<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 22, 1997
REGISTRATION NO. 333-35363
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
FILED PURSUANT TO RULE 462(d)
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST UNION CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
NORTH CAROLINA 56-0898180
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
</TABLE>
ONE FIRST UNION CENTER
CHARLOTTE, NORTH CAROLINA 28288-0013
(704) 374-6565
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
MARION A. COWELL, JR., ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
FIRST UNION CORPORATION
ONE FIRST UNION CENTER
CHARLOTTE, NORTH CAROLINA 28288-0013
(704) 374-6828
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH A COPY TO:
ROBERT B. HIDEN, JR., ESQ.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 558-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: At such
time or times as may be determined by the Corporation and the Selling
Stockholder after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [X] 333-35363
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
<PAGE>
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to Registration Statement on Form S-3
(No. 333-35363) is filed pursuant to Rule 462(d) solely to add certain exhibits
not previously filed with respect to such Registration Statement.
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
<S> <C>
(1)(a) Form of Underwriting Agreement.
(2) Agreement and Plan of Mergers, dated as of July 18, 1997, among the Corporation, FUNB-NC, Signet and
Signet Bank. (Incorporated by reference to Exhibit (2) to the Corporation's Current Report on Form 8-K
dated July 21, 1997.)
(4)(a) Articles of Incorporation of the Corporation, as amended. (Incorporated by reference to Exhibit (4) to the
Corporation's 1990 First Quarter Report on Form 10-Q, to Exhibit (99)(a) to the Corporation's 1993 First
Quarter Report on Form 10-Q and to Exhibit (4)(a) to the Corporation's Current Report on Form 8-K dated
January 10, 1996.)
(4)(b) By-laws of the Corporation, as amended. (Incorporated by reference to Exhibit (3)(b) to the Corporation's
1995 Annual Report on Form 10-K.)
(4)(c) Amended and Restated Shareholder Protection Rights Agreement. (Incorporated by reference to Exhibit (4) to
the Corporation's Current Report on Form 8-K dated October 16, 1996.)
(4)(d) Upon the request of the Securities and Exchange Commission, the Registrant will furnish a copy of all
other instruments defining the rights of holders of Common Stock of the Registrant.
(5) Opinion of Marion A. Cowell, Jr., Esq.*
(23)(a) Consent of Marion A. Cowell, Jr., Esq. (Included in Exhibit (5).)
(23)(b) Consent of KPMG Peat Marwick LLP.*
(24)(a) Power of Attorney.*
(24)(b) Power of Attorney.*
(24)(c) Power of Attorney.*
(27) The Corporation's Financial Data Schedule. (Incorporated by reference to Exhibit (27) to the Corporation's
1997 Second Quarter Report on Form 10-Q.)
</TABLE>
* Previously filed.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
First Union Corporation certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Post-Effective Amendment No. 1 to Registration Statement (No. 333-35363) to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Charlotte, State of North Carolina, as of the 22nd day of September, 1997.
FIRST UNION CORPORATION
By: MARION A. COWELL, JR.
MARION A. COWELL, JR.
EXECUTIVE VICE PRESIDENT, SECRETARY
AND GENERAL COUNSEL
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to Registration Statement has been signed by the
following persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C> <C>
EDWARD E. CRUTCHFIELD* Chairman and Chief Executive Officer and
EDWARD E. CRUTCHFIELD Director
ROBERT T. ATWOOD* Executive Vice President and Chief Financial
ROBERT T. ATWOOD Officer
JAMES H. HATCH* Senior Vice President and Corporate
JAMES H. HATCH Controller (Principal Accounting Officer)
EDWARD E. BARR* Director
EDWARD E. BARR
G. ALEX BERNHARDT* Director
G. ALEX BERNHARDT
W. WALDO BRADLEY* Director
W. WALDO BRADLEY
ROBERT J. BROWN* Director
ROBERT J. BROWN
Director
A. DANO DAVIS
R. STUART DICKSON* Director
R. STUART DICKSON
B.F. DOLAN* Director
B.F. DOLAN
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C> <C>
RODDEY DOWD, SR.* Director
RODDEY DOWD, SR.
JOHN R. GEORGIUS* Director
JOHN R. GEORGIUS
Director
ARTHUR M. GOLDBERG
WILLIAM H. GOODWIN, JR.* Director
WILLIAM H. GOODWIN, JR.
HOWARD H. HAWORTH* Director
HOWARD H. HAWORTH
FRANK M. HENRY* Director
FRANK M. HENRY
Director
LEONARD G. HERRING
JUAN RODRIGUEZ INCIARTE* Director
JUAN RODRIGUEZ INCIARTE
Director
JACK A. LAUGHERY
MAX LENNON* Director
MAX LENNON
RADFORD D. LOVETT* Director
RADFORD D. LOVETT
Director
MACKEY J. MCDONALD
JOSEPH NEUBAUER* Director
JOSEPH NEUBAUER
RANDOLPH N. REYNOLDS* Director
RANDOLPH N. REYNOLDS
RUTH G. SHAW* Director
RUTH G. SHAW
Director
CHARLES M. SHELTON, SR.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C> <C>
LANTY L. SMITH* Director
LANTY L. SMITH
ANTHONY P. TERRACCIANO* Director
ANTHONY P. TERRACCIANO
DEWEY L. TROGDON* Director
DEWEY L. TROGDON
Director
JOHN D. UIBLE
B.J. WALKER* Director
B.J. WALKER
* By MARION A. COWELL, JR.,
MARION A. COWELL, JR., ATTORNEY-IN-FACT
</TABLE>
Dated: September 22, 1997
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
<S> <C> <C>
(1)(a) Form of Underwriting Agreement.
(2) Agreement and Plan of Mergers, dated July 18, 1997, among the
Corporation, FUNB-NC, Signet, and Signet Bank. (Incorporated by
reference to Exhibit (2) to the Corporation's Current Report on Form 8-K
dated July 21, 1997.)
(4)(a) Articles of Incorporation of the Corporation, as amended. (Incorporated
by reference to Exhibit (4) to the Corporation's 1990 First Quarter
Report on Form 10-Q, to Exhibit (99)(a) to the Corporation's 1993 First
Quarter Report on Form 10-Q and to Exhibit (4)(a) to the Corporation's
Current Report on Form 8-K dated January 10, 1996.)
(4)(b) By-laws of the Corporation, as amended. (Incorporated by reference to
Exhibit (3)(b) to the Corporation's 1995 Annual Report on Form 10-K.)
(4)(c) Amended and Restated Shareholder Protection Rights Agreement.
(Incorporated by reference to Exhibit (4) to the Corporation's Current
Report on Form 8-K dated October 16, 1996.)
(4)(d) Upon the request of the Securities and Exchange Commission, the
Registrant will furnish a copy of all other instruments defining the
rights of holders of Common Stock of the Registrant.
(5) Opinion of Marion A. Cowell, Jr., Esq.*
(23)(a) Consent of Marion A. Cowell, Jr., Esq. (Included in Exhibit (5).)
(23)(b) Consent of KPMG Peat Marwick LLP.*
(24)(a) Power of Attorney.*
(24)(b) Power of Attorney.*
(24)(c) Power of Attorney.*
(27) The Corporation's Financial Data Schedule. (Incorporated by reference to
Exhibit (27) to the Corporation's 1997 Second Quarter Report on Form
10-Q.)
</TABLE>
* Previously filed.
</PAGE>
Exhibit (1)(a)
CONFORMED COPY
FORM OF UNDERWRITING AGREEMENT
52,218,844 SHARES
FIRST UNION CORPORATION
COMMON STOCK, PAR VALUE U.S.$3.33 1/3 PER SHARE
UNDERWRITING AGREEMENT
September 18, 1997
<PAGE>
September 18, 1997
Morgan Stanley & Co. Incorporated Goldman, Sachs & Co.
Santander Investment Securities, Inc.
UBS Securities LLC
Wheat, First Securities, Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Morgan Stanley & Co. International Limited
Goldman Sachs International
Banco Santander de Negocios, S.A.
UBS Limited
Wheat, First Securities, Inc.
c/o Morgan Stanley & Co. International Limited
25 Cabot Square, Canary Wharf
London E14 4QA, England
Dear Sirs and Mesdames:
FIRST UNION CORPORATION, a North Carolina corporation (the
"Company"), proposes to issue and sell to the several Underwriters (as defined
below), and the shareholder of the Company (the "Selling Stockholder") named in
Schedule I hereto proposes to sell to the several Underwriters, an aggregate of
52,218,844 shares of common stock, par value U.S.$3.331/3 per share, of the
Company (the "Shares"), of which 7,500,000 Shares are to be issued and sold by
the Company and 44,718,844 Shares are to be sold by the Selling Stockholder. The
Company and the Selling Stockholder are hereinafter sometimes collectively
referred to as the "Sellers".
It is understood that, subject to the conditions hereinafter
stated, 41,775,075 Shares (the "U.S. Shares") will be sold to the several U.S.
Underwriters named in Schedule II hereto (the "U.S. Underwriters") in connection
with the offering and sale of such U.S. Shares in the United States and Canada
or to United States or Canadian Persons (as such terms are defined in the
Agreement Between U.S. and International Underwriters of even date herewith),
and 10,443,769 Shares (the "International Shares") will be sold to the several
International Underwriters named in Schedule III hereto (the "International
Underwriters") in connection with the offering and sale of such International
Shares outside the United States and Canada to persons other than United States
or Canadian Persons. Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co.,
Santander Investment Securities, Inc., UBS Securities LLC and Wheat, First
Securities, Inc. shall act as representatives (the "U.S. Representatives") of
the several U.S. Underwriters, and Morgan Stanley & Co. International Limited,
Goldman Sachs International, Banco Santander de Negocios, S.A., UBS Limited and
Wheat, First Securities, Inc. shall act as representatives (the "International
Representatives") of the several
<PAGE>
International Underwriters. The U.S. Underwriters and the International
Underwriters are hereinafter collectively referred to as the "Underwriters".
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, relating to
the Shares. The registration statement contains two prospectuses to be used in
connection with the offering and sale of the Shares: the U.S. prospectus, to be
used in connection with the offering and sale of Shares in the United States and
Canada or to United States or Canadian Persons, and the international
prospectus, to be used in connection with the offering and sale of Shares
outside the United States and Canada to persons other than United States or
Canadian Persons. The international prospectus is identical to the U.S.
prospectus except for the outside front cover page. The registration statement,
including the exhibits thereto, as amended at the time it became effective,
including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement"; the U.S. prospectus and the
international prospectus in the respective forms first used to confirm sales of
Shares, including in each case the documents incorporated by reference therein,
are hereinafter collectively referred to as the "Prospectus". The terms
"supplement", "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Prospectus by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). If the Company has filed an abbreviated registration statement to
register additional shares of Common Stock pursuant to Rule 462(b) under the
Securities Act (the "Rule 462 Registration Statement"), then any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462 Registration Statement.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect; and no proceeding for such purpose is pending before or, to the
Company's knowledge, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) the Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder, and (iv)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon
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<PAGE>
information relating to (i) any Underwriter furnished to the Company in
writing by such Underwriter through you or your counsel expressly for
use therein, or (ii) the Selling Stockholder furnished to the Company by
the Selling Stockholder or its counsel.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation and has all power and authority (corporate and other)
necessary to own or hold its material properties and to conduct its
business substantially in the manner in which it presently conducts such
business.
(d) Each material subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has all power
and authority (corporate and other) necessary to own or hold its
material properties and to conduct its business substantially in the
manner in which it presently conducts such business and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not be
reasonably likely to have a material adverse effect on the Company and
its subsidiaries, taken as a whole; all of the issued shares of capital
stock of each such subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable (except with respect to the
Company's national bank subsidiaries to the extent specified in 12
U.S.C. ss. 55 (Section 55 of the National Bank Act)) and are owned
directly by the Company and/or another subsidiary of the Company, free
and clear of all liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The authorized capital stock of the Company conforms in all
material respects as to legal matters to the description thereof
contained in the Prospectus.
(g) The shares of Common Stock (including the Shares being sold
by the Selling Stockholder) outstanding prior to the issuance of the
Shares to be sold by the Company have been duly authorized and are
validly issued, fully paid and non-assessable.
(h) The Shares to be sold by the Company have been duly
authorized and, when issued and delivered in accordance with the terms
of this Agreement, will be duly and validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene any provision of applicable law or the articles of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, (any of the
foregoing, a "Consent") any governmental body or agency is required for
the performance by the Company
-3-
<PAGE>
of its obligations under this Agreement, except (i) such Consents as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares, and (ii) for Consents
the failure of which to have been obtained is not reasonably likely to
have a material adverse effect on the Company and its subsidiaries taken
as a whole.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(k) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(l) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDER. The
Selling Stockholder represents and warrants to and agrees with each of the
Underwriters and the Company that:
(a) This Agreement has been duly authorized, executed and
delivered by the Selling Stockholder.
(b) The execution and delivery by the Selling Stockholder of, and
the performance by the Selling Stockholder of its obligations under,
this Agreement will not contravene any provision of applicable law, or
the certificate of incorporation, by-laws or other governing or
organizational documents of the Selling Stockholder, or any agreement or
other instrument binding upon the Selling Stockholder or any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Selling Stockholder, and no consent, approval,
authorization or order of, or qualification with, any governmental body
or agency is required for the performance by the Selling Stockholder of
its obligations under this Agreement, except such as may be required by
the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Shares.
(c) The Selling Stockholder has, and on the Closing Date will
have, valid title to the Shares to be sold by the Selling Stockholder
and the legal right and power, and all authorization and approval
required by law, to enter into this Agreement and to sell, transfer and
deliver the Shares to be sold by the Selling Stockholder.
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<PAGE>
(d) Upon delivery of the Shares to be sold by the Selling
Stockholder pursuant to this Agreement against payment therefor in
accordance with this Agreement, the purchasers thereof will obtain good
and valid title to such Shares free and clear of any security interests,
claims, liens, equities and other encumbrances.
(e) The statements in the Prospectus under the captions "Selling
Stockholder" are true, correct and complete and do not contain any
untrue statement of a material fact or omit to state any material fact
necessary to make such statements, in light of the circumstances under
which they were made, not misleading.
3. AGREEMENTS TO SELL AND PURCHASE. Each Seller, severally and
not jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Seller at U.S.$47.675 a share (the
"Purchase Price") the respective number of Shares (subject to such adjustments
to eliminate fractional shares as you may determine) that bears the same
proportion to the number of Shares to be sold by such Seller as the number of
Shares set forth in Schedule II and Schedule III hereto opposite the name of
such Underwriter bears to the total number of Shares.
The Company hereby agrees that, without the prior written consent
of Morgan Stanley & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Prospectus, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (i) or (ii) next above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise. The foregoing sentence shall not
apply to (A) the sale of Shares to the Underwriters, (B) the issuance by the
Company of shares of Common Stock upon the exercise of an option or warrant or
the conversion of a security outstanding on the date of the Prospectus of which
the Underwriters have been advised in writing, (C) private placements of shares
of Common Stock by the Company, (D) the issuance or grant of shares of Common
Stock or options or rights to purchase shares of Common Stock pursuant to
benefit and compensation plans, (E) transactions in shares of Common Stock in
connection with the Company's Dividend Reinvestment and Stock Purchase Plan, (F)
the issuance or sale of shares of Common Stock pursuant to acquisition
agreements entered into prior to the date of the Prospectus, (G) agreements or
arrangements in connection with acquisition transactions involving the issuance
or sale of shares of Common Stock or relating to options, rights, warrants or
any securities convertible into or exercisable or exchangeable for shares of
Common Stock, where the acquisition transactions are consummated more than 90
days after the date of the Prospectus, and (H) transactions under the Amended
and Restated Shareholder Protection Rights Agreement of the Company.
4. TERMS OF PUBLIC OFFERING. The Sellers are advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Sellers are further
advised by you that the Shares are to be offered to the public initially at
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<PAGE>
U.S.$48.375 a share (the "Public Offering Price") and to certain dealers
selected by you at a price that represents a concession not in excess of
U.S.$0.45 a share under the Public Offering Price, and that any Underwriter may
allow, and such dealers may reallow, a concession, not in excess of U.S.$0.10 a
share, to any Underwriter or to certain other dealers.
5. PAYMENT AND DELIVERY. Payment for the Shares to be sold by
each Seller shall be made to such Seller in Federal or other funds immediately
available in New York City against delivery of such Shares for the respective
accounts of the several Underwriters at 10:00 a.m., New York City time, on
September 23, 1997, or at such other time on the same or such other date as may
be agreed by you, the Company and the Selling Stockholder. The time and date of
such payment are hereinafter referred to as the "Closing Date".
Certificates for the Shares shall be in definitive form and
registered in such names and in such denominations as you shall request in
writing not later than one full business day prior to the Closing Date. The
certificates evidencing the Shares shall be delivered to you on the Closing Date
for the respective accounts of the several Underwriters against payment of the
Purchase Price therefor.
6. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations
of the Sellers to sell the Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than 5:30 p.m. (New York City time) on the date
hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that, in the judgment of Morgan Stanley & Co.
Incorporated, is material and adverse and that makes it, in the
judgment of Morgan Stanley & Co. Incorporated, impracticable to
market the Shares on the terms and in the manner contemplated in
the Prospectus.
(b) The Underwriters (and, with respect to clauses (ii) and (iii)
next below only, the Company) shall have received on the Closing Date a
certificate, dated the Closing Date and
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<PAGE>
signed by an executive officer of (i) the Company, to the effect set
forth in Section 6(a)(i) above and to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct in all material respects as of the
Closing Date and that the Company has complied in all material respects
with all of the agreements and satisfied in all material respects all of
the conditions on its part to be performed or satisfied hereunder on or
before the Closing Date, (ii) the Selling Stockholder, to the effect
that the representations and warranties of the Selling Stockholder
contained in this Agreement are true and correct in all material
respects as of the Closing Date and that the Selling Stockholder has
complied in all material respects with all of the agreements and
satisfied in all material respects all of the conditions on its part to
be performed or satisfied hereunder on or before the Closing Date, and
(iii) Banco Santander, S.A., a bank holding company organized under the
laws of the Kingdom of Spain (the "Guarantor"), to the effect that the
representations and warranties of the Guarantor contained in that
certain Guaranty, dated of even date herewith (the "Guaranty"), made by
the Guarantor in favor of the Company, the Underwriters and each person,
if any, who controls the Company or any Underwriter within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, are true and correct in all material respects as of the Closing
Date and that the Guarantor has complied in all material respects with
all of the agreements and satisfied in all material respects all of the
conditions on its part to be performed or satisfied thereunder on or
before the Closing Date; and the Underwriters (and, with respect to
certificates to be received from the Selling Stockholder and the
Guarantor only, the Company) shall have received on the Closing Date a
certificate from a secretary or assistant secretary of each of the
Company, the Selling Stockholder and the Guarantor, each in form and
substance customary to transactions of this nature or satisfactory to
the Underwriters.
Each executive officer signing and delivering the certificates
described in clauses (i) through (iii) above may rely upon the best of
his or her knowledge after due inquiry as to the matters set forth
therein.
(c) The Underwriters shall have received on the Closing Date an
opinion of Marion A. Cowell, Jr., Executive Vice President, Secretary
and General Counsel of the Company, dated the Closing Date, to the
effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of North Carolina, with corporate power and
authority under such laws to own its material properties and to
conduct its business substantially as described in the
Prospectus;
(ii) the Shares to be sold by the Selling Stockholder
have been duly authorized and are validly issued, fully paid and
non-assessable;
(iii) the Shares being delivered to the Underwriters at
the Closing Date by the Company have been duly authorized and,
when issued and delivered as provided in this Agreement, will be
duly and validly issued, fully paid and nonassessable and will
have the rights set forth in the Company's Articles of
Incorporation, as amended to the Closing Date, and the issuance
of such Shares will not be subject to any preemptive or similar
rights;
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(iv) this Agreement has been duly authorized, executed
and delivered by the Company;
(v) the Company has all corporate power and authority
necessary to execute and deliver this Agreement and to perform
its obligations hereunder; the execution, delivery and
performance of this Agreement by the Company and compliance with
the provisions hereof by the Company will not constitute a breach
of, or default under, the Articles of Incorporation or by-laws of
the Company, or any material agreement, indenture or other
instrument relating to indebtedness for money borrowed known to
such counsel to which the Company is a party, or, to the best of
such counsel's knowledge, any law, order, rule, regulation or
decree of any court, governmental agency or authority located in
the United States having jurisdiction over the Company or any
property of the Company, which breach or default would be
reasonably likely to have a material adverse effect on the
Company and its subsidiaries taken as a whole; and no consent,
authorization or order of, or filing or registration with, any
court or governmental agency or authority is required for the
execution, delivery and performance of this Agreement by the
Company except such as have been made or obtained or will be made
or obtained on or before the Closing Date and except such as may
be required under applicable state securities or "blue sky" laws;
(vi) the Shares conform in all material respects to
the descriptions thereof in the Prospectus under the caption
"Description of Common Stock";
(vii) the Registration Statement has become effective
under the Securities Act, and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or threatened
under the Securities Act, and each part of the Registration
Statement, when such part became effective, any amendments
thereof filed prior to the date of this Agreement, as of their
respective effective dates, and the Registration Statement and
the Prospectus, as of the date of the Prospectus Supplement, and
each amendment thereof or supplement thereto, as of their
respective effective or issue dates, appeared on their face to be
appropriately responsive in all material respects to the
requirements of the Securities Act and the respective rules and
regulations of the Commission thereunder; such counsel has no
reason to believe that any part of the Registration Statement,
when such part became effective, contained any untrue statement
of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus or any amendments thereof
or supplements thereto, as of their respective effective or issue
dates, contained any untrue statement of a material fact or
omitted to state any material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or that, as of the Closing Date,
either the Prospectus or any further amendment or supplement
thereto made by the Company prior to the Closing Date contained
any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; it being understood that such counsel need express no
opinion as to the financial statements or other financial
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data contained in any part of the Registration Statement or the
Prospectus or as to any statements or omissions made in reliance
upon or in conformity with information furnished in writing to
the Company by or on behalf of an Underwriter or the Selling
Stockholder for use therein.
As to matters governed by New York law, such counsel may rely
upon the opinion of Sullivan & Cromwell.
(d) The Underwriters and the Company shall have received on the
Closing Date an opinion of Morais Leitao, J. Galvao Teles & Associados,
Portuguese counsel for the Selling Stockholder, dated the Closing Date,
to the effect that:
(i) this Agreement has been duly authorized, executed
and delivered by or on behalf of the Selling Stockholder;
(ii) the execution and delivery by the Selling
Stockholder of, and the performance by the Selling Stockholder of
its obligations under, this Agreement will not contravene any
provision of applicable law, or the certificate of incorporation,
by-laws or other governing or organizational documents of the
Selling Stockholder, or, to the best of such counsel's knowledge,
any agreement or other instrument binding upon the Selling
Stockholder or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Selling Stockholder, and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by the Selling Stockholder of its obligations under
this Agreement; and
(iii) the Selling Stockholder has valid title to the
Shares to be sold by it and the legal right and power, and all
authorization and approval required by law, to enter into this
Agreement and to sell, transfer and deliver the Shares to be sold
by it.
(e) The Underwriters and the Company shall have received on the
Closing Date an opinion of Ignacio Benjumea, Secretary General of the
Guarantor, dated the Closing Date, to the effect that:
(i) the Guarantor has been duly incorporated and is
validly existing as a bank in good standing under the laws of the
Kingdom of Spain, with power and authority under such laws to own
its material properties and to conduct its business substantially
as presently being conducted;
(ii) the Guaranty has been duly authorized, executed
and delivered by the Guarantor and constitutes the valid and
legally binding obligations of the Guarantor enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles; and
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(iii) the execution and delivery by the Guarantor of,
and the performance by the Guarantor of its obligations under,
the Guaranty will not contravene any provision of applicable law,
or the certificate of incorporation or by-laws of the Guarantor,
or, to the best of such counsel's knowledge, any agreement or
other instrument binding upon the Guarantor or, to the best of
such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Guarantor, and no consent, approval, authorization or order of,
or qualification with, (any of the foregoing, a "Consent") any
governmental body or agency is required for the performance by
the Guarantor of its obligations under the Guaranty, except (i)
such Consents as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale
of the Shares, and (ii) for Consents the failure of which to have
been obtained will not have a material adverse effect on the
validity or enforceability of the Guaranty.
(f) The Underwriters and the Company shall have received on the
Closing Date an opinion of Davis Polk & Wardwell, New York counsel for
the Selling Stockholder and the Guarantor, dated the Closing Date, to
the effect that:
(i) delivery of the Shares to be sold by the Selling
Stockholder pursuant to this Agreement will pass title to such
Shares free and clear of any adverse claim, within the meaning of
the New York Uniform Commercial Code, to each of the several
Underwriters (to the extent that each such Underwriter has
purchased such Shares in good faith and without notice of any
adverse claim within the meaning of the New York Uniform
Commercial Code);
(ii) the statements in the Prospectus under the
caption "Selling Stockholder", insofar as such statements
constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(iii) such counsel (A) is of the opinion that the
statements in the Prospectus under the caption "Selling
Stockholder" comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder, and (B) has no reason to believe that such
statements at the time the Registration Statement became
effective contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make such statements not misleading; and
(iv) the Guaranty constitutes the valid and legally
binding obligations of the Guarantor enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
(g) The Underwriters shall have received on the Closing Date an
opinion of Sullivan & Cromwell, counsel for the Underwriters, dated the
Closing Date, covering the matters
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referred to in Sections 6(c)(ii) (as to the due authorization of the
Shares to be sold by the Selling Stockholder), 6(c)(iii), 6(c)(iv) and
6(c)(vii) above and to the effect that the statements in the Prospectus
under the captions "Description of Common Stock", "Underwriters" and
"Certain United States Tax Consequences to Non-U.S. Holders of Common
Stock", insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters, documents
and proceedings and fairly summarize the matters referred to therein.
As to matters governed by North Carolina law, Davis Polk &
Wardwell and Sullivan & Cromwell may rely upon the opinion of Marion A.
Cowell, Jr.
With respect to Section 6(c)(vii) above, Marion A. Cowell, Jr.
and Sullivan & Cromwell may state that their opinion and belief are
based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and
review and discussion of the contents thereof, but are without
independent check or verification, except as specified. With respect to
Section 6(f) above, Davis Polk & Wardwell may rely upon an opinion or
opinions of counsel for the Selling Stockholder and the Guarantor and,
with respect to factual matters and to the extent such counsel deems
appropriate, upon the representations of the Selling Stockholder and the
Guarantor contained herein or in the Guaranty, as the case may be, and
in other documents and instruments; PROVIDED that (A) a copy of each
opinion so relied upon is delivered to you and is in form and substance
satisfactory to you, and (B) copies of such other documents and
instruments shall be delivered to you and shall be in form and substance
satisfactory to you.
The opinions of Marion A. Cowell, Jr., Morais Leitao, J. Galvao
Teles & Associados, Ignacio Benjumea and Davis Polk & Wardwell described
in Sections 6(c) through 6(f) above (and any opinions of counsel for the
Selling Stockholder and the Guarantor referred to in the immediately
preceding paragraph) shall be rendered to the Underwriters at the
request of the Company, the Selling Stockholder and the Guarantor, as
the case may be, and shall so state therein.
(h) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from KPMG Peat Marwick LLP, independent certified
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus;
PROVIDED that the letter delivered on the Closing Date shall use a
"cut-off date" not earlier than the date hereof.
7. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, 11 signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to use its best efforts to furnish to you
in
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<PAGE>
New York City, without charge, prior to 10:00 a.m. New York City time on
the business day next succeeding the date of this Agreement and during
the period mentioned in Section 7(c) below, as many copies of the
Prospectus, any documents incorporated by reference therein, and any
supplements and amendments thereto or to the Registration Statement as
you may reasonably request.
(b) Before filing any amendment or supplement to the Registration
Statement or the Prospectus, to furnish to you or your counsel a copy of
each such proposed amendment or supplement and, with respect to the
Prospectus, not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with
sales by an Underwriter or dealer, the Company shall become aware of the
occurrence of any event or the existence of any condition as a result of
which it is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the
reasonable opinion of counsel for the Underwriters, it is necessary to
amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission (after the Commission has
provided the required clearances, if any) and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Shares may have been
sold by you on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with applicable law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request, PROVIDED that the Company shall not be required to
qualify to do business in any jurisdiction where it is not now qualified
or to take any action which would subject it to general or unlimited
service of process in any jurisdiction where it is not now so subject.
(e) To make generally available to the Company's security holders
and to you as soon as practicable an earnings statement covering the
twelve-month period ending September 30, 1998 that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
8. EXPENSES. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, Morgan Stanley & Co.
Incorporated, on behalf of the Underwriters, agrees to pay or cause to be paid
all of the following expenses incurred by the Company or the Selling Stockholder
(and, in this instance, any affiliates of the Selling Stockholder) incident to
the performance by the Company or the Selling Stockholder of its obligations
under this Agreement and the purchase and sale of the Shares as described in the
Prospectus: (i) the fees, disbursements and
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expenses of the Company's accountants and counsel for the Selling Stockholder in
connection with the registration and delivery of the Shares under the Securities
Act and all other fees or expenses in connection with the preparation and filing
of the Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(d) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable
fees and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the National
Association of Securities Dealers, Inc., (v) all fees and expenses in connection
with the preparation and filing of the registration statement on Form S-3
relating to the Shares and all costs and expenses incident to listing the Shares
on the NYSE, (vi) the cost of printing certificates representing the Shares,
(vii) the costs and charges of any transfer agent, registrar or depositary,
(viii) any costs and expenses relating to investor presentations on any "road
show" undertaken in connection with the marketing of the offering of the Shares,
including expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the Company, travel and
lodging expenses of the respective representatives and officers of the Company
and the Selling Stockholder (and, in this instance, any affiliates of the
Selling Stockholder) and any such consultants, and the cost of any aircraft
chartered in connection with the road show, and (ix) except as provided in
Section 9 entitled "Indemnity and Contribution", and the last paragraph of
Section 11 below, all of the costs and expenses of the Underwriters, including
fees and disbursements of their counsel, stock transfer taxes payable on resale
of any of the Shares by them and any advertising expenses connected with any
offers they may make.
The provisions of this Section shall not supersede or otherwise
affect any agreement that the Sellers may otherwise have for the allocation of
such expenses among themselves.
9. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter and the Selling Stockholder and
each person, if any, who controls any Underwriter or the Selling Stockholder
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter or the Selling Stockholder
furnished to the Company in writing by such Underwriter or the Selling
Stockholder through you, your counsel or the Selling Stockholder's New
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York counsel expressly for use therein; PROVIDED, HOWEVER, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 7(a) hereof.
(b) The Selling Stockholder agrees to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration Statement,
each Underwriter and each person, if any, who controls the Company or any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only with reference to information
relating to the Selling Stockholder furnished in writing by or on behalf of the
Selling Stockholder expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Selling Stockholder, the directors
of the Company, the officers of the Company who sign the Registration Statement
and each person, if any, who controls the Company or the Selling Stockholder
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you or your counsel expressly
for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any
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such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Company,
its directors, its officers who sign the Registration Statement and each person,
if any, who controls the Company within the meaning of either such Section and
(iii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Selling Stockholder and all persons, if any, who control
the Selling Stockholder within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons of any
Underwriters, such firm shall be designated in writing by Morgan Stanley & Co.
Incorporated. In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. In the case of any such separate firm for
the Selling Stockholder and such control persons of the Selling Stockholder,
such firm shall be designated in writing by the Selling Stockholder. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section
9(a), 9(b) or 9(c) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 9(e)(i) above but also the
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relative fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Sellers on the one hand and the Underwriters on the other hand
in connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by each Seller and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate Public
Offering Price of the Shares. The relative fault of any Seller on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by such Seller or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 9 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(f) The Sellers and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 9 were determined by
PRO RATA allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 9(e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 9 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the
Company and the Selling Stockholder contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter, the Selling Stockholder or any person
controlling the Selling Stockholder, or the Company, its officers or directors
or any person controlling the Company and (iii) acceptance of and payment for
any of the Shares.
10. TERMINATION. This Agreement shall be subject to termination
by notice given by you to the Company, if (a) after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange
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<PAGE>
or the Chicago Board of Trade, (ii) trading of any securities of the Company
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of Morgan
Stanley & Co. Incorporated, is material and adverse and (b) in the case of any
of the events specified in clauses 10(a)(i) through 10(a)(iv), such event,
singly or together with any other such event, makes it, in the judgment of
Morgan Stanley & Co. Incorporated, impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus.
11. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If on the Closing Date any one or more of the Underwriters shall
fail or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the Shares to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the number of Shares set forth opposite their respective names in Schedule
II and Schedule III hereto bears to the aggregate number of Shares set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as you may specify, to purchase the Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; PROVIDED that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 11 by an amount in excess of one-ninth of such number of Shares without
the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Shares and the
aggregate number of Shares with respect to which such default occurs is more
than one-tenth of the aggregate number of Shares to be purchased, and
arrangements satisfactory to you, the Company and the Selling Stockholder for
the purchase of such Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholder. In any such
case either you or the relevant Sellers shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of any Seller to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason any Seller shall be unable to perform its obligations under this
Agreement, such Seller will reimburse the other Seller and the Underwriters or
such Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Seller and such
Underwriters in connection with this Agreement or the offering contemplated
hereunder (including without limitation the fees and expenses paid or caused to
be paid by the Underwriters pursuant to Section 8 hereof).
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12. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. CONSENT TO JURISDICTION. Each of the Sellers hereby submits
to the non-exclusive jurisdiction of the Federal and state courts in the Borough
of Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
15. APPOINTMENT OF AGENT FOR SERVICE OF PROCESS. The Selling
Stockholder irrevocably appoints the New York branch of Banco Santander, S.A. as
its authorized agent in the Borough of Manhattan in The City of New York upon
which process may be served in any suit or proceeding arising out of or relating
to this Agreement or the transactions contemplated hereby, and agrees that
service of process upon such agent, and written notice of said service to the
Selling Stockholder by the person serving the same to Banco Santander, S.A., 45
East 53rd Street, New York, New York 10022, shall be deemed in every respect
effective service of process upon the Selling Stockholder in any such suit or
proceeding. The Selling Stockholder further agrees to take any and all action as
may be necessary to maintain such designation and appointment of such agent in
full force and effect for a period of seven years from the date of this
Agreement.
16. JUDGMENTS IN FOREIGN CURRENCY. The obligation of the Selling
Stockholder in respect of any sum due to any Underwriter shall, notwithstanding
any judgment in a currency other than United States dollars, not be discharged
until the first business day, following receipt by such Underwriter of any sum
adjudged to be so due in such other currency, on which (and only to the extent
that) such Underwriter may in accordance with normal banking procedures purchase
United States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to such Underwriter hereunder,
the Selling Stockholder agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify such Underwriter against such loss. If the United
States dollars so purchased are greater than the sum originally due to such
Underwriter hereunder, such Underwriter agrees to pay to the Selling Stockholder
an amount equal to the excess of the dollars so purchased over the sum
originally due to such Underwriter hereunder.
17. ACTION BY UNDERWRITERS. Any action under this Agreement taken
by the Underwriters jointly or by Morgan Stanley & Co. Incorporated on behalf of
the Underwriters will be binding upon all of the Underwriters.
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18. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
Very truly yours,
FIRST UNION CORPORATION
By \S\ JAMES H. HATCH
Name: James H. Hatch
Title: Senior Vice President
and Principal Accounting
Officer
The Selling Stockholder
named in Schedule I hereto
By \S\ MARIANO SCOLA
Name: Mariano Scola
Title: Director
Accepted as of the date hereof
Morgan Stanley & Co. Incorporated
Goldman, Sachs & Co.
Santander Investment Securities, Inc.
UBS Securities LLC
Wheat, First Securities, Inc.
Acting severally on behalf of themselves and the several U.S.
Underwriters named in Schedule II hereto.
By: MORGAN STANLEY & CO. INCORPORATED
By \S\ WILLIAM H. WRIGHT II
Name: William H. Wright II
Title: Principal
<PAGE>
Morgan Stanley & Co. International Limited
Goldman Sachs International
Banco Santander de Negocios, S.A.
UBS Limited
Wheat, First Securities, Inc.
Acting severally on behalf of themselves and the several International
Underwriters named in Schedule III hereto.
By: MORGAN STANLEY & CO. INTERNATIONAL LIMITED
By \S\ WILLIAM H. WRIGHT II
Name: William H. Wright II
Title: Attorney-in-Fact
<PAGE>
SCHEDULE I
SELLING STOCKHOLDERS
NUMBER OF SHARES
SELLING STOCKHOLDER TO BE SOLD
FFB - Participacoes e Servicos, Sociedade Unipessoal, S.A. 44,718,844
<PAGE>
SCHEDULE II
U.S. UNDERWRITERS
NUMBER OF SHARES
UNDERWRITERS TO BE PURCHASED
Morgan Stanley & Co. Incorporated 6,035,015
Goldman, Sachs & Co. 6,035,015
Santander Investment Securities, Inc. 6,035,015
UBS Securities LLC 6,035,015
Wheat, First Securities, Inc. 6,035,015
Bear, Stearns & Co. Inc. 800,000
Sanford C. Bernstein & Co., Inc. 800,000
BT Alex. Brown Incorporated 800,000
Credit Suisse First Boston Corporation 800,000
A.G. Edwards & Sons, Inc. 800,000
Friedman, Billings, Ramsey & Co., Inc. 400,000
Interstate/Johnson Lane Corporation 400,000
Edward D. Jones & Co., L.P. 400,000
Legg Mason Wood Walker, Incorporated 400,000
Lehman Brothers Inc. 800,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 800,000
Montgomery Securities 800,000
J.P. Morgan Securities Inc. 800,000
Raymond James & Associates, Inc. 400,000
The Robinson-Humphrey Company, Inc. 400,000
SBC Warburg Dillon Read Inc. 800,000
Scott & Stringfellow, Inc. 400,000
Smith Barney Inc. -----------------------
Total 41,775,075
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SCHEDULE III
INTERNATIONAL UNDERWRITERS
NUMBER OF SHARES
UNDERWRITERS TO BE PURCHASED
Morgan Stanley & Co. International Limited 1,878,769
Goldman Sachs International 1,878,750
Banco Santander de Negocios, S.A. 1,878,750
UBS Limited 1,878,750
Wheat, First Securities, Inc. 1,878,750
Barclays de Zoete Wedd Limited 150,000
Commerzbank Aktiengesellschaft 150,000
Credit Commercial de France 150,000
Istituto Bancario San Paolo di Torino S.p.A. 150,000
Merrill Lynch International 150,000
RBC Dominion Securities Inc. 150,000
Societe Generale ----------------------------
Total 10,443,769
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