<PAGE>
As filed with the Securities and Exchange Commission on March 2, 2000
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------
First Union Corporation
(Exact Name of Registrant as Specified in Its Charter)
North Carolina 56-0898180
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
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)
--------------
MARK C. TREANOR, ESQ.
Executive Vice President, Secretary 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:
MARK J. MENTING, 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, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
--------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed
Maximum Proposed
Title of each Class of Amount Aggregate Maximum Amount of
Securities to be to be Price Aggregate Registration
Registered Registered Per Unit Offering Price Fee
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (par value
$3.33 1/3 per share)... (1)(2) (1) (1)(2) N/A
- -------------------------------------------------------------------------------
Preferred Stock (no-par
value)................. (1) (1) (1) N/A
- -------------------------------------------------------------------------------
Class A Preferred Stock
(no-par value)......... (1) (1) (1) N/A
- -------------------------------------------------------------------------------
Depositary Shares....... (1)(3) (1) (1)(3) N/A
- -------------------------------------------------------------------------------
Debt Securities......... (1) (1) (1) N/A
- -------------------------------------------------------------------------------
Warrants................ (1) (1) (1) N/A
- -------------------------------------------------------------------------------
Total................... $2,000,000,000 (1) $2,000,000,000 $528,000(4)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</TABLE>
(1) There are being registered hereunder such indeterminate number of shares of
Common Stock, Preferred Stock and Class A Preferred Stock, such
indeterminate number of Depositary Shares and Warrants to purchase Debt
Securities, Preferred Stock, Class A Preferred Stock, Depositary Shares or
Common Stock, and such indeterminate principal amount of Debt Securities of
the Registrant as shall have an aggregate initial offering price not to
exceed $2,000,000,000. If any Debt Securities are issued at an original
issue discount, then the securities registered shall include such
additional Debt Securities as may be necessary such that the aggregate
initial public offering price of all securities issued pursuant to this
Registration Statement will equal $2,000,000,000. Any securities registered
hereunder may be sold separately or as units with other securities
registered hereunder. The proposed maximum initial offering price per unit
will be determined, from time to time, by the Registrant in connection with
the issuance by the Registrant of the securities registered hereunder.
There are also being registered hereunder an indeterminate number of shares
of Common Stock, Preferred Stock and Class A Preferred Stock, an
indeterminate number of Depositary Shares and an indeterminate principal
amount of Debt Securities of the Registrant as shall be issuable upon
conversion or exchange of convertible or exchangeable Debt Securities or of
shares of convertible or exchangeable Preferred Stock or Class A Preferred
Stock registered hereby, or as shall be issuable pursuant to anti-dilution
provisions.
(2) Each share of Common Stock includes a right to purchase shares of a junior
participating series of Class A Preferred Stock of the Registrant (the
"Rights"). Prior to the occurrence of certain events, none of which have
occurred as of the date hereof, the Rights will not be exercisable or
evidenced separately from the Common Stock.
(3) Subject to footnote (1), there are being registered hereunder an
indeterminate number of Depositary Shares to be evidenced by Depositary
Receipts issued pursuant to a Deposit Agreement. If the Registrant elects
to offer to the public fractional interests in shares of the Preferred
Stock or Class A Preferred Stock registered hereunder, Depositary Receipts
will be distributed to those persons purchasing such fractional interests,
and the shares of Preferred Stock or Class A Preferred Stock, as the case
may be, will be issued to the Depositary under the Deposit Agreement.
(4) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act.
--------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until the Registration Statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the SEC +
+is effective. This prospectus is not an offer to sell these securities and we +
+are not soliciting an offer to buy these securities in any state where the +
+offer or sale is prohibited. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED MARCH 2, 2000
[FIRST UNION LOGO]
One First Union Center
301 South College Street
Charlotte, North Carolina 28288
(704) 374-6565
FIRST UNION CORPORATION
$2,000,000,000
COMMON STOCK
PREFERRED STOCK
CLASS A PREFERRED STOCK
DEPOSITARY SHARES
DEBT SECURITIES
WARRANTS
-----------
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any prospectus supplement
carefully before you invest.
-----------
These securities have not been approved or disapproved by the SEC, any state
securities commission or the Commissioner of Insurance of the state of North
Carolina nor have these organizations determined if this prospectus is truthful
or complete. Any representation to the contrary is a criminal offense.
-----------
These securities will be our equity securities or our unsecured obligations
and will not be savings accounts, deposits or other obligations of any bank or
non-bank subsidiary of ours and are not insured by the Federal Deposit
Insurance Corporation, the Bank Insurance Fund or any other governmental
agency.
-----------
This prospectus is dated , 2000
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
About This Prospectus...................................................... 1
Where You Can Find More Information........................................ 2
Forward-Looking Statements................................................. 3
First Union Corporation.................................................... 3
Use of Proceeds............................................................ 4
Consolidated Earnings Ratios............................................... 4
Regulatory Considerations.................................................. 5
Description of Common Stock................................................ 6
Description of Preferred Stock and Class A Preferred Stock................. 10
Description of Depositary Shares........................................... 14
Description of Debt Securities............................................. 17
Description of Warrants.................................................... 26
Global Securities.......................................................... 29
Plan of Distribution....................................................... 31
Validity of Securities..................................................... 32
Experts.................................................................... 32
</TABLE>
<PAGE>
ABOUT THIS PROSPECTUS
This document is called a prospectus and is part of a registration statement
that we filed with the SEC using a "shelf" registration or continuous offering
process. Under this shelf process, we may from time to time sell any
combination of the securities described in this prospectus in one or more
offerings up to a total dollar amount of $2,000,000,000.
This prospectus provides you with a general description of the securities we
may offer. Each time we sell securities, we will provide a prospectus
supplement containing specific information about the terms of the securities
being offered. That prospectus supplement may include a discussion of any risk
factors or other special considerations applicable to those securities. The
prospectus supplement may also add, update or change information in this
prospectus. If there is any inconsistency between the information in this
prospectus and any prospectus supplement, you should rely on the information in
that prospectus supplement. You should read both this prospectus and any
prospectus supplement together with additional information described under the
heading "Where You Can Find More Information".
The registration statement containing this prospectus, including exhibits to
the registration statement, provides additional information about us and the
securities offered under this prospectus. The registration statement can be
read at the SEC web site or at the SEC offices mentioned under the heading
"Where You Can Find More Information".
When acquiring any securities discussed in this prospectus, you should rely
only on the information provided in this prospectus and in any prospectus
supplement, including the information incorporated by reference. Neither we,
nor any underwriters or agents, have authorized anyone to provide you with
different information. We are not offering the securities in any state where
the offer is prohibited. You should not assume that the information in this
prospectus, any prospectus supplement, or any document incorporated by
reference, is truthful or complete at any date other than the date mentioned on
the cover page of these documents.
We may sell securities to underwriters who will sell the securities to the
public on terms fixed at the time of sale. In addition, the securities may be
sold by us directly or through dealers or agents designated from time to time,
which agents may be affiliates of First Union. If we, directly or through
agents, solicit offers to purchase the securities, we reserve the sole right to
accept and, together with our agents, to reject, in whole or in part, any of
those offers.
The prospectus supplement will contain the names of the underwriters,
dealers or agents, if any, together with the terms of offering, the
compensation of those underwriters and the net proceeds to us. Any
underwriters, dealers or agents participating in the offering may be deemed
"underwriters" within the meaning of the Securities Act of 1933.
One or more of our subsidiaries, including First Union Securities, Inc., may
buy and sell any of the securities after the securities are issued as part of
their business as a broker-dealer. Those subsidiaries may use this prospectus
and the related prospectus supplement in those transactions. Any sale by a
subsidiary will be made at the prevailing market price at the time of sale.
Unless otherwise mentioned or unless the context requires otherwise, all
references in this prospectus to "we", "us", "our", or similar references mean
First Union Corporation and its subsidiaries.
1
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are also available
to the public at the SEC's web site at http://www.sec.gov. You can also inspect
reports, proxy statements and other information about us at the offices of the
New York Stock Exchange, 20 Broad Street, New York, New York.
The SEC allows us to "incorporate by reference" into this prospectus the
information in documents we file with it, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be a part of this
prospectus and should be read with the same care. When we update the
information contained in documents that have been incorporated by reference, by
making future filings with the SEC, the information incorporated by reference
in this prospectus is considered to be automatically updated and superceded. In
other words, in the case of a conflict or inconsistency between information
contained in this prospectus and information incorporated by reference into
this prospectus, you should rely on the information contained in the document
that was filed later. We incorporate by reference the documents listed below
and any documents we file with the SEC in the future under Section 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until our offering
is completed:
. Annual Report on Form 10-K for the year ended December 31, 1998
. Quarterly Reports on Form 10-Q for the periods ending March 31, 1999,
June 30, 1999 and September 30, 1999 and
. Current Reports on Form 8-K dated January 26, 1999, March 19, 1999, May
25, 1999, July 30, 1999 and August 4, 1999.
You may request a copy of these filings, other than an exhibit to a filing
unless that exhibit is specifically incorporated by reference into that filing,
at no cost, by writing to or telephoning us at the following address:
Corporate Relations
First Union Corporation
One First Union Center
301 South College Street
Charlotte, North Carolina 28288-0206
(704) 374-6782
2
<PAGE>
FORWARD-LOOKING STATEMENTS
This prospectus and accompanying prospectus supplements contain or
incorporate statements that are "forward-looking statements" within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange Act. Those
statements can be identified by the use of forward-looking language such as
"will likely result", "may", "are expected to", "is anticipated", "estimate",
"projected", "intends to", or other similar words. Our actual results,
performance or achievements could be significantly different from the results
expressed in, or implied by, those forward-looking statements. Those statements
are subject to certain risks and uncertainties, including but not limited to,
certain risks described in the prospectus supplement or the documents
incorporated by reference. When considering those forward-looking statements,
you should keep in mind these risks, uncertainties and other cautionary
statements made in this prospectus and the prospectus supplements. You should
not place undue reliance on any forward-looking statement, which speaks only as
of the date made. You should refer to our periodic and current reports filed
with the SEC for specific risks which could cause actual results to be
significantly different from those expressed or implied by those forward-
looking statements.
FIRST UNION CORPORATION
First Union was incorporated under the laws of North Carolina in 1967. We
are registered as a bank holding company under the Bank Holding Company Act of
1956, as amended,and are supervised and regulated by the Board of Governors of
the Federal Reserve System. Our banking and securities subsidiaries are
supervised and regulated by various federal and state banking and securities
regulatory authorities.
In addition to North Carolina, First Union's full-service banking
subsidiaries also operate in Connecticut, Delaware, Florida, Georgia, Maryland,
New Jersey, New York, Pennsylvania, South Carolina, Tennessee, Virginia and
Washington, D.C. In addition to providing a wide range of commercial and retail
banking and trust services through its full-service banking subsidiaries, First
Union also provides various other financial services, including mortgage
banking, home equity lending, leasing, investment banking, insurance and
securities brokerage services through other subsidiaries.
In 1985, the Supreme Court upheld regional interstate banking legislation.
Since then, First Union has concentrated its efforts on building a large,
regional banking organization in what it perceives to be some of the better
banking markets in the eastern United States. Since November 1985, First Union
has completed over 80 banking-related acquisitions.
First Union continually evaluates its business operations and organizational
structures. Therefore, we routinely explore acquisition opportunities and
frequently conduct due diligence activities in connection with possible
acquisitions. As a result, acquisition discussions and, in some cases,
negotiations frequently take place and future acquisitions involving cash, debt
or equity securities can be expected. When consistent with our overall business
strategy, we also consider the potential disposition of certain of our assets,
branches, subsidiaries or lines of business.
First Union is a separate and distinct legal entity from our banking and
other subsidiaries. Dividends received from our subsidiaries is our principal
source of funds to pay dividends on our common and preferred stock and debt
service on our debt. Various federal and state statutes and regulations limit
the amount of dividends that our banking and other subsidiaries may pay to us
without regulatory approval.
3
<PAGE>
USE OF PROCEEDS
First Union currently intends to use the net proceeds from the sale of any
securities for general corporate purposes, which may include
. reducing debt
. investments at the holding company level
. investing in, or extending credit to, our operating subsidiaries
. possible acquisitions
. stock repurchases and
. other purposes as mentioned in any prospectus supplement.
Pending such use, we may temporarily invest the net proceeds. The precise
amounts and timing of the application of proceeds will depend upon our funding
requirements and the availability of other funds. Except as mentioned in any
prospectus supplement, specific allocations of the proceeds to such purposes
will not have been made at the date of that prospectus supplement.
Based upon our historical and anticipated future growth and our financial
needs, we may engage in additional financings of a character and amount that we
determine as the need arises.
CONSOLIDATED EARNINGS RATIOS
The following table provides First Union's consolidated ratios of earnings
to fixed charges:
<TABLE>
<CAPTION>
Nine months
Ended Years Ended December 31,
September 30, ------------------------
1999 1998 1997 1996 1995 1994
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Consolidated Ratios of Earnings to
Fixed Charges
Excluding interest on deposits......... 2.36x 2.13 2.50 2.58 2.87 3.47
Including interest on deposits......... 1.64x 1.51 1.57 1.56 1.58 1.72
</TABLE>
For purposes of computing these ratios
. earnings represent income from continuing operations before
extraordinary items and cumulative effect of a change in accounting
principle, plus income taxes and fixed charges (excluding capitalized
interest).
. fixed charges, excluding interest on deposits, represent interest
(including capitalized interest), one-third of rents and all
amortization of debt issuance costs.
. fixed charges, including interest on deposits, represent all interest
(including capitalized interest), one-third of rents and all
amortization of debt issuance costs.
One-third of rents is used because it is the proportion deemed
representative of the interest factor.
4
<PAGE>
REGULATORY CONSIDERATIONS
As a bank holding company under the Bank Holding Company Act, the Federal
Reserve Board regulates, supervises and examines First Union. First Union has
notified the Federal Reserve Board that it meets the requirements for the
broader range of activities permitted by the recently enacted Gramm-Leach-
Bliley Financial Modernization Act of 1999. If the Federal Reserve Board finds
this notification to be effective, First Union will become a financial holding
company.
For a discussion of the material elements of the regulatory framework
applicable to financial holding companies, bank holding companies and their
subsidiaries and specific information relevant to First Union, please refer to
First Union's annual report on Form 10-K for the fiscal year ended December 31,
1998, and quarterly reports on Form 10-Q, which are incorporated by reference
in this prospectus. This regulatory framework is intended primarily for the
protection of depositors and the federal deposit insurance funds and not for
the protection of security holders.
First Union's earnings also are affected by
. general economic conditions
. our management policies
. legislative action
. actions of certain regulatory bodies that include
. the Federal Reserve Board
. the Office of Controller of the Currency, that regulates our banking
subsidiaries and
. the Federal Deposit Insurance Corporation, that insures the deposits
of our banking subsidiaries within certain limits.
In addition, there are numerous governmental requirements and regulations which
affect our business activities. A change in applicable statutes, regulations or
regulatory policy may have a material effect on First Union's business.
Depository institutions, like First Union's bank subsidiaries, are also
affected by various federal laws, including those relating to consumer
protection and similar matters. First Union also has other financial services
subsidiaries regulated, supervised and examined by the Federal Reserve Board,
as well as other relevant state and federal regulatory agencies and self-
regulatory organizations. First Union's nonbank subsidiaries may be subject to
other laws and regulations of the federal government or the various states in
which they are authorized to do business, or both.
5
<PAGE>
DESCRIPTION OF COMMON STOCK
The following information outlines some of the provisions in First Union's
articles of incorporation, bylaws and the North Carolina Business Corporation
Act (the "NCBC Act"). The information is qualified in all respects by reference
to the provisions of First Union's articles, bylaws and the NCBC Act.
Authorized Capital
First Union's authorized capital stock consists of 2,000,000,000 shares of
common stock, par value $3.33 1/3 per share. On January 31, 2000, 984,981,528
shares of common stock were issued and outstanding. First Union's common stock
is listed on the New York Stock Exchange under the symbol "FTU".
General
Subject to the prior rights of any First Union preferred stockholder, Class
A preferred stockholder and depositary shareholder then outstanding, common
stockholders are entitled to receive such dividends as First Union's board of
directors may declare. In the event of liquidation or dissolution, common
stockholders are entitled to receive First Union's net assets remaining after
paying all liabilities and after paying all preferred stockholders, Class A
preferred stockholders and depositary shareholders the full preferential
amounts to which those holders are entitled.
Under an indenture between First Union and Wilmington Trust Company, as
trustee, First Union agreed not to pay any dividends on, or acquire or make a
liquidation payment relating to, any of First Union's common stock, preferred
stock and Class A preferred stock, if, at that time, there is a default under
the indenture or a related First Union guarantee or First Union has deferred
interest payments on the securities issued under the indenture.
Subject to the prior rights of any preferred stockholders, Class A preferred
stockholders and depositary shareholders, common stockholders have all voting
rights, each share being entitled to one vote on all matters requiring
stockholder action and in electing directors. Common stockholders have no
preemptive, subscription or conversion rights. All of the outstanding shares of
common stock are, and any issued and sold hereunder will be, fully paid and
nonassessable.
First Union National Bank is the transfer agent, registrar and dividend
disbursement agent for the common stock.
Rights Plan
Under an Amended and Restated Shareholder Protection Rights Agreement, each
outstanding common stock share has a right attached to it. This right remains
attached unless a separation time occurs. At separation time, common
stockholders will receive separate certificates for these rights. Each right
entitles its owner to purchase at separation time one one-hundredth of a share
of a junior participating series of Class A preferred stock for $105. This
series of Class A preferred stock would have economic and voting terms similar
to those of one common stock share. Separation time would generally occur at
the earlier of the following two dates:
. the tenth business day after any person
. commences a tender or exchange offer, which entitles that person to
15% or more of First Union's outstanding common stock or
. is determined by the Federal Reserve Board to "control" First Union
and
6
<PAGE>
. the tenth business day after First Union publicly announces that a
person
. has commenced a tender or exchange offer that would entitle that
person to 15% or more of First Union's outstanding common stock or
. is determined by the Federal Reserve Board to "control" First Union.
These rights will not trade separately from the shares of common stock until
separation time occurs, and may be exercised on the business day immediately
after the separation time. The rights will expire at the earliest of:
. the date on which First Union's board of directors elects to exchange
the rights for First Union common stock shares as described below
. the close of business on December 28, 2000 or
. the date on which the rights are terminated or redeemed as described
below.
In addition, separation time will not occur even though a person is
determined by the Federal Reserve Board to "control" First Union if either
. the determination is based on that person's failure to make commitments
to the Federal Reserve Board that he owns shares "passively", or he
makes such commitments and then violates them, and the Federal Reserve
Board in each case determines within up to 60 days that this person no
longer controls First Union or
. the Federal Reserve Board's determination is not based on that person's
commitment, or violation of a commitment, and that person
. obtains a "non-control" determination from the Federal Reserve Board
within three years and
. is using its best efforts to allow First Union to make acquisitions
or engage in any lawful activity even though that person is believed
to "control" First Union.
Once First Union publicly announces that a person has acquired 15% of First
Union's outstanding common stock or the Federal Reserve Board has determined
that a person has gained control of First Union, First Union can allow for
rights holders to buy First Union shares for half their market value. For
example, First Union will sell to each rights holder common stock shares worth
$200 for $100 in cash. At the same time, any rights held by the 15% owner or
"control" person or any of his affiliates, associates or transferees will be
void.
In the alternative, First Union's board of directors may elect to exchange
all of the then outstanding rights for shares of common stock at an exchange
ratio of two common stock shares for one right. Upon election of this exchange,
a right will no longer be exercisable and will only represent a right to
receive two common stock shares.
If First Union is required to issue common stock shares upon exercise of
rights, or in exchange for rights, it may substitute shares of junior
participating Class A preferred stock. The substitution will be at a rate of
two one-hundredths of a share of junior participating Class A preferred stock
for each right exchanged.
The rights may be terminated without any payment to holders before their
exercise date and First Union may redeem them at $0.01 per right. The rights
have no voting rights and are not entitled to dividends.
The rights will not prevent a takeover of First Union. The rights, however,
may cause substantial dilution to a person or group that acquires 15% or more
of common stock (or that acquires "control" of First Union as described above)
unless First Union's board first redeems or terminates the rights.
Nevertheless, the rights should not interfere with a transaction that is in
First Union's and its stockholders best interests because the rights can be
redeemed or terminated by the board before that transaction is completed.
7
<PAGE>
The complete terms of the rights are contained in the Amended and Restated
Shareholder Protection Rights Agreement. This agreement is incorporated by
reference as an exhibit to the registration statement of which this prospectus
is a part, and the description above is qualified entirely by that document. A
copy of this agreement can be obtained upon written request to First Union
National Bank, 1525 West W.T. Harris Blvd., Charlotte, North Carolina 28288-
1153.
Other Provisions
First Union's articles and bylaws contain various provisions which may
discourage or delay attempts to gain control of First Union. First Union's
articles include provisions
. classifying the board of directors into three classes, each class to
serve for three years, with one class elected annually
. authorizing the board of directors to fix the size of the board between
nine and 30 directors
. authorizing directors to fill vacancies on the board occurring between
annual stockholder meetings, except that vacancies resulting from a
director's removal by a stockholder vote may only be filled by a
stockholder vote
. providing that directors may be removed only for a valid reason and only
by majority vote of shares entitled to vote in electing directors,
voting as a single class
. authorizing only the board of directors, First Union's Chairman or
President to call a special meeting of stockholders, except for special
meetings called under special circumstances for classes or series of
stock ranking superior to common stock and
. requiring an 80% stockholder vote by holders entitled to vote in
electing directors, voting as a single class, to alter any of the above
provisions.
First Union's bylaws include specific conditions under which business may be
transacted at an annual stockholders' meetings, and persons may be nominated
for election as First Union directors at annual stockholders' meetings.
The Change in Bank Control Act prohibits a person or group of persons from
acquiring "control" of a bank holding company unless
. the Federal Reserve Board has been given 60 days' prior written notice
of the proposed acquisition and
. within that time period, the Federal Reserve Board has not issued a
notice disapproving the proposed acquisition or extending for up to
another 30 days the period during which such a disapproval may be issued
or unless the acquisition otherwise requires Federal Reserve Board approval. An
acquisition may be made before expiration of the disapproval period if the
Federal Reserve Board issues written notice that it intends not to disapprove
the action. It is generally assumed that the acquisition of more than 10% of a
class of voting stock of a bank holding company with publicly held securities,
such as First Union, would constitute the acquisition of control.
8
<PAGE>
In addition, any "company" would be required to obtain Federal Reserve Board
approval before acquiring 25% or more of the outstanding common stock of First
Union. If the acquiror is a bank holding company, this approval is required
before acquiring 5% of the outstanding stock. Obtaining "control" over First
Union would also require Federal Reserve Board prior approval. "Control"
generally means
. the ownership or control of 25% or more of a bank holding company voting
securities class,
. the ability to elect a majority of the bank holding company's directors,
or
. the ability otherwise to exercise a controlling influence over the bank
holding company's management and policies.
Two North Carolina "anti-takeover" statutes adopted in 1987, The North
Carolina Shareholder Protection Act and The North Carolina Control Share
Acquisition Act, allowed North Carolina corporations to elect to either be
covered or not be covered by these statutes. First Union elected not to be
covered by these statutes.
In addition, in certain instances the ability of First Union's board to
issue authorized but unissued shares of common stock, preferred stock or Class
A preferred stock may have an anti-takeover effect.
Existence of the above provisions could result in First Union being less
attractive to a potential acquiror, or result in First Union stockholders
receiving less for their shares of common stock, than otherwise might be
available if there is a takeover attempt.
9
<PAGE>
DESCRIPTION OF PREFERRED STOCK AND CLASS A PREFERRED STOCK
The following information outlines some of the provisions of the preferred
stock and the Class A preferred stock. This information may not be complete in
all respects and is qualified entirely by reference to the articles, as amended
with respect to each series of preferred stock or Class A preferred stock. Our
articles are, and any amendments to the articles will be, incorporated by
reference in the registration statement of which this prospectus is a part for
the issuance of any series of preferred stock or Class A preferred stock. This
information relates to terms and conditions that apply to the preferred stock
as a class and the Class A preferred stock as a class. The specific terms of
any series of preferred stock or Class A preferred stock will be described in
the relevant prospectus supplement. If mentioned in a prospectus supplement,
the terms of those series may differ from the general description of the terms
described below.
Authorized Capital
First Union's authorized capital stock consists of 10,000,000 shares of
preferred stock, no-par value, and 40,000,000 shares of Class A preferred
stock, no-par value. On January 31, 2000, no shares of preferred stock and no
shares of Class A preferred stock were issued and outstanding.
General
Under First Union's articles, the preferred stock and the Class A preferred
stock may be issued from time to time in one or more series, upon board
authorization and without stockholder approval. Within certain legal limits,
the board is authorized to determine the
. voting powers
. designation
. preferences and relative, participating, optional or other rights
. qualifications, limitations or restrictions, including any
. dividend rights
. conversion rights
. exchange rights
. redemption rights
. liquidation preferences and
. voting rights and
. the designation and number of shares and the terms and conditions of
their issuance
of any series of preferred stock or Class A preferred stock. Thus, the board,
without stockholder approval, could authorize preferred stock or Class A
preferred stock to be issued with voting, conversion and other rights that
could adversely affect the voting power and other rights of common stockholders
or other outstanding series of preferred stock or Class A preferred stock.
Each series of preferred stock or Class A preferred stock will have the
dividend, liquidation, redemption and voting rights described below unless
otherwise described in a prospectus supplement pertaining to a specific series
of preferred stock or Class A preferred stock. The relevant prospectus
supplement will describe the following terms of the series of preferred stock
or Class A preferred stock in respect of which this prospectus is being
delivered
. the designation of that series and the number of shares offered
. the amount of the liquidation preference per share or the method of
calculating that amount
10
<PAGE>
. the initial public offering price at which shares of that series will be
issued
. the dividend rate or the method of calculating that rate, the dates on
which dividends will be paid and the dates from which dividends will
begin to cumulate
. any redemption or sinking fund provisions
. any conversion or exchange rights
. any additional voting and other rights, preferences, privileges,
qualifications, limitations and restrictions
. any securities exchange listing
. the relative ranking and preferences of that series as to dividend
rights and rights upon any liquidation, dissolution or winding up of
First Union and
. any other terms of that series.
Under the indenture between First Union and Wilmington Trust Company, as
trustee, First Union agreed not to pay any dividends on, or acquire or make a
liquidation payment with relating to, any of First Union's common stock,
preferred stock and Class A preferred stock, if, at that time, there is a
default under the indenture or a related First Union guarantee or First Union
has delayed interest payments on the securities issued under the indenture.
Shares of preferred stock and Class A preferred stock, when issued against
full payment of their purchase price, will be fully paid and nonassessable. The
liquidation preference of any series of preferred stock or Class A preferred
stock does not necessarily indicate the price at which shares of that series of
preferred stock or Class A preferred stock will actually trade on or after the
issue date.
Rank
Each series of preferred stock and Class A preferred stock will, with
respect to dividend rights and rights upon First Union's liquidation,
dissolution or winding up, rank prior or superior to common stock. All shares
of each series of preferred stock will be of equal rank with each other. Shares
of Class A preferred stock will rank equal or junior to, but not prior or
superior to, any series of preferred stock. Subject to the foregoing and the
terms of any particular Class A preferred stock series, Class A preferred stock
series may vary as to priority within that class.
Dividends
Holders of each series of preferred stock and Class A preferred stock will
be entitled to receive, when, as and if First Union's board declares, cash
dividends, payable at the dates and at the rates per share as described in the
relevant prospectus supplement. Those rates may be fixed, variable or both.
Dividends may be cumulative or noncumulative, as described in the relevant
prospectus supplement. If dividends on a series of preferred stock or Class A
preferred stock are noncumulative and if First Union's board fails to declare a
dividend for a dividend period for that series, then holders of that preferred
stock or Class A preferred stock will have no right to receive a dividend for
that dividend period, and First Union will have no obligation to pay the
dividend for that period, whether or not dividends are declared for any future
dividend payment dates. If dividends on a series of preferred stock or Class A
preferred stock are cumulative, the dividends on those shares will accrue from
and after the date mentioned in the relevant prospectus supplement.
11
<PAGE>
No full dividends may be paid on any series of preferred stock or Class A
preferred stock ranking as to dividends equal or junior to the series of
preferred stock or Class A preferred stock offered by the relevant prospectus
supplement for any period unless full dividends for the immediately preceding
dividend period on that offered stock, including any accumulation of unpaid
dividends, if dividends on such offered stock are cumulative, are paid. When
dividends are not paid in full upon such offered stock and any other parity
stock, dividends upon that stock will be declared on a proportional basis so
that the amount of dividends declared per share will bear to each other the
same ratio that accrued dividends for the current dividend period per share on
the offered stock, including any accumulated unpaid dividends, if dividends on
such offered stock are cumulative, and accrued dividends, including any
accumulations on such parity stock, bear to each other. No interest will be
payable in respect of any dividend payment on such offered stock that may be in
arrears. Unless full dividends on the offered stock have been paid for the
immediately preceding dividend period, including any accumulated dividends, if
dividends on such offered stock are cumulative
. no cash dividend or distribution (other than in junior stock) may be
paid on junior stock (including common stock)
. First Union may not acquire any junior stock except by conversion into
or exchange for junior stock and
. First Union may not acquire any parity stock otherwise than pursuant to
pro rata offers to purchase all, or a pro rata portion, of the offered
stock and such parity stock, except by conversion into or exchange for
junior stock.
Any dividend payment made on a preferred stock or Class A preferred stock
series will first be credited against the earliest accrued but unpaid dividend
due with respect to shares of that series that remains payable.
Redemption
The terms on which any series of preferred stock or Class A preferred stock
may be redeemed will be in the relevant prospectus supplement. All shares of
preferred stock or Class A preferred stock First Union redeems, purchases or
acquires, including shares surrendered for conversion or exchange, shall be
cancelled and restored to the status of authorized but unissued shares of
preferred stock or Class A preferred stock, as the case may be, undesignated as
to series.
Liquidation
In the event of First Union's voluntary or involuntary liquidation,
dissolution or winding up, preferred stockholders or Class A preferred
stockholders will be entitled, subject to creditors' rights, but before any
distribution to common stockholders or any other junior stock, to receive a
liquidating distribution in the amount of the liquidation preference per share
as mentioned in the relevant prospectus supplement, plus accrued and unpaid
dividends for the current dividend period. This would include any accumulation
of unpaid dividends for prior dividend periods, if dividends on that series of
preferred stock or Class A preferred stock are cumulative. If the amounts
available for distribution upon First Union's liquidation, dissolution or
winding up are not sufficient to satisfy the full liquidation rights of all the
outstanding preferred stock or Class A preferred stock and all stock ranking
equal to that preferred stock or Class A preferred stock, then the holders of
each series of that stock will share ratably in any distribution of assets in
proportion to the full respective preferential amount, which may include
accumulated dividends, to which they are entitled. After the full amount of the
liquidation preference is paid, the holders of preferred stock or Class A
preferred stock will not be entitled to any further participation in any
distribution of First Union's assets.
Voting
The voting rights of preferred stock or Class A preferred stock of any
series will be described in the relevant prospectus supplement. The shares of
any series of preferred stock having voting rights may not have
12
<PAGE>
more than one vote per share. The shares of any series of Class A preferred
stock having voting rights shall have the number of votes per share, which may
be more or less than one, as are specified in the amendment to First Union's
articles with respect to that series and in the relevant prospectus supplement.
The NCBC Act provides that, regardless of whether a class or series of
shares is granted voting rights by the terms of First Union's articles, the
shareholders of that class or series are entitled to vote as a separate voting
group, or together with other similarly affected series, on certain amendments
to First Union's articles and certain other fundamental changes to First Union
that directly affect that class or series.
Under Federal Reserve Board regulations, if the holders of any series of
preferred stock or Class A preferred stock become entitled to vote for the
election of directors because dividends on that series are in arrears, that
series may then be deemed a "class of voting securities," and a holder of 25%
or more of that series (or a holder of 5% or more if it otherwise exercises a
"controlling influence" over First Union) may then be subject to regulation as
a bank holding company. In addition, in that event
. any bank holding company may be required to obtain Federal Reserve Board
approval, and any foreign bank, and any company that controls a foreign
bank, that has certain types of U.S. banking operations may be required
to obtain Federal Reserve Board approval under the International Banking
Act of 1978, to acquire 5% or more of any series of preferred stock or
Class A preferred stock and
. any person other than a bank holding company may be required to obtain
Federal Reserve Board approval under the Change in Bank Control Act to
acquire 10% or more of that series of preferred stock or Class A
preferred stock.
Conversion or Exchange
The terms on which preferred stock or Class A preferred stock of any series
may be converted into or exchanged for another class or series of securities
will be described in the relevant prospectus supplement.
Other Rights
The shares of a series of preferred stock or Class A preferred stock may
have the preferences, voting powers or relative, participating, optional or
other special rights as may be described in the relevant prospectus supplement,
First Union's articles, or as otherwise required by law. The holders of
preferred stock and Class A preferred stock will not have any preemptive rights
to subscribe to any First Union securities.
Title
First Union, the transfer agent and registrar for a series of preferred
stock or Class A preferred stock, and any of their agents may treat the
registered owner of that preferred stock or Class A preferred stock as the
absolute owner of that stock, whether or not any payment for that preferred
stock or Class A preferred stock shall be overdue and despite any notice to the
contrary, for any purpose. See also "Global Securities".
Transfer Agent and Registrar
The transfer agent, registrar and dividend disbursement agent for each
series of preferred stock or Class A preferred stock will be named in the
relevant prospectus supplement.
13
<PAGE>
DESCRIPTION OF DEPOSITARY SHARES
The following information outlines some of the provisions of the deposit
agreement, the depositary shares and the depositary receipts. This information
may not be complete in all respects and is qualified entirely by reference to
the relevant deposit agreement and depositary receipts with respect to the
depositary shares relating to any particular series of preferred stock or Class
A preferred stock. The specific terms of any series of depositary shares will
be described in the relevant prospectus supplement. If so described in the
prospectus supplement, the terms of that series of depositary shares may differ
from the general description of terms presented below.
General
First Union may elect to offer fractional interests in shares of preferred
stock or Class A preferred stock, instead of whole shares of preferred stock or
Class A preferred stock. If so, First Union will allow a depositary to issue to
the public depositary shares, each of which will represent a fractional
interest as described in the relevant prospectus supplement, of a share of
preferred stock or Class A preferred stock.
The shares of the preferred stock or the Class A preferred stock series
underlying any depositary shares will be deposited under a separate deposit
agreement between First Union and a bank or trust company acting as depositary
with respect to that series. The depositary will have its principal office in
the United States and have a combined capital and surplus of at least
$50,000,000. The relevant prospectus supplement relating to a series of
depositary shares will mention the name and address of the depositary. Under
the relevant deposit agreement, each owner of a depositary share will be
entitled, in proportion to its fractional interest in a share of the preferred
stock or the Class A preferred stock underlying that depositary share, to all
the rights and preferences of that preferred stock or Class A preferred stock,
including dividend, voting, redemption, conversion, exchange and liquidation
rights.
Depositary shares will be evidenced by one or more depositary receipts
issued under the relevant deposit agreement.
Pending the preparation of definitive engraved depositary receipts, a
depositary may, upon First Union's order, issue temporary depositary receipts
substantially identical to and entitling their holders to all the rights
pertaining to the definitive depositary receipts but not in definitive form.
Definitive depositary receipts will be prepared without unreasonable delay, and
the temporary depositary receipts will be exchangeable for definitive
depositary receipts at First Union's expense.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash
distributions in respect of the preferred stock or the Class A preferred stock
to the record depositary shareholders based on the number of the depositary
shares owned by that holder on the relevant record date. The depositary will
distribute only the amount as can be distributed without attributing to any
depositary shareholders a fraction of one cent, and any balance not so
distributed will be added to and treated as part of the next sum received by
the depositary for distribution to record depositary shareholders.
If there is a distribution other than in cash, the depositary will
distribute property to the entitled record depositary shareholders, unless the
depositary determines that it is not feasible to make that distribution. In
that case the depositary may, with First Union's approval, adopt the method it
deems equitable and practicable for making that distribution, including any
sale of property and the distribution of the net proceeds from this sale to the
concerned holders.
14
<PAGE>
Each deposit agreement will also contain provisions relating to the manner
in which any subscription or similar rights First Union offers to preferred
stockholders or the Class A preferred stockholders of the applicable series
will be made available to depositary shareholders.
Withdrawal of Stock
Upon surrender of depositary receipts at the depositary's office, the holder
of the relevant depositary shares will be entitled to the number of whole
shares of the related preferred stock series or Class A preferred stock series
and any money or other property those depositary shares represent. Depositary
shareholders will be entitled to receive whole shares of the related preferred
stock series or Class A preferred stock series on the basis described in the
relevant prospectus supplement, but holders of those whole preferred stock
shares or Class A preferred stock shares will not afterwards be entitled to
receive depositary shares in exchange for their shares. If the depositary
receipts the holder delivers evidence a depositary share number exceeding the
whole share number of the related preferred stock series or Class A preferred
stock series to be withdrawn, the depositary will deliver to that holder a new
depositary receipt evidencing the excess depositary share number.
Redemption; Liquidation
The terms on which the depositary shares relating to the preferred stock or
the Class A preferred stock of any series may be redeemed, and any amounts
distributable upon First Union's liquidation, dissolution or winding up, will
be described in the relevant prospectus supplement.
Voting
Upon receiving notice of any meeting at which preferred stockholders or
Class A preferred stockholders of any series are entitled to vote, the
depositary will mail the information contained in that notice to the record
depositary shareholders relating to those series of preferred stock or Class A
preferred stock. Each depositary shareholder on the record date will be
entitled to instruct the depositary on how to vote the shares of preferred
stock or Class A preferred stock underlying that holder's depositary shares.
The depositary will vote the preferred stock shares or Class A preferred stock
shares underlying those depositary shares according to those instructions, and
First Union will take reasonably necessary actions to enable the depositary to
do so. If the depositary does not receive specific instructions from the
depositary shareholders relating to such preferred stock or Class A preferred
stock, it will abstain from voting those preferred stock shares or Class A
preferred stock shares, unless otherwise mentioned in the relevant prospectus
supplement.
Amendment and Termination of Depositary Agreement
The depositary receipt form evidencing the depositary shares and the
relevant deposit agreement may be amended by First Union and the depositary.
However, any amendment that significantly affects the rights of the depositary
shareholders will not be effective unless a majority of the outstanding
depositary shareholders approve that amendment. First Union or the depositary
may terminate a deposit agreement only if
. First Union has redeemed or reacquired all outstanding depositary shares
relating to the deposit agreement
. all preferred stock or Class A preferred stock of the relevant series
has been withdrawn or
. there has been a final distribution in respect of the preferred stock or
the Class A preferred stock of the relevant series in connection with
First Union's liquidation, dissolution or winding up and such
distribution has been made to the related depositary shareholders.
Charges of Depositary
First Union will pay all charges of each depositary in connection with the
initial deposit and any redemption of the preferred stock or the Class A
preferred stock. Depositary shareholders will be required to pay any other
transfer and other taxes and governmental charges and any other charges
expressly provided in the deposit agreement to be for their accounts.
15
<PAGE>
Miscellaneous
Each depositary will forward to the relevant depositary shareholders all
First Union reports and communications that First Union is required to furnish
to preferred stockholders or Class A preferred stockholders of the relevant
series.
Neither any depositary nor First Union will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under any deposit agreement. The obligations of First Union and
each depositary under any deposit agreement will be limited to performance in
good faith of their duties under that agreement, and they will not be obligated
to prosecute or defend any legal proceeding in respect of any depositary
shares, preferred stock or Class A preferred stock unless they are provided
with satisfactory indemnity. They may rely upon written advice of counsel or
accountants, or information provided by persons presenting preferred stock or
Class A preferred stock for deposit, depositary shareholders or other persons
believed to be competent and on documents believed to be genuine.
Title
First Union, each depositary and any of their agents may treat the
registered owner of any depositary share as the absolute owner of that share,
whether or not any payment for that depositary share is overdue and despite any
notice to the contrary, for any purpose. See "Global Securities".
Resignation and Removal of Depositary
A depositary may resign at any time by delivering to First Union notice of
its election, and First Union may remove a depositary, and resignation or
removal will take effect upon the appointment of a successor depositary and its
acceptance of appointment. That successor depositary must
. be appointed within 60 days after delivery of the notice of resignation
or removal
. be a bank or trust company having its principal office in the United
States and
. have combined capital and surplus of at least $50,000,000.
16
<PAGE>
DESCRIPTION OF THE DEBT SECURITIES
General
The following information outlines some of the provisions of the indentures
and the debt securities. This information may not be complete in all respects,
and is qualified entirely by reference to the indenture under which the debt
securities are issued. These indentures are incorporated by reference as
exhibits to the registration statement of which this prospectus is a part. This
information relates to certain terms and conditions that generally apply to the
debt securities. The specific terms of any series of debt securities will be
described in the relevant prospectus supplement. If so mentioned in that
prospectus supplement, the terms of any such series may differ from the general
description of the terms presented below.
Senior debt securities will be issued under an indenture between First Union
and The Chase Manhattan Bank, as trustee. Subordinated debt securities will be
issued under an indenture between First Union and Harris Trust and Savings
Bank, as trustee. Whenever we refer to specific provisions or defined terms in
one or both of the indentures, such provisions or defined terms are
incorporated here by reference. Section references used in this discussion are
references to the relevant indenture. Capitalized terms which are not otherwise
defined shall have the meaning given to them in the relevant indenture.
The debt securities will be limited to an aggregate initial offering price
of $2,000,000,000, or at First Union's option if so specified in the relevant
prospectus supplement, the equivalent of this amount in any other currency or
currency unit, and will be First Union's direct, unsecured obligations. The
debt securities will not be deposits or other bank obligations and will not be
FDIC insured.
The indentures do not limit the aggregate principal amount of debt
securities or of any particular series of debt securities which may be issued
under the indentures and provide that these debt securities may be issued at
various times in one or more series, in each case with the same or various
maturities, at par or at a discount. (Section 301) The indentures provide that
there may be more than one trustee under the indentures with respect to
different series of debt securities. As of September 30, 1999, $1.0 billion
aggregate principal amount of senior debt securities was outstanding under the
senior indenture. The senior trustee is trustee for such series. As of
September 30, 1999, $4.2 billion aggregate principal amount of subordinated
debt securities was outstanding under the subordinated indenture. The
subordinated trustee is trustee for such series.
The indentures do not limit the amount of other debt that First Union may
issue and do not contain financial or similar restrictive covenants. As of
September 30, 1999, First Union had an aggregate of $3.6 billion of short-term
senior indebtedness outstanding which consisted primarily of commercial paper.
First Union expects from time to time to incur additional senior indebtedness
and Other Financial Obligations (as defined below). The indentures do not
prohibit or limit additional senior indebtedness or Other Financial
Obligations.
Because First Union is a holding company and a legal entity separate and
distinct from its subsidiaries, First Union's rights to participate in any
distribution of assets of any subsidiary upon its liquidation, reorganization
or otherwise, and the holders of debt securities' ability to benefit indirectly
from such distribution, would be subject to prior creditor's claims, except to
the extent that First Union itself may be a creditor of that subsidiary with
recognized claims. Claims on First Union's subsidiary banks by creditors other
than First Union include long-term debt and substantial obligations with
respect to deposit liabilities and federal funds purchased, securities sold
under repurchase agreements, other short-term borrowings and various other
financial obligations. The indentures do not contain any covenants designed to
afford holders of debt securities protection in the event of a highly leveraged
transaction involving First Union.
17
<PAGE>
The following information relating to the debt securities will be described
in the relevant prospectus supplement
. the title of the debt securities
. whether the debt securities are senior debt securities or subordinated
debt securities
. any limit upon the aggregate principal amount of the debt securities and
the percentage of such principal amount at which they may be issued
. the date on which the principal of the debt securities must be paid
. the interest rates per annum of the debt securities, the method of
determining these rates, the dates from which the interest will accrue,
the interest payment dates, the regular record date for the interest
payable on any interest payment date, the person to whom any payment
must be made, if other than the person in whose name that debt security
is registered on the regular record date for such interest, and the
payment method of any interest payable on a global debt security on an
interest payment date
. if other than the location specified in this prospectus, the place where
any principal, premium or interest on the debt securities must be paid
. any redemption and any mandatory or optional sinking fund provisions
. any repayment provision
. if other than denominations of $1,000 and any integral multiple of
$1,000, the denominations in which the debt securities shall be issued
. if other than the principal amount, the portion of the debt securities'
principal amount which shall be payable upon an acceleration of their
maturity
. the currency or currency unit of payment of principal, premium, if any,
and interest on the debt securities, and any index used to determine the
amount of payment of principal, premium, if any, and interest on these
debt securities
. whether the debt securities will be issued in permanent global form and,
in such case, the initial depository and the circumstances under which
such permanent global debt security may be exchanged
. whether the subordination provisions summarized below or other
subordination provisions, including a different definition of "senior
indebtedness", "Entitled Persons", "Existing Subordinated Indebtedness"
or "Other Financial Obligations", shall apply to the debt securities
. the terms and conditions of any obligation or right of First Union or a
holder to convert or exchange subordinated debt securities into other
securities and
. any other key aspects of the debt securities not specified in this
prospectus. (Section 301)
Where appropriate, the applicable prospectus supplement will describe the U. S.
federal income tax considerations relevant to the debt securities.
Unless otherwise described in the relevant prospectus supplement, principal,
premium, and interest, if any, on the debt securities will be payable, and the
debt securities will be transferable, at the Corporate Trust Office of First
Union National Bank in Charlotte, North Carolina, except that interest may be
paid at First Union's option by check mailed to the address of the holder
entitled to it as it appears on the security register. (Sections 301, 305 and
1002)
18
<PAGE>
Unless otherwise described in the relevant prospectus supplement, the debt
securities will be issued only in fully registered form, without coupons, in
denominations of $1,000 and any integral multiples of $1,000. (Section 302) The
indentures provide that debt securities of any series may be issued in
permanent global form (Section 301) and, unless otherwise described in the
relevant prospectus supplement, debt securities will be issued in permanent
global form. See "Global Securities". No service charge will be made for any
registration of transfer or exchange of the debt securities, but First Union
may require payment to cover any tax or other governmental charge payable in
connection with a transfer or exchange. (Section 305)
Both senior debt securities and subordinated debt securities may be issued
as original issue discount securities to be offered and sold at a substantial
discount below their stated principal amount. Federal income tax consequences
and other special considerations that apply to any original issue discount
securities will be described in the relevant prospectus supplement. The term
"original issue discount security" means any security which provides for an
amount less than its principal amount to be due and payable upon the
acceleration of its maturity in accordance with the related indenture. (Section
101)
We refer to the relevant prospectus supplement relating to any series of
debt securities that are original issue discount securities for the particular
provisions relating to acceleration of the maturity of a portion of the
principal amount of such original issue discount securities upon a continuing
event of default occurrence.
Subordination of the Subordinated Debt Securities
First Union's obligations to make any payment of the principal and interest
on any subordinated debt securities will, to the extent the subordinated
indenture specifies, be subordinate and junior in right of payment to all of
First Union's senior indebtedness. Unless otherwise specified in the prospectus
supplement relating to a specific series of subordinated debt securities, First
Union's "senior indebtedness" is defined in the subordinated indenture to mean
the principal of, premium and interest, if any, on
. all First Union indebtedness for money borrowed, including indebtedness
First Union guarantees, other than the subordinated debt securities,
whether outstanding on the date of execution of the indenture or
incurred afterward, except
. any obligations on account of Existing Subordinated Indebtedness and
. such indebtedness as is by its terms expressly stated to be not
superior in payment right to the subordinated debt securities or to
rank equal to the subordinated debt securities and
. any deferrals, renewals or extensions of any such senior indebtedness.
The payment of the principal and interest on the subordinated debt
securities will, to the extent described in the subordinated indenture, be
subordinated in payment right to the prior payment of all senior indebtedness.
Unless otherwise described in the prospectus supplement relating to the
specific series of subordinated debt securities, in certain events of
insolvency, the payment of the principal and interest on the subordinated debt
securities, other than subordinated debt securities that are also Existing
Subordinated Indebtedness, will, to the extent described in the subordinated
indenture, also be effectively subordinated in payment right to the prior
payment of all Other Financial Obligations. Upon any payment or distribution of
assets to creditors under First Union's liquidation, dissolution, winding up,
reorganization, assignment for the benefit of creditors, or any bankruptcy,
insolvency or similar proceedings, all senior indebtedness holders will be
entitled to receive payment in full of all amounts due before the subordinated
debt securities holders will be entitled to receive any payment in respect of
the principal or interest on their securities. If upon any such payment or
asset distribution to creditors, there remains, after giving effect to those
subordination provisions in favor of senior
19
<PAGE>
indebtedness holders, any amount of cash, property or securities available for
payment or distribution in respect of subordinated debt securities (defined in
the subordinated indenture as "Excess Proceeds") and if, at that time, any
Entitled Persons (as defined below) in respect of Other Financial Obligations
have not received payment of all amounts due on such Other Financial
Obligations, then such Excess Proceeds shall first be applied to pay these
Other Financial Obligations before any payment may be applied to the
subordinated debt securities which are not Existing Subordinated Indebtedness.
In the event of the acceleration of the maturity of any subordinated debt
securities, all senior indebtedness holders will be entitled to receive payment
of all amounts due before the subordinated debt securities holders will be
entitled to receive any payment upon the principal of or interest on their
subordinated debt securities.
By reason of such subordination in favor of senior indebtedness holders, in
the event of insolvency, First Union's creditors who are not senior
indebtedness holders or subordinated debt securities holders may recover less,
ratably, than senior indebtedness holders and may recover more, ratably, than
subordinated debt securities holders. By reason of subordinated debt
securities' holders (other than Existing Subordinated Indebtedness) to pay over
any Excess Proceeds to Entitled Persons in respect to Other Financial
Obligations, in the event of insolvency, Existing Subordinated Indebtedness
holders may recover less, ratably, than Entitled Persons in respect of Other
Financial Obligations and may recover more, ratably, than the subordinated debt
securities holders (other than Existing Subordinated Indebtedness).
Unless otherwise specified in the prospectus supplement relating to the
particular subordinated debt securities series offered by it, "Existing
Subordinated Indebtedness" means subordinated debt securities issued under the
subordinated indenture prior to November 15, 1992. (Section 101 of the
subordinated indenture)
Unless otherwise specified in the prospectus supplement relating to the
particular subordinated debt securities series offered by it, "Other Financial
Obligations" means all obligations of First Union to make payment pursuant to
the terms of financial instruments, such as
. securities contracts and foreign currency exchange contracts
. derivative instruments such as
. swap agreements (including interest rate and foreign exchange rate
swap agreements)
. cap agreements
. floor agreements
. collar agreements
. interest rate agreements
. foreign exchange rate agreements
. options
. commodity futures contracts
. commodity option contracts and
. similar financial instruments other than
. obligations on account of senior indebtedness and
. obligations on account of indebtedness for money borrowed ranking
equal or subordinate to the subordinated debt securities.
Unless otherwise described in the prospectus supplement relating to a specific
series of subordinated debt securities, "Entitled Persons" means any person who
is entitled to payment under the terms of Other Financial Obligations.
20
<PAGE>
First Union's obligations under the subordinated debt securities shall rank
equal in right of payment with each other and with the Existing Subordinated
Indebtedness, subject, unless otherwise described in the prospectus supplement
relating to a specific series of subordinated debt securities, to the
obligations of subordinated debt securities holders (other than Existing
Subordinated Indebtedness) to pay over any Excess Proceeds to Entitled Persons
in respect of Other Financial Obligations as provided in the subordinated
indenture.
The relevant prospectus supplement may further describe the provisions, if
any, applicable to the subordination of the subordinated debt securities of a
particular series.
Conversion or Exchange
If and to the extent mentioned in the relevant prospectus supplement, any
subordinated debt securities series may be convertible or exchangeable into
other debt securities or common stock, preferred stock, Class A preferred stock
or depositary shares. The specific terms on which any subordinated debt
securities series may be so converted or exchanged will be described in the
relevant prospectus supplement. These terms may include provisions for
conversion or exchange, either mandatory, at the holder's option or at First
Union's option, in which case the amount or number of securities the
subordinated debt securities holders would receive would be calculated at the
time and manner described in the relevant prospectus supplement.
Defaults
The Senior Indenture
The Senior Indenture defines an "event of default" as
. default in any principal or premium payment on any senior debt security
of that series at maturity
. default for 30 days in interest payment of any senior debt security of
that series
. failure to deposit any sinking fund payment when due in respect of that
series
. First Union's failure for 60 days after notice in performing any other
covenants or warranties in the senior indenture (other than a covenant
or warranty solely for the benefit of other senior debt securities
series)
. failure to pay when due any First Union indebtedness or First Union
National Bank indebtedness in excess of $5,000,000, or maturity
acceleration of any indebtedness exceeding that amount if acceleration
results from a default under the instrument giving rise to that
indebtedness and is not annulled within 30 days after due notice
. First Union's or First Union National Bank's bankruptcy, insolvency or
reorganization and
. any other event of default provided for senior debt securities of that
series. (Section 501)
The senior indenture provides that, if any event of default for senior debt
securities of any series outstanding occurs and is continuing, either the
senior trustee or the holders of not less than 25% in principal amount of the
outstanding senior debt securities of that series may declare the principal
amount (or, if the securities of that series are original issue discount
securities, such principal amount portion as the terms of that series specify)
of all senior debt securities of that series to be due and payable immediately.
However, no such declaration is required upon certain bankruptcy events. In
addition, upon fulfillment of certain conditions, this declaration may be
annulled and past defaults waived by the holders of a majority in principal
amount of the outstanding senior debt securities of that series on behalf of
all senior debt securities holders of that series. (Sections 502 and 513) In
the event of First Union's bankruptcy, insolvency or reorganization, senior
debt securities holders' claims would fall under the broad equity power of a
federal bankruptcy court, and to that court's determination of the nature of
those holders' rights.
21
<PAGE>
The senior indenture contains a provision entitling the senior trustee,
acting under the required standard of care, to be indemnified by the holders of
any outstanding senior debt securities series before proceeding to exercise any
right or power under the senior indenture at the holders' request. (Section
603) The holders of a majority in principal amount of outstanding senior debt
securities of any series may direct the time, method and place of conducting
any proceeding for any remedy available to the senior trustee, or exercising
any trust or other power conferred on the senior trustee, with respect to the
senior debt securities of such series. The senior trustee, however, may decline
to act if that direction is contrary to law or the senior indenture or would
involve the senior trustee in personal liability. (Section 512)
First Union will file annually with the senior trustee a compliance
certificate as to all conditions and covenants in the senior indenture.
(Section 1007)
The Subordinated Indenture
Subordinated debt securities principal payment may be accelerated only upon
an event of default. There is no acceleration right in the case of a default in
the payment of interest or principal prior to the maturity date or a default in
First Union performing any covenants in the subordinated indenture, unless a
specific series of subordinated debt securities provide otherwise, which will
be described in the relevant prospectus supplement.
The subordinated indenture defines an "event of default" as certain events
involving First Union's bankruptcy, insolvency or reorganization and any other
event of default provided for the subordinated debt securities of that series.
(Section 501) The subordinated indenture defines a "default" to include
. any event of default
. a default in any principal or premium payment of any subordinated debt
security of that series at maturity
. default in any interest payment when due and continued for 30 days
. a default in any required designation of funds as "available funds" or
. default in the performance, or breach, of First Union's covenants in the
subordinated indenture or in the subordinated debt securities of that
series and continued for 90 days after written notice to
. First Union by the subordinated trustee or
. First Union and the subordinated trustee by the holders of not less
than 25% in aggregate principal amount of the outstanding
subordinated debt securities of that series. (Section 503)
If an event of default for subordinated debt securities of any series occurs
and is continuing, either the subordinated trustee or the holders of not less
than 25% in aggregate principal amount of the outstanding subordinated debt
securities of that series may accelerate the maturity of all outstanding
subordinated debt securities of such series. The holders of a majority in
aggregate principal amount of the outstanding subordinated debt securities of
that series may waive an event of default resulting in acceleration of the
subordinated debt securities of such series, but only if all events of default
have been remedied and all payments due on the subordinated debt securities of
that series (other than those due as a result of acceleration) have been made
and certain other conditions have been met. (Section 502) Subject to
subordinated indenture provisions relating to the subordinated trustee's
duties, in case a default shall occur and be continuing, the subordinated
trustee will be under no obligation to exercise any of its rights or powers
under the subordinated indenture at the holders' request or direction, unless
such holders shall have offered to the subordinated trustee reasonable
indemnity. (Section 603) Subject to such indemnification provisions, the
holders of a majority in aggregate principal amount of the outstanding
subordinated debt securities of that series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the subordinated trustee or exercising any trust or power conferred on the
subordinated trustee. (Section 512) The holders of a majority in aggregate
principal amount of the outstanding subordinated debt securities of that series
may waive
22
<PAGE>
any past default under the subordinated indenture with respect to such series,
except a default in principal or interest payment or a default of a
subordinated indenture covenant which cannot be modified without the consent of
each outstanding subordinated debt security holder of the series affected.
(Section 513) In the event of First Union's bankruptcy, insolvency or
reorganization, subordinated debt securities holders' claims would fall under
the broad equity power of a federal bankruptcy court, and to that court's
determination of the nature of those holders' rights.
First Union will file annually with the subordinated trustee a compliance
certificate as to all conditions and covenants in the subordinated indenture.
(Section 1007)
Modification and Waiver
Each indenture may be modified and amended by First Union and the relevant
trustee. Certain modifications and amendments require the consent of the
holders of at least a majority in aggregate principal amount of the outstanding
debt securities of each series issued under that indenture and affected by the
modification or amendment. No such modification or amendment may, without the
consent of the holder of each outstanding debt security issued under such
indenture and affected by it
. change the stated maturity of the principal, or any installment of
principal or interest, on any outstanding debt security
. reduce any principal amount, premium or the interest, on any outstanding
debt security, including in the case of an original issue discount
security the amount payable upon acceleration of the maturity of that
security
. change the place of payment where, or the coin or currency or currency
unit in which, any principal, premium or interest, on any outstanding
debt security is payable
. impair the right to institute suit for the enforcement of any payment on
or after the stated maturity, or in the case of redemption, on or after
the redemption date
. reduce the above-stated percentage of outstanding debt securities
necessary to modify or amend the applicable indenture or
. modify the above requirements or reduce the percentage of aggregate
principal amount of outstanding debt securities of any series required
to be held by holders seeking to waive compliance with certain
provisions of the relevant indenture or seeking to waive certain
defaults. (Section 902)
The holders of at least a majority in aggregate principal amount of the
outstanding debt securities of any series may on behalf of all outstanding debt
securities holders of that series waive, insofar as that series is concerned,
First Union's compliance with certain restrictive provisions of the relevant
indenture. (Section 1008) The holders of at least a majority in aggregate
principal amount of the outstanding debt securities of any series may on behalf
of all outstanding debt securities holders of that series waive any past
default under the relevant indenture with respect to that series, except a
default in the payment of the principal, or premium, if any, or interest on any
outstanding debt security of that series or in respect of an indenture covenant
which cannot be modified or amended without each outstanding debt security
holder consenting. (Section 513)
Certain modifications and amendments of each indenture may be made by First
Union and the relevant trustee without the outstanding debt securities holders
consenting. (Section 901)
Each indenture provides that in determining whether the holders of the
requisite principal amount of the outstanding debt securities have given any
request, demand, authorization, direction, notice, consent or waiver under that
indenture or are present at a meeting of holders of outstanding debt securities
for quorum purposes
. the principal amount of an original issue discount security that shall
be deemed to be outstanding shall be the amount of the principal that
would be due and payable as of the date of such determination upon
acceleration of its maturity and
23
<PAGE>
. the principal amount of outstanding debt securities denominated in a
foreign currency or currency unit shall be the U.S. dollar equivalent,
determined on the date of original issuance of such outstanding debt
security, of the principal amount of that outstanding debt security or,
in the case of an original issue discount security, the U.S. dollar
equivalent, determined on the date of original issuance of such
outstanding debt security, of the amount determined as provided in the
above bullet-point. (Section 101)
Consolidation, Merger and Sale of Assets
The indentures each provide that First Union may not consolidate with or
merge into any other corporation or transfer its properties and assets
substantially as an entirety to any person unless
. the corporation formed by the consolidation or into which First Union is
merged, or the person to which First Union's properties and assets are
so transferred, shall be a corporation organized and existing under the
laws of the U.S., any state or Washington, D.C. and shall expressly
assume by supplemental indenture the payment of any principal, premium
or interest on the debt securities, and the performance of First Union's
other covenants under the relevant indenture
. immediately after giving effect to this transaction, no event of default
or default, as applicable, and no event which, after notice or lapse of
time or both, would become an event of default or default, as
applicable, shall have occurred and be continuing and
. certain other conditions are met. (Section 801)
Limitation on Disposition of First Union National Bank Stock
The indentures each contain First Union's covenant that, so long as any of
the debt securities issued under that indenture before August 1, 1990 are
outstanding, but subject to First Union's rights in connection with its
consolidation with or merger into another corporation or a sale of First
Union's assets, it will not sell, assign, transfer, grant a security interest
in or otherwise dispose of any shares of, securities convertible into, or
options, warrants or rights to subscribe for or purchase shares of, First Union
National Bank voting stock, nor will it permit First Union National Bank to
issue any shares of, or securities convertible into, or options, warrants or
rights to subscribe for or purchase shares of, First Union National Bank voting
stock, unless
. any such sale, assignment, transfer, issuance, grant of a security
interest or other disposition is made for fair market value, as
determined by First Union's board and
. First Union will own at least 80% of the issued and outstanding First
Union National Bank voting stock free and clear of any security interest
after giving effect to such transaction. (Section 1006)
The above covenant is not a covenant for the benefit of any series of debt
securities issued on or after August 1, 1990.
Restriction on Sale or Issuance of Voting Stock of Major Subsidiary Banks
The indentures each contain First Union's covenant that it will not, and
will not permit any subsidiary to, sell, assign, transfer, grant a security
interest in, or otherwise dispose of, any shares of voting stock, or any
securities convertible into shares of voting stock, of any "Major Subsidiary
Bank" (as defined below) or any subsidiary owning, directly or indirectly, any
shares of voting stock of any Major Subsidiary Bank and that it will not permit
any Major Subsidiary Bank or any subsidiary owning, directly or indirectly, any
shares of voting stock of a Major Subsidiary Bank to issue any shares of its
voting stock or any securities convertible into shares of its voting stock,
except for sales, assignments, transfers or other dispositions which
. are for the purpose of qualifying a person to serve as a director
. are for fair market value, as determined by First Union's board, and,
after giving effect to such dispositions and to any potential dilution,
First Union will own not less than 80% of the shares of
24
<PAGE>
voting stock of such Major Subsidiary Bank or any such subsidiary owning
any shares of voting stock of such Major Subsidiary Bank
. are made
. in compliance with court or regulatory authority order or
. in compliance with a condition imposed by any such court or
authority permitting First Union's acquisition of any other bank or
entity or
. in compliance with an undertaking made to such authority in
connection with such an acquisition; provided, in the case of the
two preceding bullet-points, the assets of the bank or entity being
acquired and its consolidated subsidiaries equal or exceed 75% of
the assets of such Major Subsidiary Bank or such subsidiary owning,
directly or indirectly, any shares of voting stock of a Major
Subsidiary Bank and its respective consolidated subsidiaries on the
date of acquisition or
. are made to First Union or any wholly-owned subsidiary.
Despite the above requirements, any Major Subsidiary Bank may be merged into
or consolidated with another banking institution organized under U.S. or state
law, if after giving effect to that merger or consolidation First Union or any
wholly-owned subsidiary owns at least 80% of the voting stock of the other
banking institution free and clear of any security interest and if, immediately
after the merger or consolidation, no event of default, and no event which,
after notice or lapse of time or both, would become an event of default, shall
have happened and be continuing. (Section 1007) A "Major Subsidiary Bank" is
defined in each indenture to mean any subsidiary which is a bank and has total
assets equal to 25% or more of First Union's consolidated assets determined on
the date of the most recent audited financial statements of these entities. At
present, the only Major Subsidiary Bank is First Union National Bank.
The above covenant is not a covenant for the benefit of any series of debt
securities issued before August 1, 1990, or, in the case of subordinated debt
securities, issued after November 15, 1992.
Trustees
Either or both of the trustees may resign or be removed with respect to one
or more series of debt securities and a successor trustee may be appointed to
act with respect to that series. (Section 610) In the event that two or more
persons are acting as trustee with respect to different series of debt
securities, each such trustee shall be a trustee of a trust under the relevant
indenture separate and apart from the trust administered by any other such
trustee (Section 611), and any action to be taken by the "trustee" may then be
taken by each such trustee with respect to, and only with respect to, the one
or more series of debt securities for which it is trustee.
In the normal course of business, First Union and its subsidiaries conduct
banking transactions with the trustees, and the trustees conduct banking
transactions with First Union and its subsidiaries.
Title
First Union, the trustees and any of their agents may treat the registered
owner of any debt security as the absolute owner of that security, whether or
not that debt security is overdue and despite any notice to the contrary, for
any purpose. See "Global Securities".
25
<PAGE>
DESCRIPTION OF WARRANTS
The following outlines information about each warrant agreement, the
warrants and the warrant certificates. This information may not be complete in
all respects and is qualified entirely by reference to the relevant warrant
agreement with respect to the warrants of any particular series. The specific
terms of any series of warrants will be described in the relevant prospectus
supplement. If so described in a prospectus supplement, the terms of that
series of warrants may differ from the general description of terms presented
below.
General
First Union may issue warrants for the purchase of debt securities,
preferred stock, Class A preferred stock, depositary shares or common stock.
Warrants may be issued independently or together with debt securities,
preferred stock, Class A preferred stock, depositary shares or common stock,
and may be attached to or separate from those securities.
Each series of warrants will be evidenced by certificates issued under a
separate warrant agreement to be entered into between First Union and a bank,
as warrant agent, selected by First Union with respect to such series, having
its principal office in the U.S. and having combined capital and surplus of at
least $50,000,000.
The relevant prospectus supplement relating to a series of warrants will
mention the name and address of the warrant agent. The relevant prospectus
supplement will describe the terms of the series of warrants in respect of
which this prospectus is being delivered, including
. the offering price
. the currency for which such warrants may be purchased
. the designation and terms of the securities with which the warrants are
issued and the number of warrants issued with each such security or each
principal amount of such security
. the date which the warrants and the related securities will be
separately transferable
. in the case of warrants to purchase debt securities, the principal
amount of debt securities that can be purchased upon exercise of one
warrant, and the price and currency for purchasing those debt securities
upon exercise and, in the case of warrants to purchase preferred stock,
Class A preferred stock, depositary shares or common stock, the number
of depositary shares or shares of preferred stock, Class A preferred
stock or common stock, as the case may be, that can be purchased upon
the exercise of one warrant, and the price for purchasing such shares
upon this exercise
. the dates on which the right to exercise the warrants will commence and
expire
. certain federal income tax consequences of holding or exercising those
warrants
. the terms of the securities issuable upon exercise of those warrants and
. any other terms of the warrants.
Warrant certificates may be exchanged for new warrant certificates of
different denominations, may be presented for transfer registration, and may be
exercised at the warrant agent's corporate trust office or any other office
indicated in the relevant prospectus supplement. If the warrants are not
separately transferable from the securities with which they were issued, this
exchange may take place only if the certificates representing such related
securities are also exchanged. Prior to warrant exercise, warrantholders will
not have any rights as holders of the securities purchasable upon such
exercise, including, in the case of warrants to purchase debt securities, the
right to receive principal, premium, if any, or interest payments, on the debt
securities purchasable upon such exercise or to enforce covenants in the
applicable indenture or, in the case of warrants to purchase preferred stock,
Class A preferred stock, depositary shares or common stock, the right to
receive any
26
<PAGE>
dividends, or payments upon First Union's liquidation, dissolution or winding
up or to exercise any voting rights.
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities specified in
the relevant prospectus supplement at the exercise price mentioned in, or
calculated as described in, the relevant prospectus supplement. Unless
otherwise specified in the relevant prospectus supplement, warrants may be
exercised at any time up to 5:00 p.m., New York time, on the expiration date
mentioned in that prospectus supplement. After the close of business on the
expiration date, unexercised warrants will become void.
Warrants may be exercised by delivery of the warrant certificate
representing the warrants to be exercised, or in the case of global securities,
as described in "Global Securities", by delivery of an exercise notice for
those warrants, together with certain information, and payment to the warrant
agent in immediately available funds, as provided in the relevant prospectus
supplement, of the required purchase amount. The information required to be
delivered will be on the reverse side of the warrant certificate and in the
relevant prospectus supplement. Upon receipt of such payment and the warrant
certificate or exercise notice properly executed at the warrant agent's
corporate trust office or any other office indicated in the relevant prospectus
supplement, First Union will, in the time period the relevant warrant agreement
provides, issue and deliver the securities purchasable upon such exercise. If
fewer than all of the warrants represented by such warrant certificate are
exercised, a new warrant certificate will be issued for the remaining amount of
warrants.
If mentioned in the relevant prospectus supplement, securities may be
surrendered as all or part of the exercise price for warrants.
Antidilution Provisions
In the case of warrants to purchase common stock, the exercise price payable
and the number of common stock shares purchasable upon warrant exercise may be
adjusted in certain events, including
. the issuance of a stock dividend to common stockholders or a
combination, subdivision or reclassification of common stock
. the issuance of rights, warrants or options to all common stockholders
entitling them to purchase common stock for an aggregate consideration
per share less than the current market price per common stock share
. any First Union distribution to its common stockholders of evidences of
First Union's indebtedness or of assets, excluding cash dividends or
distributions referred to above and
. any other events mentioned in the relevant prospectus supplement.
No adjustment in the number of shares purchasable upon warrant exercise will
be required until cumulative adjustments require an adjustment of at least 1%
of such number. No fractional shares will be issued upon warrant exercise, but
First Union will pay the cash value of any fractional shares otherwise
issuable.
Modification
First Union and the relevant warrant agent may amend any warrant agreement
and the terms of the related warrants by executing a supplemental warrant
agreement, without any such warrantholders consent, for the purpose of
. curing any ambiguity, any defective or inconsistent provision contained
in the warrant agreement, or making any other corrections to the warrant
agreement that are not inconsistent with the provisions of the warrant
certificates
27
<PAGE>
. evidencing the succession of another corporation to First Union and
their assumption of First Union's covenants contained in the warrant
agreement and the warrants
. appointing a successor depository, if the warrants are issued in the
form of global securities
. evidencing a successor warrant agent's acceptance of appointment with
respect to the warrants
. adding to First Union's covenants for the warrantholders' benefit or
surrendering any right or power conferred upon First Union under the
warrant agreement
. issuing warrants in definitive form, if such warrants are initially
issued in the form of global securities or
. amending the warrant agreement and the warrants as First Union deems
necessary or desirable and that will not adversely affect the
warrantholders' interests in any material respect.
First Union and the warrant agent may also amend any warrant agreement and
the related warrants by a supplemental agreement with the consent of the
holders of a majority of the unexercised warrants such amendment affects, for
the purpose of adding, modifying or eliminating any of the warrant agreement's
provisions or of modifying the holders' rights. However, no such amendment that
. changes the number or amount of securities purchasable upon warrant
exercise so as to reduce the number of securities receivable upon this
exercise
. shortens the time period during which the warrants may be exercised
. otherwise adversely affects the exercise rights of such warrantholders
in any material respect or
. reduces the number of unexercised warrants the consent of holders of
which is required for amending the warrant agreement or the related
warrants,
may be made without the consent of each holder affected by that amendment.
Consolidation, Merger and Sale of Assets
Each warrant agreement will provide that First Union may consolidate or
merge with or into any other corporation or sell, lease, transfer or convey all
or substantially all of its assets to any other corporation, provided that
. either First Union must be the continuing corporation, or the
corporation other than First Union formed by or resulting from any
consolidation or merger or that receives the assets must be organized
and existing under U.S. or state law and must assume First Union's
obligations for the unexercised warrants and the performance of all
covenants and conditions of the relevant warrant agreement and
. First Union or that successor corporation must not immediately be in
default under that warrant agreement.
Enforceability of Rights by Holders of Warrants
Each warrant agent will act solely as First Union's agent under the relevant
warrant agreement and will not assume any obligation or relationship of agency
or trust for any warrantholder. A single bank or trust company may act as
warrant agent for more than one issue of warrants. A warrant agent will have no
duty or responsibility in case First Union defaults in performing its
obligations under the relevant warrant agreement or warrant, including any duty
or responsibility to initiate any legal proceedings or to make any demand upon
First Union. Any warrantholder may, without the warrant agent's consent or of
any other warrantholder, enforce by appropriate legal action its right to
exercise, and receive the securities purchasable upon exercise of, that
warrant.
28
<PAGE>
Replacement of Warrant Certificates
First Union will replace any destroyed, lost, stolen or mutilated warrant
certificate upon delivery to First Union and the relevant warrant agent of
evidence satisfactory to them of the ownership of that warrant certificate and
of the destruction, loss, theft or mutilation of that warrant certificate, and
(in the case of mutilation) surrender of that warrant certificate to the
relevant warrant agent, unless First Union or the warrant agent has received
notice that the warrant certificate has been acquired by a bona fide purchaser.
That warrantholder will also be required to provide indemnity satisfactory to
the relevant warrant agent and First Union before a replacement warrant
certificate will be issued.
Title
First Union, the warrant agents and any of their agents may treat the
registered holder of any warrant certificate as the absolute owner of the
warrants evidenced by that certificate for any purpose and as the person
entitled to exercise the rights attaching to the warrants so requested, despite
any notice to the contrary. See "Global Securities".
GLOBAL SECURITIES
Unless otherwise mentioned in the relevant prospectus supplement, securities
other than common stock will be issued in the form of one or more global
certificates, or "global securities", registered in the name of a depositary or
its nominee. Unless otherwise mentioned in the relevant prospectus supplement,
the depositary will be The Depository Trust Company, commonly referred to as
DTC. DTC has informed First Union that its nominee will be Cede & Co.
Accordingly, we expect Cede & Co. to be the initial registered holder of all
securities that are issued in global form. No person that acquires a beneficial
interest in those securities will be entitled to receive a certificate
representing that person's interest in the securities except as mentioned
herein or in the relevant prospectus supplement. Unless and until definitive
securities are issued under the limited circumstances described below, all
references to actions by holders of securities issued in global form shall
refer to actions taken by DTC upon instructions from its participants, and all
references to payments and notices to holders shall refer to payments and
notices to DTC or Cede & Co., as the registered holder of these securities.
DTC has informed First Union that it is a limited purpose trust company
organized under the New York Banking Law, a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code, and a "clearing agency" registered under Section 17A of the Exchange Act,
and that it was created to hold securities for its participating organizations
and to facilitate clearance and settlement of securities transactions among its
participants through electronic book-entry. This eliminates the need for
physical movement of certificates. Participants include securities brokers and
dealers, banks, trust companies and clearing corporations, and may include
other organizations. Indirect access to the DTC system also is available to
others such as banks, brokers, dealers and trust companies that clear through
or maintain a custodial relationship with a participant, either directly or
indirectly.
Persons that are not participants or indirect participants but desire to
purchase, sell or otherwise transfer ownership of, or other interests in,
securities may do so only through participants and indirect participants. Under
a book-entry format, holders may experience some delay in their receipt of
payments, as such payments will be forwarded by First Union's designated agent
to Cede & Co., as nominee for DTC. DTC will forward such payments to its
participants, who will then forward them to indirect participants or holders.
Holders will not be recognized by the relevant registrar, transfer agent,
trustee, depositary or warrant agent as registered holders of the securities
entitled to the benefits of First Union's articles or the applicable indenture,
deposit agreement or warrant agreement. Beneficial owners that are not
participants will be permitted to exercise their rights only indirectly through
and according to the procedures of participants and, if applicable, indirect
participants.
29
<PAGE>
Under the rules, regulations and procedures creating and affecting DTC and
its operations as currently in effect, DTC will be required to make book-entry
transfers of securities among participants and to receive and transmit payments
to participants. DTC rules require participants and indirect participants with
which beneficial securities owners have accounts to make book-entry transfers
and receive and transmit payments on behalf of their respective account
holders.
Because DTC can act only on behalf of
. participants, who in turn act only on behalf of participants or indirect
participants and
. certain banks, trust companies and other persons approved by it,
the ability of a beneficial owner of securities issued in global form to pledge
such securities to persons or entities that do not participate in the DTC
system may be limited due to the unavailability of physical certificates for
these securities.
DTC has advised First Union that DTC will take any action permitted to be
taken by a registered holder of any securities under First Union's articles or
the relevant indenture, deposit agreement or warrant agreement only at the
direction of one or more participants to whose accounts with DTC such
securities are credited.
Unless otherwise mentioned in the relevant prospectus supplement, a global
security will be exchangeable for the relevant definitive securities registered
in the names of persons other than DTC or its nominee only if
. DTC notifies First Union that it is unwilling or unable to continue as
depositary for that global security or if DTC ceases to be a clearing
agency registered under the Exchange Act when DTC is required to be so
registered
. First Union executes and delivers to the relevant registrar, transfer
agent, trustee, depositary and/or warrant agent an order complying with
the requirements of First Union's articles or the relevant indenture,
deposit agreement and/or warrant agreement that this global security
shall be so exchangeable or
. there has occurred and is continuing a default in the payment of any
amount due in respect of the securities or, in the case of debt
securities, an event of default or an event that, with the giving of
notice or lapse of time, or both, would constitute an event of default
with respect to these debt securities.
Any global security that is exchangeable under to the preceding sentence will
be exchangeable for securities registered in such names as DTC directs.
Upon the occurrence of any event described in the above paragraph, DTC is
generally required to notify all participants of the availability of definitive
securities. Upon DTC surrendering the global security representing the
securities and delivery of instructions for re-registration, the registrar,
transfer agent, trustee, depositary or warrant agent, as the case may be, will
reissue the securities as definitive securities, and then such persons will
recognize the holders of such definitive securities as registered holders of
securities entitled to the benefits of First Union's articles or the applicable
indenture, deposit agreement and/or warrant agreement.
Except as described above, the global security may not be transferred except
as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or to a successor depositary First Union appoints. Except as
described above, DTC may not sell, assign, transfer or otherwise convey any
beneficial interest in a global security evidencing all or part of any
securities unless the beneficial interest is in an amount equal to an
authorized denomination for these securities.
None of First Union, the trustees, any registrar and transfer agent, any
warrant agent or any depositary, or any agent of any of them, will have any
responsibility or liability for any aspect of DTC's or any participant's
records relating to, or for payments made on account of, beneficial interests
in a global security, or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
Secondary trading in notes and debentures of corporate issuers is generally
settled in clearing-house or next-day funds. In contrast, beneficial interests
in a global security, in some cases, may trade in the DTC's same-day funds
settlement system, in which secondary market trading activity in those
beneficial interests
30
<PAGE>
would be required by DTC to settle in immediately available funds. There is no
assurance as to the effect, if any, that settlement in immediately available
funds would have on trading activity in such beneficial interests. Also,
settlement for purchases of beneficial interests in a global security upon the
original issuance of this security may be required to be made in immediately
available funds.
PLAN OF DISTRIBUTION
First Union may sell securities to or through underwriters, including First
Union Securities, Inc., an affiliate of First Union, to be designated at
various times, and also may sell securities directly to other purchasers or
through agents. The distribution of securities may be effected at various times
in one or more transactions at a fixed price or prices, which may be changed,
or at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
The debt securities, preferred stock, Class A preferred stock, depositary
shares and warrants will be new issues of securities with no established
trading market. It has not presently been established whether the underwriters,
if any, of these securities will make a market in these securities. If a market
in these securities is made by those underwriters, this market making may be
discontinued at any time without notice. No assurance can be given as to the
liquidity of the trading market for these securities.
This prospectus and the related prospectus supplements may be used by First
Union Securities, Inc., an affiliate of First Union, for offers and sales
related to market-making transactions in the securities. First Union
Securities, Inc. may act as principal or agent in these transactions. These
sales will be made at prices related to prevailing market prices at the time of
sale or otherwise.
In facilitating the sale of securities, underwriters may receive
compensation from First Union or from purchasers of securities for whom they
may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell securities to or through dealers, and these dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act
as agents. Underwriters, dealers and agents that participate in the
distribution of securities may be considered underwriters, and any discounts or
commissions received by them from First Union and any profit on the resale of
securities by them may be considered underwriting discounts and commissions
under the Securities Act. Any such underwriter or agent will be identified, and
any such compensation received from First Union will be described, in the
prospectus supplement relating to those securities.
Unless otherwise mentioned in the relevant prospectus supplement, the
obligations of any underwriters to purchase the securities will be subject to
certain conditions precedent, and each of the underwriters with respect to a
sale of securities will be obligated to purchase all of its securities if any
are purchased. Unless otherwise mentioned in the relevant prospectus
supplement, any such agent involved in the offer and sale of the securities in
respect of which this prospectus is being delivered will be acting on a best
efforts basis for the period of its appointment.
In connection with an offering of securities, underwriters may purchase and
sell these securities in the open market. These transactions may include over-
allotment and stabilizing transactions and purchases to cover short positions
created by underwriters with respect to the offering. Stabilizing transactions
consist of certain bids or purchases for preventing or retarding a decline in
the market price of the securities; and short positions created by underwriters
involve the sale by underwriters of a greater number of securities than they
are required to purchase from First Union in the offering. Underwriters also
may impose a penalty bid, by which selling concessions allowed to broker-
dealers in respect of the securities sold in the offering may be reclaimed by
underwriters if such securities are repurchased by underwriters in stabilizing
or covering transactions. These activities may stabilize, maintain or otherwise
affect the market price of the securities, which may be higher than the price
that might otherwise prevail in the open market; and these activities, if
commenced, may be discontinued at any time. These transactions may be effected
on the New York Stock Exchange, in the over-the-counter market or otherwise.
31
<PAGE>
Under agreements which First Union may enter into, underwriters, agents and
their controlling persons who participate in the distribution of securities may
be entitled to indemnification by First Union against certain liabilities,
including liabilities under the Securities Act.
If so noted in the prospectus supplement relating to any securities, First
Union will authorize dealers or other persons acting as First Union's agents to
solicit offers by certain institutions to purchase any securities from First
Union under contracts providing for payment and delivery on a future date.
Institutions with which these contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others. First Union must approve
such institutions in all cases. The obligations of any purchaser under any of
these contracts will be subject to the condition that the purchase of any
securities shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which such purchaser is subject. The underwriters and such
other agents will not have any responsibility in respect of the validity or
performance of such contracts.
The participation of First Union Securities, Inc. in the offer and sale of
the securities must comply with the requirements of Rule 2720 of the National
Association of Securities Dealers, Inc. regarding underwriting securities of an
"affiliate". No NASD member participating in offers and sales will execute a
transaction in the securities in a discretionary account without the prior
specific written approval of such member's customer.
If First Union offers and sells securities directly to a purchaser or
purchasers in respect of which this prospectus is delivered, purchasers
involved in the reoffer or resale of such securities, if these purchasers may
be considered underwriters as that term is defined in the Securities Act, will
be named and the terms of their reoffers or resales will be mentioned in the
relevant prospectus supplement. These purchasers may then reoffer and resell
such securities to the public or otherwise at varying prices to be determined
by such purchasers at the time of resale or as otherwise described in the
relevant prospectus supplement. Purchasers of securities directly from First
Union may be entitled under agreements that they may enter into with First
Union to indemnification by First Union against certain liabilities, including
liabilities under the Securities Act, and may engage in transactions with or
perform services for First Union in the ordinary course of their business or
otherwise.
Underwriters or agents and their associates may be customers of (including
borrowers from), engage in transactions with, and/or perform services for,
First Union, the senior trustee and the subordinated trustee, in the ordinary
course of business.
VALIDITY OF SECURITIES
The validity of any securities will be passed upon for First Union by Kent
S. Hathaway, Esq., Senior Vice President and Deputy General Counsel of First
Union, and for any underwriters or agents by Sullivan & Cromwell, 125 Broad
Street, New York, New York. Sullivan & Cromwell will rely upon the opinion of
Mr. Hathaway as to matters of North Carolina law, and Mr. Hathaway will rely
upon the opinion of Sullivan & Cromwell as to matters of New York law. Mr.
Hathaway owns shares of common stock and holds options to purchase additional
shares of common stock. Sullivan & Cromwell regularly performs legal services
for First Union. Certain members of Sullivan & Cromwell performing these legal
services own shares of common stock.
EXPERTS
The balance sheets of First Union as of December 31, 1998 and 1997, and the
related statements of income, changes in stockholders' equity and cash flows
for each of the years in the three-year period ended December 31, 1998,
included in First Union's 1998 Annual Report to Stockholders which is
incorporated by reference in First Union's 1998 Annual Report on Form 10-K and
incorporated by reference herein, have been incorporated by reference herein in
reliance upon the report of KPMG LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing.
32
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with this offering, other than
underwriting discounts and commissions, are as follows:
<TABLE>
<S> <C>
Registration Statement filing fee............................... $ 528,000
Trustees', Registrar and Transfer Agents', Depositaries' and
Warrant Agents' fees and expenses.............................. 150,000
Legal fees and expenses......................................... 50,000
Blue Sky fees and expenses...................................... 40,000
Accounting fees and expenses.................................... 15,000
Listing fees and expenses....................................... 125,000
Rating agency fees.............................................. 250,000
Printing and engraving costs.................................... 200,000
Miscellaneous................................................... 29,000
----------
Total......................................................... $1,387,000
==========
</TABLE>
Item 15. Indemnification of Directors and Officers.
Sections 55-8-50 through 55-8-58 of the NCBC Act contain specific provisions
relating to indemnification of directors and officers of North Carolina
corporations. In general, the statute provides that (i) a corporation must
indemnify a director or officer against reasonable expenses who is wholly
successful in his defense of a proceeding to which he is a party because of his
status as such, unless limited by the articles of incorporation, and (ii) a
corporation may indemnify a director or officer if he is not wholly successful
in such defense, if it is determined as provided in the statute that the
director or officer meets a certain standard of conduct, provided when a
director or officer is liable to the corporation or liable on the basis of
receiving a personal benefit, the corporation may not indemnify him. The
statute also permits a director or officer of a corporation who is a party to a
proceeding to apply to the courts for indemnification, unless the articles of
incorporation provide otherwise, and the court may order indemnification under
certain circumstances set forth in the statute. The statute further provides
that a corporation may in its articles of incorporation or bylaws or by
contract or resolution provide indemnification in addition to that provided by
the statute, subject to certain conditions set forth in the statute.
First Union's bylaws provide for the indemnification of First Union's
directors and executive officers by First Union against liabilities arising out
of his status as such, excluding any liability relating to activities which
were at the time taken known or believed by such person to be clearly in
conflict with the best interests of First Union. First Union's articles of
incorporation provide for the elimination of the personal liability of each
director of First Union to the fullest extent permitted by the provisions of
the NCBC Act, as the same may from time to time be in effect.
First Union maintains directors and officers liability insurance. In
general, the policy insures (i) First Union's directors and officers against
loss by reason of any of their wrongful acts, and/or (ii) First Union against
loss arising from claims against the directors and officers by reason of their
wrongful acts, all subject to the terms and conditions contained in the policy.
Under agreements which may be entered into by First Union, certain
controlling persons, directors and officers of First Union may be entitled to
indemnification by underwriters and agents who participate in the distribution
of securities covered by the registration statement against certain
liabilities, including liabilities under the Securities Act of 1933.
II-1
<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.
(3)(a) Restated Articles of Incorporation of First Union, as amended.
(Incorporated by reference to Exhibit (4) to First Union's 1998
Third Quarter Report on Form 10-Q.)
(3)(b) By-laws of First Union, as amended. (Incorporated by reference to
Exhibit (3)(b) to First Union's 1995 Annual Report on Form 10-K.)
(4)(a) Amended and Restated Shareholder Protection Rights Agreement.
(Incorporated by reference to Exhibit (4) to First Union's Current
Report on Form 8-K dated October 16, 1996.)
(4)(b) Form of Deposit Agreement. (Incorporated by reference to Exhibit
(4)(d) to First Union's Registration Statement No. 333-34151.)
(4)(c) Specimen Depositary Receipt. (Incorporated by reference to Exhibit
(4)(e) to First Union's Registration Statement No. 333-34151.)
(4)(d) Senior Indenture (including form of Senior Debt Security).
(Incorporated by reference to Exhibit (4) to First Union's
Registration Statement No. 2-98213.)
(4)(e) Supplemental Indenture, dated as of May 17, 1986, between First
Union and Chemical Bank, as Trustee. (Incorporated by reference to
Exhibit (4)(a) (ii) to Amendment No. 1 to First Union's
Registration Statement No. 33-30122.)
(4)(f) Supplemental Indenture, dated as of July 1, 1988, between First
Union and Chemical Bank, as Trustee. (Incorporated by reference to
Exhibit (4)(a) (iii) to Amendment No. 1 to First Union's
Registration Statement No. 33-30122.)
(4)(g) Supplemental Indenture, dated as of August 1, 1990, between First
Union and Chemical Bank, as Trustee. (Incorporated by reference to
Exhibit (4)(a) (iv) to First Union's Registration Statement No.
33-40456.)
(4)(h) Subordinated Indenture (including form of Subordinated Debt
Security). (Incorporated by reference to Exhibit (4)(a) to
Amendment No. 1 to First Union's Registration Statement No. 33-
1852.)
(4)(i) Supplemental Indenture, dated as of August 1, 1990, between First
Union and The Bank of New York, as Trustee. (Incorporated by
reference to Exhibit (4)(b) (ii) to First Union's Registration
Statement No. 33-40456.)
(4)(j) Supplemental Indenture, dated as of November 15, 1992, between
First Union and The Bank of New York, as Trustee. (Incorporated by
reference to Exhibit (4) to First Union's Current Report on Form
8-K dated November 17, 1992.)
(4)(k) Form of Instrument of Resignation, Appointment and Acceptance,
dated as of February 7, 1996, among First Union, Harris Trust and
Savings Bank and The Bank of New York (formerly Irving Trust
Company). (Incorporated by reference to Exhibit (4)(a) to First
Union's Current Report on Form 8-K dated February 7, 1996.)
(4)(l) Supplemental Indenture, dated as of February 7, 1996, between
First Union and Harris Trust and Savings Bank, as Trustee.
(Incorporated by reference to Exhibit (4)(b) to First Union's
Current Report on Form 8-K dated February 7, 1996.)
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Exhibit
----------- -------
<C> <S>
(4)(m) Form of Senior Medium-Term Notes. (Incorporated by reference to
Exhibit (4)(c) (i) to First Union's Registration Statement No. 33-
40456.)
(4)(n) Form of Subordinated Medium-Term Notes. (Incorporated by reference
to Exhibit (4)(c) (ii) to First Union's Registration Statement No.
33-40456.)
(4)(o) Form of Warrant Agreement. (Incorporated by reference to Exhibit
(4)(q) to First Union's Registration Statement No. 333-34151.)
(4)(p) Form of Warrant Certificate. (Incorporated by reference to Exhibit
(4)(r) to First Union's Registration Statement No. 333-34151.)
(4)(q) Indenture, dated as of November 27, 1996, between First Union and
Wilmington Trust Company, as Debenture Trustee. (Incorporated by
reference to Exhibit (4)(a) to First Union's Registration
Statement Nos. 333-19039 and 333-19039-01.)
(4)(r) Upon the request of the Securities and Exchange Commission, First
Union will furnish a copy of all other instruments defining the
rights of holders of long-term debt of First Union.
(5) Opinion of Kent S. Hathaway as to the validity of the securities.
(12) Computations of Consolidated Ratios of Earnings to Fixed Charges.
(Incorporated by reference to Exhibit (12) to First Union's 1999
Third Quarter Report on Form 10-Q.)
(23)(a) Consent of Kent S. Hathaway. (Included in Exhibit (5).)
(23)(b) Consent of KPMG 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) First Union's Financial Data Schedule. (Incorporated by reference
to Exhibit (27) to First Union's 1999 Third Quarter Report on Form
10-Q.)
</TABLE>
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1) (i) and (a)(1) (ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
II-3
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of First
Union pursuant to the foregoing provisions or otherwise (other than insurance),
First Union has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than insurance or the payment
by First Union of expenses incurred or paid by a director, officer or
controlling person of First Union in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, First Union will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of
whether such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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
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
2nd day of March, 2000.
First Union Corporation
/s/ Mark C. Treanor
By: _________________________________
Mark C. Trenor
Executive Vice President,
Secretary and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date 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
James H. Hatch Officer)
Director
______________________________________
Edward E. Barr
Director
______________________________________
G. Alex Bernhardt
Erskine B. Bowles* Director
______________________________________
Erskine B. Bowles
W. Waldo Bradley* Director
______________________________________
W. Waldo Bradley
Robert J. Brown* Director
______________________________________
Robert J. Brown
A. Dano Davis* Director
______________________________________
A. Dano Davis
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
Norwood H. Davis, Jr.* Director
______________________________________
Norwood H. Davis, Jr.
R. Stuart Dickson* Director
______________________________________
R. Stuart Dickson
B.F. Dolan* Director
______________________________________
B.F. Dolan
Roddey Dowd, Sr.* Director
______________________________________
Roddey Dowd, Sr.
Arthur M. Goldberg* Director
______________________________________
Arthur M. Goldberg
William H. Goodwin, Jr.* Director
______________________________________
William H. Goodwin, Jr.
Frank M. Henry* Director
______________________________________
Frank M. Henry
James E.S. Hynes* Director
______________________________________
James E.S. Hynes
Ernest E. Jones* Director
______________________________________
Ernest E. Jones
Herbert Lotman* Director
______________________________________
Herbert Lotman
Radford D. Lovett* Director
______________________________________
Radford D. Lovett
Mackey J. Mcdonald Director
______________________________________
Name
Patricia A. Mcfate* Director
______________________________________
Patricia A. Mcfate
Joseph Neubauer* Director
______________________________________
Joseph Neubauer
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
Randolph N. Reynolds* Director
______________________________________
Randolph N. Reynolds
James M. Seabrook* Director
______________________________________
James M. Seabrook
Ruth G. Shaw* Director
______________________________________
Ruth G. Shaw
Lanty L. Smith* Director
______________________________________
Lanty L. Smith
G. Kennedy Thompson* Director
______________________________________
G. Kennedy Thompson
*By Mark C. Treanor
______________________________________
Mark C. Treanor, Attorney-in-fact
</TABLE>
Dated: March 2, 2000
II-7
<PAGE>
EXHIBIT INDEX
<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.
(3)(a) Restated Articles of Incorporation of First Union, as amended.
(Incorporated by reference to Exhibit (4) to First Union's 1998
Third Quarter Report on Form 10-Q.)
(3)(b) By-laws of First Union, as amended. (Incorporated by reference to
Exhibit (3)(b) to First Union's 1995 Annual Report on Form 10-K.)
(4)(a) Amended and Restated Shareholder Protection Rights Agreement.
(Incorporated by reference to Exhibit (4) to First Union's Current
Report on Form 8-K dated October 16, 1996.)
(4)(b) Form of Deposit Agreement. (Incorporated by reference to Exhibit
(4)(d) to First Union's Registration Statement No. 333-34151.)
(4)(c) Specimen Depositary Receipt. (Incorporated by reference to Exhibit
(4)(e) to First Union's Registration Statement No. 333-34151.)
(4)(d) Senior Indenture (including form of Senior Debt Security).
(Incorporated by reference to Exhibit (4) to First Union's
Registration Statement No. 2-98213.)
(4)(e) Supplemental Indenture, dated as of May 17, 1986, between First
Union and Chemical Bank, as Trustee. (Incorporated by reference to
Exhibit (4)(a) (ii) to Amendment No. 1 to First Union's
Registration Statement No. 33-30122.)
(4)(f) Supplemental Indenture, dated as of July 1, 1988, between First
Union and Chemical Bank, as Trustee. (Incorporated by reference to
Exhibit (4)(a) (iii) to Amendment No. 1 to First Union's
Registration Statement No. 33-30122.)
(4)(g) Supplemental Indenture, dated as of August 1, 1990, between First
Union and Chemical Bank, as Trustee. (Incorporated by reference to
Exhibit (4)(a) (iv) to First Union's Registration Statement No.
33-40456.)
(4)(h) Subordinated Indenture (including form of Subordinated Debt
Security). (Incorporated by reference to Exhibit (4)(a) to
Amendment No. 1 to First Union's Registration Statement No. 33-
1852.)
(4)(i) Supplemental Indenture, dated as of August 1, 1990, between First
Union and The Bank of New York, as Trustee. (Incorporated by
reference to Exhibit (4)(b) (ii) to First Union's Registration
Statement No. 33-40456.)
(4)(j) Supplemental Indenture, dated as of November 15, 1992, between
First Union and The Bank of New York, as Trustee. (Incorporated by
reference to Exhibit (4) to First Union's Current Report on Form
8-K dated November 17, 1992.)
(4)(k) Form of Instrument of Resignation, Appointment and Acceptance,
dated as of February 7, 1996, among First Union, Harris Trust and
Savings Bank and The Bank of New York (formerly Irving Trust
Company). (Incorporated by reference to Exhibit (4)(a) to First
Union's Current Report on Form 8-K dated February 7, 1996.)
(4)(l) Supplemental Indenture, dated as of February 7, 1996, between
First Union and Harris Trust and Savings Bank, as Trustee.
(Incorporated by reference to Exhibit (4)(b) to First Union's
Current Report on Form 8-K dated February 7, 1996.)
(4)(m) Form of Senior Medium-Term Notes. (Incorporated by reference to
Exhibit (4)(c) (i) to First Union's Registration Statement No. 33-
40456.)
(4)(n) Form of Subordinated Medium-Term Notes. (Incorporated by reference
to Exhibit (4)(c) (ii) to First Union's Registration Statement No.
33-40456.)
(4)(o) Form of Warrant Agreement. (Incorporated by reference to Exhibit
(4)(q) to First Union's Registration Statement No. 333-34151.)
(4)(p) Form of Warrant Certificate. (Incorporated by reference to Exhibit
(4)(r) to First Union's Registration Statement No. 333-34151.)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Exhibit
----------- -------
<C> <S>
(4)(q) Indenture, dated as of November 27, 1996, between First Union and
Wilmington Trust Company, as Debenture Trustee. (Incorporated by
reference to Exhibit (4)(a) to First Union's Registration
Statement Nos. 333-19039 and 333-19039-01.)
(4)(r) Upon the request of the Securities and Exchange Commission, First
Union will furnish a copy of all other instruments defining the
rights of holders of long-term debt of First Union.
(5) Opinion of Kent S. Hathaway as to the validity of the securities.
(12) Computations of Consolidated Ratios of Earnings to Fixed Charges.
(Incorporated by reference to Exhibit (12) to First Union's 1999
Third Quarter Report on Form 10-Q.)
(23)(a) Consent of Kent S. Hathaway. (Included in Exhibit (5).)
(23)(b) Consent of KPMG 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) First Union's Financial Data Schedule. (Incorporated by reference
to Exhibit (27) to First Union's 1999 Third Quarter Report on Form
10-Q.)
</TABLE>
<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
Ladies and Gentlemen:
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")]
________________
* Provisions for Warrants, over-allotment option and convertibility, if
necessary, would need to be added to introductory paragraph,
representations, opinions, etc.
<PAGE>
- -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 Under writer 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
<PAGE>
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 rated 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 incorporate 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
3-
<PAGE>
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
4-
<PAGE>
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.
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
5-
<PAGE>
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 Represen-
tatives 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 avail able 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
6-
<PAGE>
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
7-
<PAGE>
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.
8-
<PAGE>
(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 Under writers. 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
9-
<PAGE>
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 Kent S. Hathaway, Esq., Senior Vice President
and Deputy 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 [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
10-
<PAGE>
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;]
11-
<PAGE>
[( ) 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 regula-
12-
<PAGE>
tions 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 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 Kent
13-
<PAGE>
S. Hathaway, Esq., Senior Vice President and Deputy General Counsel of
First Union, 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
operations 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
14-
<PAGE>
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 conformity
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
15-
<PAGE>
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 Under writer, 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
16-
<PAGE>
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
17-
<PAGE>
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 Under writers 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.
18-
<PAGE>
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 Under
writers 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
19-
<PAGE>
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
20-
<PAGE>
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 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.
21-
<PAGE>
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:
22-
<PAGE>
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:
23-
<PAGE>
[________ __, ________ __, ________ __ 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]
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]
24-
<PAGE>
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]
25-
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Amount of
Securities
to be
Underwriter Purchased
----------- ---------
<S> <C>
[underwriters names]
----------
Total
</TABLE>
<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
III-1
<PAGE>
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
III-2
<PAGE>
consolidated stockholders' equity, consolidated assets, consolidated
deposits, or allowance for loan losses 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 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
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
<PAGE>
records of First Union and its subsidiaries and have found them to be in
agreement.
<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
Ladies and Gentlemen:
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 Under writer 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
_______________________
* Provisions for Warrants, over-allotment option and convertibility, if
necessary, would need to be added to introductory paragraph,
representations, opinions, etc.
<PAGE>
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 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
-2-
<PAGE>
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 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.
-3-
<PAGE>
(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 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 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
-4-
<PAGE>
"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
-5-
<PAGE>
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
-6-
<PAGE>
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.
-7-
<PAGE>
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 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
-8-
<PAGE>
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 Kent S. Hathaway, Esq., Senior Vice President
and Deputy 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
-9-
<PAGE>
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 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
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
-10-
<PAGE>
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 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
-11-
<PAGE>
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 Kent S. Hathaway, Esq., Senior Vice President and
Deputy General Counsel of First Union, 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
operations 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
-12-
<PAGE>
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 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
conformity with written information furnished to First Union by
-13-
<PAGE>
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
-14-
<PAGE>
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
-15-
<PAGE>
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 Under writers 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
-16-
<PAGE>
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
-17-
<PAGE>
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
-18-
<PAGE>
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
-19-
<PAGE>
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.
-20-
<PAGE>
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:
-21-
<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, if any, 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:
-22-
<PAGE>
________ __ 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]
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]
-23-
<PAGE>
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]
-24-
<PAGE>
SCHEDULE II
Principal
Amount of
Securities
to be
Underwriter Purchased
----------- ----------
$
[underwriters names]
---------------
Total $
<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
III-1
<PAGE>
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 deter mined 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
III-2
<PAGE>
consolidated stockholders' equity, consolidated assets, consolidated
deposits, or allowance for loan losses 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 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 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 incor porated by reference in the
Prospectus specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with the accounting
III-3
<PAGE>
records of First Union and its subsidiaries and have found them to be in
agreement.
III-4
<PAGE>
Exhibit (5)
February 29, 2000
Board of Directors
First Union Corporation
Charlotte, North Carolina 28288
Ladies and Gentlemen:
I am Senior Vice President and Deputy General Counsel of First Union
Corporation, a North Carolina corporation (the "Corporation"), and am rendering
this opinion in connection with the Registration Statement on Form S-3 (the
"Registration Statement") being filed by the Corporation with the Securities
and Exchange Commission under the Securities Act of 1933 (the "Act") with
respect to $2,000,000,000 aggregate initial offering price of the Corporation's
(i) common stock, $3.33 1/3 par value per share, including rights attached
thereto to purchase shares of Common stock or junior participating Class A
Preferred Stock pursuant to the Corporation's Shareholder Protection Rights
Agreement (collectively, the "Common Stock"), (ii) preferred stock, no par
value per share ("Preferred Stock"), (iii) Class A Preferred Stock, no par
value per share ("Class A Preferred Stock"), (iv) depositary shares
representing Preferred Stock or Class A Preferred Stock ("Depositary Shares"),
(v) debt securities (the "Debt Securities") and (vi) warrants to purchase
Common Stock, Preferred Stock, Class A Preferred Stock, Debt Securities or
Depositary Shares (the "Warrants"), which may be issued from time to time
pursuant to Rule 415 under the Act. The Common Stock, Preferred Stock, Class A
Preferred Stock, Depositary Shares, Debt Securities and Warrants are
hereinafter referred to collectively as the "Securities".
The Debt Securities may be issued pursuant to an Indenture dated as of April
1, 1983, as amended, between the Corporation and The Chase Manhattan Bank, as
Trustee, and/or an Indenture dated as of March 15, 1986, as amended, between
the Corporation and Harris Trust and Savings Bank, as Trustee.
Depositary Shares will be deposited under a Deposit Agreement between the
Corporation and a bank or trust company as Depositary, and evidenced by
Depositary Receipts.
Warrants will be issued either independently or together with other
Securities and will be issued pursuant to a Warrant Agreement between the
Corporation and a bank or trust company as Warrant Agent.
I have examined such documents, corporate records and other instruments as I
have deemed necessary for the purposes of this opinion. Based upon the
foregoing, I am of the opinion as follows:
(1) The Corporation has been duly incorporated and is a validly existing
corporation under the laws of the State of North Carolina.
(2) The Common Stock has been duly authorized and, when the Registration
Statement has become effective under the Act, the terms of the sale of the
Common Stock have been duly established in conformity with the
Corporation's articles of incorporation so as not to violate any applicable
law or result in a default under or breach of any agreement or instrument
binding on the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction
over the Corporation, and the Common Stock has been duly issued and sold as
contemplated by the Registration Statement, the Common Stock will be
validly issued, fully paid and nonassessable.
(3) The Preferred Stock has been duly authorized and, when the
Registration Statement has become effective under the Act, appropriate
articles of amendment to the Corporation's articles of incorporation
relating to the Preferred Stock have been duly authorized and adopted and
filed with the Secretary of State of the State of North Carolina, the terms
of the Preferred Stock and of their issuance and sale have been
<PAGE>
duly established in conformity with the Corporation's articles of
incorporation so as not to violate any applicable law or result in a
default under or breach of any agreement or instrument binding upon the
Corporation and so as to comply with any requirement or restriction imposed
by any court or governmental body having jurisdiction over the Corporation,
and the Preferred Stock has been duly issued and sold as contemplated by
the Registration Statement, the Preferred Stock will be validly issued,
fully paid and nonassessable.
(4) The Class A Preferred Stock has been duly authorized and, when the
Registration Statement has become effective under the Act, appropriate
articles of amendment to the Corporation's articles of incorporation
relating to the Class A Preferred Stock have been duly authorized and
adopted and filed with the Secretary of State of the State of North
Carolina, the terms of the Class A Preferred Stock and of their issuance
and sale have been duly established in conformity with the Corporation's
articles of incorporation so as not to violate any applicable law or result
in a default under or breach of any agreement or instrument binding upon
the Corporation and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the
Corporation, and the Class A Preferred Stock has been duly issued and sold
as contemplated by the Registration Statement, the Class A Preferred Stock
will be validly issued, fully paid and nonassessable.
(5) With respect to Depositary Shares, when the Registration Statement
has become effective under the Act, the Deposit Agreement relating to the
Depositary Shares has been duly authorized, executed and delivered, the
terms of the Depositary Shares and of their issuance have been duly
established in conformity with the Deposit Agreement so as not to violate
any applicable law or result in a default under or breach of any agreement
or instrument binding upon the Corporation and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Corporation, the Preferred Stock or Class A Preferred
Stock that is represented by the Depositary Shares has been duly
authorized, validly issued and delivered to the Depositary, the Depositary
Receipts evidencing the Depositary Shares have been executed, countersigned
and issued against deposit of the Preferred Stock or Class A Preferred
Stock, as the case may be, in accordance with the Deposit Agreement and the
Depositary Shares have been issued and sold as contemplated by the
Registration Statement, the Depositary Shares will be validly issued and
the Depositary Receipts will entitle the holders thereof to the rights
specified in the Depositary Shares and the Deposit Agreement, 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.
(6) With respect to the Debt Securities, when the Registration Statement
has become effective under the Act, the terms of the Debt Securities and of
their issue and sale have been duly established in conformity with the
resolutions of the board of directors of the Corporation and have been duly
established in conformity with the applicable Indenture, as amended, so as
not to violate any applicable law or result in a default under or breach of
any agreement or instrument binding upon the Corporation and so as to
comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Corporation, and the Debt
Securities have been duly executed and authenticated in accordance with
such Indenture and issued and sold as contemplated in the Registration
Statement, the Debt Securities will constitute valid and legally binding
obligations of the Corporation, 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.
(7) With respect to the Warrants, when the Registration Statement has
become effective under the Act, the Warrant Agreement relating to the
Warrants has been duly authorized, executed and delivered, the terms of the
Warrants and of their issuance and sale have been duly established in
conformity with the Warrant Agreement so as not to violate any applicable
law or result in a default under or breach of any agreement or instrument
binding upon the Corporation and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction
over the Corporation, and the Warrants have been duly executed and
countersigned in accordance with the Warrant Agreement and issued and sold
as contemplated by the Registration Statement, the Warrants will constitute
valid and
<PAGE>
legally binding obligations of the Corporation, 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.
I note that, as of the date of this opinion, a judgment for money in an
action based on a Debt Security denominated in a foreign currency or currency
unit in a federal or state court in the United States ordinarily would be
enforced in the United States only in United States dollars. The date used to
determine the rate of conversion of the foreign currency or currency unit in
which a particular Debt Security is denominated into United States dollars will
depend upon various factors, including which court renders the judgment. In the
case of a Debt Security denominated in a foreign currency, a state court in the
State of New York rendering a judgment on such Debt Security would be required
under Section 27 of the New York Judiciary Law to render such judgment in the
foreign currency in which the Debt Security is denominated, and such judgment
would be converted into United States dollars at the exchange rate prevailing
on the date of entry of the judgment.
I am licensed to practice law only in the State of North Carolina and in
rendering this opinion I am opining only as to the laws of the United States,
the laws of the State of North Carolina and, based solely upon an opinion,
dated the date hereof, of New York counsel, the laws of the State of New York.
In rendering the foregoing opinion, with respect to all matters of New York
law, my opinion is subject to the same assumptions, qualifications and
limitations with respect to such matters as are contained in such opinion of
New York counsel.
Also, I have relied as to certain matters on information obtained from
public officials, officers of the Corporation and other sources believed by me
to be responsible, and I have assumed that the related Indentures have been
duly authorized, executed and delivered by the respective Trustee thereunder,
assumptions which I have not independently verified.
I hereby consent to the use of my name under the heading "Validity of
Securities" in the Prospectus forming a part of the Registration Statement and
to the use of this opinion for filing with the Registration Statement as
Exhibit (5) thereto. In giving such consent, I do not thereby admit that I am
in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
/s/ Kent S. Hathaway
<PAGE>
Exhibit (23)(b)
CONSENT OF KPMG LLP
Board of Directors
First Union Corporation
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of First Union Corporation of our report dated January 14, 1999,
relating to the consolidated balance sheets of First Union Corporation and
subsidiaries as of December 31, 1998 and 1997, and the related consolidated
statements of income, changes in stockholders' equity and cash flows for each
of the years in the three-year period ended December 31, 1998, which report
appears in the 1998 Annual Report to Stockholders which is incorporated by
reference in First Union Corporation's 1998 Form 10-K which is incorporated by
reference in this Registration Statement on Form S-3. We also consent to the
reference to our firm under the caption "Experts" in this Registration
Statement.
KPMG LLP
Charlotte, North Carolina
March 1, 2000
<PAGE>
Exhibit (24)
FIRST UNION CORPORATION
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned directors and officers
of FIRST UNION CORPORATION (the "Corporation") hereby constitute and appoint
Mark C. Treanor and Kent S. Hathaway, and each of them severally, the true and
lawful agents and attorneys-in-fact of the undersigned with full power and
authority in said agents and the attorneys-in-fact, and in any one of them, to
sign for the undersigned and in their respective names as directors and
officers of the Corporation, one or more Registration Statements to be filed
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended, relating to the registration of new debt, equity and other
securities of the Corporation having an aggregate initial offering price of up
to $2,000,000,000, and to sign any and all amendments to such Registration
Statements.
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C>
/s/ Edward E. Crutchfield Chairman and Chief Executive Officer
______________________________________ and Director
Edward E. Crutchfield
/s/ Robert T. Atwood Executive Vice President and Chief
______________________________________ Financial Officer
Robert T. Atwood
/s/ James H. Hatch Senior Vice President and Corporate
______________________________________ Controller (Principal Accounting
James H. Hatch Officer)
Director
______________________________________
Edward E. Barr
Director
______________________________________
G. Alex Bernhardt
/s/ Erskine B. Bowles Director
______________________________________
Erskine B. Bowles
/s/ W. Waldo Bradley Director
______________________________________
W. Waldo Bradley
/s/ Robert J. Brown Director
______________________________________
Robert J. Brown
/s/ A. Dano Davis Director
______________________________________
A. Dano Davis
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C>
/s/ Norwood H. Davis, Jr. Director
______________________________________
Norwood H. Davis, Jr.
/s/ R. Stuart Dickson Director
______________________________________
R. Stuart Dickson
/s/ B.F. Dolan Director
______________________________________
B.F. Dolan
/s/ Roddey Dowd, Sr. Director
______________________________________
Roddey Dowd, Sr.
/s/ Arthur M. Goldberg Director
______________________________________
Arthur M. Goldberg
/s/ William H. Goodwin, Jr. Director
______________________________________
William H. Goodwin, Jr.
/s/ Frank M. Henry Director
______________________________________
Frank M. Henry
/s/ James E.S. Hynes Director
______________________________________
James E.S. Hynes
/s/ Ernest E. Jones Director
______________________________________
Ernest E. Jones
/s/ Herbert Lotman Director
______________________________________
Herbert Lotman
/s/ Radford D. Lovett Director
______________________________________
Radford D. Lovett
Director
______________________________________
Mackey J. McDonald
/s/ Patricia A. McFate Director
______________________________________
Patricia A. McFate
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C>
/s/ Joseph Neubauer Director
______________________________________
Joseph Neubauer
/s/ Randolph N. Reynolds Director
______________________________________
Randolph N. Reynolds
/s/ James M. Seabrook Director
______________________________________
James M. Seabrook
/s/ Ruth G. Shaw Director
______________________________________
Ruth G. Shaw
/s/ Lanty L. Smith Director
______________________________________
Lanty L. Smith
/s/ G. Kennedy Thompson Director
______________________________________
G. Kennedy Thompson
</TABLE>
Dated: October 19, 1999
Charlotte, North Carolina
<PAGE>
Exhibit 25(a)
------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________________
First Union Corporation
(Exact name of obligor as specified in its charter)
North Carolina 56-0898180
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
One First Union Center
Charlotte, North Carolina 28288-0013
(Address of principal executive offices) (Zip Code)
--------------------------------------------------------
Debt Securities
(Title of the indenture securities)
-----------------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-
50010, which is incorporated by reference. On July 14, 1996, in connection with
the merger of Chemical Bank and The Chase Manhattan Bank (National Association),
Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee,
The Chase Manhattan Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 29th day of February, 2000.
THE CHASE MANHATTAN BANK
By _________________________________________
L. O'Brien
Vice President
Item 16. List of Exhibits
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 13,497
Interest-bearing balances........................ 6,388
Securities:.........................................
Held to maturity securities......................... 798
Available for sale securities....................... 48,655
Federal funds sold and securities purchased under
agreements to resell............................. 30,373
Loans and lease financing receivables:
Loans and leases, net of unearned income 132,392
Less: Allowance for loan and lease losses 2,463
Less: Allocated transfer risk reserve............ 0
-------
Loans and leases, net of unearned income,
allowance, and reserve........................... 129,929
Trading Assets...................................... 47,413
Premises and fixed assets (including capitalized
leases).......................................... 3,287
Other real estate owned............................. 26
Investments in unconsolidated subsidiaries and
associated companies............................. 185
Customers' liability to this bank on acceptances
outstanding...................................... 716
Intangible assets................................... 2,693
Other assets........................................ 15,430
--------
TOTAL ASSETS........................................ $299,390
========
-4-
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits
In domestic offices.................................................... $100,324
Noninterest-bearing ......................................... $ 41,601
Interest-bearing ............................................ 58,723
--------
In foreign offices, Edge and Agreement
subsidiaries and IBF's...................................... 88,064
Noninterest-bearing .......................................... $ 6,363
Interest-bearing ........................................... 81,701
Federal funds purchased and securities sold under agreements
to repurchase............................................................ 35,773
Demand notes issued to the U.S. Treasury................................. 892
Trading liabilities...................................................... 33,565
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less.......................... 4,434
With a remaining maturity of more than one year
through three years............................................... 14
With a remaining maturity of more than three years..................... 97
Bank's liability on acceptances executed and outstanding 716
Subordinated notes and debentures........................................ 5,429
Other liabilities........................................................ 11,457
TOTAL LIABILITIES........................................................ 280,765
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock............................................................. 1,211
Surplus (exclude all surplus related to preferred stock)................ 11,016
Undivided profits and capital reserves................................... 7,333
Net unrealized holding gains (losses)
on available-for-sale securities ........................................ (951)
Accumulated net gains (losses) on cash flow hedges....................... 0
Cumulative foreign currency translation adjustments...................... 16
TOTAL EQUITY CAPITAL..................................................... 18,625
--------
TOTAL LIABILITIES AND EQUITY CAPITAL..................................... $299,390
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the
in-structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
SUSAN V. BERRESFORD )
-5-
<PAGE>
EXHIBIT 25(B)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as Trustee
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) X
-------
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer Identification No.)
111 West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Daniel G. Donovan, Harris Trust and Savings Bank,
311 West Monroe Street, Chicago, Illinois, 60606
(312) 461-2908 phone (312) 461-3525 facsimile
(Name, address and telephone number for agent for service)
FIRST UNION CORPORATION.
(Obligor)
Delaware 56-0898180
(State of Incorporation) (I.R.S. Employer Identification No.)
230 S. Tryon Street
Charlotte, NC 28288
(Address of principal executive offices)
Debt Securities
(Title of indenture securities)
<PAGE>
1. GENERAL INFORMATION. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164 West
Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the Federal
Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise corporate
trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee,
describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. through 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee as now in effect
which includes the authority of the trustee to commence business and
to exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in
effect and includes the authority of the Trustee to commence business
and to exercise corporate trust powers was filed in connection with
the Registration Statement of Louisville Gas and Electric Company,
File No. 2-44295, and is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in connection
with the Registration Statement of Commercial Federal Corporation,
File No. 333-20711, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(included as Exhibit B on page 3 of this statement)
1
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 29th day of February, 2000.
HARRIS TRUST AND SAVINGS BANK
By: /s/ DGDonovam
----------------------
D. G. Donovan
Assistant Vice President
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that
reports of examinations of said trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ DGDonovam
----------------------
D. G. Donovan
Assistant Vice President
2
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of September 30, 1999, as published in accordance with
a call made by the State Banking Authority and by the Federal Reserve Bank of
the Seventh Reserve District.
[LOGO]
HARRIS BANK
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on September 30, 1999, a state banking institution organized and
operating under the banking laws of this State and a member of the Federal
Reserve System. Published in accordance with a call made by the Commissioner of
Banks and Trust Companies of the State of Illinois and by the Federal Reserve
Bank of this District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin..................... $ 1,139,804
Interest bearing balances............................................... $ 223,943
Securities:....................................................................
a. Held-to-maturity securities $ 0
b. Available-for-sale securities $ 5,773,313
Federal funds sold and securities purchased under agreements to resell $ 148,650
Loans and lease financing receivables:
Loans and leases, net of unearned income................................ $ 9,752,500
LESS: Allowance for loan and lease losses.............................. $ 111,660
-----------
Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b).................................................... $ 9,640,840
Assets held in trading accounts................................................ $ 193,520
Premises and fixed assets (including capitalized leases)....................... $ 271,847
Other real estate owned........................................................ $ 339
Investments in unconsolidated subsidiaries and associated companies............ $ 0
Customer's liability to this bank on acceptances outstanding................... $ 44,067
Intangible assets.............................................................. $ 245,968
Other assets................................................................... $ 1,328,114
-----------
TOTAL ASSETS $19,010,405
===========
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices.......................................................... $ 9,579,731
Non-interest bearing.................................................... $ 2,953,755
Interest bearing........................................................ $ 6,625,976
In foreign offices, Edge and Agreement subsidiaries, and IBF's............... $ 1,396,781
Non-interest bearing.................................................... $ 21,682
Interest bearing........................................................ $ 1,375,099
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBF's:
Federal funds purchased & securities sold under agreements to repurchase....... $ 3,951,113
Trading Liabilities 91,252
Other borrowed money:..........................................................
a. With remaining maturity of one year or less $ 1,978,203
b. With remaining maturity of more than one year $ 0
Bank's liability on acceptances executed and outstanding $ 44,067
Subordinated notes and debentures.............................................. $ 225,000
Other liabilities.............................................................. $ 481,642
-----------
TOTAL LIABILITIES $17,747,789
===========
EQUITY CAPITAL
Common stock................................................................... $ 100,000
Surplus........................................................................ $ 609,913
a. Undivided profits and capital reserves..................................... $ 657,705
b. Net unrealized holding gains (losses) on available-for-sale securities ($105,002)
-----------
TOTAL EQUITY CAPITAL $ 1,262,616
===========
Total liabilities, limited-life preferred stock, and equity capital............ $19,010,405
===========
</TABLE>
I, Christy Wipper, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
CHRISTY WIPPER
10/26/99
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
ALAN G. McNALLY,
EDWARD W. LYMAN,
LEO M. HENIKOFF
Directors.
4
