FIRST UNION CORPORATION*
[________ Shares of Common Stock,
Par Value $3.33 1/3 Per Share]
-or-
[________ Shares of [Class A] Preferred Stock[, Series ___],
No-Par Value]
-or-
[__________ Depositary Shares,
Each representing a [Fraction] Interest in a Share of]
[Class A] Preferred Stock[, Series ___], No-Par Value]
Underwriting Agreement
-------- --, ----
To the Representatives named in Schedule I hereto of the
Underwriters named in Schedule II hereto
Dear Sirs:
First Union Corporation ("First Union"), a North Carolina
corporation, proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), an aggregate of __________
[shares of its Common Stock ("Common Stock"), par value
$3.33 1/3 per share (the "Securities")]
-or-
[an aggregate of _________ shares of [Class A] Preferred
Stock[, Series ___] of First Union (the "Securities")]
-or-
--------
* Provisions for Warrants, over-allotment option and convertibility, if
necessary, would need to be added to introductory paragraph,
representations, opinions, etc.
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[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 State ment"; 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 incorpo 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
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shall be deemed to refer to and include the filing of any document
under the Exchange Act deemed to be incor porated 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 effec tive 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 Prospec tus, as of the date of the Prospectus
Supplement, and any amendments thereof and supplements thereto, as of
their respective effective or issue dates, will conform in all material
respects to the requirements of the Act, the Trust Indenture Act and
the respective rules and regulations of the Commission thereunder, and
no such document, as of such respective dates and, in the case of the
Prospectus and any amendments thereof or supplements thereto, as of the
Closing Date (as hereinafter defined), included or will include any
untrue statement of a material fact or omitted or will omit to state
any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they
were made, not misleading, provided that First Union makes no
representations or warranties as to (i) the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of any trustee or (ii) the
information contained in or omitted from the Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to First Union by or
on behalf of any Underwriter specifically for use in connection with
the preparation of the Prospectus or any amendment thereof or
supplement thereto.
(c) First Union has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has all power and authority
(corporate and other) necessary to own or hold its material properties
and to conduct its business substantially in the manner in which it
presently conducts such business.
(d) The [shares of Preferred Stock represented by the]
Securities being delivered to the Underwriters at the Closing Date have
been duly authorized and, when issued and delivered as provided in this
Agreement, will be duly and validly issued, fully paid and non-
3--
assessable, and will have the rights set forth in First Union's
Articles of Incorporation, as amended to the Closing Date[, including
the Articles of Amendment relating to such shares (the "Amendment")
filed under Section ____ of the North Carolina Business Corporation
Act].
(e) First Union has all corporate power and authority
necessary to execute and deliver this Agreement, [the Preferred Stock,]
the Securities [and the Deposit Agreement] and to perform its
obligations hereunder and thereunder; the execution, delivery and
performance of this Agreement, [the Preferred Stock,] the Securities
[and the Deposit Agreement] by First Union and compliance with the
provisions hereof and thereof by First Union will not constitute a
breach of or default under, the corporate charter or by-laws of First
Union, or any material agreement, indenture or other instrument
relating to indebtedness for money borrowed to which First Union is a
party, or, to the best of First Union's knowledge, any law, order,
rule, regulation or decree of any court, governmental agency or
authority located in the United States having jurisdiction over First
Union or any property of First Union, which breach or default would be
reasonably likely to have a material adverse effect on First Union and
its subsidiaries taken as a whole; and no consent, authorization or
order of, or filing or registration with, any court or governmental
agency or authority is required for the execution, delivery and
performance of this Agreement, [the Preferred Stock,] the Securities
[and the Deposit Agreement] by First Union except such as have been
made or obtained or will be made or obtained on or before the Closing
Date (as defined in Section 3) and except such as may be required under
applicable state securities or "blue sky" laws.
[( ) The Amendment has been duly filed with the Secretary of
State of the State of North Carolina in accordance with the North
Carolina Business Corporation Act and with all other offices where such
filing is required.]
[( ) The Securities being delivered to the Underwriters at the
Closing Date have been duly authorized and, when issued and delivered
against payment therefor as provided in this Agreement, will be duly
and validly issued, fully paid and nonassessable and will be entitled
to the rights under, and the benefits of, the Deposit Agreement.]
4--
[( ) 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 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 Securi ties for sale as set forth in the
Prospectus.
5. Agreements. First Union agrees with the several
Underwriters that:
5--
(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 Regis tration 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 Reg istration 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 Securi ties 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.
6--
(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 subsidi-
aries, 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 Agree ment, 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.
7--
(g) During the period beginning from the date of this
Agreement and continuing until the Closing Date or such longer period
as may be agreed to by First Union and set forth in Schedule I hereto
relating to the Securities, First Union will not offer, sell, contract
to sell or otherwise dispose of any of its securities which are
substantially similar to the Securities without the prior written
consent of the Representatives [, other than shares of its Common Stock
pursuant to its dividend reinvestment plan, stock options and other
benefit plans, or commitments existing prior to the date of this
Agreement].
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy in all material respects of the representations and warranties on
the part of First Union contained herein as of the date hereof and the Closing
Date, to the accuracy in all material respects of the statements of First Union
made in any certificates pursuant to the provisions hereof, to the per formance
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 insti tuted and be pending or have been
threatened as of the Closing Date; and all requests for additional
informa tion 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
8--
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
Xxxxxx X. Xxxxxx, Xx., Executive Vice President,
Secretary and General Counsel of First Union, to the
effect that:
(i) First Union has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of North Carolina, with corporate power and
authority under such laws to own its material properties and
to conduct its business substantially as described in the
Prospectus;
(ii) The [shares of Preferred Stock represented by
the] Securities being delivered to the Underwriters at the
Closing Date have been duly authorized and, when issued and
delivered as provided in this Agreement, will be duly and
validly issued, fully paid and nonassessable, and will have
the rights set forth in First Union's Articles of
Incorporation, as amended to the Closing Date[, including the
Amendment];
(iii) First Union has all corporate power and
authority necessary to execute and deliver this Agreement,
[the Preferred Stock,] the Securities [and the Deposit
Agreement] and to perform its obligations hereunder and
thereunder; the execution, delivery and performance of this
9--
Agreement, [the Preferred Stock,] the Securities [and the
Deposit Agreement] by First Union and compliance with the
provisions hereof and thereof by First Union will not
constitute a breach of or default under, the corporate charter
or by-laws of First Union, or any material agreement,
indenture or other instrument relating to indebtedness for
money borrowed known to such counsel to which First Union is a
party, or, to the best of such counsel's knowledge, any law,
order, rule, regulation or decree of any court, governmental
agency or authority located in the United States having
jurisdiction over First Union or any property of First Union,
which breach or default would be reasonably likely to have a
material adverse effect on First Union and its subsidiaries
taken as a whole; and no consent, authorization or order of,
or filing or registration with, any court or governmental
agency or authority is required for the execution, delivery
and performance of this Agreement, [the Preferred Stock,] the
Securities [and the Deposit Agreement] by First Union except
such as have been made or obtained or will be made or obtained
on or before the Closing Date (as defined in Section 3) and
except such as may be required under applicable state
securities or "blue sky" laws;
[( ) The Amendment has been duly filed with the
Secretary of State of the State of North Carolina in
accordance with the North Carolina Business Corporation Act
and with all other offices where such filing is required;]
[( ) The Securities being delivered to the
Underwriters at the Closing Date have been duly authorized
and, when issued and delivered against payment therefor as
provided in this Agreement, will be duly and validly issued,
fully paid and nonassessable and will be entitled to the
rights under, and the benefits of, the Deposit Agreement;]
[( ) The Deposit Agreement has been duly authorized,
executed and delivered by First Union and the Depositary and
constitutes a valid and legally binding agreement of First
Union and the Depositary, enforceable against First Union and
the Depositary in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or other
10--
similar laws relating to or affecting the
enforcement of creditors' rights generally and by
general principles of equity;]
( ) The [Preferred Stock, the] Securities [and the
Deposit Agreement] conform in all material respects to the
descriptions thereof in the Prospectus; and
( ) The Registration Statement has become effective
under the Act, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or threatened
under the Act, and each part of the Registration Statement,
when such part became effective, any amendments thereof filed
prior to the date of this Agreement, as of their respective
effective dates, and the Registration Statement and the
Prospectus, as of the date of the Prospectus Supplement, and
each amendment thereof or supplement thereto, as of their
respective effective or issue dates, appeared on their face to
be appropriately responsive in all material respects to the
requirements of the Act, the Trust Indenture Act and the
respective rules and regulations of the Commission
thereunder; such counsel has no reason to believe that any
part of the Registration Statement, when such part became
effective, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus, as of the date of the
Prospectus Supplement, or any amendments thereof or
supplements thereto, as of their respective effective or issue
dates, contained any untrue statement of a material fact or
omitted to state any material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, or that, as of the
Closing Date, either the Prospectus or any further amendment
or supplement thereto made by the Company prior to the Closing
Date contained any untrue statement of a material fact or
omitted to state any material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; it being understood that
such counsel need express no opinion as to the Statement of
11--
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 Xxxxxxxx & Xxxxxxxx.
(d) The Representatives shall have received from Xxxxxxxx &
Xxxxxxxx, 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,
Xxxxxxxx & Xxxxxxxx may rely upon the opinion of
Xxxxxx X. Xxxxxx, Xx. 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 Xxxxx'x Investors Service, Inc. and (ii) neither
12--
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 can
celled 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 indem nified party for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that (i) First Union will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in con formity with written
information furnished to First Union by or on behalf of any Underwriter through
the Representatives specifically for use in the Prospectus or any supplement
thereto or any related preliminary prospectus or preliminary prospectus
supplement or of the Statement of Eligibility
13--
(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 prelimi nary 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 Pro
spectus 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 commence ment 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
14--
indemnified party and the indemnifying party and the indem nified 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 indemni fying
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 sen tence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate national counsel, approved by the Representatives, representing the
indemnified parties who are parties to such action), (ii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii).
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by First Union on the one hand and the Underwriters
of the Securities on the other from the offering of the Securities to which such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by appli cable 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
15--
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 subsec
tion (d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or lia bilities (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 contri
bute 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 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 Representa-
16--
tives, by notice given to First Union prior to delivery of and payment for the
Securities, if prior to such time (i) trading in securities generally on the New
York Stock Exchange shall have been suspended or materially limited, (ii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iii) there shall
have occurred any material outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the reasonable judgment of the Representatives,
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities as contemplated by the Prospectus.
9. Substituted Underwriters. If, on the Closing Date, any one
or more of the Underwriters shall fail or refuse to purchase Securities that it
or they have agreed to purchase hereunder on such date, and the aggregate number
of Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Securities to be purchased on the Closing Date, the other Underwriters
shall be obligated severally in the proportions that the number of Securities
set forth opposite their respective names in Schedule II bears to the aggregate
number of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Underwriters may agree, to
purchase the Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on the Closing Date; provided that in no event
shall the number of Securities that any Underwriter has agreed to purchase
pursuant to Section 2 above be increased pursuant to this Section 9 by an amount
in excess of one-ninth of such number of Securities without the written consent
of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Securities and the aggregate number of
Securities with respect to which such default occurs is more than one-tenth of
the aggregate number of Securities to be purchased on the Closing Date, and
arrangements satisfactory to the Underwriters and First Union for the purchase
of such Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or First Union. In such case either the Underwriters or First Union
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this Section 9 shall not relieve any
17--
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. 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 pursu-
ant 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, 11, 12 and 13 hereof shall survive the termination or
cancellation of this Agreement.
11. 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.
12. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
13. 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 deliv ered 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 pursu ant 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.
14. Action by Underwriters. Any action under this Agreement
taken by the Underwriters jointly or by the
18--
firm signing below on behalf of you as the Representatives will be binding upon
all the Underwriters.
19--
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:
20--
SCHEDULE I
TITLE OF DESIGNATED SECURITIES:
[Common Stock, par value $3.33 1/3 per share] [[Class A] Preferred
Stock [, Series __], no-par value] [Depositary Shares, each
representing a [Fraction]
Interest in a Share of [Class A] Preferred Stock
[, Series __], no-par value]
AMOUNT OF SECURITIES:
_____________
PRICE TO PUBLIC:
$_____ per Security [, plus accrued dividends, if any,
from _________ __, ____]
PURCHASE PRICE BY UNDERWRITERS:
$_____ per Security [, plus accrued dividends, if any,
from _________ __, ____]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately available funds by wire
DEPOSIT AGREEMENT:
[Deposit Agreement, dated as of ________ __, ____,
between First Union and __________, as Depositary]
MATURITY:
[________ __, ____]
DIVIDEND RATE:
[_____% per annum] [describe floating rate provisions]
DIVIDEND PAYMENT DATES:
[________ __, ________ __, ________ __ and ________ __ of each year,
commencing _______ __, ____]
REGULAR RECORD DATES:
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[________ __, ________ __, ________ __ 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]
RESTRICTED PERIOD UNDER SECTION 5(G) OF UNDERWRITING
AGREEMENT:
[Describe period if other than through Closing Date]
22--
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]
23--
SCHEDULE II
Amount of
Securities
to be
Underwriter Purchased
[underwriters names]
TOTAL ___________
SCHEDULE III
Pursuant to Section 6(e) of the Underwriting Agreement, the
independent accountants of First Union shall provide a comfort letter to the
effect that:
(i) They are independent certified public accountants with
respect to First Union and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules examined by them and included
or incorporated by reference in the Prospectus as amended or supplemented comply
as to form in all material respects with the applicable accounting requirements
of the Act or the Exchange Act, as applicable, and the published rules and
regulations thereunder;
(iii) On the basis of limited procedures, not constituting an
audit, consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of First Union and its subsidiaries, inspection of the
minute books of First Union and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus as amended or supplemented, inquiries of officials of First Union and
its subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of changes in
financial position included or incorporated by reference in First
Union's most recent Quarterly Report on Form 10-Q incorporated by
reference in the Prospectus (if any) as amended or supplemented does
not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to Form 10-Q
and the related published rules and regulations thereunder or are not
in conformity with generally accepted accounting principles applied on
a basis substantially consistent with that of the audited consolidated
financial statements included or incorporated by reference in First
Union's most recent Annual Report on Form 10-K;
III-1
(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 incorpo rated 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
state ments;
(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 perfor xxxxx
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented) or long-term debt of First Union or any of its
subsidiaries, or any decreases in consolidated stockholders' equity,
consolidated assets, consolidated deposits, or allowance for loan
losses of First Union or other items specified by the Represen tatives,
or any increases in any items specified by the Representatives, in each
case as compared with amounts shown in the latest balance sheet
included or incor porated 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 refer ence in the Prospectus as
amended or supplemented to
III-2
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 records of
First Union and its subsidiaries and have found them to be in agreement.
III-3
