Exhibit 2
AGREEMENT, dated June 19, 1995 (this "Agreement"), among Banco
Santander, S.A., a Spanish banking corporation (the "Investor"), FFB
Participacoes e Servieos, S.A., a Portuguese corporation ("Investor Sub"),
First Fidelity Bancorporation, a New Jersey corporation ("FFB"), and First
Union Corporation, a North Carolina corporation ("FUNC").
RECITALS:
(A) The Merger. FFB, FUNC and PKC, Inc, a New Jersey
corporation and wholly owned subsidiary of FUNC ("Merger Sub"), have entered
into an Agreement and Plan of Merger (the "Plan") pursuant to which FUNC will
acquire FFB by means of a merger of FFB with and into Merger Sub, subject to
the terms and conditions of the Plan (the "Merger"), a copy, as executed, has
been received by Investor and Investor Sub.
(B) The Shares and the Investment Agreement. As of the date
hereof, Investor Sub is the beneficial and registered owner of 25,519,943
shares (including any shares of FFB capital stock acquired after the date
hereof, the "Shares") of Common Stock, par value $1.00 per share ("FFB Common
Stock"), of FFB, constituting approximately 29.8% of the currently outstanding
shares of FFB Common Stock and, as a result of Investor's 100% ownership and
control of Investor Sub, the Investor is the beneficial owner of the Shares.
Investor is a party to an Investment Agreement, dated as of March 18, 1991
(the "Investment Agreement"), between Investor and FFB and Investor Sub is
subject to the provisions of the Investment Agreement as a result of the
transfer of the Shares by Investor to Investor Sub as if it were the Investor.
(C) Condition to Plan. As a condition and inducement to
FUNC's willingness to enter into the Plan, the Investor and the Investor Sub
are entering into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Agreement to Vote. At such time as FFB conducts a
meeting of its shareholders for the purpose of adopting and approving the
Plan, the Merger and the transactions contemplated thereby, Investor agrees
to cause Investor Sub to, and Investor Sub itself agrees to, duly and
validly vote all of the Shares in favor of adopting and approving the Plan,
the Merger and the transactions contemplated thereby, provided, that
Investor and Investor Sub may vote the Shares in their discretion with
respect to the Merger in the event the Board of Directors of FFB determines
to withdraw their recommendation in support of the merger and so advises
the shareholders of FFB.
2. Agreement to Cooperate. In addition to the specific
matters provided for elsewhere herein, Investor and Investor Sub shall take
all action reasonably requested by FUNC and FFB to facilitate the
consummation of the Merger and the transactions contemplated by the Plan.
3. Regulatory Approvals. Investor and Investor Sub shall each
use its reasonable best efforts to obtain all permits, consents, orders,
approvals and authorizations of, and to make or provide all filings with or
notices to, all third parties and Regulatory Authorities necessary or
advisable on its part to permit the consummation of the Merger and the
transactions contemplated by the Plan, including without limitation the
Regulatory Approvals referred to in Section 6.02 of the Plan (the
"Approvals").
4. Investment Agreement. Investor and Investor Sub hereby
waive any and all rights, and all lapses of, or changes in, rights or
obligations, under the Investment Agreement, and agree that they shall not
exercise any such rights, that arise out of, or result from, the entry into,
and matters preliminary to the entering into, the Plan, the Stock Option
Agreements and this Agreement and the consummation of the Merger and the
transactions contemplated thereby and hereby including, without limitation,
Sections 2.03, 5.03, 5.04, 8.04, 8.06 and 11.01(b)(iii) of the Investment
Agreement. FFB hereby consents to Investor and Investor Sub entering into
this Agreement under Section 8.04(a)(ii) and (iii) of the Investment
Agreement. FFB and Investor and Investor Sub hereby agree that to the extent
that this Agreement effects or relates to the Investment Agreement that the
Investment Agreement is hereby amended to such effect. Unless otherwise
terminated in accordance with its terms as amended hereby, the Investment
Agreement shall terminate in its entirety immediately prior to the
consummation of the Merger except that Sections 6.01, 12.03 and 12.5 shall
survive. Except as otherwise provided for herein, the Investment Agreement
shall remain in full force and effect in accordance with its terms.
5. Securities Act of 1933; Accounting Matters. Simultaneously
with the execution and delivery of this Agreement, Investor and Investor Sub
are executing and delivering to FFB and FUNC an "affiliates letter"
substantially in the form provided by the Plan for affiliates of FFB covering
the Securities Act of 1933 and accounting matters set forth therein.
6. Termination of Agreement. This Agreement shall terminate
upon termination of the Plan in accordance with its terms. In the event of
the termination of this Agreement, this Agreement shall forthwith become null
and void and there shall be no liability or obligation on the part of FFB,
Investor, Investor Sub or FUNC or their respective officers or directors,
except that nothing in this Section 7 shall relieve any party hereto from any
liability for breach of this Agreement prior to such termination.
7. Representations and Warranties of Investor and Investor
Sub. Investor and Investor Sub hereby represent and warrant to FFB and FUNC
as follows:
(a) Investor and Investor Sub each has all requisite power
and authority to execute and deliver this Agreement and to cause
the voting, or to vote, as the case may be, the Shares in
accordance with Section 1 hereof and otherwise perform its
obligations hereunder; such execution, delivery, vote and
performance have been duly authorized by all necessary action on
the part of each of the Investor and Investor Sub; and this
Agreement has been duly executed and delivered by each of Investor
and Investor Sub and constitutes the valid and binding agreement
of each of Investor and Investor Sub enforceable against each of
Investor and Investor Sub in accordance with its terms, subject as
to enforcement to bankruptcy, insolvency and similar laws of
general applicability relating to or affecting creditors' rights
and to general equity principles.
(b) As of the date hereof, Investor and Investor Sub are
aware of no reason relating exclusively to Investor or Investor
Sub or any of their affiliates why the Approvals will not be
received without the imposition of a condition or requirement
described in the proviso to Section 6.02 of the Plan.
(c) Neither Investor nor Investor Sub or any affiliate
thereof has any right or option to acquire any additional shares
FFB capital stock except as set forth in Schedule A.
8. Representations and Warranties of FFB and FUNC. Each of
FFB and FUNC hereby represents and warrants to the other parties hereto
that it has the corporate power and authority to execute, deliver and
perform this Agreement; such execution, delivery and performance have been
duly authorized by all necessary corporate action on its part; and this
Agreement has been duly executed and delivered by it and constitutes the
valid and binding agreement of it, enforceable against it in accordance
with its terms, subject as to enforcement to bankruptcy, insolvency and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
9. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed by the applicable party hereto in accordance with
their specific terms or were otherwise breached. It is accordingly agreed
that each of the parties hereto shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement by the other and to enforce
specifically the terms and provisions hereof in any court of the United States
or any state having jurisdiction, this being in addition to any other remedy
to which it is entitled at law or in equity and that each party waives the
posting of any bond or security in connection with any proceeding related
thereto.
10. Expenses. Except as may otherwise be provided herein, no
party hereto shall be responsible for the payment of any other parties'
expenses incurred in connection with this Agreement.
11. Third Party Beneficiaries. The terms and provisions of
this Agreement are intended solely for the benefit of each party hereto and
its respective successors and permitted assigns, and it is not the intention
of the parties to confer third party beneficiary rights upon any other person
or entity.
12. Amendments. This Agreement may not be modified, amended,
altered or supplemented except upon the execution and delivery of a written
agreement executed by all of the parties hereto.
13. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and delivered personally or by
telecopy transmission or sent by registered or certified mail or by any
express mail service, postage or fees prepaid, addressed as provided for in
the Plan or the Investment Agreement.
14. Governing Law. This Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of New York, without
regard to the conflict of law principles thereof, except to the extent that
the [N-BCA] shall expressly govern the matters set forth herein.
15. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to constitute an original.
This Agreement shall become effective when one counterpart signature page has
been signed by each party hereto and delivered to the other parties.
16. Effect of Heading. The descriptive headings contained
herein are for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
17. Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.
18. Further Assurances. Each of the parties hereto agree to
execute and deliver all such further documents, certificates and instruments
and take all such further reasonable action as may be necessary or
appropriate, in order to consummate the transactions contemplated hereby.
19. Defined Terms. Terms used herein that are not otherwise
defined herein shall have the meanings assigned to such terms in the Plan.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed and delivered as of the date first written above.
BANCO SANTANDER, S.A.
By:/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Senior Vice President
FFB PARTICIPACOES E
SERVIEOS, S.A.
By:/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Director
FIRST FIDELITY BANCORPORATION
By:/s/ Xxxxxxxx Xxxxxxxxxxx
Xxxxxxxx Xxxxxxxxxxx
Vice Chairman and Chief
Financial Officer
FIRST UNION CORPORATION
By:/s/ Xxxxxx X. Xxxxxx, Xx.
Xxxxxx X. Xxxxxx, Xx.
Executive Vice President
