<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 23, 1998
REGISTRATION NO. 333-34151
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
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 of (I.R.S. Employer
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:
From time to time after the effective date of this Registration Statement,
as determined in light of market and other conditions.
------------------------
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, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. [X]
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(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ________________________
If 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] 333-34151
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.
Pursuant to Rule 429 under the Securities Act, this Registration Statement
contains a combined prospectus that also relates to Registration Statement No.
33-61941 on Form S-3 previously filed by the Registrant and declared effective
on September 7, 1995.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to Registration Statement on Form S-3
(File No. 333-34151) is filed solely to add exhibits pursuant to Rule 462(d)
under the Securities Act. Accordingly, all other items of Form S-3 are not
included.
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
---- ----------------------------------------------------------------------------------------------------------
<C> <S>
(1)(a) Form of Underwriting Agreement for Common Stock, Preferred Stock, Class A Preferred Stock, Depositary
Shares and Warrants.
(1)(b) Form of Underwriting Agreement for Debt Securities.
(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) Form of Deposit Agreement.
* (4)(e) Specimen Depositary Receipt. (Filed by reference to Exhibit A to Exhibit (4)(d).)
(4)(f) Senior Indenture (including form of Senior Debt Security). (Incorporated by reference to Exhibit (4) to
the Corporation's Registration Statement No. 2-98213.)
(4)(g) Supplemental Indenture, dated as of May 17, 1986, between the Corporation and Chemical Bank, as Trustee.
(Incorporated by reference to Exhibit (4)(a)(ii) to Amendment No. 1 to the Corporation's Registration
Statement No. 33-30122.)
(4)(h) Supplemental Indenture, dated as of July 1, 1988, between the Corporation and Chemical Bank, as Trustee.
(Incorporated by reference to Exhibit (4)(a)(iii) to Amendment No. 1 to the Corporation's Registration
Statement No. 33-30122.)
(4)(i) Supplemental Indenture, dated as of August 1, 1990, between the Corporation and Chemical Bank, as Trustee.
(Incorporated by reference to Exhibit (4)(a)(iv) to the Corporation's Registration Statement No.
33-40456.)
(4)(j) Subordinated Indenture (including form of Subordinated Debt Security). (Incorporated by reference to
Exhibit (4)(a) to Amendment No. 1 to the Corporation's Registration Statement No. 33-1852.)
(4)(k) Supplemental Indenture, dated as of August 1, 1990, between the Corporation and The Bank of New York, as
Trustee. (Incorporated by reference to Exhibit (4)(b)(ii) to the Corporation's Registration Statement No.
33-40456.)
(4)(l) Supplemental Indenture, dated as of November 15, 1992, between the Corporation and The Bank of New York,
as Trustee. (Incorporated by reference to Exhibit (4) to the Corporation's Current Report on Form 8-K
dated November 17, 1992.)
(4)(m) Form of Instrument of Resignation, Appointment and Acceptance, dated as of February 7, 1996, among the
Corporation, Harris Trust and Savings Bank and The Bank of New York (formerly Irving Trust Company).
(Incorporated by reference to Exhibit (4)(a) to the Corporation's Current Report on Form 8-K dated
February 7, 1996.)
(4)(n) Supplemental Indenture, dated as of February 7, 1996, between the Corporation and Harris Trust and Savings
Bank, as Trustee. (Incorporated by reference to Exhibit (4)(b) to the Corporation's Current Report on Form
8-K dated February 7, 1996.)
(4)(o) Form of Senior Medium-Term Notes. (Incorporated by reference to Exhibit (4)(c)(i) to the Corporation's
Registration Statement No. 33-40456.)
(4)(p) Form of Subordinated Medium-Term Notes. (Incorporated by reference to Exhibit (4)(c)(ii) to the
Corporation's Registration Statement No. 33-40456.)
* (4)(q) Form of Warrant Agreement.
* (4)(r) Form of Warrant Certificate. (Filed by reference to Exhibit A to Exhibit (4)(r)).
(4)(s) Indenture, dated as of November 27, 1996, between the Corporation and Wilmington Trust Company, as
Debenture Trustee. (Incorporated by reference to Exhibit (4)(a) to Registration Statement Nos. 333-19039
and 333-19039-01.)
(4)(t) 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 long-term debt of the Registrant.
* (5) Opinion of Marion A. Cowell, Jr. as to the validity of the Securities.
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
---- ----------------------------------------------------------------------------------------------------------
<C> <S>
(12)(a) Computations of Consolidated Ratios of Earnings to Fixed Charges. (Incorporated by reference to Exhibit
(12) to the Corporations's 1997 Second Quarter Report on Form 10-Q.)
(12)(b) Computations of Consolidated Ratios of Earnings to Fixed Charges and Preferred Stock Dividends.
(Incorporated by reference to Exhibit (12)(b) to the Corporation's 1996 Annual Report on Form 10-K.)
* (23)(a) Consent of Marion A. Cowell, Jr. (Included in Exhibit (5)).
* (23)(b) Consent of KPMG Peat Marwick LLP.
* (24) Power of Attorney.
* (25)(a) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Chase Manhattan Bank
(formerly Chemical Bank).
* (25)(b) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Harris Trust and Savings Bank.
(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.
II-2
<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 Form S-3 Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Charlotte, State of North Carolina, as of the 23rd day of March, 1998.
FIRST UNION CORPORATION
By: /s/ 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 Form S-3 Registration Statement has
been signed by the following persons in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ---------------------------------------------
<S> <C>
EDWARD E. CRUTCHFIELD* Chairman and Chief Executive Officer and
- --------------------------------------------- Director
EDWARD E. CRUTCHFIELD
ROBERT T. ATWOOD* Executive Vice President and Chief Financial
- --------------------------------------------- Officer
ROBERT T. ATWOOD
JAMES H. HATCH* Senior Vice President and Corporate
- --------------------------------------------- Controller (Principal Accounting Officer)
JAMES H. HATCH
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
A. DANO DAVIS* Director
- ---------------------------------------------
A. DANO DAVIS
R. STUART DICKSON* Director
- ---------------------------------------------
R. STUART DICKSON
B.F. DOLAN* Director
- ---------------------------------------------
B. F. DOLAN
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ---------------------------------------------
<S> <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
LEONARD G. HERRING* 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
MACKEY J. MCDONALD* Director
- ---------------------------------------------
MACKEY J. MCDONALD
JOSEPH NEUBAUER* Director
- ---------------------------------------------
JOSEPH NEUBAUER
RANDOLPH N. REYNOLDS* Director
- ---------------------------------------------
RANDOLPH N. REYNOLDS
RUTH G. SHAW* Director
- ---------------------------------------------
RUTH G. SHAW
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ---------------------------------------------
<S> <C>
CHARLES M. SHELTON, SR.* Director
- ---------------------------------------------
CHARLES M. SHELTON, SR.
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: March 23, 1998
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
---- ------------------------------------------------------------------------------
<C> <S> <C>
(1)(a) Form of Underwriting Agreement for Common Stock, Preferred Stock, Class A
Preferred Stock, Depositary Shares and Warrants.
(1)(b) Form of Underwriting Agreement for Debt Securities.
(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) Form of Deposit Agreement.
* (4)(e) Specimen Depositary Receipt. (Filed by reference to Exhibit A to Exhibit
(4)(d).)
(4)(f) Senior Indenture (including form of Senior Debt Security). (Incorporated by
reference to Exhibit (4) to the Corporation's Registration Statement No.
2-98213.)
(4)(g) Supplemental Indenture, dated as of May 17, 1986, between the Corporation and
Chemical Bank, as Trustee. (Incorporated by reference to Exhibit (4)(a)(ii) to
Amendment No. 1 to the Corporation's Registration Statement No. 33-30122.)
(4)(h) Supplemental Indenture, dated as of July 1, 1988, between the Corporation and
Chemical Bank, as Trustee. (Incorporated by reference to Exhibit (4)(a)(iii)
to Amendment No. 1 to the Corporation's Registration Statement No. 33-30122.)
(4)(i) Supplemental Indenture, dated as of August 1, 1990, between the Corporation
and Chemical Bank, as Trustee. (Incorporated by reference to Exhibit
(4)(a)(iv) to the Corporation's Registration Statement No. 33-40456.)
(4)(j) Subordinated Indenture (including form of Subordinated Debt Security).
(Incorporated by reference to Exhibit (4)(a) to Amendment No. 1 to the
Corporation's Registration Statement No. 33-1852.)
(4)(k) Supplemental Indenture, dated as of August 1, 1990, between the Corporation
and The Bank of New York, as Trustee. (Incorporated by reference to Exhibit
(4)(b)(ii) to the Corporation's Registration Statement No. 33-40456.)
(4)(l) Supplemental Indenture, dated as of November 15, 1992, between the Corporation
and The Bank of New York, as Trustee. (Incorporated by reference to Exhibit
(4) to the Corporation's Current Report on Form 8-K dated November 17, 1992.)
(4)(m) Form of Instrument of Resignation, Appointment and Acceptance, dated as of
February 7, 1996, among the Corporation, Harris Trust and Savings Bank and The
Bank of New York (formerly Irving Trust Company). (Incorporated by reference
to Exhibit (4)(a) to the Corporation's Current Report on Form 8-K dated
February 7, 1996.)
(4)(n) Supplemental Indenture, dated as of February 7, 1996, between the Corporation
and Harris Trust and Savings Bank, as Trustee. (Incorporated by reference to
Exhibit (4)(b) to the Corporation's Current Report on Form 8-K dated February
7, 1996.)
(4)(o) Form of Senior Medium-Term Notes. (Incorporated by reference to Exhibit
(4)(c)(i) to the Corporation's Registration Statement No. 33-40456.)
(4)(p) Form of Subordinated Medium-Term Notes. (Incorporated by reference to Exhibit
(4)(c)(ii) to the Corporation's Registration Statement No. 33-40456.)
* (4)(q) Form of Warrant Agreement.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
---- ------------------------------------------------------------------------------
<C> <S> <C>
* (4)(r) Form of Warrant Certificate. (Filed by reference to Exhibit A to Exhibit
(4)(r)).
(4)(s) Indenture, dated as of November 27, 1996, between the Corporation and
Wilmington Trust Company, as Debenture Trustee. (Incorporated by reference to
Exhibit (4)(a) to Registration Statement Nos. 333-19039 and 333-19039-01.)
(4)(t) 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
long-term debt of the Registrant.
* (5) Opinion of Marion A. Cowell, Jr. as to the validity of the Securities.
(12)(a) Computations of Consolidated Ratios of Earnings to Fixed Charges.
(Incorporated by reference to Exhibit (12) to the Corporations's 1997 Second
Quarter Report on Form 10-Q.)
(12)(b) Computations of Consolidated Ratios of Earnings to Fixed Charges and Preferred
Stock Dividends. (Incorporated by reference to Exhibit (12)(b) to the
Corporation's 1996 Annual Report on Form 10-K.)
* (23)(a) Consent of Marion A. Cowell, Jr. (Included in Exhibit (5)).
* (23)(b) Consent of KPMG Peat Marwick LLP.
* (24) Power of Attorney.
* (25)(a) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The
Chase Manhattan Bank (formerly Chemical Bank).
* (25)(b) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Harris Trust and Savings Bank.
(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)
FIRST UNION CORPORATION*
[ SHARES OF COMMON STOCK,
PAR VALUE $3.33 1/3 PER SHARE]
-OR-
[ SHARES OF [CLASS A] PREFERRED STOCK [, SERIES ],
NO-PAR VALUE]
-OR-
[ DEPOSITARY SHARES,
EACH REPRESENTING A [FRACTION] INTEREST IN A SHARE OF]
[CLASS A] PREFERRED STOCK [, SERIES ], NO-PAR VALUE]
UNDERWRITING AGREEMENT
To the Representatives named in Schedule I hereto of
the Underwriters named in Schedule II hereto
Dear Sirs:
First Union Corporation ("First Union"), a North Carolina corporation,
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), an aggregate of
[shares of its Common Stock ("Common Stock"), par value $3.33 1/3 per share (the
"Securities")]
- -or-
[an aggregate of shares of [Class A] Preferred Stock [, Series ] of
First Union (the "Securities")]
- -or-
[Depositary Shares (the "Shares"), each such share representing ownership of
[fraction] of a share of [Class A] Preferred Stock [, Series ] of First Union
(the "Preferred Stock"). The Preferred Stock will, when issued, be deposited by
First Union against delivery of Depositary Receipts ("Depositary Receipts") to
be issued by First Union National Bank of North Carolina, as depositary (the
"Depositary"), under a Deposit Agreement, dated as of , (the
"Deposit Agreement"), among First Union, the Depositary and the holders from
time to time of the Depositary Receipts issued thereunder. Each Depositary
Receipt will evidence one or more Shares. The Shares and the Preferred Stock are
herein collectively called the "Securities."]
1. REPRESENTATIONS AND WARRANTIES. First Union represents and warrants to,
and agrees with, each Underwriter that:
(a) The registration statement (File No. 333- ) on Form S-3 (the
"registration statement"), including a prospectus which, as supplemented,
shall be used in connection with the sale of the Securities, has been filed
with the Securities and Exchange Commission (the "Commission"), in the form
heretofore delivered to the Representatives. The registration statement, as
it may have been amended prior to the date of this Agreement, has become
effective under the Securities Act of 1933, as amended (the "Act"). (The
registration statement, as amended to the date of this Agreement, is
hereinafter referred to as the "Registration Statement"; such prospectus
(which shall be in the form in which it has been most recently filed, or
transmitted for filing, with the Commission on or before the date of this
Agreement, as the same is proposed to be added to or changed), as
supplemented by a prospectus supplement relating to the Securities, filed
or transmitted for filing with the Commission pursuant to Rule 424 under
the Act and used in connection with the sale of the Securities, is
hereinafter referred to as the "Prospectus"; and such prospectus supplement
is hereinafter
- ---------------
* Provisions for Warrants, over-allotment option and convertibility, if
necessary, would need to be added to introductory paragraph, representations,
opinions, etc.
A-1
<PAGE>
referred to as the "Prospectus Supplement". Any reference herein to the
Registration Statement, a preliminary prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the date of this Agreement, and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement or the Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act deemed to be incorporated
therein by reference after the date of this Agreement.)
(b) The Registration Statement, at the time it became effective, and
any amendments thereof filed prior to the date hereof, as of their
respective effective dates, conformed in all material respects to the
requirements of the Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the respective rules and regulations of the
Commission thereunder; the Registration Statement and the Prospectus, as of
the date of the Prospectus Supplement, and any amendments thereof and
supplements thereto, as of their respective effective or issue dates, will
conform in all material respects to the requirements of the Act, the Trust
Indenture Act and the respective rules and regulations of the Commission
thereunder, and no such document, as of such respective dates and, in the
case of the Prospectus and any amendments thereof or supplements thereto,
as of the Closing Date (as hereinafter defined), included or will include
any untrue statement of a material fact or omitted or will omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading, provided that First Union makes no representations or
warranties as to (i) the Statement of Eligibility (Form T-1) under the
Trust Indenture Act of any trustee or (ii) the information contained in or
omitted from the Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with information furnished in writing to
First Union by or on behalf of any Underwriter specifically for use in
connection with the preparation of the Prospectus or any amendment thereof
or supplement thereto.
(c) First Union has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
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) The [shares of Preferred Stock represented by the] Securities
being delivered to the Underwriters at the Closing Date 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 First Union's Articles of Incorporation, as
amended to the Closing Date [, including the Articles of Amendment relating
to such shares (the "Amendment") filed under Section of the North
Carolina Business Corporation Act].
(e) First Union has all corporate power and authority necessary to
execute and deliver this Agreement, [the Preferred Stock,] the Securities
[and the Deposit Agreement] and to perform its obligations hereunder and
thereunder; the execution, delivery and performance of this Agreement, [the
Preferred Stock,] the Securities [and the Deposit Agreement] by First Union
and compliance with the provisions hereof and thereof by First Union will
not constitute a breach of or default under, the corporate charter or
by-laws of First Union, or any material agreement, indenture or other
instrument relating to indebtedness for money borrowed to which First Union
is a party, or, to the best of First Union's knowledge, any law, order,
rule, regulation or decree of any court, governmental agency or authority
located in the United States having jurisdiction over First Union or any
property of First Union, which breach or default would be reasonably likely
to have a material adverse effect on First Union 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,
[the Preferred Stock,] the Securities [and the Deposit Agreement] by First
Union except such as have been made or obtained or will be made or obtained
on or before the Closing Date (as defined in Section 3) and except such as
may be required under applicable state securities or "blue sky" laws.
[( ) The Amendment has been duly filed with the Secretary of State of
the State of North Carolina in accordance with the North Carolina Business
Corporation Act and with all other offices where such filing is required.]
[( ) The Securities being delivered to the Underwriters at the Closing
Date have been duly authorized and, when issued and delivered against
payment therefor as provided in this Agreement, will be duly and validly
issued, fully paid and nonassessable and will be entitled to the rights
under, and the benefits of, the Deposit Agreement.]
[( ) The Deposit Agreement has been duly authorized, executed and
delivered by First Union and the Depositary and constitutes a valid and
legally binding agreement of First Union and the Depositary, enforceable
against First Union
A-2
<PAGE>
and the Depositary in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws relating to or affecting the enforcement of creditors'
rights generally and by general principles of equity.]
( ) The [Preferred Stock, the] Securities [and the Deposit Agreement]
conform in all material respects to the descriptions thereof in the
Prospectus.
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, First Union agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from First Union, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Securities shall
be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and First Union (such date and time of delivery of and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Under writers through
the Representatives of the purchase price thereof to or upon the order of First
Union in the manner and type of funds specified in Schedule I. Certificates for
the Securities shall be registered in such names and in such denominations as
the Representatives may request not less than one full business day in advance
of the Closing Date.
First Union agrees to have the Securities available for inspection,
checking and packaging in New York, New York, on the business day prior to the
Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several Underwriters
propose to offer the Securities for sale as set forth in the Prospectus.
5. AGREEMENTS. First Union agrees with the several Underwriters that:
(a) First Union will cause the Prospectus to be filed, or transmitted
for filing, with the Commission pursuant to Rule 424 under the Act and will
promptly advise the Representatives when the Prospectus has been so filed
or transmitted for filing, and, prior to the termination of the offering of
the Securities to which such Prospectus relates, also will promptly advise
the Representatives (i) when any amendment to the Registration Statement
has become effective or any further supplement to the Prospectus has been
so filed or transmitted for filing, (ii) of any request by the Commission
for any amendment of the Registration Statement or the Prospectus or for
any additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose, and (iv)
of the receipt by First Union of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. First Union will use its reasonable best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
reasonably possible the withdrawal thereof. For so long as a prospectus
relating to the Securities is required to be delivered under the Act, First
Union will not file or transmit for filing any amendment to the
Registration Statement or supplement to the Prospectus which relates to the
Securities unless First Union has furnished you or counsel for the
Underwriters a copy for your review prior to filing or transmission for
filing.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend or supplement the Prospectus in connection with the sale of the
Securities to comply with the Act or the rules and regulations of the
Commission thereunder, promptly after becoming aware thereof, First Union
will notify the Representatives or counsel for the Underwriters and, upon
their or its reasonable request, prepare and file or transmit for filing
with the Commission an amendment or supplement which will correct such
statement or omission or effect such compliance.
(c) First Union will make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 45
days after the end of the 12-month period beginning at the end of the
fiscal quarter of First Union during which the filing, or transmission for
filing, of the Prospectus pursuant to Rule 424 under the Act occurs (except
not later than 90 days after the end of such period if such quarter is the
last fiscal quarter), an earnings statement (which need not be audited) of
First Union and its subsidiaries, covering such 12-month period, which will
satisfy the provisions of Section 11(a) of the Act.
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(d) First Union will use its best efforts to furnish in New York City
to each of the Underwriters prior to 10:00 a.m., New York City time, on the
New York business day next succeeding the date of this Agreement and from
time to time, as many copies of the Prospectus, each related preliminary
prospectus supplement and all amendments of and supplements to such
documents as may be reasonably requested.
(e) First Union will pay all expenses incident to the performance of
its obligations under this Agreement, and will pay the expenses of printing
and filing all documents relating to the offering and mailing and
delivering such to Underwriters and dealers, any filing fee incident to any
required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities, all expenses in connection with
the qualification of the Securities for offering and sale under state
securities laws (including the fees and disbursements of counsel to the
Underwriters in connection with such qualification and the preparation of
the Blue Sky and legal investment surveys), any taxes payable in connection
with the sale and delivery of the Securities by First Union to the
Underwriters, and any fees charged for rating the Securities.
(f) First Union will use its reasonable best efforts to arrange for
the qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and to maintain such
qualifications in effect so long as required for the distribution of the
Securities; provided that First Union 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.
(g) During the period beginning from the date of this Agreement and
continuing until the Closing Date or such longer period as may be agreed to
by First Union and set forth in Schedule I hereto relating to the
Securities, First Union will not offer, sell, contract to sell or otherwise
dispose of any of its securities which are substantially similar to the
Securities without the prior written consent of the Representatives [,
other than shares of its Common Stock pursuant to its dividend reinvestment
plan, stock options and other benefit plans, or commitments existing prior
to the date of this Agreement].
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy in
all material respects of the representations and warranties on the part of First
Union contained herein as of the date hereof and the Closing Date, to the
accuracy in all material respects of the statements of First Union made in any
certificates pursuant to the provisions hereof, to the performance in all
material respects by First Union of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted and be pending or have been threatened as of the
Closing Date; and all requests for additional information on the part of
the Commission shall have been complied with.
(b) First Union shall have furnished to the Representatives a
certificate, dated the Closing Date, of First Union, signed by the
principal financial or accounting officer of First Union, to the effect
that, to the best of his knowledge after reasonable investigation:
(i) The representations and warranties of First Union in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and
First Union has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date, in all material respects;
(ii) No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted and are pending or have been threatened as of such date;
(iii) Since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse change in
the financial position, results of operations, cash flows or prospects
relating thereto of First Union and its subsidiaries consolidated,
except as set forth in or contemplated by the Prospectus; and
(iv) Since the date of this Agreement, (A) no downgrading has
occurred in the rating accorded First Union's unsecured debt securities
or preferred stock as described in Section 6(h)(i) and (B) no
announcement has been made with respect to any rating accorded First
Union's unsecured debt securities or preferred stock as described in
Section 6(h)(ii).
(c) First Union shall have furnished to the Underwriters the opinion,
dated the Closing Date, of Marion A. Cowell, Jr., Executive Vice President,
Secretary and General Counsel of First Union, to the effect that:
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(i) First Union 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 of Preferred Stock represented by the] Securities
being delivered to the Underwriters at the Closing Date 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 First Union's Articles of Incorporation, as
amended to the Closing Date [, including the Amendment];
(iii) First Union has all corporate power and authority necessary
to execute and deliver this Agreement, [the Preferred Stock,] the
Securities [and the Deposit Agreement] and to perform its obligations
hereunder and thereunder; the execution, delivery and performance of
this Agreement, [the Preferred Stock,] the Securities [and the Deposit
Agreement] by First Union and compliance with the provisions hereof and
thereof by First Union will not constitute a breach of or default under,
the corporate charter or by-laws of First Union, or any material
agreement, indenture or other instrument relating to indebtedness for
money borrowed known to such counsel to which First Union 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 First Union or any
property of First Union, which breach or default would be reasonably
likely to have a material adverse effect on First Union 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, [the Preferred Stock,] the Securities [and the Deposit
Agreement] by First Union except such as have been made or obtained or
will be made or obtained on or before the Closing Date (as defined in
Section 3) and except such as may be required under applicable state
securities or "blue sky" laws;
[( ) The Amendment has been duly filed with the Secretary of State
of the State of North Carolina in accordance with the North Carolina
Business Corporation Act and with all other offices where such filing is
required;]
[( ) The Securities being delivered to the Underwriters at the
Closing Date have been duly authorized and, when issued and delivered
against payment therefor as provided in this Agreement, will be duly and
validly issued, fully paid and nonassessable and will be entitled to the
rights under, and the benefits of, the Deposit Agreement;]
[( ) The Deposit Agreement has been duly authorized, executed and
delivered by First Union and the Depositary and constitutes a valid and
legally binding agreement of First Union and the Depositary, enforceable
against First Union and the Depositary in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general principles of
equity;]
( ) The [Preferred Stock, the] Securities [and the Deposit
Agreement] conform in all material respects to the descriptions thereof
in the Prospectus; and
( ) The Registration Statement has become effective under the 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 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 Act, the Trust Indenture 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, as of the date of the Prospectus Supplement, 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 Statement of Eligibility (Form T-1)
under the Trust Indenture Act of the
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Trustee, as to the financial statements or other financial data
contained in any part of the Registration Statement or the Prospectus,
as to any statements or omissions made in reliance upon or in conformity
with information furnished in writing to First Union by or on behalf of
an Underwriter for use therein.
As to matters governed by New York law, such counsel may rely upon the
opinion of Sullivan & Cromwell.
(d) The Representatives shall have received from Sullivan & Cromwell,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to such matters as the Representatives may reasonably
require.
As to matters governed by North Carolina law, Sullivan & Cromwell may
rely upon the opinion of Marion A. Cowell, Jr. delivered pursuant to
Section 6(c).
(e) KPMG Peat Marwick LLP, as independent accountants of First Union,
shall have furnished to the Representatives a letter, dated as of the
Closing Date, to the effect set forth in Schedule III hereto.
(f) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting
the financial position, long-term debt, stockholders' equity or results of
oper ations of First Union and its consolidated subsidiaries which the
Representatives conclude, after consultation with First Union, in the
judgment of the Representatives is so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or the
delivery of the Securities as contemplated by the Prospectus.
(g) First Union shall have furnished to the Representatives such
further information, certificates and documents as they may reasonably
request prior to the Closing Date.
(h) Subsequent to the date of this Agreement, (i) no downgrading shall
have occurred in the rating accorded First Union's unsecured debt
securities or preferred stock by Standard & Poor's Ratings Group or by
Moody's Investors Service, Inc. and (ii) neither such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of First Union's
unsecured debt securities or preferred stock.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be cancelled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to First Union in writing or by telephone or telegraph confirmed
in writing.
7. INDEMNIFICATION AND CONTRIBUTION. (a) First Union agrees to indemnify and
hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement or in any amendment thereof filed prior to the date hereof, or in
the Registration Statement or the Prospectus, or in any amendment thereof or
supplement thereto, or in any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that (i) First Union will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in con formity with
written information furnished to First Union by or on behalf of any
Underwriter through the Representatives specifically for use in the
Prospectus or any supplement thereto or any related preliminary prospectus
or preliminary prospectus supplement or of the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of the Trustee, and (ii) such
indemnity with respect to any related preliminary prospectus or preliminary
prospectus supplement shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person was not sent or given a copy of the
Prospectus (or the Prospectus as amended or supplemented), excluding
documents incorporated therein by reference, at or prior to the confirmation
of the sale of such Securities to such person in any case where such
delivery is required by the Act and the untrue statement or omission of a
material fact contained in such related preliminary prospectus or
preliminary prospectus supplement
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was corrected in the Prospectus (or the Prospectus as amended or
supplemented). This indemnity agreement will be in addition to any liability
which First Union may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
First Union, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls First Union within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from First Union to each Underwriter, but only with
reference to written information furnished to First Union by or on behalf
of such Underwriter through the Representatives specifically for use in the
Prospectus or any supplement thereto or any related preliminary prospectus
or preliminary prospectus supplement. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under Section 7(a)
or (b) of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve the indemnifying party from any liability which it
may have to any indemnified party otherwise than under Section 7(a) or (b).
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the
extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel satisfactory to such
indemnified party; provided that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of
its election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under Section 7(a) or (b) for any legal or other
expenses subsequently incurred by such indemnified party (other than
reasonable costs of investigation) in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than
one separate national counsel, approved by the Representatives,
representing the indemnified parties who are parties to such action), (ii)
the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by First Union on the
one hand and the Underwriters of the Securities on the other from the
offering of the Securities to which such loss, claim, damage or liability
(or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of First Union on the one hand and the Underwriters
of the Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by First Union on the one
hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by First Union bear to the total underwriting discounts
and commissions received by such Underwriters. The relative fault 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 First
Union on the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. First Union and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation
(even if the Underwriters
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were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (d)
shall be deemed to include 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 subsection
(d), no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the applicable Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which 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 Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Securities in this subsection (d) to contribute are several in proportion
to their respective underwriting obligations with respect to the Securities
and not joint.
8. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to First Union prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of the Representatives, impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities as contemplated by the
Prospectus.
9. SUBSTITUTED UNDERWRITERS. If, on the Closing Date, any one or more of
the Underwriters shall fail or refuse to purchase Securities that it or they
have agreed to purchase hereunder on such date, and the aggregate number of
Securities 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
Securities to be purchased on the Closing Date, the other Underwriters shall be
obligated severally in the proportions that the number of Securities set forth
opposite their respective names in Schedule II bears to the aggregate number of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Underwriters may agree, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on the Closing Date; provided that in no event shall the
number of Securities that any Underwriter has agreed to purchase pursuant to
Section 2 above be increased pursuant to this Section 9 by an amount in excess
of one-ninth of such number of Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Securities and the aggregate number of Securities with
respect to which such default occurs is more than one-tenth of the aggregate
number of Securities to be purchased on the Closing Date, and arrangements
satisfactory to the Underwriters and First Union for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or
First Union. In such case either the Underwriters or First Union 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 Section 9 shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10. CERTAIN LIABILITIES UPON TERMINATION. If this Agreement shall be
terminated pursuant to Section 9 hereof, the Company shall not then be under any
liability to any Underwriter except as provided in Sections 5(e) and 7 hereof;
but, if for any other reason, any Securities are not delivered by or on behalf
of the Company as provided herein, the Company will reimburse the Underwriters
through you for all actual out-of-pocket expenses approved in writing by you,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Securities not so delivered, but the Company shall then be under no further
liability to any Underwriter in respect of the Securities not so delivered
except as provided in Sections 5(e) and 7 hereof.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of First Union or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or First Union or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections
5(e), 7, 9, 12, 13 and 14 hereof shall survive the termination or cancellation
of this Agreement.
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12. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto (including any Underwriter or Underwriters added
pursuant to Section 9 hereof) and their respective successors, heirs, executors,
administrators and the officers and directors and controlling persons referred
to in Section 7 hereof, and no other person will have any right or obligation
hereunder.
13. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14. COUNTERPARTS; NOTICES. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
All notices hereunder shall be in writing or by telegram if promptly
confirmed in writing, and if to the Underwriters shall be sufficient in all
respects if delivered or sent by registered mail to the address of the
Representatives as set forth in Schedule I hereto; and if to First Union shall
be sufficient in all respects if delivered or sent by registered mail to the
address of First Union set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 7(c) hereof shall be delivered or sent by registered mail to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to First
Union by the Representatives upon request.
15. ACTION BY UNDERWRITERS. Any action under this Agreement taken by the
Underwriters jointly or by the firm signing below on behalf of you as the
Representatives will be binding upon all the Underwriters.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between First
Union and the Underwriters.
Very truly yours,
FIRST UNION CORPORATION
_______________________________________
NAME:
TITLE:
The foregoing Agreement is
hereby confirmed and
accepted as of the date
first above written.
By: [Representatives]
On behalf of the Underwriters
set forth in Schedule II
By: ___________________________________
NAME:
TITLE:
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SCHEDULE I
TITLE OF DESIGNATED SECURITIES:
[Common Stock, par value $3.33 1/3 per share]
[[Class A] Preferred Stock [, Series ], no-par value]
[Depositary Shares, each representing a [Fraction] Interest in a Share of
[Class A]Preferred Stock [, Series ], no-par value]
AMOUNT OF SECURITIES:
PRICE TO PUBLIC:
$ per Security [, plus accrued dividends, if any, from ,
]
PURCHASE PRICE BY UNDERWRITERS:
$ per Security [, plus accrued dividends, if any, from ,
]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately available funds by wire
DEPOSIT AGREEMENT:
[Deposit Agreement, dated as of ____________, , between First Union
and , as Depositary]
MATURITY:
[ , ]
DIVIDEND RATE:
[ % per annum] [describe floating rate provisions]
DIVIDEND PAYMENT DATES:
[ , , and of each year,
commencing , ]
REGULAR RECORD DATES:
[ , , and of each year,
commencing , ]
REPAYMENT PROVISIONS:
[Describe repayment provisions, if any]
REDEMPTION PROVISIONS:
[Describe redemption provisions, if any]
SINKING FUND PROVISIONS:
[Describe sinking fund provisions, if any]
CONVERSION PROVISIONS:
[Describe conversion provisions, if any]
EXCHANGE PROVISIONS:
[Describe exchange provisions, if any]
A-10
<PAGE>
OTHER TERMS:
[Describe additional terms, if any]
ADDITIONAL COMFORT LETTER COVERAGE:
[Describe additional coverage, if any]
FORM OF DESIGNATED SECURITY:
[[Global] [Certificated] [in denominations set forth in the Prospectus
Supplement]]
CLOSING DATE:
, at [time]
RESTRICTED PERIOD UNDER SECTION 5(G) OF UNDERWRITING AGREEMENT:
[Describe period if other than through Closing Date]
OFFICE FOR DELIVERY OF DESIGNATED SECURITIES:
[insert address]
OFFICE FOR PAYMENT FOR DESIGNATED SECURITIES:
[insert address]
NAME OF REPRESENTATIVES:
[insert names]
ADDRESS FOR NOTICES, ETC.:
[insert address]
A-11
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
AMOUNT OF
SECURITIES
TO BE
UNDERWRITER PURCHASED
- ---------------------------------------------------------------------------------------- ----------
<S> <C>
[underwriters names]
----------
Total...................................................................................
</TABLE>
A-12
<PAGE>
SCHEDULE III
Pursuant to Section 6(e) of the Underwriting Agreement, the independent
accountants of First Union shall provide a comfort letter to the effect that:
(i) They are independent certified public accountants with respect to First
Union and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules examined by them and included or
incorporated by reference in the Prospectus as amended or supplemented comply as
to form in all material respects with the applicable accounting requirements of
the Act or the Exchange Act, as applicable, and the published rules and
regulations thereunder;
(iii) On the basis of limited procedures, not constituting an audit,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of First Union and its subsidiaries, inspection of the
minute books of First Union and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus as amended or supplemented, inquiries of officials of First Union and
its subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of changes in financial position
included or incorporated by reference in First Union's most recent
Quarterly Report on Form 10-Q incorporated by reference in the Prospectus
(if any) as amended or supplemented does not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the related published rules and
regulations thereunder or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that
of the audited consolidated financial statements included or incorporated
by reference in First Union's most recent Annual Report on Form 10-K;
(B) any unaudited financial data included in the Prospectus as amended
or supplemented as at any time, or for any period ending, after the end of
the latest interim period covered by a Quarterly Report on Form 10-Q of
First Union or year ended for which First Union has filed an Annual Report
on Form 10-K (whichever is more recent) (and any data for any comparable
prior period included therein) do not agree with the corresponding amounts
in the unaudited consolidated financial statements from which such data are
derived, or any such unaudited financial data were not determined on a
basis substantially consistent with the basis for the corresponding amounts
in the audited consolidated financial statements included or incorporated
by reference in First Union's most recent Annual Report on Form 10-K;
(C) the unaudited pro forma consolidated condensed financial
statements (if any) included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those statements;
(D) as of a specified date not more than five days prior to the date
of delivery of such letter there have been any changes in the capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or supplemented) or
long-term debt of First Union or any of its subsidiaries, or any decreases
in consolidated stockholders"equity, consolidated assets, consolidated
deposits, or allowance for loan losses of First Union or other items
specified by the Represen tatives, or any increases in any items specified
by the Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus as amended or supplemented except in each case for changes,
increases or decreases which the Prospectus as amended or supplemented
discloses have occurred or may occur or which are described in such letter;
and
(E) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented to the end of the latest period for which financial statements
are available there were any decreases in consolidated net interest income,
net interest income after provision for loan losses, or the total or per
share amounts of net income of First Union or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period of the
preceding year and with any other period of corresponding length specified
by the Representatives, except in each case for increases or
A-13
<PAGE>
decreases which the Prospectus as amended or supplemented discloses have
occurred or may occur or which are described in such letter;
(iv) In addition to the examination referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
subparagraph (iii) above, they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived from
the general accounting records of First Union and its subsidiaries, which appear
in the Prospectus as amended or supplemented (excluding documents incorporated
by reference), in exhibits to the Registration Statement specified by the
Representatives, or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of First Union
and its subsidiaries and have found them to be in agreement.
A-14
<PAGE>
EXHIBIT (1)(B)
FIRST UNION CORPORATION*
$
[ %] [[SENIOR] [SUBORDINATED]] [[DEBENTURES] [NOTES]]
DUE ,
UNDERWRITING AGREEMENT
To the Representatives named in Schedule I hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
First Union Corporation ("First Union"), a North Carolina corporation,
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), its designated debt securities named in Schedule I hereto
(the "Securities"), in the aggregate principal amount set forth in such Schedule
I. The Securities will be issued under the indenture referenced in Schedule I
hereto (the "Indenture"), between First Union and the trustee named in Schedule
I (the "Trustee").
1. REPRESENTATIONS AND WARRANTIES. First Union represents and warrants to,
and agrees with, each Underwriter that:
(a) The registration statement (File No. 33-61941) on Form S-3, and the
registration statement (File No. 333- ) on Form S-3 (the "registration
statements"), including a prospectus which, as supplemented, shall be used
in connection with the sale of the Securities, have been filed with the
Securities and Exchange Commission (the "Commission"), in the forms
heretofore delivered to the Representatives. Each registration statement,
as it may have been amended prior to the date of this Agreement, has become
effective under the Securities Act of 1933, as amended (the "Act"). (The
registration statements, as amended to the date of this Agreement, are
hereinafter collectively referred to as the "Registration Statement"; such
prospectus (which shall be in the form in which it has been most recently
filed, or transmitted for filing, with the Commission on or before the date
of this Agreement, as the same is proposed to be added to or changed), as
supplemented by a prospectus supplement relating to the Securities, filed
or transmitted for filing with the Commission pursuant to Rule 424 under
the Act and used in connection with the sale of the Securities, is
hereinafter referred to as the "Prospectus"; and such prospectus supplement
is hereinafter referred to as the "Prospectus Supplement". Any reference
herein to the Registration Statement, a preliminary prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the date of this Agreement, and any reference
herein to the terms "amend", "amendment" or "supplement" with respect to
the Registration Statement or the Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange Act deemed to be
incorporated therein by reference after the date of this Agreement.)
(b) The Registration Statement, at the time it became effective, and
any amendments thereof filed prior to the date hereof, as of their
respective effective dates, conformed in all material respects to the
requirements of the Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the respective rules and regulations of the
Commission thereunder; the Registration Statement and the Prospectus, as of
the date of the Prospectus Supplement, and any amendments thereof and
supplements thereto, as of their respective effective or issue dates, will
conform in all material respects to the requirements of the Act, the Trust
Indenture Act and the respective rules and regulations of the Commission
thereunder, and no such document, as of such respective dates and, in the
case of the Prospectus and any amendments thereof or supplements thereto,
as of the Closing Date (as hereinafter defined), included or will include
any untrue statement of a material fact or omitted or will omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading, provided that First Union makes no representations or
warranties as to (i) the Statement of Eligibility (Form T-1) under the
Trust Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Prospectus or any amendment thereof or
- ---------------
* Provisions for Warrants, over-allotment option and convertibility, if
necessary, would need to be added to introductory paragraph, representations,
opinions, etc.
B-1
<PAGE>
supplement thereto in reliance upon and in conformity with information
furnished in writing to First Union by or on behalf of any Underwriter
specifically for use in connection with the preparation of the Prospectus
or any amendment thereof or supplement thereto.
(c) First Union has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
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) The Securities have been duly authorized, and, when issued,
delivered and paid for pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of First Union entitled to the benefits
provided by the Indenture; the Indenture has been duly authorized and, at
the Closing Date (as defined in Section 3 hereof), the Indenture will be
duly qualified under the Trust Indenture Act and will constitute a valid
and legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, 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 the Securities and the Indenture conform in all material
respects to the descriptions thereof in the Prospectus.
(e) First Union has all corporate power and authority necessary to
execute and deliver this Agreement, the Indenture and the Securities and to
perform its obligations hereunder and thereunder; the execution, delivery
and performance of this Agreement, the Indenture and the Securities by
First Union and compliance with the provisions hereof and thereof by First
Union will not constitute a breach of or default under, the corporate
charter or by-laws of First Union, or any material agreement, indenture or
other instru ment relating to indebtedness for money borrowed to which
First Union is a party, or, to the best of First Union's knowledge, any
law, order, rule, regulation or decree of any court, governmental agency or
authority located in the United States having jurisdiction over First Union
or any property of First Union, which breach or default would be reasonably
likely to have a material adverse effect on First Union 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, the Indenture and the Securities by First Union except such as
have been made or obtained or will be made or obtained on or before the
Closing Date (as defined in Section 3) and except such as may be required
under applicable state securities or "blue sky" laws.
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, First Union agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from First Union, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Securities shall
be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and First Union (such date and time of delivery of and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of First
Union in the manner and type of funds specified in Schedule I. Certificates for
the Securities shall be registered in such names and in such denominations as
the Representatives may request not less than one full business day in advance
of the Closing Date.
First Union agrees to have the Securities available for inspection,
checking and packaging in New York, New York, on the business day prior to the
Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several Underwriters
propose to offer the Securities for sale as set forth in the Prospectus.
5. AGREEMENTS. First Union agrees with the several Underwriters that:
(a) First Union will cause the Prospectus to be filed, or transmitted
for filing, with the Commission pursuant to Rule 424 under the Act and will
promptly advise the Representatives when the Prospectus has been so filed
or transmitted for filing, and, prior to the termination of the offering of
the Securities to which such Prospectus relates, also will promptly advise
the Representatives (i) when any amendment to the Registration Statement
has become effective or any further supplement to the Prospectus has been
so filed or transmitted for filing, (ii) of any request by the Commission
for any amendment of the Registration Statement or the Prospectus or for
any additional information, (iii) of the issuance by
B-2
<PAGE>
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose, and (iv) of the receipt by First Union of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. First Union will use its reasonable best
efforts to prevent the issuance of any such stop order and, if issued, to
obtain as soon as reasonably possible the withdrawal thereof. For so long
as a prospectus relating to the Securities is required to be delivered
under the Act, First Union will not file or transmit for filing any
amendment to the Registration Statement or supplement to the Prospectus
which relates to the Securities unless First Union has furnished you or
counsel for the Underwriters a copy for your review prior to filing or
transmission for filing.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend or supplement the Prospectus in connection with the sale of the
Securities to comply with the Act or the rules and regulations of the
Commission thereunder, promptly after becoming aware thereof, First Union
will notify the Representatives or counsel for the Underwriters and, upon
their or its reasonable request, prepare and file or transmit for filing
with the Commission an amendment or supplement which will correct such
statement or omission or effect such compliance.
(c) First Union will make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 45
days after the end of the 12-month period beginning at the end of the
fiscal quarter of First Union during which the filing, or transmission for
filing, of the Prospectus pursuant to Rule 424 under the Act occurs (except
not later than 90 days after the end of such period if such quarter is the
last fiscal quarter), an earnings statement (which need not be audited) of
First Union and its subsidiaries, covering such 12-month period, which will
satisfy the provisions of Section 11(a) of the Act.
(d) First Union will use its best efforts to furnish in New York City
to each of the Underwriters prior to 10:00 a.m., New York City time, on the
New York business day next succeeding the date of this Agreement and from
time to time, as many copies of the Prospectus, each related preliminary
prospectus supplement and all amendments of and supplements to such
documents as may be reasonably requested.
(e) First Union will pay all expenses incident to the performance of
its obligations under this Agreement, and will pay the expenses of printing
and filing all documents relating to the offering and mailing and
delivering such to Underwriters and dealers, any filing fee incident to any
required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities, all expenses in connection with
the qualification of the Securities for offering and sale under state
securities laws (including the fees and disbursements of counsel to the
Underwriters in connection with such qualification and the preparation of
the Blue Sky and legal investment surveys), any taxes payable in connection
with the sale and delivery of the Securities by First Union to the
Underwriters, and any fees charged for rating the Securities.
(f) First Union will use its reasonable best efforts to arrange for
the qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and to maintain such
qualifications in effect so long as required for the distribution of the
Securities; provided that First Union 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.
(g) During the period beginning from the date of this Agreement and
continuing until the Closing Date or such longer period as may be agreed to
by First Union and set forth in Schedule I hereto relating to the
Securities, First Union will not offer, sell, contract to sell or otherwise
dispose of any of its debt securities which mature more than one year after
the Closing Date and which are substantially similar to the Securities
without the prior written consent of the Representatives.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy in
all material respects of the representations and warranties on the part of First
Union contained herein as of the date hereof and the Closing Date, to the
accuracy in all material respects of the statements of First Union made in any
certificates pursuant to the provisions hereof, to the performance in all
material respects by First Union of its obligations hereunder and to the
following additional conditions:
B-3
<PAGE>
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted and be pending or have been threatened as of the
Closing Date; and all requests for additional information on the part of
the Commission shall have been complied with.
(b) First Union shall have furnished to the Representatives a
certificate, dated the Closing Date, of First Union, signed by the
principal financial or accounting officer of First Union, to the effect
that, to the best of his knowledge after reasonable investigation:
(i) The representations and warranties of First Union in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and
First Union has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date, in all material respects;
(ii) No stop order suspending the effective ness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted and are pending or have been threatened as
of such date;
(iii) Since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse change in
the financial position, results of operations, cash flows or prospects
relating thereto of First Union and its subsidiaries consolidated,
except as set forth in or contemplated by the Prospectus; and
(iv) Since the date of this Agreement, (A) no downgrading has
occurred in the rating accorded First Union's unsecured debt securities
or preferred stock as described in Section 6(h)(i) and (B) no
announcement has been made with respect to any rating accorded First
Union's unsecured debt securities or preferred stock as described in
Section 6(h)(ii).
(c) First Union shall have furnished to the Underwriters the opinion,
dated the Closing Date, of Marion A. Cowell, Jr., Executive Vice President,
Secretary and General Counsel of First Union, to the effect that:
(i) First Union 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 Securities have been duly authorized, executed, issued and
delivered and, assuming authentication by the Trustee in the manner
contemplated in its certificate, constitute valid and legally binding
obligations of First Union entitled to the benefits provided by the
Indenture; and the Securities and the Indenture conform in all material
respects to the descriptions thereof in the Prospectus as amended or
supplemented;
(iii) The Indenture has been duly authorized, executed and
delivered by First Union, has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding obligation of
First Union 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;
(iv) First Union has all corporate power and authority necessary to
execute and deliver this Agreement, the Indenture and the Securities,
and to perform its obligations hereunder and there under; this Agreement
has been duly authorized, executed and delivered by First Union; the
execu tion, delivery and performance of this Agreement, the Indenture,
and the Securities by First Union and compliance with the provisions
hereof and thereof by First Union will not constitute a breach of or
default under, the corporate charter or by-laws of First Union, or any
material agree ment, indenture or other instrument relating to
indebtedness for money borrowed known to such counsel to which First
Union 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 First
Union or any property of First Union, which breach or default would be
reasonably likely to have a material adverse effect on First Union and
its subsidiaries taken as a whole; and no consent, authorization or
order of, or filing or registration with, any court or governmental
agency is required for the execution, delivery and performance of this
Agreement, the Indenture or the Securities by First Union except such as
may be required under applicable state securities or "blue sky" laws or
as have been duly made or obtained; and
(v) The Registration Statement has become effective under the 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 Act, and each part of the Registration
Statement, when such part became effective, any amendments thereof filed
prior to the date of this Agreement,
B-4
<PAGE>
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 Act, the
Trust Indenture 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, as of the
date of the Prospectus Supplement, 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
Statement of Eligibility (Form T-1) under the Trust Indenture Act of the
Trustee, as to the financial statements or other financial data
contained in any part of the Registration Statement or the Prospectus,
as to any statements or omissions made in reliance upon or in conformity
with information furnished in writing to First Union by or on behalf of
an Underwriter for use therein.
As to those matters which relate to the Trustee, such counsel may rely
upon the certificate or certificates of such Trustee, and as to matters
governed by New York law, upon the opinion of Sullivan & Cromwell.
(d) The Representatives shall have received from Sullivan & Cromwell,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to such matters as the Representatives may reasonably
require.
As to matters governed by North Carolina law, Sullivan & Cromwell may
rely upon the opinion of Marion A. Cowell, Jr. delivered pursuant to
Section 6(c).
(e) KPMG Peat Marwick LLP, as independent accountants of First Union,
shall have furnished to the Representatives a letter, dated as of the
Closing Date, to the effect set forth in Schedule III hereto.
(f) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting
the financial position, long-term debt, stockholders' equity or results of
oper ations of First Union and its consolidated subsidiaries which the
Representatives conclude, after consultation with First Union, in the
judgment of the Representatives is so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or the
delivery of the Securities as contemplated by the Prospectus.
(g) First Union shall have furnished to the Representatives such
further information, certificates and documents as they may reasonably
request prior to the Closing Date.
(h) Subsequent to the date of this Agreement, (i) no downgrading shall
have occurred in the rating accorded First Union's unsecured debt
securities or preferred stock by Standard & Poor's Ratings Group or by
Moody's Investors Service, Inc. and (ii) neither such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of First Union's
unsecured debt securities or preferred stock.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to First Union in writing or by telephone or telegraph confirmed
in writing.
7. INDEMNIFICATION AND CONTRIBUTION. (a) First Union agrees to indemnify and
hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement or in any amendment thereof filed prior to the date hereof, or in
the Registration Statement or the Prospectus, or in any amendment thereof or
supplement thereto, or in any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon
B-5
<PAGE>
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) First Union will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in con formity with written information furnished to First Union by or on
behalf of any Underwriter through the Representatives specifically for use
in the Prospectus or any supplement thereto or any related preliminary
prospectus or preliminary prospectus supplement or of the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee, and
(ii) such indemnity with respect to any related preliminary prospectus or
preliminary prospectus supplement shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if such person was not sent or
given a copy of the Prospectus (or the Prospectus as amended or
supplemented), excluding documents incorporated therein by reference, at or
prior to the confirmation of the sale of such Securities to such person in
any case where such delivery is required by the Act and the untrue statement
or omission of a material fact contained in such related preliminary
prospectus or preliminary prospectus supplement was corrected in the
Prospectus (or the Prospectus as amended or supplemented). This indemnity
agreement will be in addition to any liability which First Union may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
First Union, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls First Union within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from First Union to each Underwriter, but only with
reference to written information furnished to First Union by or on behalf
of such Underwriter through the Representatives specifically for use in the
Prospectus or any supplement thereto or any related preliminary prospectus
or preliminary prospectus supplement. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under Section 7(a)
or (b) of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve the indemnifying party from any liability which it
may have to any indemnified party otherwise than under Section 7(a) or (b).
In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the
extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel satisfactory to such
indemnified party; provided that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of
its election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under Section 7(a) or (b) for any legal or other
expenses subsequently incurred by such indemnified party (other than
reasonable costs of investigation) in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than
one separate national counsel, approved by the Representatives,
representing the indemnified parties who are parties to such action), (ii)
the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by First Union on the
one hand and the Underwriters of the
B-6
<PAGE>
Securities on the other from the offering of the Securities to which such
loss, claim, damage or liability (or action in respect thereof) relates.
If, however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party failed to
give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of First Union on the one
hand and the Underwriters of the Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by First
Union on the one hand and such Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by First Union bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault 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 First Union on the one hand or such Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. First Union and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) 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 which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include 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 subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which 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 Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Securities in this subsection (d) to contribute are several in proportion
to their respective underwriting obligations with respect to the Securities
and not joint.
8. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to First Union prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of the Representatives, impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities as contemplated by the
Prospectus.
9. SUBSTITUTED UNDERWRITERS. If, on the Closing Date, any one or more of
the Underwriters shall fail or refuse to purchase Securities that it or they
have agreed to purchase hereunder on such date, and the aggregate number of
Securities 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
Securities to be purchased on the Closing Date, the other Underwriters shall be
obligated severally in the proportions that the number of Securities set forth
opposite their respective names in Schedule II bears to the aggregate number of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Underwriters may agree, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on the Closing Date; provided that in no event shall the
number of Securities that any Underwriter has agreed to purchase pursuant to
Section 2 above be increased pursuant to this Section 9 by an amount in excess
of one-ninth of such number of Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Securities and the aggregate number of Securities with
respect to which such default occurs is more than one-tenth of the aggregate
number of Securities to be purchased on the Closing Date, and arrangements
satisfactory to the Underwriters and First Union for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or
First Union. In such case either the Underwriters or First Union 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 Section 9 shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
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<PAGE>
10. CERTAIN LIABILITIES UPON TERMINATION. If this Agreement shall be
terminated pursuant to Section 9 hereof, the Company shall not then be under any
liability to any Underwriter except as provided in Sections 5(e) and 7 hereof;
but, if for any other reason, any Securities are not delivered by or on behalf
of the Company as provided herein, the Company will reimburse the Underwriters
through you for all actual out-of-pocket expenses approved in writing by you,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Securities not so delivered, but the Company shall then be under no further
liability to any Underwriter in respect of the Securities not so delivered
except as provided in Sections 5(e) and 7 hereof.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of First Union or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or First Union or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections
5(e), 7, 9, 12, 13 and 14 hereof shall survive the termination or cancellation
of this Agreement.
12. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto (including any Underwriter or Underwriters added
pursuant to Section 9 hereof) and their respective successors, heirs, executors,
administrators and the officers and directors and controlling persons referred
to in Section 7 hereof, and no other person will have any right or obligation
hereunder.
13. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14. COUNTERPARTS; NOTICES. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
All notices hereunder shall be in writing or by telegram if promptly
confirmed in writing, and if to the Underwriters shall be sufficient in all
respects if delivered or sent by registered mail to the address of the
Representatives as set forth in Schedule I hereto; and if to First Union shall
be sufficient in all respects if delivered or sent by registered mail to the
address of First Union set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 7(c) hereof shall be delivered or sent by registered mail to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to First
Union by the Repre sentatives upon request.
15. ACTION BY UNDERWRITERS. Any action under this Agreement taken by the
Underwriters jointly or by the firm signing below on behalf of you as the
Representatives will be binding upon all the Underwriters.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between First
Union and the Underwriters.
Very truly yours,
FIRST UNION CORPORATION
_______________________________________
NAME:
TITLE:
The foregoing Agreement is
hereby confirmed and
accepted as of the date
first above written.
By: [Representatives]
On behalf of the Underwriters
set forth in Schedule II
By: ___________________________________
NAME:
TITLE:
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<PAGE>
SCHEDULE I
TITLE OF DESIGNATED SECURITIES:
[ % [[Senior] [Subordinated]] [[Debentures] [Notes]]
Due ,
AGGREGATE PRINCIPAL AMOUNT:
$
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities [, plus accrued
interest from , ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities [, plus accrued
interest, if any, from , ]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately available funds by wire
INDENTURE:
Indenture, dated as of , , between First Union and
, as [Successor] Trustee, as amended
MATURITY:
,
INTEREST RATE:
[ % per annum] [describe floating rate provisions]
INTEREST PAYMENT DATES:
and of each year, commencing ,
REGULAR RECORD DATES:
and of each year, commencing ,
REPAYMENT PROVISIONS:
[Describe repayment provisions, if any]
REDEMPTION PROVISIONS:
[Describe redemption provisions, if any]
SINKING FUND PROVISIONS:
[Describe sinking fund provisions, if any]
CONVERSION PROVISIONS:
[Describe conversion provisions, if any]
EXCHANGE PROVISIONS:
[Describe exchange provisions, if any]
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<PAGE>
OTHER TERMS:
[Describe additional terms, if any]
ADDITIONAL COMFORT LETTER COVERAGE:
[Describe additional coverage, if any]
FORM OF DESIGNATED SECURITY:
[Global] [Certificated] in denominations set forth in the Prospectus
Supplement
CLOSING DATE:
, at [time]
RESTRICTED PERIOD UNDER SECTION 5(G) OF UNDERWRITING AGREEMENT:
[Describe period if other than through Closing Date]
OFFICE FOR DELIVERY OF DESIGNATED SECURITIES:
[insert address]
OFFICE FOR PAYMENT FOR DESIGNATED SECURITIES:
[insert address]
NAME OF REPRESENTATIVES:
[insert names]
ADDRESS FOR NOTICES, ETC.:
[insert address]
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<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
SECURITIES
TO BE
UNDERWRITER PURCHASED
- ---------------------------------------------------------------------------------------- ----------
<S> <C>
$
[underwriters names]
----------
Total................................................................................... $
</TABLE>
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<PAGE>
SCHEDULE III
Pursuant to Section 6(e) of the Underwriting Agreement, the independent
accountants of First Union shall provide a comfort letter to the effect that:
(i) They are independent certified public accountants with respect to First
Union and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules examined by them and included or
incorporated by reference in the Prospectus as amended or supplemented comply as
to form in all material respects with the applicable accounting requirements of
the Act or the Exchange Act, as applicable, and the published rules and
regulations thereunder;
(iii) On the basis of limited procedures, not constituting an audit,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of First Union and its subsidiaries, inspection of the
minute books of First Union and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus as amended or supplemented, inquiries of officials of First Union and
its subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of changes in financial position
included or incorporated by reference in First Union's most recent
Quarterly Report on Form 10-Q incorporated by reference in the Prospectus
(if any) as amended or supplemented does not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the related published rules and
regulations thereunder or are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that
of the audited consolidated financial statements included or incorporated
by reference in First Union's most recent Annual Report on Form 10-K;
(B) any unaudited financial data included in the Prospectus as amended
or supplemented as at any time, or for any period ending, after the end of
the latest interim period covered by a Quarterly Report on Form 10-Q of
First Union or year ended for which First Union has filed an Annual Report
on Form 10-K (whichever is more recent) (and any data for any comparable
prior period included therein) do not agree with the corresponding amounts
in the unaudited consolidated financial statements from which such data are
derived, or any such unaudited financial data were not determined on a
basis substantially consistent with the basis for the corresponding amounts
in the audited consolidated financial statements included or incorporated
by reference in First Union's most recent Annual Report on Form 10-K;
(C) the unaudited pro forma consolidated condensed financial
statements (if any) included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those statements;
(D) as of a specified date not more than five days prior to the date
of delivery of such letter there have been any changes in the capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or supplemented) or
long-term debt of First Union or any of its subsidiaries, or any decreases
in consolidated stockholders' equity, consolidated assets, consolidated
deposits, or allowance for loan losses of First Union or other items
specified by the Represen tatives, or any increases in any items specified
by the Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus as amended or supplemented except in each case for changes,
increases or decreases which the Prospectus as amended or supplemented
discloses have occurred or may occur or which are described in such letter;
and
B-12
<PAGE>
(E) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented to the end of the latest period for which financial statements
are available there were any decreases in consolidated net interest income,
net interest income after provision for loan losses, or the total or per
share amounts of net income of First Union or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period of the
preceding year and with any other period of corresponding length specified
by the Representatives, except in each case for increases or decreases
which the Prospectus as amended or supplemented discloses have occurred or
may occur or which are described in such letter;
(iv) In addition to the examination referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
subparagraph (iii) above, they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived from
the general accounting records of First Union and its subsidiaries, which appear
in the Prospectus as amended or supplemented (excluding documents incorporated
by reference), in exhibits to the Registration Statement specified by the
Representatives, or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of First Union
and its subsidiaries and have found them to be in agreement.
B-13
