary Receipts that are Predecessor Receipts, the Predecessor Depositary)
and countersigned manually by a duly authorized officer of such Registrar. The
Depositary shall record on its books each Receipt so signed and delivered as
hereinafter provided. Receipts bearing the manual or facsimile signatures of
individuals who were at any time proper officers of the Depositary, the
Predecessor Depositary or the Registrar, as the case may be, shall constitute
adequate signatures hereunder, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the delivery of such Receipts or
did not hold such offices on the date of delivery of such Receipts.
Receipts shall be in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary and approved by
the Company or required to comply with any applicable law or regulation or with
the rules and regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special
-6-
<PAGE>
limitations or restrictions to which any particular Receipts are
subject.
Title to Depositary Shares evidenced by a Receipt which is
properly endorsed, or accompanied by a properly executed instrument of transfer,
shall be transferable by delivery of such Receipt with the same effect as if
such Receipt were a negotiable instrument; provided, however, that until
transfer of a Receipt shall be registered on the books of the Registrar, on
behalf of the Depositary, as provided in Section 2.04, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder as the
absolute owner thereof for the purpose of determining the person entitled to
distributions of dividends or other distribu tions with respect to the Stock or
to any notice provided for in this Deposit Agreement and for all other purposes.
The Depositary shall not lend any Stock deposited hereunder.
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and condi tions of this
Deposit Agreement, the Company may from time to time deposit shares of Stock
with the Depositary under this Deposit Agreement by delivery to the Depositary
of a certificate or certificates representing the Stock to be deposited. Such
certificate or certificates representing the Stock shall be properly endorsed or
accompanied, if required by the Depositary, by a duly executed instrument of
transfer or endorsement, in form satisfactory to the Depositary, together with
all such
-7-
<PAGE>
certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement, and together with a written order of the
Company directing the Depositary to execute and deliver to the person or persons
named in such order, a Receipt or Receipts evidencing in the aggregate the
number of Depositary Shares representing such deposited Stock.
All Stock deposited by the Company or the Other Persons, as
the case may be, with the Depositary shall be held by the Depositary at the
Depositary's Office or at such other place or places as the Depositary shall
determine.
Upon receipt by the Depositary of a certificate or
certificates representing Stock deposited, with the Depositary by the Company or
the Other Persons, as the case may be, in accordance with the provisions of this
Section, together with the other documents required as above specified, and upon
recordation of the Stock so deposited on the books of the Company in the name of
the Depositary, the Depositary shall execute and deliver, to the person or
persons named in the written order delivered to the Depositary, a Receipt or
Receipts, evidencing in the aggregate the number of Depositary Shares relating
to the Stock so deposited. Such Receipt or Receipts shall be registered by the
Depositary or the Registrar in such name or names as may be requested by the
person or persons named in the written order. The Depositary shall execute and
deliver such Receipts at the Depositary's Office or such other offices, if any,
as such person may designate. Delivery at other
-8-
<PAGE>
offices shall be at the risk and expense of the person requesting
such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited with the Depositary
hereunder not more than 75,000 shares of Stock.
SECTION 2.03. Redemption of Stock. Whenever the Company shall
elect to redeem shares of Stock in accordance with the provisions of the
Certificate, it shall (unless otherwise agreed in writing with the Depositary)
mail notice to the Depositary of such redemption, by first class mail, postage
prepaid, not less than 40 nor more than 70 days prior to the date fixed for the
redemption of Stock in accordance with Section (3) C(1) of Section FFB of the
Certificate. On the date of such redemption, provided that the Company shall
then have paid in full to the Depositary the redemption price required pursuant
to the Certificate of the Stock to be redeemed, the Depositary shall redeem the
Depositary Shares relating to such Stock. The Depositary shall mail notice of
such redemption, and the simultaneous redemption of the number of Depositary
Shares relating to the Stock to be redeemed, by first-class mail, postage
prepaid, not less than 30 and not more than 60 days prior to the date fixed for
redemption of such Stock and Depositary Shares (the "Redemption Date"), to the
record holders of the Receipts evidencing the Depositary Shares to be so
redeemed on the record date fixed pursuant to Section 4.04 hereof, at the
addresses of such holders as they appear on the records of
-9-
<PAGE>
the Depositary; provided, however, that neither failure to mail any such notice
to one or more such holders nor any defect in any notice or in the mailing
thereof to one or more such holders shall affect the validity of the proceedings
for redemption of any Depositary Shares as to other holders. Each such notice of
redemption shall state: (i) the Redemption Date; (ii) the number of Depositary
Shares to be redeemed and, if less than all the Depositary Shares held by any
such holder are to be redeemed, the number of such Depositary Shares held by
such holder to be so redeemed and the method by which the Depositary Shares will
be chosen for redemption; (iii) the redemption price (including cumulative
dividends to the Redemption Date); (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of the redemption
price; and (v) that dividends in respect of the Stock to be redeemed, which are
represented by the Depositary Shares to be redeemed, will cease to accrue at the
close of business on such Redemption Date. In case less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be selected by lot or pro rata as may be determined by the Company.
Notice having been mailed by the Depositary as aforesaid, from
and after the Redemption Date (unless the Company shall have failed to redeem
the shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph), all dividends in respect of the shares
of Stock so called for redemption shall cease to accrue, the Depositary Shares
-10-
<PAGE>
being redeemed from such proceeds shall be deemed no longer to be outstanding,
all rights of the holders of Receipts evidencing such Depositary Shares (except
the right to receive the redemption price) shall, to the extent of such
Depositary Shares, cease and terminate and, upon surrender in accordance with
such notice of the Receipts evidencing any such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so require), such
Depositary Shares shall be redeemed by the Depositary at a redemp tion price per
Depositary Share equal to 1/40th of the redemption price per share paid in
respect of the shares of Stock plus all money and other property, if any,
underlying such Depositary Shares, including all amounts paid by the Company in
respect of dividends which on the Redemption Date have accrued on the shares of
Stock to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the payment of the
redemption price, a new Receipt evidencing such number of Depositary Shares as
were evidenced by such prior Receipt and not called for redemption; provided,
however, that such replacement Receipt shall be issued only in denominations of
whole Depositary Shares and cash will be payable in respect of fractional
interests.
SECTION 2.04. Registration of Transfer of Receipts.
Subject to the terms and conditions of this Deposit Agreement, the
Registrar, on behalf of the Depositary, shall register on its books
-11-
<PAGE>
transfers of Receipts from time to time upon notice to the Registrar by the
Depositary of the surrender of a Receipt for transfer by the holder in person or
by duly authorized attorney, which Receipt in each case must be properly
endorsed or accompanied by a properly executed instrument of transfer. Upon
surrender of a properly endorsed Receipt or Receipt accompanied by an instrument
of transfer, the Depositary shall execute a new Receipt or Receipts evidencing
the same aggregate number of Depositary Shares as those evidenced by the Receipt
or Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the transferee named in the endorsement or instrument of transfer.
SECTION 2.05. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may designate
for the purpose of effecting a split-up or combination of such Receipt or
Receipts, the Depositary shall execute and deliver a new Receipt or Receipts to
the holder thereof or to such holder's order in the denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered. The Depositary shall give prompt notice of such action and
the certificate numbers to the Registrar for the purpose of recording such
split-up or consolidation.
Any holder of at least forty Depositary Shares may withdraw
the number of whole shares of Stock underlying such Depositary Shares and all
money and other property, if any,
-12-
<PAGE>
represented thereby by surrendering such Receipt or Receipts at the Depositary's
Office or at such other offices as the Depositary may designate for such
withdrawals. Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder, or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all money and
other property, if any, represented by the Receipt or Receipts so surrendered
for withdrawal, but holders of such whole shares of Stock will not thereafter be
entitled to deposit such Stock hereunder or to receive Depositary Shares
therefor. If the Receipt or Receipts delivered by the holder to the Depositary
in connection with such withdrawal shall evidence in the aggregate a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number of whole shares of Stock to be so withdrawn, the Depositary shall at the
same time, in addition to such number of whole shares of Stock and such money
and other property, if any, to be so withdrawn, deliver to such holder, or
(subject to Sections 2.04 and 3.02) upon his order, a new Receipt evidencing
such excess number of Depositary Shares. Delivery of the Stock and the money and
other property being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holder shall
execute and deliver to the
-13-
<PAGE>
Depositary a written order so directing the Depositary and the Depositary may
require that the Receipt or Receipts surrendered by such holder for withdrawal
of such shares of Stock be properly endorsed in blank or accompanied by a
properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if
any, represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with the rules and regulations of any governmental body,
any stock exchange or any applicable self regulatory body, includ ing without
limitation, the National Association of Securities
-14-
<PAGE>
Dealers, Inc. (the "NASD") or such regulations, if any, as the
Depositary or the Company may establish consistent with the
provisions of this Deposit Agreement.
The delivery of Receipts against Stock deposited with the
Depositary may be suspended, the registration of transfer of Receipts may be
refused and the registration of transfer, surrender or exchange of outstanding
Receipts may be suspended (i) during any period when the register of
stockholders of the Company is closed or (ii) if any such action is deemed
necessary by the Depositary, any of the Depositary's Agents or the Company at
any time or from time to time because of any requirement of law or of any
government, governmental body or commission, stock exchange or the NASD or under
any provision of this Deposit Agreement.
SECTION 2.07. Lost Receipts, Etc. If any mutilated Receipt is
surrendered to the Depositary, the Depositary shall execute and deliver in
exchange therefor a new Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt. In case any Receipt shall be destroyed,
lost or stolen, the Depositary shall execute and deliver a Receipt to the holder
thereof of like form and tenor in exchange and substitution for such destroyed,
lost or stolen Receipt, upon (i) the filing by the holder thereof with the
Depositary of evidence satisfactory to the Depositary of such destruction or
loss or theft of such Receipt, of the authenticity thereof and of such holder's
ownership thereof and (ii) the holder's furnishing the Depositary with
reasonable indemnification satisfactory to such Depositary.
-15-
<PAGE>
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
SECTION 2.09. Stock Purchase Plans. The Depositary shall take
such action as shall be necessary or appropriate to permit the record holders of
the Depositary Shares to participate in any dividend reinvestment or other stock
purchase plan sponsored by the Company that permits the participation by such
holders on such terms and conditions as the Company may determine.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information. Any holder of a Receipt may be required from time to time to file
such proof of residence, or other matters or other information, to obtain such
guaranties of signature, to execute such certificates and to make such customary
representations and warranties consistent with the terms of the Stock as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or delay the registration
of transfer, redemption or exchange, of any Receipt or the distribution of any
dividend or other distribution or the sale of any rights or of the proceeds
thereof until such proof or other
-16-
<PAGE>
information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses as provided in Section 5.07. Registration of
transfer of any Receipt and delivery of all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused
until any such payment due is made, and any dividends, interest payments or
other distributions may be withheld or all or any part of the Stock or other
property represented by the Depositary Shares evidenced by such Receipt and not
theretofore sold may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder prior to such sale), and
such dividends, interest payments or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Receipt remaining liable for any deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby
represents and warrants to the Depositary that the Stock, when issued, will be
validly issued, fully paid and nonassessable. Such representation and warranty
shall survive the deposit of the Stock and the issuance of Receipts.
-17-
<PAGE>
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution with respect to the
Stock, the Depositary shall, subject to Section 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.04 the pro
rata portion, as nearly as practicable, of such dividend or distribution
applicable to the number of Depositary Shares evidenced by the Receipts held by
such holders; provided, however, that in case the Company or the Depositary
shall be required to withhold and shall withhold any monies from any cash
dividend or other cash distribu tion in respect of the Stock on account of
taxes, the distribution in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for distribution,
as the case may be, only such amount, however, as can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent, and any
balance not so distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as part of the next
succeeding distribution to record holders of Receipts.
SECTION 4.02. Distributions Other than Cash. Whenever the
Depositary shall receive any property (including securities) for distribution in
a form other than cash with respect to the Stock, the Depositary shall, subject
to Section 3.02, distribute to record holders of Receipts on the record date
fixed pursuant to
-18-
<PAGE>
Section 4.04 the pro rata portion, as nearly as practicable, of such property
(including securities) received by it applicable to the number of Depositary
Shares evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot be
made propor tionately among such record holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the approval of
the Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale of the property thus
received, or any part thereof, in a commercially reasonable manner. The net
proceeds of any such sale shall, subject to Section 3.02, be distributed or made
available for distribution, as the case may be, by the Depositary to record
holders of Receipts in accordance with the provisions of Sec tion 4.01 for a
distribution received in cash.
SECTION 4.03. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the persons in
whose names Stock is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, prefer ences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the
-19-
<PAGE>
Depositary to the record holders of Receipts, pro rata in propor tion to the
Stock represented by such Receipt, in such manner as the Depositary may
determine, either by the issue to such record holders of warrants representing
such rights, preferences or privileges or by such other method as may be
approved by the Depositary in its discretion with the approval of the Company;
provided, however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) if and to the extent so instructed by holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
then the Depositary, in its discretion (with the approval of the Company, in any
case where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or the
terms of such rights, preferences or privileges permit such transfer, sell such
rights, preferences or privileges at public or private sale, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sales shall be distributed by the Depositary to the record holders of Receipts
entitled thereto as provided by Section 4.01 in the case of a distribution
received in cash.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to
-20-
<PAGE>
be made available to holders of Receipts, the Company agrees with the Depositary
that the Company will use its best efforts to take such action or obtain such
authorization, consent or permit suffi ciently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, prefer ences or privileges.
SECTION 4.04. Notice of Dividends, Etc.; Fixing of Record Date
for Holders of Receipts. Whenever any cash dividend or other cash distribution
shall become payable or any distribution of property (including securities)
other than cash shall be made, or if rights, preferences or privileges shall at
any time be offered, with respect to Stock, or whenever the Depositary shall
receive notice of (i) any meeting at which holders of Stock are entitled to vote
or of which holders of Stock are entitled to notice, or (ii) any election on the
part of the Company to redeem any shares of Stock, the Depositary shall, in each
such instance, fix a record date (which shall be the same date as the record
date fixed by the Company with respect to the Stock) for the determination of
the holders of Receipts who shall be entitled hereunder to receive a
distribution in respect of such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or to give instructions for
the exercise of voting rights at any such meeting, or to receive notice of such
meeting.
SECTION 4.05. Voting Rights. Upon receipt of notice of
any meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the
-21-
<PAGE>
record holders of Receipts a notice which shall contain (i) such information as
is contained in such notice of meeting and (ii) a statement that the holders may
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Stock underlying their respective Depositary Shares and a brief
statement as to the manner in which such instructions may be given. Upon the
written request of the holders of Receipts on the applicable record date, the
Depositary shall endeavor, insofar as practicable, to vote or cause to be voted,
in accordance with the instructions set forth in such requests, the votes
relating to the shares of Stock (or portion thereof) underlying the Depositary
Shares evidenced by all Receipts as to which any particular voting instructions
are received. The Company hereby agrees to take all necessary action in order to
enable the Depositary to vote such Stock or cause such Stock to be voted. In the
absence of specific instructions from the holder of a Receipt, the Depositary
will abstain from voting (but, at its discretion, not from appearing at any
meeting with respect to such Stock unless directed to the contrary by the
holders of all the Receipts) to the extent of the Stock (or portion thereof)
underlying the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, Etc. Upon any change in par
or stated value, split-up, combination or any other reclassifica
tion of the Stock, or upon any recapitalization, reorganization,
merger, amalgamation or consolidation to which the Company is a
-22-
<PAGE>
party or sale of all or substantially all of the Company's assets, the
Depositary may with the approval of, and shall upon the instructions of, the
Company, and (in either case) in such manner as to retain as nearly as possible
the percentage ownership interest in Stock of holders of the Receipts
immediately prior to such event, (i) make such adjustments in (a) the fraction
of an interest in one share of Stock underlying one Depositary Share and (b) the
ratio of the redemption price per Depositary Share to the redemption price of a
share of Stock, in each case as may be necessary fully to reflect the effects of
such change in par or stated value, split-up, combination or other
reclassification of Stock, or of such recapitalization, reorganization, merger,
amal gamation or consolidation or sale, and (ii) treat any securities which
shall be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securi ties so received in exchange for or
upon conversion of or in respect of the Stock. In any such case the Depositary
may, with the approval of the Company, execute and deliver additional Receipts,
or may call for surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited securities.
Anything to the contrary herein or in the Receipt
notwithstanding, holders of Receipts shall have the right from and after the
effective date or any such change in par or stated value, split-up, combination
or other reclassification of the Stock or any such recapitalization,
reorganization, merger, amalgamation,
-23-
<PAGE>
consolidation or sale, to the extent that holders of Stock had the right, prior
to or on the applicable effective date, to convert, exchange or surrender shares
of Stock into or for other stock, securities, property or cash, to surrender
such Receipts to the Depositary with instructions to convert, exchange or
surrender the Stock represented thereby only into or for, as the case may be,
the kind and amount of shares of stock and other securities and prop erty and
cash into which the Stock represented by such Receipts has been converted or for
which such Stock might have been exchanged or surrendered immediately prior to
the effective date of such transaction.
SECTION 4.07. Inspection of Reports. The Depositary shall make
available for inspection by holders of Receipts at the Depositary's Office, and
at such other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Stock.
SECTION 4.08. List of Receipt Holders. Promptly, upon request
by the Company, the Depositary shall furnish to it a list, as of a specified
date, of the names and addresses of all persons in whose names Receipts are
registered on the books of the Depositary, and the amount of Stock represented
thereby.
-24-
<PAGE>
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. Upon execution of this Deposit Agreement,
the Depositary shall maintain, at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall, with the approval of the Company,
appoint a Registrar for registration of such Receipts or Depositary Shares in
accordance with any requirements of any applicable stock exchange in which the
Receipts or the Depositary Shares are listed. Such Registrar (which may be the
Depositary if so permitted by the requirements of such exchange) may be removed
and a substitute Registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, the Depositary Shares or the Stock
are listed on one or more other stock exchanges, the Depositary will, at the
request of the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts, such
Depositary Shares or such Stock as may be required by law or applicable stock
exchange regulation.
-25-
<PAGE>
The Registrar shall maintain books at the Depositary's Office
for the registration and registration of transfer of Receipts or at such other
place as shall be approved by the Company and of which the holders of Receipts
shall have reasonable notice, which books at all reasonable times shall be open
for inspection by the record holders of Receipts; provided, that any such holder
requesting to exercise such right shall certify to the Registrar that such
inspection shall be for a proper purpose reasonably related to such person's
interest as an owner of Depositary Shares evidenced by the Receipts.
The Depositary may cause the Registrar to close the books with
respect to the Receipts, at any time or from time to time, when the register of
stockholders of the Company is closed with respect to the Stock or when such
action is deemed necessary or advisable by the Depositary, any Depositary's
Agent or the Company because of any requirement of law or of any government,
governmental body or commission, stock exchange or any applicable
self-regulatory body, including, without limitation, the NASD.
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder of any Receipt if by reason of any provision
of any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason
-26-
<PAGE>
of any provision, present or future, of the Company's Articles of Incorporation,
as amended (including the Certificate), or by reason of any act of God or war,
the Depositary, the Depositary's Agent, the Registrar or the Company shall be
prevented or forbidden from doing or performing any act or thing which the terms
of this Deposit Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, any Registrar or the Company incur any
liability or be subject to any obligation (i) by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing which the
terms of this Deposit Agreement provide shall or may be done or performed, or
(ii) by reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement, except in the event of the gross
negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of the Stock, the Depositary Shares or the Receipts which
in its opinion may involve it in expense or liability unless indemnity to such
party against all expense and liability be furnished as often as required.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable to any party hereto for
-27-
<PAGE>
any action or any failure to act by it in reliance upon the written advice of
legal counsel or accountants, or information from any person presenting Stock
for deposit or any holder of a Receipt. The Depositary, any Depositary's Agent,
any Registrar and the Company may each rely and shall each be protected in
acting upon any written notice, request, direction or other document believed by
it to be genuine and to have been signed or presented by the party or parties
specified in this Agreement.
The Depositary undertakes and shall cause any Registrar to
undertake, to perform such duties and only such duties as are specifically set
forth in this Agreement using its best efforts and in good faith. The parties
hereto acknowledge that no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Registrar or against the
Company with respect to the Depositary and any Registrar. The Depositary will
indemnify the Company against any liability which may arise out of acts
performed or omitted by the Depositary or any Depositary's Agent due to its or
their negligence or bad faith. The Depositary, any Depositary's Agent, any
Registrar and the Company may own and deal in any class of securities of the
Company and its affiliates and in Receipts subject to the provisions of
applicable law. The Depositary may also act as transfer agent or registrar of
any of the securities of the Company and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary:
Appointment of Successor Depositary. The Depositary may at any
time resign as Depositary hereunder by notice of its election so to
-28-
<PAGE>
do delivered to the Company, such resignation to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
In case the Depositary acting hereunder shall at any time
resign or be removed, the Company shall, within 60 days after the delivery of
the notice of resignation or removal, as the case may be, appoint a successor
Depositary, which shall be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $50,000,000. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder and agreeing to become a party to this Agreement, and
thereupon such successor Depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Stock and any monies or property held hereunder to such successor and
shall deliver to such
-29-
<PAGE>
successor a list of the record holders of all outstanding Receipts. Any
successor Depositary shall promptly mail notice of its appoint ment to the
record holders of Receipts.
Any corporation or other entity into or with which the
Depositary may be merged, consolidated or converted, or to which the Depositary
may sell all or substantially all its assets, shall be the successor of such
Depositary without the execution or filing of any document or any further act.
Such successor Depositary may authenticate the Receipts in the name of the
predecessor Depositary or in the name of the successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company
agrees that it will deliver to the Depositary and the Depositary will, promptly
after receipt thereof, transmit to the record holders of Receipts, in each case
at the address furnished to it pursuant to Section 4.08, all notices and reports
(including without limitation financial statements) required by law, the rules
of any national securities exchange upon which the Stock, the Depositary Shares
or the Receipts are listed or by the Company's Articles of Incorporation, as
amended (including the Certificate), to be furnished by the Company to holders
of Stock. Such transmis sion will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request.
SECTION 5.06. Indemnification by the Company. The
Company shall indemnify the Depositary, any Depositary's Agent and
any Registrar against, and hold each of them harmless from, any
-30-
<PAGE>
loss, liability or expense (including the reasonable costs and expenses of
defending itself) which may arise out of (i) acts performed or omitted in
connection with this Agreement and the Receipts (a) by the Depositary, any
Registrar or any of their respective agents (including any Depositary's Agent),
except for any liability arising out of gross negligence or willful misconduct
on the respective parts of any such person or persons, or (b) by the Company or
any of its agents, or (ii) the offer, sale or registration of the Receipts or
the Stock pursuant to the provisions hereof.
SECTION 5.07. Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all charges of
the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Depositary Shares, and redemption of the Stock at the
option of the Company. All other transfer and other taxes and governmental
charges shall be at the expense of holders of Depositary Shares. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses for
which it is not otherwise liable hereunder, such holder will be liable for such
charges and expenses. All other charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in each case,
reasonable fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be payable by the Company only after prior
consultation and agreement
-31-
<PAGE>
between the Depositary and the Company and consent by the Company to the
incurrence of such expenses, which consent shall not be unreasonably withheld.
The Depositary shall present any statement for charges and expenses to the
Company promptly, unless the Company shall agree otherwise.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable; provided, however, that no such amendment
which shall materially and adversely alter the rights of the holders of Receipts
shall be effective unless such amendment shall have been approved by the holders
of at least 66 2/3% of the Depositary Shares then outstanding. Every holder of
an outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any amendment impair the right, subject to the provisions of
Sections 2.05 and 2.06 hereof, of any owner of any Depositary Shares to
surrender any Receipt evidencing such Depositary Shares to the Depositary with
instructions to deliver to the holder the Stock and all money and other
property, if any, represented thereby, except in order to comply with mandatory
-32-
<PAGE>
provisions of applicable law or the rules and regulations of any governmental
body, agency or commission, the NASD or any applicable stock exchange.
SECTION 6.02. Termination. This Agreement may be terminated by
the Company or the Depositary only after (i) all outstanding Depositary Shares
shall have been redeemed pursuant to Section 2.03 or (ii) there shall have been
made a final distribu tion in respect of the Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Depositary Shares pursuant to
Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the parties
hereto shall be discharged from all obligations under this Deposit Agreement
except for their respective obligations under Sections 5.03, 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counter parts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken together
shall constitute one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This
Deposit Agreement is for the exclusive benefit of the parties
-33-
<PAGE>
hereto, and their respective successors hereunder, and shall not be deemed to
give any legal or equitable right, remedy or claim to any other person
whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or modified thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or telegram,
telecopy or telex confirmed by letter, addressed to the Company at One First
Union Center, Charlotte, North Carolina 28288-0630, telephone: (704) 374-4456,
telecopy: (704) 374-3105, Attention: Kent S. Hathaway, or at any other address
and to the attention of any other person of which the Company shall have
notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or by telegram, telecopy or telex
confirmed by letter, addressed to the Depositary at the Depositary's Office, at
One First Union Center, Charlotte, North Carolina 28288-0133, telephone (704)
374-6828, telecopy (704) 374-3425, Attention: Marion A. Cowell, Jr., or at any
other address and to the attention of any
-34-
<PAGE>
other person of which the Depositary shall have notified the
Company in writing.
Any and all notices to be given to any record holder of a
Receipt hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or by telegram,
telecopy or telex confirmed by letter, addressed to such record holder at the
address of such record holder as it appears on the books of the Depositary, or
if such holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram, telecopy or
telex shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram or
telex message) is deposited, postage prepaid, in a post office letter box. The
Depositary or the Company may, however, act upon any telegram or telecopy
message received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or telecopy message shall not subsequently be
confirmed by letter or as aforesaid.
SECTION 7.05. Depositary Agents. The Depositary may
from time to time appoint any Depositary's Agent to act in any
respect for the Depositary for the purposes of this Deposit
Agreement and may at any time appoint additional Depositary's
Agents and vary or terminate the appointment of such Depositary's
-35-
<PAGE>
Agents. The Depositary will promptly notify the Company of any
such action.
SECTION 7.06. Holders of Receipts Are Parties. By acceptance
of delivery of the Receipts, any holder of such Receipt from time to time shall
be deemed to have agreed to become a party to this Deposit Agreement and to be
bound by all of the terms and conditions hereof and of the Receipts to the same
extent as though such person executed this Agreement.
SECTION 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE
RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND
THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
SECTION 7.08. Inspection of Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's Agents
and shall be open to inspection during business hours at the Depositary's Office
and the respective offices of the Depositary's Agents, if any, by any holder of
a Receipt.
SECTION 7.09. Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or the Receipts or to have any bearing upon the
meaning or inter pretation of any provision contained herein or in the Receipts.
-36-
<PAGE>
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Agreement as of the day and year first above set forth, and all
holders of Receipts shall become parties hereto by and upon acceptance by them
of delivery of Receipts issued in accordance with the terms hereof.
FIRST UNION CORPORATION
by____________________________
Authorized Officer
FIRST UNION NATIONAL
BANK OF NORTH CAROLINA
by____________________________
Authorized Officer
-37-
<PAGE>
