[DEBT] [[CLASS A] PREFERRED STOCK] [COMMON STOCK]
[DEPOSITARY SHARES] WARRANT AGREEMENT
dated as of ________ __, ____
between
FIRST UNION CORPORATION
and
[NAME OF WARRANT AGENT], as Warrant Agent
-----------------------------------------------------
[Debt] [[Class A] Preferred Stock] [Common Stock]
[Depositary Share] Warrants
Expiring ________ __, ____
TABLE OF CONTENTS
Page
PARTIES........................................................................1
RECITALS.......................................................................1
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants............................................2
SECTION 1.02. Form, Execution and Delivery of Warrant
Certificates..........................................................3
SECTION 1.03. Transfer of Warrants............................................5
SECTION 1.04. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates..........................................................7
SECTION 1.05. Cancellation of Warrant Certificates............................7
SECTION 1.06. Treatment of Holders [IF WARRANTS ARE TO BE
ISSUED IN BOOK-ENTRY FORM: and Beneficial Owners] of
Warrant Certificates..................................................8
ARTICLE II
EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Exercise Price..................................................9
SECTION 2.02. Duration of Warrants............................................9
SECTION 2.03. Exercise of Warrants............................................9
SECTION 2.04. Adjustment Under Certain Circumstances.........................12
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
[IF WARRANTS ARE TO BE ISSUED IN BOOK-ENTRY FORM:
AND BENEFICIAL OWNERS] OF WARRANTS
SECTION 3.01. No Rights as Holders of Warrant Securities
Conferred by Warrants or Warrant Certificates........................12
SECTION 3.02. Holder [If Warrants are to be issued in Book-
Entry form: and Beneficial Owner] of Warrant May
Enforce Rights.......................................................13
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ARTICLE IV
CONCERNING THE WARRANT AGENT
SECTION 4.01. Warrant Agent..................................................13
SECTION 4.02. Limitations on Warrant Agent's Obligations
....................................................................13
SECTION 4.03. Compliance With Applicable Laws................................15
SECTION 4.04. Resignation and Appointment of Successor.......................16
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Amendments.....................................................18
SECTION 5.02. Merger, Consolidation, Sale, Transfer or
Conveyance...........................................................19
SECTION 5.03. Notices and Demands to the Company and
Warrant Agent........................................................20
SECTION 5.04. Addresses......................................................20
SECTION 5.05. GOVERNING LAW..................................................20
SECTION 5.06. Delivery of Prospectus.........................................20
SECTION 5.07. Obtaining of Governmental Approvals............................20
SECTION 5.08. Payment of Taxes...............................................21
SECTION 5.09. Benefits of Warrant Agreement..................................21
SECTION 5.10. Headings.......................................................21
SECTION 5.11. Severability...................................................21
SECTION 5.12. Counterparts...................................................21
SECTION 5.13. Inspection of Agreement........................................21
EXHIBITS
EXHIBIT A. Form of Warrant Certificate
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[DEBT] [[CLASS A] PREFERRED STOCK] [COMMON STOCK]
[DEPOSITARY SHARES] WARRANT AGREEMENT
[DEBT] [[CLASS A] PREFERRED STOCK] [COMMON STOCK] [DEPOSITARY SHARES]
WARRANT AGREEMENT, dated as of ________ __, ____ (as modified, amended or
supplemented, this "Agreement"), between FIRST UNION CORPORATION, a North
Carolina corporation (the "Company") and [NAME OF WARRANT AGENT], a
_________________, as Warrant Agent (the "Warrant Agent").
W I T N E S S E T H:
[If offer consists of Debt Securities with Warrants AND/OR Warrants to
Purchase Debt Securities: WHEREAS, the Company has entered into an Indenture,
dated as of April 1, 1983, as amended by supplemental indentures dated as of May
17, 1986, July 1, 1988 and August 1, 1990 (the "Senior Indenture"), between the
Company and The Chase Manhattan Bank (formerly Chemical Bank) as trustee,
providing for the issuance from time to time of its unsecured senior debentures,
notes or other evidences of indebtedness, and an Indenture, dated as of March
15, 1986, as amended by supplemental indentures dated as of August 1, 1990,
November 15, 1992 and February 7, 1996 (the "Subordinated Indenture", and
together with the Senior Indenture, the "Indentures"), between the Company and
Xxxxxx Trust and Savings Bank, as successor trustee to The Bank of New York
(formerly Irving Trust Company) (together with the trustee under the Senior
Indenture, the "Trustees"), providing for the issuance from time to time of its
unsecured subordinated debentures, notes or other evidences of indebtedness
(together with the securities issuable under the Senior Indenture, the "Debt
Securities"), to be issued in one or more series as provided in each Indenture;
and]
[If Securities and Warrants are to be offered together: WHEREAS, the
Company proposes to sell [title of Securities being Offered] (the "Offered
Securities") together with warrants (each, a "Warrant") representing the right
to purchase [title of Securities purchasable upon exercise of Warrants] [If
Warrants for Depositary Shares are to be offered: , each representing a 1/__th
interest in a share of [title of securities represented by Depositary Shares]]
(the "Warrant Securities" [If Warrants for Depositary Shares are to be offered:
, which term shall also refer, as appropriate, to such [title of securities
represented by Depositary Shares]), such warrant certificates and other
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warrant certificates issued pursuant to this Agreement being herein called the
"Warrant Certificates"; and]
[If offer consists of Warrants alone: WHEREAS, the Company proposes to
sell warrant certificates evidencing one or more warrants (each, a "Warrant")
representing the right to purchase [title of Securities purchasable upon
exercise of Warrants] [If Warrants for Depositary Shares are to be offered: ,
each representing a 1/__th interest in a share of [title of securities
represented by the Depositary Shares]] (the "Warrant Securities" [If Warrants
for Depositary Shares are to be offered: , which term shall also refer, as
appropriate, to such [title of securities represented by the Depositary
Shares]), such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the "Warrant Certificates"; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, transfer, exchange, exercise and cancellation of the Warrants, and the
Company wishes to set forth in this Agreement, among other things, the
provisions of the Warrants, the form of the Warrant Certificates evidencing the
Warrants and the terms and conditions upon which the Warrants may be issued,
transferred, exchanged, exercised and canceled;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. Each Warrant shall represent the
right, subject to the provisions contained herein and therein, to purchase
[________] Warrant Securities [in the aggregate principal amount of $_____] at
the Exercise Price set forth in Section 2.01. [If Securities and Warrants are to
be offered together: Warrants shall be issued in units with the Offered
Securities [If Warrants are not immediately detachable: and shall not be
separately transferable [Unless Warrants are not detachable: before ________ __,
____ (the "Detachment Date")]].] [If Warrants are to be offered separately:
Warrants shall be issued as a separate security and shall be transferable from
and after the date of issuance.] [If Warrants are to be offered in Book-Entry
form: [All] [A portion] of the
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Warrants shall initially be represented by one or more global certificates
(each, a "Global Warrant Certificate").] [If Securities and Warrants are to be
offered together and in definitive form: Each Warrant Certificate included in
such a unit shall evidence [_______] Warrants for each [$_____ principal amount
of] [_______] Offered Securities included in such unit.] [If Warrants are to be
offered separately and in definitive form: Each Warrant Certificate shall
evidence [_______] Warrants.]
SECTION 1.02. Form, Execution and Delivery of Warrant
Certificates.
(a) One or more Warrant Certificates evidencing Warrants to purchase
not more than [____] [$_______ in aggregate principal amount of] Warrant
Securities (except as provided in Sections 1.03, 1.04 and 2.03(e)) may be
executed by the Company and delivered to the Warrant Agent upon the execution of
this Warrant Agreement or from time to time thereafter.
(b) Each Warrant Certificate, whenever issued, shall be in registered
form substantially in the form set forth in Exhibit A hereto, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Agreement. [If Warrants are issued in Book-Entry
form: Each Global Warrant Certificate shall bear such legend or legends as may
be required by the Depository in order for it to accept the Warrants for its
book-entry settlement system.] Each Warrant Certificate shall be printed,
lithographed, typewritten, mimeographed or engraved on steel engraved borders or
otherwise reproduced in any other manner as may be approved by the officers
executing the same (such execution to be conclusive evidence of such approval)
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may approve (such
execution to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto, or
with any regulation of any stock exchange on which the Warrants [If Securities
and Warrants are to be offered together: , the Offered Securities] or the
Warrant Securities may be listed, or to conform to usage. Each Warrant
Certificate shall be signed on behalf of the Company by its Chairman of the
Board, President or any Executive or Senior Vice President. The signature of any
such officer on any Warrant Certificate may be manual or facsimile. Each Warrant
Certificate, when so signed on
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behalf of the Company, shall be delivered to the Warrant Agent together with an
order for the countersignature and delivery of such Warrants.
(c) The Warrant Agent shall, upon receipt of any Warrant Certificate
duly executed on behalf of the Company, countersign such Warrant Certificate and
deliver such Warrant Certificate to or upon the order of the Company. Each
Warrant Certificate shall be dated the date of its countersignature.
(d) No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, and no Warrant evidenced
thereby may be exercised, unless such Warrant Certificate has been countersigned
by the manual signature of the Warrant Agent. Such signature by the Warrant
Agent upon any Warrant Certificate executed by the Company shall be conclusive
evidence that such Warrant Certificate has been duly issued under the terms of
this Agreement.
(e) If any officer of the Company who has signed any Warrant
Certificate either manually or by facsimile signature shall cease to be such
officer before such Warrant Certificate shall have been countersigned and
delivered by the Warrant Agent, such Warrant Certificate nevertheless may be
countersigned and delivered as though the person who signed such Warrant
Certificate had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company as specified in this Section 1.02, regardless of whether
at the date of the execution of this Agreement any such person was such officer.
(f) The Holders shall [If Warrants are to be issued in Book-Entry form:
, except as stated below with respect to Warrants evidenced by a Global Warrant
Certificate,] be entitled to receive Warrants in physical, certificated form.
[If Warrants are to be issued in Book-Entry form: (g) A Global Warrant
Certificate may be exchanged for a new Global Warrant Certificate, or one or
more new Global Warrant Certificates may be issued, to reflect the issuance by
the Company of additional Warrants. To effect such an exchange, the Company
shall deliver to the Warrant Agent one or more new Global Warrant Certificates
duly executed on behalf of the Company as provided in Section 1.02. The Warrant
Agent shall authenticate each new Global Warrant Certificate as provided in
Section 1.02 and shall deliver
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each new Global Warrant Certificate to the Depository. The Warrant Agent shall
cancel each Global Warrant Certificate delivered to it by the Depository in
exchange therefor, if any.]
SECTION 1.03. Transfer of Warrants.
[If Warrants are to be issued in Book-Entry form: (a) [All] [A
portion] of the Warrants shall initially be represented by one or more Global
Warrant Certificates deposited with [the Depository Trust Company] (the
"Depository") and registered in the name of [Cede & Co.], a nominee of the
Depository. The Depository, or such other entity as is agreed to by the
Depository, may hold each Global Warrant Certificate as custodian for
Depository. Except as provided for in Section 1.03(b) hereof, no person
acquiring Warrants traded on any securities exchange with book-entry settlement
through the Depository shall receive or be entitled to receive physical delivery
of definitive Warrant Certificates evidencing such Warrants. Ownership of
beneficial interests in the Warrants shall be shown on, and the transfer of such
ownership shall be effected through, records maintained by (i) the Depository or
its nominee for each Global Warrant Certificate, or (ii) institutions that have
accounts with the Depository (such institution, with respect to a Warrant in its
account, a "Participant").]
[If Warrants are to be issued in Book-Entry form: (b) If the Depository
subsequently ceases to make its book-entry settlement system available for the
Warrants, the Company may instruct the Warrant Agent regarding making other
arrangements for book-entry settlement. In the event that the receipts are not
eligible for, or it is no longer necessary to have the Warrants available in,
book-entry form, the Warrant Agent shall provide written instructions to the
Depository to deliver to the Warrant Agent for cancellation each Global Warrant
Certificate, and the Company shall instruct the Warrant Agent to deliver to the
Depository definitive Warrant Certificates in physical form evidencing such
Warrants. Such definitive Warrant Certificates shall be in the form annexed
hereto as Exhibit A with appropriate insertions, modifications and omissions, as
provided above.]
[If Securities and Warrants are to be offered together: (c) [If
Warrants are not immediately detachable: Prior to the Detachment Date,] Warrants
may be transferred or exchanged only together with the Offered Security to which
such Warrant is attached, and only for the purpose of effecting, or in
conjunction with, a transfer or exchange of such Offered Security. Furthermore,
[If Warrants are not
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immediately detachable: on or prior to the Detachment Date,] each transfer of an
Offered Security on the register relating to such Offered Securities shall
operate also to transfer the Warrants to which such Offered Security was
initially attached. [If Warrants are not immediately detachable: From and after
the Detachment Date, the above provisions shall be of no further force and
effect.]
(d) A Warrant Certificate may be transferred at the option of the
Holder thereof upon surrender of such Warrant Certificate at the corporate trust
office of the Warrant Agent, properly endorsed or accompanied by appropriate
instruments of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent [If Warrants are to be issued
in Book-Entry form: ; provided, however, that except as otherwise provided
herein or in any Global Warrant Certificate, each Global Warrant Certificate may
be transferred only in whole and only to the Depository, to another nominee of
the Depository, to a successor depository, or to a nominee of a successor
depository]. Upon any such registration of transfer, the Company shall execute,
and the Warrant Agent shall countersign and deliver, as provided in Section
1.02, in the name of the designated transferee a new Warrant Certificate or
Warrant Certificates of any authorized denomination evidencing in the aggregate
a like number of unexercised Warrants.
(e) [If Warrants are not immediately detachable: After the Detachment
Date,] Upon surrender at the corporate office of the Warrant Agent, properly
endorsed or accompanied by appropriate instruments of transfer and written
instructions for such exchange, all in form satisfactory to the Company and the
Warrant Agent, one or more Warrant Certificates may be exchanged for one or more
Warrant Certificates in any other authorized denominations; provided that such
new Warrant Certificate(s) evidence the same aggregate number of Warrants as the
Warrant Certificate(s) so surrendered. Upon any such surrender for exchange, the
Company shall execute, and the Warrant Agent shall countersign and deliver, as
provided in Section 1.02, in the name of the Holder of such Warrant
Certificates, the new Warrant Certificates.
(f) The Warrant Agent shall keep, at its corporate trust office, books
in which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates in accordance with Section 1.02 and transfers,
exchanges, exercises and cancellations of outstanding Warrant Certificates.
Whenever any Warrant Certificates are surrendered for transfer or exchange in
accordance with this Section 1.03, an authorized officer of the Warrant Agent
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shall manually countersign and deliver the Warrant Certificates which the Holder
making the transfer or exchange is entitled to receive.
(g) No service charge shall be made for any transfer or exchange of
Warrant Certificates, but the Company may require payment of a sum sufficient to
cover any stamp or other tax or other governmental charge that may be imposed in
connection with any such transfer or exchange.
SECTION 1.04. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Company and the Warrant Agent of evidence
satisfactory to them of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity satisfactory to them and,
in the case of mutilation, upon surrender of such Warrant Certificate to the
Warrant Agent for cancellation, then, in the absence of notice to the Company or
the Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of the
lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant
Certificate of the same tenor and for a like number of Warrants. No service
charge shall be made for any replacement of Warrant Certificates, but the
Company may require the payment of a sum sufficient to cover any stamp or other
tax or other governmental charge that may be imposed in connection with any such
exchange. To the extent permitted under applicable law, the provisions of this
Section 1.04 are exclusive with respect to the replacement of mutilated, lost,
stolen or destroyed Warrant Certificates and shall preclude any and all other
rights or remedies.
SECTION 1.05. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered to the Warrant Agent for transfer, exchange or exercise
of the Warrants evidenced thereby shall be promptly canceled by the Warrant
Agent and shall not be reissued and, except as expressly permitted by this
Agreement, no Warrant Certificate shall be issued hereunder in lieu thereof. The
Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of canceled Warrant Certificates in a manner satisfactory to the
Company. Any Warrant Certificate surrendered to the Company for transfer,
exchange or exercise of the Warrants evidenced thereby shall be promptly
delivered to the Warrant Agent and such transfer, exchange or exercise shall not
be effective until such Warrant Certificate has been received by the Warrant
Agent.
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SECTION 1.06. Treatment of Holders [IF WARRANTS ARE TO BE ISSUED IN
BOOK-ENTRY FORM: and Beneficial Owners] of Warrant Certificates. (a) The term
"Holder", as used herein, shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose [If Securities and Warrants that are not
immediately detachable are offered: or, prior to the Detachment Date, the person
in whose name the Offered Security to which such Warrant Certificate was
initially attached is registered upon the register relating to such Offered
Securities. At all times prior to the Detachment Date, the Company will, or will
cause the registrar of the Offered Securities to, make available to the Warrant
Agent such information as to holders of the Offered Securities as may be
necessary to keep the Warrant Agent's records current]. [If Warrants are to be
issued in Book-Entry form: The Holder of each Global Warrant Certificate shall
initially be [Cede & Co.], a nominee of the Depository.]
[If Warrants are to be issued in Book-Entry Form: (b) The term
"Beneficial Owner" as used herein shall mean any person in whose name ownership
of beneficial interests in Warrants evidenced by a Global Warrant Certificate is
recorded in the records maintained by the Depository or its nominee, or by a
Participant [If Securities and Warrants that are not immediately detachable are
offered: , or, prior to the Detachment Date, the person in whose name the
Offered Security to which such Warrant Certificate was initially attached is
registered upon the register relating to such Offered Securities].]
( ) Every Holder [If Warrants are to be issued in Book-Entry form: and
every Beneficial Owner] consents and agrees with the Company, the Warrant Agent
and with every subsequent Holder [If Warrants are to be issued in Book- Entry
form: and Beneficial Owner] that until the Warrant Certificate is transferred on
the books of the Warrant Agent, the Company and the Warrant Agent may treat the
registered Holder of such Warrant Certificate as the absolute owner of the
Warrants evidenced thereby for any purpose and as the person entitled to
exercise the rights attaching to the Warrants evidenced thereby, any notice to
the contrary notwithstanding.
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ARTICLE II
EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS
SECTION 2.01. Exercise Price. The exercise price of each Warrant shall
be $________ (the "Exercise Price") [modify as appropriate to reflect terms of
offered Warrants].
SECTION 2.02. Duration of Warrants. [Subject to the limitations set
forth herein,] Each Warrant may be exercised in whole but not in part [Unless
Warrants may be exercised on only one date: on any Business Day (as defined
below) occurring during the period (the "Exercise Period") commencing on [its
date of issuance] [_________ __, ____] and ending at 5:00 P.M., New York time,]
on __________ __, ____ (the "Expiration Date"). Each Warrant remaining
unexercised after 5:00 P.M., New York time, on the Expiration Date shall become
void, and all rights of the Holder under this Agreement shall cease.
As used herein, the term "Business Day" means any day which is not a
Saturday or Sunday and is not a legal holiday or a day on which banking
institutions generally are authorized or obligated by law or regulation to close
in New York and North Carolina.
SECTION 2.03. Exercise of Warrants.
(a) A Holder may exercise a Warrant by delivering, not later than 5:00
P.M., New York time, on [Unless Warrants may be exercised on only one date: any
Business Day during the Exercise Period (the "Exercise Date")] [If Warrants may
be exercised on only one date: the Expiration Date] to the Warrant Agent at its
corporate trust department (i) the Warrant Certificate evidencing the Warrants
to be exercised, [If Warrants are to be issued in Book-Entry form: and, in the
case of a Global Warrant Certificate, the Warrants to be exercised (the
"Book-Entry Warrants") free on the records of the Depository to an account of
the Warrant Agent at the Depository designated for such purpose in writing by
the Warrant Agent to the Depository from time to time,] (ii) an election to
purchase the Warrant Securities ("Election to Purchase"), properly completed and
executed by the Holder on the reverse of the Warrant Certificate [If Warrants
are to be issued in Book-Entry form: or, in the case of a Global Warrant
Certificate, properly executed by the Participant and substantially in the form
included on the reverse of each Warrant Certificate,] and (iii) the Exercise
Price for each Warrant to be exercised in lawful money of the Xxxxxx
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Xxxxxx xx Xxxxxxx by certified or official bank check or by bank wire transfer
in immediately available funds. If any of (a) the Warrant Certificate [If
Warrants are to be issued in Book-Entry form: or the Book-Entry Warrants,] (b)
the Election to Purchase, or (c) the Exercise Price therefor, is received by the
Warrant Agent after 5:00 P.M., New York time, on [Unless Warrants may be
exercised on only one date: the specified Exercise Date, the Warrants will be
deemed to be received and exercised on the Business Day next succeeding the
Exercise Date. If the date specified as the Exercise Date is not a Business Day,
the Warrants will be deemed to be received and exercised on the next succeeding
day which is a Business Day. If the Warrants are received or deemed to be
received after] the Expiration Date, the exercise thereof will be null and void
and any funds delivered to the Warrant Agent will be returned to the Holder [If
Warrants are to be issued in Book-Entry form: or Participant, as the case may
be,] as soon as practicable. In no event will interest accrue on funds deposited
with the Warrant Agent in respect of an exercise or attempted exercise of
Warrants. The validity of any exercise of Warrants will be determined by the
Warrant Agent in its sole discretion and such determination will be final and
binding upon the Holder and the Company. Neither the Company nor the Warrant
Agent shall have any obligation to inform a Holder of the invalidity of any
exercise of Warrants. The Warrant Agent shall deposit all funds received by it
in payment of the Exercise Price in the account of the Company maintained with
the Warrant Agent for such purpose and shall advise the Company by telephone at
the end of each day on which funds for the exercise of the Warrants are received
of the amount so deposited to its account. The Warrant Agent shall promptly
confirm such telephonic advice to the Company in writing.
(b) The Warrant Agent shall, by 11:00 A.M. on the Business Day
following the [Unless Warrants may be exercised on only one date: Exercise Date
of any Warrant] [If Warrants may be exercised on only one date: Expiration
Date], advise the Company and the [Trustee under the Indenture applicable to]
[the transfer agent and registrar in respect of] the Warrant Securities issuable
upon such exercise as to the number of Warrants exercised in accordance with the
terms and conditions of this Agreement, the instructions of each Holder [If
Warrants are to be issued in Book-entry Form: or Participant, as the case may
be,] with respect to delivery of the Warrant Securities issuable upon such
exercise, and the delivery of definitive Warrant Certificates [If Warrants are
to be issued in Book-Entry form: or one or more Global Warrant Certificates, as
appropriate,] evidencing the balance, if any, of the Warrants remaining after
such
- 10 -
exercise, and such other information as the Company or such [Trustee] [transfer
agent and registrar] shall reasonably require.
(c) The Company shall, by 5:00 P.M., New York time, on the third
Business Day next succeeding the [Unless Warrants may be exercised on only one
date: Exercise Date of any Warrant] [If Warrants may be exercised on only one
date: Expiration Date], execute, issue and deliver to the Warrant Agent,
[pursuant to the Indenture applicable to the Warrant Securities, the Warrant
Securities, duly authenticated by the Trustee of such Indenture and in
authorized denominations] [the Warrant Securities] to which such Holder is
entitled, in fully registered form, registered in such name or names as may be
directed by such Holder [If Warrants are to be issued in Book-Entry form: or the
Participant, as the case may be]. Upon receipt of such Warrant Securities, the
Warrant Agent shall, by 5:00 P.M., New York time, on the fifth Business Day next
succeeding [Unless Warrants may be exercised on only one date: such Exercise
Date] [If Warrants may be exercised on only one date: the Expiration Date],
transmit such Warrant Securities, to or upon the order of the Holder [If
Warrants are to be issued in Book-Entry form: or Participant, as the case may
be,] together with, or preceded by the prospectus referred to in Section 5.06
hereof. The Company agrees that it will provide such information and documents
to the Warrant Agent as may be necessary for the Warrant Agent to fulfill its
obligations hereunder.
(d) The accrual of [interest] [dividends], if any, on the Warrant
Securities issued upon the valid exercise of any Warrant will be governed by the
terms of the applicable [Indenture] [articles of amendment] and such Warrant
Securities. From and after the issuance of such Warrant Securities, the former
Holder of the Warrants exercised will be entitled to the benefits of the
[Indenture] [articles of amendment] under which such Warrant Securities are
issued and such former Holder's right to receive payments of [principal of (and
premium, if any) and interest, if any, on] [dividends and any other amounts
payable in respect of] the Warrant Securities shall be governed by, and shall be
subject to, the terms and provisions of such [Indenture] [articles of amendment]
and the Warrant Securities.
(e) Warrants may be exercised only in whole numbers of Warrants.
[Unless Warrants may be exercised on only one date: If fewer than all of the
Warrants evidenced by a Warrant Certificate are exercised, a new Warrant
Certificate for the number of Warrants remaining unexercised shall be executed
by the Company and countersigned by the Warrant
- 11 -
Agent as provided in Section 1.02 hereof, and delivered to the Holder at the
address specified on the books of the Warrant Agent or as otherwise specified by
such Holder.]
(f) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities; and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Securities until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
[If Warrants for Common Stock are offered: SECTION 2.04. Adjustment
Under Certain Circumstances. The Exercise Price and the number of Warrant
Securities purchasable upon the exercise of each Warrant shall be subject to
adjustment upon (i) the issuance of a stock dividend to the holders of the
outstanding shares of Warrant Securities or a combination, subdivision or
reclassification of the Warrant Securities; (ii) the issuance of rights,
warrants or options to all holders of the Warrant Securities entitling the
holders thereof to purchase Warrant Securities for an aggregate consideration
per share less than the current market price per share of the Warrant
Securities; or (iii) any distribution by the Company to the holders of the
Warrant Securities of evidences of indebtedness of the Company or of assets
(excluding cash dividends or distributions payable out of consolidated earnings
and earned surplus and dividends or distributions referred to in (i) above);
provided that no such adjustment in the number of Warrant Securities purchasable
upon exercise of the Warrants will be required until cumulative adjustments
require an adjustment of at least 1% of such number. No fractional shares will
be issued upon exercise of Warrants, but the Company will pay the cash value of
any fractional shares otherwise issuable. The adjustments to be made under this
Section 2.03 shall be determined by the Warrant Agent and such determination
shall be final and binding upon the Holders and the Company.]
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
[If Warrants are to be issued in Book-Entry Form:
AND BENEFICIAL OWNERS] OF WARRANTS
SECTION 3.01. No Rights as Holders of Warrant Securities Conferred by
Warrants or Warrant Certificates.
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No Warrant Certificate or Warrant evidenced thereby shall entitle the Holder
thereof to any of the rights of a holder of any Warrant Securities, including,
without limitation, [the right to receive the payments of principal of (and
premium, if any) and interest, if any, on Debt Securities purchasable upon such
exercise or to enforce any of the covenants in the Indenture] [the right to
receive dividends, if any, or payments upon the liquidation, dissolution or
winding up of the Company or to exercise voting rights, if any].
SECTION 3.02. Holder [If Warrants are to be issued in Book-Entry form:
and Beneficial Owner] of Warrant May Enforce Rights. Notwithstanding any of the
provisions of this Agreement, any Holder [If Warrants are to be issued in
Book-Entry form: and any Beneficial Owner] of any Warrant, without the consent
of the Warrant Agent or the Holder of any Warrant, may, on such Holder's [If
Warrants are to be issued in Book-Entry form: or Beneficial Owner's] own behalf
and for his own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or otherwise in respect of,
such Holder's [If Warrants are to be issued in Book-Entry form: or Beneficial
Owner's] right to exercise the Warrants evidenced by any Warrant Certificate in
the manner provided in this Agreement and such Warrant Certificate.
ARTICLE IV
CONCERNING THE WARRANT AGENT
SECTION 4.01. Warrant Agent. The Company hereby appoints [Name of
Warrant Agent] as Warrant Agent of the Company in respect of the Warrants upon
the terms and subject to the conditions herein set forth, and [Name of Warrant
Agent] hereby accepts such appointment. The Warrant Agent shall have the powers
and authority granted to and conferred upon it hereby and such further powers
and authority to act on behalf of the Company as the Company may hereafter grant
to or confer upon it.
SECTION 4.02. Limitations on Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following, to all of which the Company agrees and to all
of which the rights hereunder of the Holders from time to time shall be subject:
(a) Compensation and Indemnification. The Company agrees to
pay the Warrant Agent compensation to
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be agreed upon with the Company for all services rendered by the
Warrant Agent and to reimburse the Warrant Agent for all reasonable
out-of-pocket expenses (including reasonable counsel fees) incurred by
the Warrant Agent in connection with the services rendered by it
hereunder. The Company also agrees to indemnify the Warrant Agent for,
and to hold it harmless against, any loss, liability or expense
incurred without negligence, bad faith or breach of this Agreement on
the part of the Warrant Agent, arising out of or in connection with its
acting as Warrant Agent hereunder.
(b) Agent for the Company. In acting in the capacity of
Warrant Agent under this Agreement, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligation or
relationship of agency or trust with any of the owners or holders of
the Warrants except as expressly set forth herein.
(c) Counsel. The Warrant Agent may consult with counsel
satisfactory to it (which may be counsel to the Company), and the
advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the advice of such
counsel.
(d) Documents. The Warrant Agent shall be protected and shall
incur no liability for or in respect of any action taken or thing
suffered by it in reliance upon any notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by
the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any
interest in, any Warrant, with the same rights that it or they would
have were it not the Warrant Agent hereunder, and, to the extent permit
xxx by applicable law, it or they may engage or be interested in any
financial or other transaction with the Company and may act on, or as a
depositary, trustee or agent for, any committee or body of holders of
Warrants [If Securities and Warrants are being offered together: ,
Offered Securities] or Warrant Securities, or other securities or
obligations of the Company as freely as if it were not the Warrant
Agent hereunder. Nothing in this Agreement shall be deemed to prevent
the Warrant Agent from acting as trustee under either Indenture.
- 14 -
(f) No Liability for Interest. The Warrant Agent shall not be
under any liability for interest on any monies at any time received by
it pursuant to any of the provisions of this Agreement.
(g) No Liability for Invalidity. The Warrant Agent shall not
be under any responsibility with respect to the validity or sufficiency
of this Agreement or the execution and delivery hereof (except the due
execution and delivery hereof by the Warrant Agent) or with respect to
the validity or execution of the Warrant Certificates (except its
countersignature thereon).
(h) No Responsibility for Recitals. The recitals contained
herein and in the Warrant Certificates (except as to the Warrant
Agent's countersignature thereon) shall be taken as the statements of
the Company and the Warrant Agent assumes no responsibility hereby for
the correctness of the same.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform such duties as are specifically set forth herein
and no implied duties or obligations shall be read into this Agreement
against the Warrant Agent. The Warrant Agent shall not be under any
obligation to take any action hereunder which may tend to involve it in
any expense or liability, the payment of which within a reasonable time
is not, in its opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the
Company of any Warrant Certificate authenticated by the Warrant Agent
and delivered by it to the Company pursuant to this Agreement or for
the application by the Company of the proceeds of the issue and sale,
or exercise, of the Warrants. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the performance
of its covenants or agreements contained herein or in any Warrant
Certificate or in the case of the receipt of any written demand from a
Holder with respect to such default, including, without limiting the
generality of the foregoing, any duty or responsibility to initiate or
attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 5.03 hereof, to make any demand upon the Company.
SECTION 4.03. Compliance With Applicable Laws. The Warrant
Agent agrees to comply with all applicable federal and state laws imposing
obligations on it in respect of the services rendered by it under this Agreement
and in
- 15 -
connection with the Warrants, including (but not limited to) the provisions of
United States federal income tax laws regarding information reporting and backup
withholding. The Warrant Agent expressly assumes all liability for its failure
to comply with any such laws imposing obligations on it, including (but not
limited to) any liability for its failure to comply with any applicable
provisions of United States federal income tax laws regarding information
reporting and backup withholding.
SECTION 4.04. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the Holders from
time to time, that there shall at all times be a Warrant Agent hereunder until
all the Warrants issued hereunder have been exercised or have expired in
accordance with their terms, which Warrant Agent shall be a bank or trust
company organized under the laws of the United States of America or one of the
states thereof, which is authorized under the laws of the jurisdiction of its
organization to exercise corporate trust powers, has a combined capital and
surplus of at least $50,000,000 and has an office or an agent's office in the
United States of America.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which it desires such resignation to become effective; provided that
such date shall not be less than three months after the date on which such
notice is given, unless the Company agrees to accept such notice less than three
months prior to such date of effectiveness. The Company may remove the Warrant
Agent at any time by giving written notice to the Warrant Agent of such removal,
specifying the date on which it desires such removal to become effective. Such
resignation or removal shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be a bank or
trust company qualified as set forth in Section 4.04(a)) and the acceptance of
such appointment by such successor Warrant Agent. The obligation of the Company
under Section 4.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall
cease to be qualified as set forth in Section 4.04(a), or shall be removed, or
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent,
or shall file a petition seeking relief under any applicable Federal or State
bankruptcy or insolvency law or
- 16 -
similar law, or make an assignment for the benefit of its creditors or consent
to the appointment of a receiver, conservator or custodian of all or any
substantial part of its property, or shall admit in writing its inability to pay
or to meet its debts as they mature, or if a receiver or custodian of it or of
all or any substantial part of its property shall be appointed, or if an order
of any court shall be entered for relief against it under the provisions of any
applicable Federal or State bankruptcy or similar law, or if any public officer
shall have taken charge or control of the Warrant Agent or of its property or
affairs, for the purpose of rehabilitation, conservation or liquidation, a
successor Warrant Agent, qualified as set forth in Section 4.04(a), shall be
appointed by the Company by an instrument in writing, filed with the successor
Warrant Agent. Upon the appointment as herein provided of a successor Warrant
Agent and acceptance by the latter of such appointment, the Warrant Agent so
superseded shall cease to be Warrant Agent under this Agreement.
(d) Any successor Warrant Agent appointed under this Agreement
shall execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent under
this Agreement, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent under this Agreement.
(e) Any corporation into which the Warrant Agent may be merged
or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, in each case provided that it
shall be qualified as set forth in Section 4.04(a), shall be the successor
Warrant Agent under this Agreement without the execution or filing of any paper
or any further act on the part of any of the parties to this Agreement,
including, without limitation, any successor to the Warrant Agent first named
above.
- 17 -
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Amendments.
(a) This Agreement and any Warrant Certificate may be amended
by the parties hereto by executing a supplemental warrant agreement (a
"Supplemental Agreement"), without the consent of the Holder of any Warrant, for
the purpose of (i) curing any ambiguity, or curing, correcting or supplementing
any defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement that is not
inconsistent with the provisions of this Agreement or the Warrant Certificates,
(ii) evidencing the succession of another corporation to the Company and the
assumption by any such successor of the covenants of the Company contained in
this Warrant Agreement and the Warrants, (iii) evidencing and providing for the
acceptance of appointment by a successor Warrant Agent with respect to the
Warrants, [If Warrants are to be issued in Book-Entry form: (iv) evidencing and
providing for the acceptance of appointment by a successor Depository with
respect to each Global Warrant Certificate, (v) issuing definitive Warrant
Certificates in accordance with paragraph (b) of Section 1.03,] (vi) adding to
the covenants of the Company for the benefit of the Holders or surrendering any
right or power conferred upon the Company under this Agreement, or (vii)
amending this Agreement and the Warrants in any manner that the Company may deem
to be necessary or desirable and that will not adversely affect the interests of
the Holders in any material respect.
(b) The Company and the Warrant Agent may amend this Agreement
and the Warrants by executing a Supplemental Agreement with the consent of the
Holders of not fewer than a majority of the unexercised Warrants affected by
such amendment, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Holders under this Agreement; provided, however,
that, without the consent of each Holder of Warrants affected thereby, no such
amendment may be made that (i) changes the Warrants so as to reduce the
[principal amount] [number] of Warrant Securities purchasable upon exercise of
the Warrants or so as to increase the exercise price [If Warrants for Common
Stock are offered: (other than as provided by Section 2.03)], (ii) shortens the
period of time during which the Warrants may be exercised,
- 18 -
(iii) otherwise adversely affects the exercise rights of the Holders in any
material respect, or (iv) reduces the number of unexercised Warrants the consent
of the Holders of which is required for amendment of this Agreement or the
Warrants.
SECTION 5.02. Merger, Consolidation, Sale, Transfer or
Conveyance. The Company 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 (i) either (x) the Company is the
continuing corporation or (y) the corporation (if other than the Company) that
is formed by or results from any such consolidation or merger or that receives
such assets is a corporation organized and existing under the laws of the United
States of America or a state thereof and such corporation assumes the
obligations of the Company with respect to the performance and observance of all
of the covenants and conditions of this Agreement to be performed or observed by
the Company and (ii) the Company or such successor corporation, as the case may
be, must not immediately be in default under this Agreement. If at any time
there shall be any consolidation or merger or any sale, lease, transfer,
conveyance or other disposition of all or substantially all of the assets of the
Company, then in any such event the successor or assuming corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein and in the Warrant Certificates as the Company; the Company
shall thereupon be relieved of any further obligation hereunder or under the
Warrants, and, in the event of any such sale, lease, transfer, conveyance (other
than by way of lease) or other disposition, the Company as the predecessor
corporation may thereupon or at any time thereafter be dissolved, wound up or
liquidated. Such successor or assuming corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company,
Warrant Certificates evidencing the Warrants not theretofore exercised, in
exchange and substitution for the Warrant Certificates theretofore issued. Such
Warrant Certificates shall in all respects have the same legal rank and benefit
under this Agreement as the Warrant Certificates evidencing the Warrants
theretofore issued in accordance with the terms of this Agreement as though such
new Warrant Certificates had been issued at the date of the execution hereof. In
any case of any such merger or consolidation or sale, lease, transfer,
conveyance or other disposition of all or substantially all of the assets of the
Company, such changes in phraseology and form (but not in substance) may be made
in the new Warrant Certificates, as may be appropriate.
- 19 -
SECTION 5.03. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the Holder [If Warrants are to be issued in Book-Entry form: or a
Participant, as the case may be], the Warrant Agent shall promptly forward such
notice or demand to the Company.
SECTION 5.04. Addresses. Any communications from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
____________________, Attention: ________________________, and any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to First Union Corporation, Xxx Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: General Counsel (or such other
address as shall be specified in writing by the Warrant Agent or by the Company,
as the case may be). The Company or the Warrant Agent shall give notice to the
Holders of Warrants by mailing written notice by first class mail, postage
prepaid, to such Holders as their names and addresses appear in the books and
records of the Warrant Agent [or, prior to the Detachment Date, on the register
of the Offered Securities].
SECTION 5.05. GOVERNING LAW. THIS AGREEMENT AND
EACH WARRANT CERTIFICATE AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS
HEREOF AND THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW
PROVISIONS).
SECTION 5.06. Delivery of Prospectus. The Company shall
furnish to the Warrant Agent sufficient copies of a prospectus relating to the
Warrant Securities deliverable upon exercise of Warrants and complying in all
material respects with the Securities Act of 1933, as amended (the
"Prospectus"), and the Warrant Agent agrees that upon the exercise of any
Warrant, the Warrant Agent shall deliver a Prospectus to the Holder of such
Warrant, prior to or concurrently with the delivery of the Warrant Securities
issued upon such exercise.
SECTION 5.07. Obtaining of Governmental Approvals. The Company
shall from time to time take all action which may be necessary to obtain and
keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States Federal
and state laws, which the Company may deem necessary or appropriate in
connection with the issuance, sale, transfer and delivery of the Warrants, the
- 20 -
exercise of the Warrants, the issuance, sale, transfer and delivery of the
Warrant Securities to be issued upon exercise of Warrants or upon the expiration
of the period during which the Warrants are exercisable.
SECTION 5.08. Payment of Taxes. The Company will pay all stamp
and other duties, if any, to which, under the laws of the United States of
America, this Agreement or the original issuance of the Warrants may be subject.
SECTION 5.09. Benefits of Warrant Agreement. Nothing in this
Agreement or any Warrant Certificate expressed or implied and nothing that may
be inferred from any of the provisions hereof or thereof is intended, or shall
be construed, to confer upon, or give to, any person or corporation other than
the Company, the Warrant Agent and their respective successors and assigns, [If
Warrants are to be issued in Book-Entry form: the Beneficial Owners] and the
Holders any right, remedy or claim under or by reason of this Agreement or any
Warrant Certificate or of any covenant, condition, stipulation, promise or
agreement hereof or thereof; and all covenants, conditions, stipulations,
promises and agreements contained in this Agreement or any Warrant Certificate
shall be for the sole and exclusive benefit of the Company and the Warrant Agent
and their respective successors and assigns and of the [If Warrants are to be
issued in Book-Entry form: Beneficial Owners and] Holders.
SECTION 5.10. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 5.11. Severability. If any provision in this Agreement
or in any Warrant Certificate shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions, or of such provisions in any other jurisdiction, shall not in any
way be affected or impaired thereby.
SECTION 5.12. Counterparts. This Agreement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
SECTION 5.13. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent
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and at the office of the Company at Xxx Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, for inspection by any Holder. The Warrant Agent may require any
such Holder to submit satisfactory proof of ownership for inspection by it.
- 22 -
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
FIRST UNION CORPORATION
By: _________________________
Authorized Officer
[WARRANT AGENT]
By: _________________________
Authorized Officer
- 23 -
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Form of legend if Securities with Warrants that are not immediately detachable
or Warrants that are not immediately exercisable are offered: [PRIOR TO
_______________,] THIS WARRANT CERTIFICATE [(i) CANNOT BE TRANSFERRED OR
EXCHANGED UNLESS ATTACHED TO A [TITLE OF OFFERED SECURITY] AND (II)] CANNOT BE
EXERCISED IN WHOLE OR IN PART.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
Warrant Certificate evidencing
Warrants to Purchase
[Title of Warrant Securities]
as described herein.
FIRST UNION CORPORATION
No. ___________ CUSIP No. _____________
VOID AFTER [5:00 P.M.], NEW YORK TIME, ON _______ __, ___
This certifies that ________________________ or registered
assigns is the registered holder of [Insert number initially issued] warrants to
purchase certain securities (the "Warrants"). Each Warrant entitles the holder
thereof, subject to the provisions contained herein and in the Warrant Agreement
referred to below, to purchase from First Union Corporation, a North Carolina
corporation (the "Company"), [$_________ principal amount] [______] of the
Company's [title of Securities purchasable upon exercise of Warrants] [If
Warrants for Depositary Shares are to be offered: , each representing a 1/__th
interest in a share of [title of securities represented by the Depositary
Shares]] (the "Warrant Securities" [If Warrants for Depositary Shares are to be
offered: , which term shall also refer, as appropriate, to such [title of
securities represented by the Depositary Shares]), [issued or to be issued under
the Indenture (as hereinafter defined)], at the Exercise Price set forth below.
The exercise price of each Warrant (the "Exercise Price") shall be [modify as
appropriate to reflect the terms of the offered Warrants].
A-1
Subject to the terms of the Warrant Agreement, each Warrant
evidenced hereby may be exercised in whole but not in part at any time, as
specified herein, [Unless Warrants may be exercised on only one date: on any
Business Day (as defined below) occurring during the period (the "Exercise
Period") commencing on [the date of issuance thereof] [________________ __,
____] and ending at 5:00 P.M., New York time,] on ____________ __, ____ (the
"Expiration Date"). Each Warrant remaining unexercised after 5:00 P.M., New York
time, on the Expiration Date shall become void, and all rights of the holder of
this Warrant Certificate evidencing such Warrant shall cease.
The holder of the Warrants represented by this Warrant
Certificate may exercise any Warrant evidenced hereby by delivering, not later
than 5:00 P.M., New York time, on [Unless Warrants may be exercised on only one
date: any Business Day during the Exercise Period (the "Exercise Date")] [If
Warrants may be exercised on only one date: the Expiration Date] to [name of
Warrant Agent] (the "Warrant Agent", which term includes any successor warrant
agent under the Warrant Agreement described below) at its corporate trust
department at ___________________, (i) this Warrant Certificate [For Global
Warrant Certificate: and the Warrants to be exercised (the "Book-Entry
Warrants") free on the records of [The Depository Trust Company] (the
"Depository") to an account of the Warrant Agent at the Depository designated
for such purpose in writing by the Warrant Agent to the Depository], (ii) an
election to purchase ("Election to Purchase"), [For definitive Warrant
Certificates: properly executed by the holder hereof on the reverse of this
Warrant Certificate] [For Global Warrant Certificates: properly executed by the
institution in whose account the Warrant is recorded on the records of the
Depository (the "Participant"), and substantially in the form included on the
reverse of hereof] and (iii) the Exercise Price for each Warrant to be exercised
in lawful money of the United States of America by certified or official bank
check or by bank wire transfer in immediately available funds. If any of (a)
this Warrant Certificate [For Global Warrant Certificates: or the Book-Entry
Warrants], (b) the Election to Purchase, or (c) the Exercise Price therefor, is
received by the Warrant Agent after 5:00 P.M., New York time, on [Unless
Warrants may be exercised on only one date: the specified Exercise Date, the
Warrants will be deemed to be received and exercised on the Business Day next
succeeding the Exercise Date. If the date specified as the Exercise Date is not
a Business Day, the Warrants will be deemed to be received and exercised on the
next succeeding day which is a Business Day. If the Warrants to be exercised are
received or deemed to be received after] the Expiration Date, the exercise
thereof will be null and void and any funds delivered to the Warrant Agent will
be returned to the holder as soon as practicable. In no event will interest
accrue on funds deposited with the Warrant
A-2
Agent in respect of an exercise or attempted exercise of Warrants. The validity
of any exercise of Warrants will be determined by the Warrant Agent in its sole
discretion and such determination will be final and binding upon the holder of
the Warrants and the Company. Neither the Warrant Agent nor the Company shall
have any obligation to inform a holder of Warrants of the invalidity of any
exercise of Warrants. As used herein, the term "Business Day" means any day
which is not a Saturday or Sunday and is not a legal holiday or a day on which
banking institutions generally are authorized or obligated by law or regulation
to close in __________.
Warrants may be exercised only in whole numbers of Warrants.
[Unless Warrants may be exercised on only one date: If fewer than all of the
Warrants evidenced by this Warrant Certificate are exercised, a new Warrant
Certificate for the number of Warrants remaining unexercised shall be executed
by the Company and countersigned by the Warrant Agent as provided in Section
1.02 of the Warrant Agreement, and delivered to the holder of this Warrant
Certificate at the address specified on the books of the Warrant Agent or as
otherwise specified by such registered holder.]
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement, dated as of ___________ __, ____ (the "Warrant
Agreement"), between the Company and the Warrant Agent and is subject to the
terms and provisions contained in the Warrant Agreement, to all of which terms
and provisions the holder of this Warrant Certificate [For Global Warrant
Certificate: and the beneficial owners of the Warrants represented by this
Warrant Certificate] consent[s] by acceptance hereof. Copies of the Warrant
Agreement are on file and can be inspected at the above-mentioned office of the
Warrant Agent and at the office of the Company at Xxx Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
[If the Warrant Securities are Debt Securities: The Warrant
Securities to be issued and delivered upon the exercise of the Warrants
evidenced by this Warrant Certificate will be issued under and in accordance
with the Indenture, dated as of _________ __, ____ (the "Indenture"), between
the Company and [name of trustee], as trustee (together with any successor or
successors as such trustee, the "Trustee"), and will be subject to the terms and
provisions contained in the Warrant Securities and in the Indenture.] The
accrual of [interest] [dividends], if any, on the Warrant Securities issued upon
the valid exercise of any Warrant will be governed by the terms of the
applicable [Indenture] [articles of amendment] and such Warrant Securities. From
and after the issuance of such Warrant
A-3
Securities, the former holder of the Warrants exercised will be entitled to the
benefits of the [Indenture] [articles of amendment] under which such Warrant
Securities are issued and such former holder's right to receive payments of
[principal of (and premium, if any) and interest, if any, on] [dividends and any
other amounts payable in respect of] the Warrant Securities shall be governed
by, and shall be subject to, the terms and provisions of such [Indenture]
[articles of amendment] and the Warrant Securities. Copies of the [Indenture,
including the form of the Warrant Securities,] [articles of amendment] are on
file at the corporate trust office of the Trustee.]
[If Warrants for Common Stock are offered: The Exercise Price
and the number of Warrant Securities purchasable upon the exercise of each
Warrant shall be subject to adjustment upon (i) the issuance of a stock dividend
to the holders of the outstanding shares of Warrant Securities or a combination,
subdivision or reclassification of the Warrant Securities; (ii) the issuance of
rights, warrants or options to all holders of the Warrant Securities entitling
the holders thereof to purchase Warrant Securities for an aggregate
consideration per share less than the current market price per share of the
Warrant Securities; or (iii) any distribution by the Company to the holders of
the Warrant Securities of evidences of indebtedness of the Company or of assets
(excluding cash dividends or distributions payable out of consolidated earnings
and earned surplus and dividends or distributions referred to in (i) above);
provided that no such adjustment in the number of Warrant Securities purchasable
upon exercise of the Warrants will be required until cumulative adjustments
require an adjustment of at least 1% of such number. No fractional shares will
be issued upon exercise of Warrants, but the Company will pay the cash value of
any fractional shares otherwise issuable. The adjustments to be made under this
Section 2.03 shall be determined by the Warrant Agent and such determination
shall be final and binding upon the holders of the Warrants and the Company.]
[If Securities and Warrants are to be offered together: [If
Warrants are not immediately detachable: Prior to the Detachment Date,] The
Warrants represented by this Warrant Certificate may be exchanged or transferred
only together with the [title of Offered Security] (the "Offered Security") to
which the Warrants are attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security.
Additionally, [If Warrants are not immediately detachable: on or prior to the
Detachment Date,] each transfer of such Offered Security on the register of the
Offered Securities
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shall operate also to transfer the Warrants to which such Offered Securities was
initially attached. [If Warrants are not immediately detachable: From and after
the Detachment Date, the above provisions shall be of no further force and
effect.]] Upon due presentment for registration of transfer or exchange of this
Warrant Certificate at the corporate trust office of the Warrant Agent, the
Company shall execute, and the Warrant Agent shall countersign and deliver, as
provided in Section 1.02 of the Warrant Agreement, in the name of the designated
transferee one or more new Warrant Certificates of any authorized denomination
evidencing in the aggregate a like number of unexercised Warrants, subject to
the limitations provided in the Warrant Agreement.
Neither this Warrant Certificate nor the Warrants evidenced
hereby shall entitle the holder hereof or thereof to any of the rights of a
holder of the Warrant Securities, including, without limitation, [the right to
receive the payments of principal of (and premium, if any), and interest, if
any, on Debt Securities purchasable upon such exercise or to enforce any of the
covenants in the applicable Indenture] [the right to receive dividends, if any,
or payments upon the liquidation, dissolution or winding up of the Company or to
exercise voting rights, if any].
The Warrant Agreement and this Warrant Certificate may be
amended as provided in the Warrant Agreement including, under certain
circumstances described therein, without the consent of the holder of this
Warrant Certificate or the Warrants evidenced thereby.
THIS WARRANT CERTIFICATE AND ALL RIGHTS HEREUNDER AND UNDER
THE WARRANT AGREEMENT AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
This Warrant Certificate shall not be entitled to any benefit
under the Warrant Agreement or be valid or obligatory for any purpose, and no
Warrant evidenced hereby may be exercised, unless this Warrant Certificate has
been countersigned by the manual signature of the Warrant Agent.
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IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated as of ________ __, ____
FIRST UNION CORPORATION
By: ________________________
Authorized Officer
[NAME OF WARRANT AGENT],
as Warrant Agent
By: ________________________
Authorized Officer
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[REVERSE]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder [For
Global Warrant Certificate: or Participant] must, by 5:00 P.M., New York time,
on the specified Exercise Date, deliver to the Warrant Agent at its corporate
trust department, a certified or official bank check or a wire transfer in
immediately available funds, in each case payable to the Warrant Agent at
Account No. ____, in an amount equal to the Exercise Price in full for the
Warrants exercised. In addition, the Warrant holder [For Global Warrant
Certificates: or Participant] must provide the information required below and
deliver this Warrant Certificate to the Warrant Agent at the address set forth
below [For Global Warrant Certificates: and the Book-Entry Warrants to the
Warrant Agent in its account with the Depository designated for such purpose].
This Warrant Certificate and the Election to Purchase must be received by the
Warrant Agent by 5:00 P.M., New York time, on the specified Exercise Date.
ELECTION TO PURCHASE
TO BE EXECUTED IF WARRANT HOLDER DESIRES
TO EXERCISE THE WARRANTS EVIDENCED HEREBY
The undersigned hereby irrevocably elects to exercise, on
__________, ____ (the "Exercise Date"), _____________ Warrants, evidenced by
this Warrant Certificate, to purchase, [$_____________ principal amount]
[_________________] of the [title of Securities purchasable upon exercise of
Warrants] [If Warrants for Depositary Shares are to be offered: , each
representing a 1/__th interest in a share of [title of securities represented by
the Depositary Shares]] (the "Warrant Securities") of First Union Corporation, a
North Carolina corporation (the "Company"), and represents that on or before the
Exercise Date such holder has tendered payment for such Warrant Securities by
certified or official bank check or bank wire transfer in immediately available
funds to the order of the Company c/o [Name and address of Warrant Agent], in
the amount of $_____________ in accordance with the terms hereof. The
undersigned requests that said [principal amount of] [number of] Warrant
Securities be in fully registered form, in the authorized denominations,
registered in such names and delivered, all as specified in accordance with the
instructions set forth below.
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[Unless Warrants may be exercised on only one date: If said
[principal amount] [number] of Warrant Securities is less than all of the
Warrant Securities purchasable hereunder, the undersigned requests that a new
Warrant Certificate evidencing the remaining balance of the Warrants evidenced
hereby be issued and delivered to the holder of the Warrant Certificate unless
otherwise specified in the instructions below.]
Dated: ______________ __, ____
Name__________________________
________________
(Please Print)
/ / / /- / / /- / / / / /
(Insert Social Security or Other Identifying
Number of Holder)
Address_______________________
__________________________
Signature_____________________
This Warrant may only be exercised by presentation to the Warrant Agent at one
of the following locations:
By hand at
By mail at
The method of delivery of this Warrant Certificate is at the option and risk of
the exercising holder and the delivery of this Warrant Certificate will be
deemed to be made only when actually received by the Warrant Agent. If delivery
is by mail, registered mail with return receipt requested, properly insured, is
recommended. In all cases, sufficient time should be allowed to assure timely
delivery.
(Instructions as to form and delivery of Warrant Securities and/or Warrant
Certificates)
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Name in which Warrant Securities are to be registered if other than in the name
of the registered holder of this Warrant Certificate:
------------------------------
Address to which Warrant Securities are to be mailed if other than to the
address of the registered holder of this Warrant Certificate as shown on the
books of the Warrant Agent:
------------------------------
(Street Address)
------------------------------
(City and State) (Zip Code)
[Except for Global Warrant Certificate:
Name in which Warrant Certificate
evidencing unexercised Warrants, if any,
are to be registered if other than in the
name of the registered holder of this
Warrant Certificate:
-----------------------------
Address to which certificate representing unexercised Warrants, if any, are to
be mailed if other than to the address of the registered holder of this Warrant
Certificate as shown on the books of the Warrant Agent:
------------------------------
(Street Address)
------------------------------
(City and State) (Zip Code)]
Dated:
------------------------------
Signature
([Except for Global Warrant
Certificate: Signature must
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conform in all respects to
the name of the holder as
specified on the face of this
Warrant Certificate.] If
Warrant Securities, or a
Warrant Certificate
evidencing unexercised
Warrants, are to be issued in
a name other than that of the
registered holder hereof or
are to be delivered to an
address other than the
address of such holder as
shown on the books of the
Warrant Agent, the above
signature must be guaranteed
by a member firm of a
registered national stock
exchange, a member of the
National Association of
Securities Dealers, Inc., a
participant in the Security
Transfer Agents Medallion
Program or the Stock Exchange
Medallion Program, or by a
commercial bank or trust
company having an office or
correspondent in the United
States.)
SIGNATURE GUARANTEE
Name of Firm _________________
Address ______________________
Area Code
and Number ___________________
Authorized
Signature ____________________
Name _________________________
Title ________________________
Dated: ________________, 19__
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ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF WARRANT HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY)
FOR VALUE RECEIVED _________________ hereby sells, assigns and
transfers unto ________________________________
---------------------------------- -----------------------
(Please print name and address (Please insert social
including zip code) security or other
identifying number)
the rights represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ____________ Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
----------------------------------
Signature
(Signature must conform in all
respects to the name of the holder
as specified on the face of this
Warrant Certificate and must bear a
signature guarantee by a member firm
of a registered national securities
exchange, a member of the National
Association of Securities Dealers,
Inc., a participant in the Security
Transfer Agents Medallion Program or
the Stock Exchange Medallion
Program, or by a commercial bank or
trust company having an office or
correspondent in the United States)
SIGNATURE GUARANTEE
Name of Firm _________________
Address ______________________
Area Code
and Number ___________________
Authorized
Signature ____________________
Name _________________________
Title ________________________
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Dated: ________________, 19__
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