EXHIBIT 25.1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
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FIRST UNION NATIONAL BANK OF NORTH CAROLINA
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
UNITED STATES NATIONAL BANK 00-0000000
(I.R.S. EMPLOYER IDENTIFICATION NO.)
(STATE OF INCORPORATION IF NOT A
NATIONAL BANK)
28288
TWO FIRST UNION CENTER (ZIP CODE)
CHARLOTTE, NORTH CAROLINA
(ADDRESS OF PRINCIPAL EXECUTIVE
OFFICES)
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF TRUSTEE'S AGENT
FOR SERVICE)
LABORATORY CORPORATION OF AMERICA HOLDINGS
(EXACT NAME OF OBLIGORS AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
00-0000000
(I.R.S. EMPLOYER IDENTIFICATION NO.)
XXXXXXXX X. XXXXX
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL,
CORPORATE COMPLIANCE OFFICER AND SECRETARY
LABORATORY CORPORATION OF AMERICA HOLDINGS
000 XXXXX XXXX XXXXXX
XXXXXXXXXX, XXXXX XXXXXXXX 00000
(000) 000-0000
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES)
10,000,000 Shares
Laboratory Corporation of America Holdings
% Series A Convertible Exchangeable Preferred Stock
or
% Series B Convertible Pay-in-Kind Preferred Stock
(TITLE OF THE INDENTURE SECURITIES)
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1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT
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NAME ADDRESS
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Board of Governors of the Federal Reserve
System
Comptroller of the Currency Washington, D.C.
Securities and Exchange Commission Washington, D.C.
Division of Market Regulations Washington, D.C.
Federal Deposit Insurance Corporation 000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS. IF THE OBLIGOR OR ANY
UNDERWRITER FOR THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
None.
(See Note 1 on Page 9.)
3. VOTING SECURITIES OF THE TRUSTEE. FURNISH THE FOLLOWING INFORMATION AS TO
EACH CLASS OF VOTING SECURITIES OF THE TRUSTEE:
AS OF MARCH 31, 1997
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COL. A COL. B
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TITLE OF CLASS AMOUNT OUTSTANDING
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Common Stock, par value $3.33 1/3 280,000,000 shares
4. TRUSTEESHIPS UNDER OTHER INDENTURES. IF THE TRUSTEE IS A TRUSTEE UNDER
ANOTHER INDENTURE UNDER WHICH ANY OTHER SECURITIES, OR CERTIFICATES OF
INTEREST OR PARTICIPATION IN ANY OTHER SECURITIES, OF THE OBLIGOR ARE
OUTSTANDING, FURNISH THE FOLLOWING INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE.
Not applicable.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM
THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1) OF THE
TRUST INDENTURE ACT OF 1939, AS AMENDED, ARISES AS A RESULT OF THE
TRUSTEESHIP UNDER ANY SUCH OTHER INDENTURE, INCLUDING A STATEMENT AS TO HOW
THE INDENTURE SECURITIES WILL RANK AS COMPARED WITH THE SECURITIES ISSUED
UNDER SUCH OTHER INDENTURE.
Not applicable.
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS. IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS
OF THE TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR
REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR,
IDENTIFY EACH SUCH PERSON HAVING ANY SUCH CONNECTION AND STATE THE NATURE
OF EACH SUCH CONNECTION:
None.
2
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS. FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF
THE TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER
AND EXECUTIVE OFFICER OF THE OBLIGOR:
AS OF MARCH 31, 1997
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COL. A COL. B COL. C COL. D
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NAME OF OWNER TITLE OF CLASS AMOUNT OWNED PERCENTAGE OF
BENEFICIALLY VOTING SECURITIES
REPRESENTED BY
AMOUNT GIVEN IN
COL. C
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The amount of voting securities of First Union Corporation, the parent of
the trustee, owned beneficially by the obligor and its directors and
executive officers, taken as a group, does not exceed 1 percent of the
outstanding voting securities of First Union Corporation.
(See Note 1 on Page 9.)
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS. FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF
THE TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER:
AS OF MARCH 31, 1997
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COL. A COL. B COL. C COL. D
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NAME OF OWNER TITLE OF CLASS AMOUNT OWNED PERCENTAGE OF
BENEFICIALLY VOTING SECURITIES
REPRESENTED BY
AMOUNT GIVEN IN
COL. C
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The amount of voting securities of First Union Corporation, the parent of
the trustee, owned beneficially by any underwriter for the obligor and its
directors, partners, and executive officers, taken as a group, does not
exceed 1 percent of the outstanding voting securities of First Union
Corporation.
(See Note 1 on Page 9.)
8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE. FURNISH THE
FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR OWNED BENEFICIALLY
OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY THE TRUSTEE:
AS OF MARCH 31, 1997
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COL. A COL. B COL. C COL. D
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AMOUNT OWNED
BENEFICIALLY OR HELD
WHETHER THE AS COLLATERAL
SECURITIES ARE VOTING SECURITY FOR PERCENT OF CLASS
OR NON-VOTING OBLIGATIONS IN REPRESENTED BY AMOUNT
TITLE OF CLASS SECURITIES DEFAULT GIVEN IN COL. C
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The trustee does not own beneficially or hold as collateral security for
obligations in default any securities of any class of the obligor in excess
of 1 percent of the outstanding securities of such class.
(See Note 1 on Page 9.)
3
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE. IF THE TRUSTEE
OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR OBLIGATIONS IN
DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR, FURNISH THE
FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH UNDERWRITER
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE:
AS OF MARCH 31, 1997
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COL. A COL. B COL. C COL. D
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AMOUNT OWNED
BENEFICIALLY HELD AS
COLLATERAL SECURITY PERCENT OF CLASS
NAME OF ISSUER AND FOR OBLIGATIONS IN REPRESENTED BY AMOUNT
TITLE OF CLASS AMOUNT OUTSTANDING DEFAULT BY TRUSTEE GIVEN IN COL. C
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The trustee does not own beneficially or hold as collateral security for
obligations in default any securities of any class of an underwriter for
the obligor in excess of 1 percent of the outstanding securities of such
class.
(See Note 1 on Page 9.)
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR. IF THE TRUSTEE OWNS
BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT
VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF THE TRUSTEE (1) OWNS
10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR OR (2) IS AN
AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH THE FOLLOWING
INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON:
AS OF
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COL. A COL. B COL. C COL. D
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NAME
OF AMOUNT OWNED
ISSUER BENEFICIALLY OR
AND HELD AS COLLATERAL
TITLE SECURITY FOR
OF OBLIGATIONS IN PERCENT OF CLASS REPRESENTED
CLASS AMOUNT OUTSTANDING DEFAULT BY TRUSTEE BY AMOUNT GIVEN IN COL. C
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The trustee does not own beneficially or hold as collateral security for
obligations in default any voting securities of any class of a person who,
to the knowledge of the trustee (1) owns 10 percent or more of the voting
securities of the obligor or (2) is an affiliate, other than a subsidiary,
of the obligor, in excess of 1 percent of the outstanding voting securities
of such class.
(See Note 1 on Page 9.)
11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON OWNING
50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR. IF THE TRUSTEE
OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR OBLIGATIONS IN
DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF THE TRUSTEE,
OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR, FURNISH
THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH PERSON ANY
OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF MARCH 31, 1997
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COL. A COL. B COL. C COL. D
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NAME
OF AMOUNT OWNED
ISSUER BENEFICIALLY OR
AND HELD AS COLLATERAL
TITLE SECURITY FOR
OF OBLIGATIONS IN PERCENT OF CLASS REPRESENTED
CLASS AMOUNT OUTSTANDING DEFAULT BY TRUSTEE BY AMOUNT GIVEN IN COL. C
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The trustee does not own beneficially or hold as collateral security for
obligations in default any securities of any class of a person who, to the
knowledge of the trustee, owns 50 percent or more of the voting securities
of the obligor, in excess of 1 percent of the outstanding securities of
such class.
(See Note 1 on Page 9.)
4
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH
DEFAULT.
There has been no default with respect to the securities under this
Indenture.
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY
OTHER SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR
MORE THAN ONE OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE,
STATE WHETHER THERE HAS BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR
SERIES, IDENTIFY THE INDENTURE OR SERIES AFFECTED, AND EXPLAIN THE
NATURE OF ANY SUCH DEFAULT.
The trustee is not a trustee under another indenture for the obligor.
14. AFFILIATIONS WITH THE UNDERWRITERS. IF ANY UNDERWRITER IS AN AFFILIATE OF
THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
Not Applicable.
15. FOREIGN TRUSTEE. IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN
TRUSTEE IS AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR
TO BE QUALIFIED UNDER THE ACT.
Trustee is a national banking association.
16. LIST OF EXHIBITS.
ALL EXHIBITS IDENTIFIED BELOW ARE FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY.
1. A copy of the articles of association of First Union National Bank of
North Carolina as now in effect, which contain the authority to commence
business and a grant of powers to exercise corporate trust powers.
2. A copy of the certificate of authority of the trustee to commence
business, if not contained in the articles of association.
3. A copy of the authorization of the trustee to exercise corporate trust
powers, if such authorization is not contained in the documents
specified in exhibits (1) or (2) above.
4. A copy of the existing By-laws of the trustee, or instruments
corresponding thereto.
5. None.
6. The consent of the trustee required by Section 321(b) of the Act. (See
page 10 of this form.)
7. A copy of the latest report of condition of the trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
8.Not applicable.
9.Not applicable.
5
NOTE
NOTE 1: Since the trustee is a member of First Union Corporation, a bank
holding company, all of the voting securities of the trustee are held by First
Union Corporation. The securities of First Union Corporation are described in
Item 3.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee,
First Union National Bank of North Carolina, a national banking organization,
has duly caused this statement of eligibility and qualification to be signed
on its behalf by the undersigned, thereunto duly authorized, all in the City
of Charlotte, and State of North Carolina, on the 2nd day of May, 1997.
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
(trustee)
By:
/s/ Xxxxx X. Xxxxxxxx
Its:
Assistant Vice President
6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of
1939 in connection with the proposed issuance by Laboratory Corporation of
America Holdings of its % Series A Convertible Exchangeable Preferred Stock
or % Series B Convertible Pay-in-Kind Preferred Stock, we hereby consent
that reports of examinations by Federal, State, Territorial, or District
authorities may be furnished by such authorities to the Securities and
Exchange Commission upon request therefor.
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By: /s/ Xxxxx X. Xxxxxxxx
Its: Assistant Vice President
Dated: May 2, 1997
7
ITEM # 1
1924C CHARTER NO. 15650
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
ARTICLES OF ASSOCIATION
For the purpose of organizing an Association to carry on the business of
banking under the laws of the United States, the undersigned do enter into the
following Articles of Association:
FIRST. The title of this Association shall be FIRST UNION NATIONAL BANK OF
NORTH CAROLINA.
SECOND. The main office of the Association shall be in Charlotte, County of
Mecklenburg, State of North Carolina. The general business of the Association
shall be conducted at its main office and its branches.
THIRD. The Board of Directors of this Association shall consist of not less
than five nor more than twenty-five directors, the exact number of directors
within such minimum and maximum limits to be fixed and determined from time to
time by resolution of a majority of the full Board of Directors or by
resolution of the shareholders at any annual or special meeting thereof.
Unless otherwise provided by the laws of the United States, any vacancy in the
Board of Directors for any reason, including an increase in the number
thereof, may be filled by action of the Board of Directors.
FOURTH. The annual meeting of the shareholders for the election of directors
and the transaction of whatever other business may be brought before said
meeting shall be held at the main office or such other place as the Board of
Directors may designate, on the day of each year specified therefor in the By-
Laws, but if no election is held on that day, it may be held on any subsequent
day according to the provisions of law; and all elections shall be held
according to such lawful regulations as may be prescribed by the Board of
Directors.
Nominations for election to the Board of Directors may be made by the Board
of Directors or by any stockholder of any outstanding class of capital stock
of the bank entitled to vote for election of directors. Nominations, other
than those made by or on behalf of the existing management of the bank, shall
be made in writing and shall be delivered or mailed to the President of the
bank and to the Comptroller of the Currency, Washington, D.C., not less than
14 days nor more than 50 days prior to any meeting of stockholders called for
the election of directors, provided, however, that if less than 21 days'
notice of the meeting is given to shareholders, such nomination shall be
mailed or delivered to the President of the Bank and to the Comptroller of the
Currency not later than the close of business on the seventh day following the
day on which the notice of meeting was mailed. Such notification shall contain
the following information to the extent known to the notifying shareholder:
(a) the name and address of each proposed nominee; (b) the principal
occupation of each proposed nominee; (c) the total number of shares of capital
stock of the bank that will be voted for each proposed nominee; (d) the name
and residence address of the notifying shareholder; and (e) the number of
shares of capital stock of the bank owned by the notifying shareholder.
Nominations not made in accordance herewith may, in his discretion, be
disregarded by the Chairman of the meeting, and upon his instructions, the
vote tellers may disregard all votes cast for each such nominee.
FIFTH. The authorized amount of capital stock of this Association shall be
7,500,000 shares of common stock of the par value of Fifteen Dollars ($15.00)
each, but said capital stock may be increased or decreased from time to time
in accordance with the provisions of the laws of the United States.
If the capital stock is increased by the sale of additional shares thereof,
each shareholder shall be entitled to subscribe for such additional shares in
proportion to the number of shares of said capital stock owned by him at the
time the increase is authorized by the shareholders, unless another time
subsequent to the date of the shareholder's meeting is specified in a
resolution adopted by the shareholders at the time the increase is
1
authorized. The Board of Directors shall have the power to prescribe a
reasonable period of time within which the preemptive rights to subscribe to
the new shares of capital stock must be exercised.
The Association, at any time and from time to time, may authorize and issue
debt obligations, whether or not subordinated, without the approval of the
shareholders.
SIXTH. The Board of Directors shall appoint one of its members President of
this Association, who shall be Chairman of the Board, unless the Board
appoints another director to be the Chairman. The Board of Directors shall
have the power to appoint one or more Vice Presidents; and to appoint a
cashier or such other officers and employees as may be required to transact
the business of this Association.
The Board of Directors shall have the power to define the duties of the
officers and employees of the Association, to fix the salaries to be paid to
them; to dismiss them, to require bonds from them and to fix the penalty
thereof; to regulate the manner in which any increase of the capital of the
Association shall be made; to manage and administer the business and affairs
of the Association; to make all By-Laws that it may be lawful for them to
make; and generally to do and perform all acts that it may be legal for a
Board of Directors to do and perform.
SEVENTH. The Board of Directors shall have the power to change the location
of the main office to any other place within the limits of Charlotte, North
Carolina, without the approval of the shareholders but subject to the approval
of the Comptroller of the Currency; and shall have the power to establish or
change the location of any branch or branches of the Association to any other
location, without the approval of the shareholders but subject to the approval
of the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until
terminated in accordance with the laws of the United States.
NINTH. The Board of Directors of this Association, or any three or more
shareholders owning, in the aggregate, not less than 10 percent of the stock
of this Association, may call a special meeting of shareholders at any time.
Unless otherwise provided by the laws of the United States, a notice of the
time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage pre-paid, mailed at
least ten days prior to the date of such meeting to each shareholder of record
at his address as shown upon the books of this Association.
TENTH. Each director and executive officer of this association shall be
indemnified by the association against liability in any proceeding (including
without limitation a proceeding brought by or on behalf of the association
itself) arising out of his status as such or his activities in either of the
foregoing capacities, except for any liability incurred on account of
activities which were at the time taken known or believed by such person to be
clearly in conflict with the best interests of the association. Liabilities
incurred by a director or executive officer of the association in defending a
proceeding shall be paid by the association in advance of the final
disposition of such proceeding upon receipt of an undertaking by the director
or executive officer to repay such amount if it shall be determined, as
provided in the last paragraph of this Article Tenth, that he is not entitled
to be indemnified by the association against such liabilities.
The indemnity against liability in the preceding paragraph of this Article
Tenth, including liabilities incurred in defending a proceeding, shall be
automatic and self-operative.
Any director, officer or employee of this association who serves at the
request of the association as a director, officer, employee or agent of a
charitable, not-for-profit, religious, educational or hospital corporation,
partnership, joint venture, trust or other enterprise, or a trade association,
or as a trustee or administrator under an employee benefit plan, or who serves
at the request of the association as a director, officer or employee of a
business corporation in connection with the administration of an estate or
trust by the association, shall have the right to be indemnified by the
association, subject to the provisions set forth in the following paragraph of
this Article Tenth, against liabilities in any manner arising out of or
attributable to such status or activities in any such capacity, except for any
liability incurred on account of activities which were at the time taken known
or believed by such person to be clearly in conflict with the best interests
of the association, or of the corporation, partnership, joint venture, trust,
enterprise, association or plan being served by such person.
2
In the case of all persons except the directors and executive officers of
the association, the determination of whether a person is entitled to
indemnification under the preceding paragraph of this Article Tenth shall be
made by and in the sole discretion of the Chief Executive Officer of the
association. In the case of the directors and executive officers of the
association, the indemnity against liability in the preceding paragraph of
this Article Tenth shall be automatic and self-operative.
For purposes of this Article Tenth of these Articles of Association only,
the following terms shall have the meanings indicated:
(a) "Association" means First Union National Bank of North Carolina and
its direct and indirect wholly-owned subsidiaries.
(b) "Director" means an individual who is or was a director of the
association.
(c) "Executive officer" means an officer of the association who by
resolution of the Board of Directors of the association has been determined
to be an executive officer of the association for purposes of Regulation O
of the Federal Reserve Board.
(d) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses, including counsel fees and expenses,
incurred with respect to a proceeding.
(e) "Party" includes an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(f) "Proceeding" means any threatened, pending, or completed claim,
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
The association shall have no obligation to indemnify any person for an
amount paid in settlement of a proceeding unless the association consents in
writing to such settlement.
The right to indemnification herein provided for shall apply to persons who
are directors, officers, or employees of banks or other entities that are
hereafter merged or otherwise combined with the association only after the
effective date of such merger or other combination and only as to their status
and activities after such date.
The right to indemnification herein provided for shall inure to the benefit
of the heirs and legal representatives of any person entitled to such right.
No revocation of, change in, or adoption of any resolution or provision in
the Articles of Association or By-laws of the association inconsistent with,
this Article Tenth shall adversely affect the rights of any director, officer,
or employee of the association with respect to (i) any proceeding commenced or
threatened prior to such revocation, change, or adoption, or (ii) any
proceeding arising out of any act or omission occurring prior to such
revocation, change, or adoption, in either case, without the written consent
of such director, officer, or employee.
The rights hereunder shall be in addition to and not exclusive of any other
rights to which a director, officer, or employee of the association may be
entitled under any statute, agreement, insurance policy, or otherwise.
The association shall have the power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, or employee of the
association, or is or was serving at the request of the association as a
director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, trade association, employee benefit plan, or other
enterprise, against any liability asserted against such director, officer, or
employee in any such capacity, or arising out of their status as such, whether
or not the association would have the power to indemnify such director,
officer, or employee against such liability, excluding insurance coverage for
a formal order assessing civil money penalties against an association director
or employee.
3
Notwithstanding anything to the contrary provided herein, no person shall
have a right to indemnification with respect to any liability (i) incurred in
an administrative proceeding or action instituted by an appropriate bank
regulatory agency which proceeding or action results in a final order
assessing civil money penalties or requiring affirmative action by an
individual or individuals in the form of payments to the association, (ii) to
the extent such person is entitled to receive payment therefor under any
insurance policy or from any corporation, partnership, joint venture, trust,
trade association, employee benefit plan, or other enterprise other than the
association, or (iii) to the extent that a court of competent jurisdiction
determines that such indemnification is void or prohibited under state or
federal law.
ELEVENTH. These Articles of Association may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders of
a majority of the stock of this Association, unless the vote of holders of a
greater amount of stock is required by law, and in that case, by the vote of
the holders of such greater amount.
4
ITEM #2
COMPTROLLER OF THE CURRENCY
TREASURY DEPARTMENT OF THE UNITED STATES
WASHINGTON, D.C.
CERTIFICATION OF FIDUCIARY POWERS
I, Xxxxx X. Xxxxxx, Director for Trust Activities, do hereby certify that
the records in this Office evidence that FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, CHARLOTTE, NORTH CAROLINA, was granted, under the hand and seal of
the Comptroller. The right to act in all fiduciary capacities authorized under
the provisions of the Act of Congress approved September 28, 1962, 76 Stat,
668, 12 USC 22a. I further certify that the authority so granted remains in
full force and effect.
[SEAL] IN TESTIMONY WHEREOF, I have
hereunto subscribed my name and
caused the Seal of Office of the
Comptroller of the Currency to be
affixed to these presents at the
Treasury Department, in the City of
Washington and District of Columbia
this Thirteenth day of January,
1988.
/s/ Xxxxx X. Xxxxxx
-------------------------------------
XXXXX X. XXXXXX
DIRECTOR FOR TRUST ACTIVITIES
CHARTER NO. 15650
1
ITEM #4
BY-LAWS OF
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.1 ANNUAL MEETING. The annual meeting of the shareholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on the third Tuesday of April
in each year, commencing with the year 1987, except that the Board of
Directors may, from time to time and upon passage of a resolution specifically
setting forth their reasons, set such other date for such meeting during the
month of April as the Board of Directors may deem necessary or appropriate;
provided, however, that if an annual meeting shall fall on a legal holiday,
then such annual meeting shall be held on the second business day following
such legal holiday. The holders of a majority of those outstanding shares
entitled to vote which are represented at any meeting of the shareholders may
choose persons to act as Chairman and as Secretary of the meeting.
SECTION 1.2 SPECIAL MEETINGS. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by the Board of Directors or by any three or more shareholders
owning, in the aggregate, not less than ten percent of the stock of the
Association. Every such special meeting, unless otherwise provided by law,
shall be called by mailing, postage prepaid, not less than ten days prior to
the date fixed for such meeting, to each shareholder at his address appearing
on the books of the Association, a notice stating the purpose of the meeting.
SECTION 1.3 NOMINATIONS FOR DIRECTORS. Nominations for election to the Board
of Directors may be made by the Board of Directors or by any stockholder of
any outstanding class of capital stock of the bank entitled to vote for the
election of directors. Nominations, other than those made by or on behalf of
the existing management of the bank, shall be made in writing and shall be
delivered or mailed to the President of the Bank and to the Comptroller of the
Currency, Washington, D.C., not less than 14 days nor more than 50 days prior
to any meeting of stockholders called for the election of directors, provided
however, that if less than 21 days' notice of such meeting is given to
shareholders, such nomination shall be mailed or delivered to the President of
the Bank and to the Comptroller of the Currency not later than the close of
business on the seventh day following the day on which the notice of meeting
was mailed. Such notification shall contain the following information to the
extent known to the notifying shareholder: (a) the name and address of each
proposed nominee; (b) the principal occupation of each proposed nominee; (c)
the total number of shares of capital stock of the bank that will be voted for
each proposed nominee; (d) the name and residence address of the notifying
shareholder; and (e) the number of shares of capital stock of the bank owned
by the notifying shareholder. Nominations not made in accordance herewith may,
in his discretion, be disregarded by the chairman of the meeting, and upon his
instructions, the vote tellers may disregard all votes cast for each such
nominee.
SECTION 1.4 JUDGES OF ELECTION. The Board may at any time appoint from among
the shareholders three or more persons to serve as Judges of election at any
meeting of shareholders; to act as judges and tellers with respect to all
votes by ballot at such meeting and to file with the Secretary of the meeting
a Certificate under their hands, certifying the result thereof.
SECTION 1.5 PROXIES. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing, but no officer or employee
of this Association shall act as proxy. Proxies shall be valid only for one
meeting, to be specified therein, and any adjournments of such meeting.
Proxies shall be dated and shall be filed with the records of the meeting.
SECTION 1.6 QUORUM. A majority of the outstanding capital stock, represented
in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law; but less than a
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quorum may adjourn any meeting, from time to time, and the meeting may be
held, as adjourned, without further notice. A majority of the votes cast shall
decide every question or matter submitted to the shareholders at any meeting,
unless otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.1 BOARD OF DIRECTORS. The Board of Directors (hereinafter referred
to as the "Board"), shall have power to manage and administer the business and
affairs of the Association. Except as expressly limited by law, all corporate
powers of the Association shall be vested in and may be exercised by said
Board.
SECTION 2.2 NUMBER. The Board shall consist of not less than five nor more
than twenty-five directors, the exact number within such minimum and maximum
limits to be fixed and determined from time to time by resolution of a
majority of the full Board or by resolution of the shareholders at any meeting
thereof; provided, however, that a majority of the full Board of Directors may
not increase the number of directors to a number which, (1) exceeds by more
than two the number of directors last elected by shareholders where such
number was fifteen or less, and (2) to a number which exceeds by more than
four the number of directors last elected by shareholders where such number
was sixteen or more, but in no event shall the number of directors exceed
twenty-five.
SECTION 2.3 ORGANIZATION MEETING. The Secretary of the meeting upon
receiving the certificate of the judges, of the result of any election, shall
notify the directors-elect of their election and of the time at which they are
required to meet at the Main Office of the Association for the purpose of
organizing the new Board and electing the appointing officers of the
Association for the succeeding year. Such meeting shall be held as soon
thereafter as practicable. If, at the time fixed for such meeting, there shall
not be a quorum present, the directors present may adjourn the meeting from
time to time, until a quorum is obtained.
SECTION 2.4 REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held at such place and time as may be designated by resolution of the
Board of Directors. Upon adoption of such resolution, no further notice of
such meeting dates or the place and time thereof shall be required. Upon the
failure of the Board of Directors to adopt such a resolution, regular meetings
of the Board of Directors shall be held, without notice, on the Wednesday
following the third Tuesday in February, April, June, August, October and
December beginning in 1987, at the main office or at such other place and time
as may be designated by the Board of Directors. When any regular meeting of
the Board falls upon a holiday, whether such regular meeting is established by
resolution or falls on the Wednesday following the third Tuesday of the month
as a result of the Board not having established regular meeting dates by
resolution, the meeting shall be held on the next banking business day unless
the Board shall designate some other day.
SECTION 2.5 SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by the President of the Association, or at the request of three (3)
or more directors. Each member of the Board of Directors shall be given notice
stating the time and place, by telegram, letter, or in person, of each such
special meeting.
SECTION 2.6 QUORUM. A majority of the directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a less number may
adjourn any meeting, from time to time, and the meeting may be held, as
adjourned, without further notice.
SECTION 2.7 VACANCIES. When any vacancy occurs among the directors, the
remaining members of the Board, in accordance with the laws of the United
States, may appoint a director to fill such vacancy at any regular meeting of
the Board, or at a special meeting called for that purpose.
SECTION 2.8 ADVISORY BOARDS. The Board of Directors may appoint an Advisory
Board or Boards in such place or places as the Board of Directors may
determine. Each such Advisory Board shall consist of as
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many persons as the Board of Directors may determine. The duties of each
Advisory Board shall be to consult and advise with the Board of Directors and
senior officers of the Bank with regard to the best interests of the
Association and to perform such other duties as the Board of Directors may
lawfully delegate.
ARTICLE III
COMMITTEES OF THE BOARD
SECTION 3.1 The Board of Directors, by resolution adopted by a majority of
the number of directors fixed by these By-Laws, may designate three or more
directors to constitute an Executive Committee and other committees, each of
which, to the extent authorized by law and provided in such resolution, shall
have and may exercise all of the authority of the Board of Directors and the
management of the Association. The designation of any committee and the
delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility or liability imposed
upon it or any member of the Board of Directors by law. The Board of Directors
reserves to itself alone the power to act on (1) dissolution, merger or
consolidation, or disposition of substantially all corporate property, (2)
designation of committees or filling vacancies on the Board of Directors or on
a committee of the Board (except as hereinafter provided), (3) adoption,
amendment or repeal of By-laws, (4) amendment or repeal of any resolution of
the Board which by its terms is not so amendable or repealable, and (5)
declaration of dividends, issuance of stock, or recommendations to
stockholders of any action requiring stockholder approval.
The Board of Directors or the Chairman of the Board of Directors of the
Association may change the membership of any committee at any time, fill
vacancies therein, discharge any committee or member thereof either with or
without cause at any time, and change at any time the authority and
responsibility of any such committee.
A majority of the members of any committee of the Board of Directors may fix
such committee's rules of procedure. All action by any committee shall be
reported to the Board of Directors at a meeting succeeding such action, except
such actions as the Board may not require to be reported to it in the
resolution creating any such committee. Any action by any committee shall be
subject to revision, alteration, and approval by the Board of Directors,
except to the extent otherwise provided in the resolution creating such
committee; provided, however, that no rights or acts of third parties shall be
affected by any such revision or alteration.
ARTICLE IV
OFFICERS AND EMPLOYEES
SECTION 4.1 OFFICERS. The officers of this Association may be a Chairman of
the Board, one or more Vice Chairman (who shall not be required to be a
director of the Association), a President, one or more Vice Presidents, a
Secretary, and such other officers as may be appointed by the Board of
Directors. The Chairman of the Board and the President shall be a member of
the Board of Directors. Any two offices or more may be held by one person, but
no officer shall sign or execute any document in more than one capacity.
SECTION 4.2 ELECTION, TERM OF OFFICE AND QUALIFICATION. Each officer shall
be chosen by the Board of Directors and shall hold office until the annual
meeting of the Board of Directors held next after his election or until his
successor shall have been duly chosen and qualified, or until his death, or
until he shall resign, or shall have been disqualified, or shall have been
removed from office.
SECTION 4.2(A) OFFICERS ACTING AS ASSISTANT SECRETARY. Notwithstanding
Section 1 of these By-laws, any Senior Vice President, Vice President, or
Assistant Vice President shall have, by virtue of his office, and by authority
of the By-laws, the authority from time to time to act as an Assistant
Secretary of the Bank, and to such extent, said officers are appointed to the
office of Assistant Secretary.
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SECTION 4.3 CHIEF EXECUTIVE OFFICER. The Board of Directors shall designate
one of its members to be the President of this Association, and the officer so
designated shall be an ex officio member of all committees of the Association
except the Examining Committee, and its Chief Executive Officer unless some
other officer is so designated by the Board of Directors.
SECTION 4.4 DUTIES OF OFFICERS. The Duties of all officers shall be
prescribed by the Board of Directors. Nevertheless, the Board of Directors may
delegate to the Chief Executive Officer the authority to prescribe the duties
of other officers of the corporation not inconsistent with law, the charter,
and these By-laws, and to appoint other employees, prescribe their duties, and
to dismiss them. Notwithstanding such delegation of authority, any officer or
employee also may be dismissed at any time by the Board of Directors.
SECTION 4.5 OTHER EMPLOYEES. The Board of Directors may appoint from time to
time such tellers, vault custodians, bookkeepers, and other clerks, agents,
and employees as it may deem advisable for the prompt and orderly transaction
of the business of the Association, define their duties, fix the salary to be
paid them, and dismiss them. Subject to the authority of the Board of
Directors, the Chief Executive Officer or any other officer of the Association
authorized by him, may appoint and dismiss all such tellers, vault custodians,
bookkeepers and other clerks, agents, and employees, prescribe their duties
and the conditions of their employment, and from time to time fix their
compensation.
SECTION 4.6 REMOVAL AND RESIGNATION. Any officer or employee of the
Association may be removed either with or without cause by the Board of
Directors. Any employee other than an officer elected by the Board of
Directors may be dismissed in accordance with the provisions of the preceding
Section 4.5. Any officer may resign at any time by giving written notice to
the Board of Directors or to the Chief Executive Officer of the Association.
Any such resignation shall become effective upon its being accepted by the
Board of Directors, or the Chief Executive Officer.
ARTICLE V
FIDUCIARY POWERS
SECTION 5.1 CAPITAL MANAGEMENT GROUP. There shall be an area of this
Association known as the Capital Management Group which shall be responsible
for the exercise of the fiduciary powers of this Association. The Capital
Management Group shall consist of four service areas: Fiduciary Services,
Retail Services, Investments and Marketing. The Fiduciary Services unit shall
consist of personal trust, employee benefits, corporate trust and operations.
The General Office for the Fiduciary Services unit shall be located in
Charlotte, N.C. with City Trust Offices located in such cities within the
State of North Carolina as designated by the Board of Directors.
SECTION 5.2 TRUST OFFICERS. There shall be a General Trust Officer of this
Association whose duties shall be to manage, supervise, and direct all the
activities of the Capital Management Group. Further, there shall be one or
more Senior Trust Officers designated to assist the General Trust Officer in
the performance of his duties. They shall do or cause to be done all things
necessary or proper in carrying out the business of the Capital Management
Group in accordance with provisions of applicable law and regulation.
SECTION 5.3 CAPITAL MANAGEMENT/GENERAL TRUST COMMITTEE. There shall be a
Capital Management/General Trust Committee composed of not less than four (4)
members of the Board of Directors of this Association who shall be appointed
annually or from time to time by its membership. The General Trust Officer
shall serve as an ex-officio member of the Committee. Each member shall serve
until his successor is appointed. The Board of Directors or the Chairman of
the Board may change the membership of the Capital Management/General Trust
Committee at any time, fill vacancies therein, or discharge any member thereof
with or without cause at any time. The Committee shall counsel and advise on
all matters relating to the business or
4
affairs of the Capital Management Group and shall adopt overall policies for
the conduct of the business of the Capital Management Group including but not
limited to: general administration, investment policies, new business
development, and review for approval of major assignments of functional
responsibilities. The Committee shall meet at least quarterly or as called for
by its Chairman or any three (3) members of the Committee. A quorum shall
consist of three (3) members. In carrying out its responsibilities, the
Capital Management/General Trust Committee shall review the actions of all
officers, employees and committees utilized by this Association in connection
with the activities of the Capital Management Group and may assign the
administration and performance of any fiduciary powers or duties to any of
such officers or employees or to the Investment Policy Committee, Personal
Trust Administration Committee, Account Review Committee, Corporate and
Institutional Accounts Committee, or any other committees it shall designate.
One of the methods to be used in the review process will be the thorough
scrutiny of the Report of Examination by the Office of the Comptroller of the
Currency and the reports of the Audit Division of First Union Corporation, as
they relate to the activities of the Capital Management Group. These reviews
shall be in addition to reviews of such reports by the Audit Committee of the
Board of Directors. The Chairman of the Capital Management/General Trust
Committee shall be appointed by the Chairman of the Board of Directors. He
shall cause to be recorded in appropriate minutes all actions taken by the
Committee. The minutes shall be signed by its Secretary and approved by its
Chairman. Further, the Committee shall summarize all actions taken by it and
shall submit a report of its proceedings to the Board of Directors at its next
regularly scheduled meeting following a meeting of the Capital
Management/General Trust Committee. As required by Section 9.7 of Regulation 9
of the Comptroller of the Currency, the Board of Directors retains
responsibility for the proper exercise of the fiduciary powers of this
Association.
The Fiduciary Services unit of the Capital Management Group will maintain a
list of securities approved for investment in fiduciary accounts and will from
time to time provide the Capital Management/General Trust Committee with
current information relative to such list and also with respect to
transactions in other securities not on such list. It is the policy of this
Association that members of the Capital Management/General Trust Committee
should not buy, sell or trade in securities which are on such approved list or
in any other securities in which the Fiduciary Services unit has taken, or
intends to take, a position in fiduciary accounts in any circumstances in
which any such transaction could be viewed as a possible conflict of interest
or could constitute a violation of applicable law or regulation. Accordingly,
if any such securities are owned by any member of the Capital
Management/General Trust Committee at the time of appointment to such
Committee, the Capital Management Group shall be promptly so informed in
writing. If any member of the Capital Management/General Trust Committee
intends to buy, sell, or trade in any such securities while serving as a
member of the Committee, he should first notify the Capital Management Group
in order to make certain that any proposed transaction will not constitute a
violation of this policy or of applicable law or regulation.
SECTION 5.4 INVESTMENT POLICY COMMITTEE. There shall be an Investment Policy
Committee composed of not less than seven (7) officers and/or employees of
this Association who shall be appointed annually or from time to time by the
Board of Directors. Each member shall serve until his successor is appointed.
Meetings shall be called by the Chairman or any two (2) members of the
Committee. A quorum shall consist of five (5) members. The Investment Policy
Committee shall exercise such fiduciary powers and perform such duties as may
be assigned to it by the Capital Management/General Trust Committee. All
actions taken by the Investment Policy Committee shall be recorded in
appropriate minutes, signed by the Secretary thereof, approved by its Chairman
and submitted to the Capital Management/General Trust Committee at its next
ensuing regular meeting for its review and approval.
SECTION 5.5 PERSONAL TRUST ADMINISTRATION COMMITTEE. There shall be a
Personal Trust Administration Committee composed of not less than five (5)
officers, who shall be appointed annually or from time to time by the Board of
Directors. Each member shall serve until his successor is appointed. Meetings
shall be called by the Chairman or any three (3) members of the Committee. A
quorum shall consist of three (3) members. The Personal Trust Administration
Committee shall exercise such fiduciary powers and perform such duties as may
be assigned to it by the Capital Management/General Trust Committee. All
action taken by the
5
Personal Trust Administration Committee shall be recorded in appropriate
minutes signed by the Secretary thereof, approved by its Chairman, and
submitted to the Capital Management/General Trust Committee at its next
ensuing regular meeting for its review and approval.
SECTION 5.6 ACCOUNT REVIEW COMMITTEE. There shall be an Account Review
Committee composed of not less than four (4) officers and/or employees of this
Association, who shall be appointed annually or from time to time by the Board
of Directors. Each member shall serve until his successor is appointed.
Meetings shall be called by the Chairman or any two (2) members of the
Committee. A quorum shall consist of three (3) members. The Account Review
Committee shall exercise such fiduciary powers and perform such duties as may
be assigned to it by the Capital Management/General Trust Committee. All
actions taken by the Account Review Committee shall be recorded in appropriate
minutes, signed by the Secretary thereof, approved by its Chairman and
submitted to the Capital Management/General Trust Committee at its next
ensuing regular meeting for its review and approval.
SECTION 5.7 CORPORATE AND INSTITUTIONAL ACCOUNTS COMMITTEE. There shall be a
Corporate and Institutional Accounts Committee composed of not less than seven
(7) officers and/or employees of this Association, including the General Trust
Officer, the Manager of the Fiduciary Services unit, the Manager of the Retail
Services unit, the Manager of the Investments unit, the Manager of the
Marketing unit, the Manager of the Pension Trust Department, the Manager of
the Corporate Trust Department and the Manager of the Administrative Services
Department, plus any other officers and/or employees, who shall be appointed
annually, or from time to time, by the Capital Management/General Trust
Committee of the Board of Directors and approved by the Board of Directors.
Meetings may be called by the Chairman of any Vice Chairman or any two (2)
members of the Committee. A quorum shall consist of four (4) members. The
Corporate and Institutional Accounts Committee shall exercise such fiduciary
powers and duties assigned to it by the Corporate Management/General Trust
Committee, including, but not limited to, the review and acceptance of all new
appointments of this Association in a fiduciary capacity for corporate and
institutional accounts, review and approval of all closing out of such
accounts, interpretation of provisions of various instruments under which this
Association is appointed and serves in a fiduciary capacity for such accounts,
establishing policies and procedures for the administration of corporate and
institutional accounts, review and approval of all published fee schedules
applicable to such accounts and all such fees that are non-published and used
in competitive bidding situations, review of audits and examinations of the
various departments carrying out the administration of corporate and
institutional accounts, and any and all other duties and responsibilities as
may be assigned from time to time by the Capital Management/General Trust
Committee. The Committee shall have a Chairman who shall preside at regular
and called meetings, one or more Vice Chairmen, and a Secretary and one or
more Assistant Secretaries, who shall record in appropriate minutes all
actions taken by the Committee. The Chairman, Vice Chairmen and Secretary and
any Assistant Secretaries shall be elected by members of the Committee.
Minutes of the Committee shall be submitted to the Capital Management/General
Trust Committee at its next ensuing regular meeting for its review and
approval.
ARTICLE VI
STOCK AND STOCK CERTIFICATES
SECTION 6.1 TRANSFERS. Shares of stock shall be transferable on the books of
the Association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to his shares, succeed to all rights and liabilities of
the prior holder of such shares.
SECTION 6.2 STOCK CERTIFICATES. Certificates of stock shall bear the
signature of the Chairman, the Vice Chairman, the President, or a Vice
President (which may be engraved, printed, or impressed), and shall be signed
manually or by facsimile process by the Secretary, Assistant Secretary,
Cashier, Assistant Cashier, or any other officer appointed by the Board of
Directors for that purpose, to be known as an Authorized Officer, and the seal
of the Association shall be engraved thereon. Each certificate shall recite on
its face that the stock represented thereby is transferable only upon the
books of the Association properly endorsed.
6
ARTICLE VII
CORPORATE SEAL
SECTION 7.1 The President, the Cashier, the Secretary, or any Assistant
Cashier, or Assistant Secretary, or other officer thereunto designated by the
Board of Directors shall have authority to affix the corporate seal to any
document requiring such seal, and to attest the same. Such seal shall be
substantially in the following form.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 FISCAL YEAR. The fiscal year of the Association shall be the
calendar year.
SECTION 8.2 EXECUTION OF INSTRUMENTS. All agreements, indentures, mortgages,
deeds, conveyances, transfers, certificates, declarations, receipts,
discharges, releases, satisfactions, settlements, petitions, schedules,
accounts, affidavits, bonds, undertakings, proxies, and other instruments or
documents may be signed, executed, acknowledged, verified, delivered or
accepted in behalf of the Association by the Chairman of the Board, or the
President, or any Vice Chairman of the Board, any Vice President or Assistant
Vice President, or the Secretary or Assistant Secretary, Cashier, or Assistant
Cashier, or, if in connection with the exercise of fiduciary powers of the
Association, by any of said officers or by any Trust Officer or Assistant
Trust Officer; provided, however, that where required, any such instrument
shall be attested by one of said officers other than the officer executing
such instrument. Any such instruments may also be executed, acknowledged,
verified, delivered, or accepted in behalf of the Association in such other
manner and by such other officers as the Board of Directors may from time to
time direct. The provisions of this Section 8.2 are supplementary to any other
provision of these By-laws.
SECTION 8.3 RECORDS. The Articles of Association, the By-laws, and the
proceedings of all meetings of the shareholders, the Board of Directors,
standing committees of the Board, shall be recorded in appropriate minute
books provided for the purpose. The minutes of each meeting shall be signed by
the Secretary, Cashier, or other officer appointed to act as Secretary of the
meeting.
ARTICLE IX
BY-LAWS
SECTION 9.1 INSPECTION. A copy of the By-laws, with all amendments thereto,
shall at all times be kept in a convenient place at the Head Office of the
Association, and shall be open for inspection to all shareholders, during
banking hours.
SECTION 9.2 AMENDMENTS. The By-laws may be amended, altered or repealed, at
any regular or special meeting of the Board of Directors, by a vote of a
majority of the whole number of Directors.
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EXHIBIT A
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
ARTICLE X
EMERGENCY BY-LAWS
In the event of an emergency declared by the President of the United States
or the person performing his functions, the officers and employees of this
Association will continue to conduct the affairs of the Association under such
guidance from the directors or the Executive Committee as may be available
except as to matters which by statute require specific approval of the Board
of Directors and subject to conformance with any applicable governmental
directives during the emergency.
OFFICERS PRO TEMPORE AND DISASTER
SECTION 1. The surviving members of the Board of Directors or the Executive
Committee shall have the power, in the absence or disability of any officer,
or upon the refusal of any officer to act, to delegate and prescribe such
officer's powers and duties to any other officer, or to any director, for the
time being.
SECTION 2. In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of this
Association by its directors and officers as contemplated by these By-laws,
any two or more available members of the then incumbent Executive Committee
shall constitute a quorum of that Committee for the full conduct and
management of the affairs and business of the Association in accordance with
the provisions of Article II of these By-laws; and in addition, such Committee
shall be empowered to exercise all of the powers reserved to the General Trust
Committee under Section 5.3 of Article V hereof. In the event of the
unavailability, at such time, of a minimum of two members of the then
incumbent Executive Committee, any three available directors shall constitute
the Executive Committee for the full conduct and management of the affairs and
business of the Association in accordance with the foregoing provisions of
this section. This By-law shall be subject to implementation by resolutions of
the Board of Directors passed from time to time for that purpose, and any
provisions of these By-laws (other than this section) and any resolutions
which are contrary to the provisions of this section or to the provisions of
any such implementary resolutions shall be suspended until it shall be
determined by an interim Executive Committee acting under this section that it
shall be to the advantage of this Association to resume the conduct and
management of its affairs and business under all of the other provisions of
these By-laws.
OFFICER SUCCESSION
BE IT RESOLVED, that if consequent upon war or warlike damage or disaster,
the Chief Executive Officer of this Association cannot be located by the then
acting Head Officer or is unable to assume or to continue normal executive
duties, then the authority and duties of the Chief Executive Officer shall,
without further action of the Board of Directors, be automatically assumed by
one of the following persons in the order designated:
Chairman
President
Division Head/Area Administrator--Within this officer class, officers
shall take seniority on the basis of length of service in such office
or, in the event of equality, length of service as an officer of the
Association.
Any one of the above persons who in accordance with this resolution assumes
the authority and duties of the Chief Executive Officer shall continue to
serve until he resigns or until five-sixths of the other officers who are
attached to the then acting Head Office decide in writing he is unable to
perform said duties or until the
8
elected Chief Executive Officer of this Association, or a person higher on the
above list, shall become available to perform the duties of Chief Executive
Officer of the Association.
BE IT FURTHER RESOLVED, that anyone dealing with this Association may accept
a certification by any three officers that a specified individual is acting as
Chief Executive Officer in accordance with this resolution; and that anyone
accepting such certification may continue to consider it in force until
notified in writing of a change, said notice of change to carry the signatures
of three officers of the Association.
ALTERNATE LOCATIONS
The offices of the Association at which its business shall be conducted
shall be the main office thereof in each city which is designated as a City
Office (and branches, if any), and any other legally authorized location which
may be leased or acquired by this Association to carry on its business. During
an emergency resulting in any authorized place of business of this Association
being unable to function, the business ordinarily conducted at such location
shall be relocated elsewhere in suitable quarters, in addition to or in lieu
of the locations heretofore mentioned, as may be designated by the Board of
Directors or by the Executive Committee or by such persons as are then, in
accordance with resolutions adopted from time to time by the Board of
Directors dealing with the exercise of authority in the time of such
emergency, conducting the affairs of this Association. Any temporarily
relocated place of business of this Association shall be returned to its
legally authorized location as soon as practicable and such temporary place of
business shall then be discontinued.
ACTING HEAD OFFICERS
BE IT RESOLVED, that in case of and provided because of war or warlike
damage or disaster, the General Office of this Association, located in
Charlotte, North Carolina, is unable temporarily to continue its functions,
the Raleigh office, located in Raleigh, North Carolina, shall automatically
and without further action of this Board of Directors, become the "Acting Head
Office of this Association";
BE IT FURTHER RESOLVED, that if by reason of said war or warlike damage or
disaster, both the General Office of this Association and the said Raleigh
Office of this Association are unable to carry on their functions, then and in
such case, the Asheville Office of this Association, located in Asheville,
North Carolina, shall, without further action of this Board of Directors,
become the "Acting Head Office of this Association"; and if neither the
Raleigh Office nor the Asheville Office can carry on their functions, then the
Greensboro Office of this Association, located in Greensboro, North Carolina,
shall, without further action of this Board of Directors, become the "Acting
Head Office of this Association"; and if neither the Raleigh Office, the
Asheville Office, nor the Greensboro Office can carry on their functions, then
the Lumberton Office of this Association, located in Lumberton, North
Carolina, shall, without further action of this Board of Directors, become the
"Acting Head Office of this Association". The Head Office shall resume its
functions at its legally authorized location as soon as practicable.
9
ITEM #7
Thursday Media Contact: Jeep Xxxxxx
Xxxxx 10, 1997 000-000-0000 (office)
000-000-0000 (home)
Investor Contact: Xxxxx Xxxxxx
000-000-0000
FIRST UNION'S EARNING INCREASE TO A RECORD $1.67 PER SHARE, UP 11%
Charlotte, N.C.--First Union Corporation's earnings were $471 million in the
first quarter of 1997, a 12 percent increase from operating earnings of $420
million before merger-related restructuring charges in the first quarter of
1996. On a per common share basis, earnings were $1.67, an 11 percent increase
from operating earnings of $1.50 in the first quarter of 1996.
The first quarter 1997 earnings represented a return on common equity of
19.58 percent and a return on assets of 1.42 percent.
"Our fee-based businesses continue to provide excellent growth," said Xxxxxx
X. Xxxxxxxxxxx, chairman and chief executive officer. "We are especially
pleased with 67 percent fee income growth from last year in our Capital
Markets Group, which provides a variety of sophisticated financing products
and services primarily to our middle-market customer base. Our Capital
Management Group, which increased fee income 61 percent from last year, also
continues to expand with broad and balanced products for customers throughout
the needs and stages of their lives. Considering demographic trends, our entry
into new markets and the fact that we are now widely advertising our products,
we expect strong sales momentum going forward."
Key factors in the first quarter of 1997 compared with the first quarter of
1996 included:
[_] 5 percent growth in tax-equivalent net interest income;
[_] 47 percent growth in noninterest, or fee, income (excluding
securities transactions); and
[_] Good expense control, with an efficiency ratio of 56.81 percent,
compared with 57.36 percent (excluding merger-related restructuring
charges) in the first quarter of 1996.
Also included in the first quarter of 1997 were three purchase acquisitions
that closed in the fourth quarter of 1996.
Tax-equivalent net interest income in the first quarter of 1997 was $1.3
billion, compared with $1.2 billion in the first quarter of 1996.
First Union's strategic decision to allocate more resources to lines of
business that produce fee income-earnings streams was apparent in the increase
in noninterest, or fee, income of $753 million in the first quarter of 1997
compared with $526 million in the first quarter of 1996.
Average net loans increased 6 percent to $94.6 billion, compared with $89.3
billion in the first quarter of 1996. Loan growth came primarily from First
Union's Specialized Industry Group in Capital Markets and from the purchase
acquisitions.
Nonperforming assets were $778 million, or 0.81 percent of net loans and
foreclosed properties, compared with $842 million, or 0.93 percent of net
loans and foreclosed properties, at March 31, 1996. Annualized net charge-offs
were 0.61 percent in the first quarter of 1997, compared with 0.66 percent in
the first quarter of 1996. Net charge-offs, excluding credit card-related
charge-offs, were 0.20 percent in the first quarter of 1997, compared with
0.45 percent in the first quarter of 1996.
At the end of the first quarter of 1997, First Union had 280 million shares
of common stock outstanding, compared with 287 million shares at year-end
1996. First Union repurchased 9.9 million shares of common stock in the first
quarter of 1997.
At March 31, 1997, First Union (NYSE: FTU) had assets of $137 billion. Total
stockholders' equity was $9.5 billion. The company operates full-service
banking offices in Connecticut, Delaware, Florida, Georgia, Maryland, New
Jersey, New York, North Carolina, Pennsylvania, Virginia, South Carolina,
Tennessee and Washington, D.C.
FIRST UNION CORPORATION
EARNINGS DATA
(UNAUDITED)
THREE MONTHS ENDED
MARCH 31, 1Q 1997
------------------------ VS.
1997 1996 1Q 1996
----------- ----------- --------
(DOLLARS IN MILLIONS,
EXCEPT PER SHARE DATA)
FINANCIAL HIGHLIGHTS
Net income.................................. $ 471 $ 243 94%
----------- ----------- ----
Dividends on preferred stock................ -- 4 (100)
Net income applicable to common stockholders
after merger-related restructuring charges. 471 239 97
After-tax restructuring charges............. -- 181 (100)
Net income applicable to common stockholders
before merger-related restructuring
charges.................................... $ 471 $ 420 12%
----------- ----------- ----
PER COMMON SHARE DATA
Net income after merger-related
restructuring charges...................... $ 1.67 $ 0.85 96%
----------- ----------- ----
Net income before merger-related
restructuring charges...................... 1.67 1.50 11
Cash dividends.............................. 0.58 0.52 12
Book value.................................. $ 33.86 $ 31.80 6
----------- ----------- ----
Period-end price............................ 81.125 60.375 34
Average common shares (In thousands)........ 282,553 280,374 1
Actual common shares (In thousands)......... 279,832 281,064 --
Dividend payout ratios (based on operating
earnings).................................. 34.73% 34.67% -- %
PERFORMANCE HIGHLIGHTS
Before merger-related restructuring charges
Return on average assets (a) (b).......... 1.42% 1.30% --
Return on average common equity (a) (c)... 19.58 18.67 --
Overhead efficiency ratio (d)............. 56.81 57.36 --
Net charge-offs as a percentage of Average
loans, net (a)............................. 0.61 0.66 --
Average loans, net, excluding Bankcard (a).. 0.20 0.45 --
Nonperforming assets to loans, net and
foreclosed properties...................... 0.81 0.93 --
Net interest margin (a)..................... 4.37% 4.19% --
CASH EARNINGS (EXCLUDING OTHER INTANGIBLE
AMORTIZATION)
Before merger-related restructuring charges
Net income applicable to common
stockholders............................. $ 524 $ 472 11%
----------- ----------- ----
Net income per common share............... $ 1.86 $ 1.68 11
----------- ----------- ----
Return on average tangible assets (a)..... 1.61% 1.49% --
Return on average tangible common equity
(a) (c).................................. 30.74 27.85 --
Overhead efficiency ratio................. 53.60% 53.83% -- %
--------
(a) Quarterly amounts annualized.
(b) Based on net income.
(c) Based on net income applicable to common stockholders and average common
stockholders' equity excluding average net unrealized gains or losses on
debt and equity securities.
(d) The overhead efficiency ratio is equal to noninterest expense divided by
net operating revenue. Net operating revenue is equal to the sum of tax-
equivalent net interest income and noninterest income, including
securities transactions.
2
FIRST UNION CORPORATION
EARNINGS DATA
(UNAUDITED)
THREE MONTHS ENDED
MARCH 31, 1Q 1997
------------------- VS
1997 1996 1Q 1996
--------- --------- -------
(IN MILLIONS)
EARNINGS SUMMARY
Net interest income (a)............................ $ 1,303 $ 1,237 5%
--------- --------- ----
Provision for loan losses.......................... 145 70 107
Net interest income after provision for loan losses
(a)............................................... 1,158 1,167 (1)
Securities available for sale transactions......... 4 15 (73)
Investment security transactions................... -- 1 (100)
Noninterest income................................. 749 510 47
Merger-related restructuring charges............... -- 281 (100)
Noninterest expense................................ 1,169 1,011 16
Income before income taxes (a)..................... 742 401 85
Income taxes....................................... 255 133 92
Tax-equivalent adjustment.......................... 16 25 (36)
Net income......................................... 471 243 94
Dividends on preferred stock....................... -- 4 (100)
Net income applicable to common stockholders after
merger-related restructuring charges.............. $ 471 $ 239 97%
--------- --------- ----
AVERAGE BALANCE SHEET DATA
Loans, net of unearned income...................... $ 94,618 $ 89,274 6%
--------- --------- ----
Earning assets..................................... 119,703 118,233 1
Total assets....................................... 134,894 130,737 3
--------- --------- ----
Noninterest-bearing deposits....................... 16,925 16,286 4
Interest-bearing deposits.......................... 75,771 74,850 1
Common stockholders' equity (b).................... 9,761 8,930 9
Total stockholders' equity (b)..................... $ 9,761 $ 9,110 7%
========= ========= ====
--------
(a)Tax-equivalent.
(b)Excludes average net unrealized gains or losses on debt and equity
securities.
3
FIRST UNION CORPORATION
QUARTERLY FINANCIAL HIGHLIGHTS
(UNAUDITED)
1997 1996
FIRST FOURTH THIRD SECOND FIRST
QUARTER QUARTER QUARTER QUARTER QUARTER
------- ------- ------- ------- -------
(DOLLARS IN MILLIONS, EXCEPT COMMON
STOCK PRICES)
SELECTED LINES OF BUSINESS DATA
(a)
Capital Markets
Tax-equivalent net interest
income......................... $ 88 $ 81 $ 83 $ 82 $ 77
------- ------- ------- ------- -------
Fee and other income............ $ 149 $ 169 $ 121 $ 85 $ 89
------- ------- ------- ------- -------
Capital Management
Trust fees...................... $ 81 $ 79 $ 77 $ 73 $ 71
------- ------- ------- ------- -------
Mutual fund fees................ 58 24 21 20 19
Total......................... 139 103 98 93 90
Less internal management
reporting adjustments (b)...... (7) (7) (6) (5) (4)
Total......................... 132 96 92 88 86
Brokerage commissions........... 36 29 26 26 22
Insurance commissions........... 24 22 19 17 10
Other retail fees............... 11 10 8 7 8
------- ------- ------- ------- -------
Total Capital Management
income....................... $ 203 $ 157 $ 145 $ 138 $ 126
======= ======= ======= ======= =======
COMMON STOCK PRICE
High.............................. $95.625 $77.000 $67.875 $64.625 $62.875
------- ------- ------- ------- -------
Low............................... 73.375 67.000 61.125 57.500 51.500
Period-end........................ $81.125 $74.000 $66.750 $60.875 $60.375
------- ------- ------- ------- -------
--------
(a) Certain information is prepared from internal management reports.
(b) Internal management reporting adjustments represent the elimination of
inter-affiliate fee income, the results of which are included in the
consolidated statements of income.
4
FIRST UNION CORPORATION
QUARTERLY FINANCIAL HIGHLIGHTS
(UNAUDITED)
1997 1996
FIRST FOURTH THIRD SECOND FIRST
QUARTER QUARTER QUARTER QUARTER QUARTER
-------- -------- -------- -------- --------
(DOLLARS IN MILLIONS)
PERIOD-END BALANCE SHEET DATA
Securities available for sale.... $ 14,411 14,182 13,729 21,835 17,178
Investment securities............ 2,408 2,501 2,566 2,681 2,927
Loans, net of unearned income.... 95,487 95,858 92,520 91,339 89,990
Earning assets................... 121,134 123,815 119,294 126,918 117,870
Total assets................... 136,730 140,127 133,882 139,886 130,581
Noninterest-bearing deposits..... 18,275 18,632 18,008 16,831 16,726
Interest-bearing deposits........ 74,128 76,183 73,436 74,622 73,792
Long-term debt................... 7,604 7,660 7,332 7,807 7,538
Guaranteed preferred beneficial
interests........................ 990 495 -- -- --
Common stockholders' equity...... 9,474 10,008 8,641 9,153 8,939
-------- -------- -------- -------- --------
Total stockholders' equity..... $ 9,474 10,008 8,689 9,316 9,110
======== ======== ======== ======== ========
CAPITAL RATIOS
Tier 1 capital (a)............... 7.38% 7.33 6.38 7.11 7.00
Total capital (a)................ 12.10 12.33 10.94 11.94 11.91
Leverage (a)..................... 6.13 6.13 5.23 5.60 5.56
Stockholders' equity to assets
Quarter-end..................... 6.93 7.14 6.49 6.66 6.98
Average......................... 7.20% 6.85 6.63 6.76 7.04
--------
(a) The first quarter of 1997 is based on estimates.
5
FIRST UNION CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
1997 FIRST FOURTH THIRD SECOND 1996 FIRST
QUARTER QUARTER QUARTER QUARTER QUARTER
---------- ------- ------- ------- ----------
(IN MILLIONS, EXCEPT PER SHARE DATA)
INTEREST INCOME
Interest and fees on loans....... $ 2,019 1,986 1,953 1,896 1,889
Interest and dividends on
securities available for sale... 230 236 258 336 274
Interest and dividends on
investment securities
Taxable income................. 30 32 31 33 34
Nontaxable income.............. 15 15 16 19 20
Trading account interest......... 49 72 87 67 44
Other interest income............ 75 94 78 80 78
Total interest income........ 2,418 2,435 2,423 2,431 2,339
INTEREST EXPENSE
Interest on deposits............. 743 751 734 729 746
Interest on short-term
borrowings...................... 264 308 301 320 268
Interest on long-term debt....... 124 121 123 118 113
Total interest expense....... 1,131 1,180 1,158 1,167 1,127
Net interest income.............. 1,287 1,255 1,265 1,264 1,212
Provision for loan losses........ 145 120 105 80 70
Net interest income after
provision for loan losses....... 1,142 1,135 1,160 1,184 1,142
NONINTEREST INCOME
Trading account profits.......... 26 50 23 8 21
Service charges on deposit
accounts........................ 193 174 165 166 161
Mortgage banking income.......... 50 40 38 40 37
Capital management income........ 203 157 145 138 126
Securities available for sale
transactions.................... 4 11 2 3 15
Investment security transactions. -- 1 -- 2 1
Fees for other banking services.. 41 39 41 44 33
Sundry income.................... 236 213 186 145 132
Total noninterest income..... 753 685 600 546 526
NONINTEREST EXPENSE
Salaries......................... 480 490 454 425 412
Other benefits................... 125 102 99 101 113
Personnel expense................ 605 592 553 526 525
Occupancy........................ 91 93 82 83 93
Equipment........................ 121 118 108 98 93
Advertising...................... 22 10 10 10 11
Telecommunications............... 27 25 27 25 25
Travel........................... 21 20 23 27 22
Postage, printing and supplies... 41 37 43 40 42
FDIC assessment.................. 5 -- 15 14 12
Professional fees................ 20 30 23 29 6
External data processing......... 15 16 24 38 36
Other intangibles amortization... 67 60 60 61 62
Merger-related restructuring
charges......................... -- -- -- -- 281
SAIF special assessment.......... -- -- 133 -- --
Sundry expense................... 134 112 110 101 84
-------- ------- ------- ------- -------
Total noninterest expense.... 1,169 1,113 1,211 1,052 1,292
Income before income taxes....... 726 707 549 678 376
Income taxes..................... 255 247 192 239 133
-------- ------- ------- ------- -------
Net income................... 471 460 357 439 243
Dividends on preferred stock..... -- 1 1 3 4
-------- ------- ------- ------- -------
Net income applicable to
common stockholders......... $ 471 459 356 436 239
PER COMMON SHARE DATA
Net income....................... $ 1.67 1.66 1.29 1.55 0.85
Cash dividends................... $ 0.58 0.58 0.58 0.52 0.52
AVERAGE COMMON SHARES (In
thousands)...................... 282,553 278,298 274,001 282,576 280,374
