Exhibit 1(a)
FIRST UNION CORPORATION*
[________ Shares of Common Stock,
Par Value $3.33 1/3 Per Share]
-or-
[________ Shares of [Class A] Preferred Stock[, Series ___], No-Par Value]
-or-
[__________ Depositary Shares,
Each representing a [Fraction] Interest in a Share of]
[Class A] Preferred Stock[, Series ___], No-Par Value]
Underwriting Agreement
----------------------
________ __, ____
To the Representatives named in Schedule I hereto of the Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
First Union Corporation ("First Union"), a North Carolina corporation,
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), an aggregate of __________
[shares of its Common Stock ("Common Stock"), par value $3.33 1/3 per share (the
"Securities")]
________________
* Provisions for Warrants, over-allotment option and convertibility, if
necessary, would need to be added to introductory paragraph,
representations, opinions, etc.
-or-
[an aggregate of _________ shares of [Class A] Preferred Stock[, Series ___] of
First Union (the "Securities")]
-or-
[Depositary Shares (the "Shares"), each such share representing ownership of
[fraction] of a share of [Class A] Preferred Stock[, Series ___] of First Union
(the "Preferred Stock"). The Preferred Stock will, when issued, be deposited by
First Union against delivery of Depositary Receipts ("Depositary Receipts") to
be issued by First Union National Bank of North Carolina, as depositary (the
"Depositary"), under a Deposit Agreement, dated as of _________ __, ____ (the
"Deposit Agreement"), among First Union, the Depositary and the holders from
time to time of the Depositary Receipts issued thereunder. Each Depositary
Receipt will evidence one or more Shares. The Shares and the Preferred Stock
are herein collectively called the "Securities."]
1. Representations and Warranties. First Union represents and
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warrants to, and agrees with, each Under writer that:
(a) The registration statement (File No. 333-_____) on Form S-3 (the
"registration statement"), including a prospectus which, as supplemented,
shall be used in connection with the sale of the Securities, has been filed
with the Securities and Exchange Commission (the "Commission"), in the form
heretofore delivered to the Representatives. The registration statement,
as it may have been amended prior to the date of this Agreement, has become
effective under the Securities Act of 1933, as amended (the "Act"). (The
registration statement, as amended to the date of this Agreement, is
hereinafter referred to as the "Registration Statement"; such prospectus
(which shall be in the form in which it has been most recently filed, or
transmitted for filing, with the Commission on or before the date of this
Agreement, as the same is proposed to be added to or changed), as
supplemented by a prospectus supplement relating to the Securities, filed
or transmitted for filing with the Commission
pursuant to Rule 424 under the Act and used in connection with the sale of
the Securities, is hereinafter referred to as the "Prospectus"; and such
prospectus supplement is hereinafter referred to as the "Prospectus
Supplement". Any reference herein to the Registration Statement, a
preliminary prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated rated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on or before the date of this
Agreement, and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement or the Prospectus
shall be deemed to refer to and include the filing of any document under
the Exchange Act deemed to be incorporate therein by reference after the
date of this Agreement.)
(b) The Registration Statement, at the time it became effective, and
any amendments thereof filed prior to the date hereof, as of their
respective effective dates, conformed in all material respects to the
requirements of the Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the respective rules and regulations of the
Commission thereunder; the Registration Statement and the Prospectus, as
of the date of the Prospectus Supplement, and any amendments thereof and
supplements thereto, as of their respective effective or issue dates, will
conform in all material respects to the requirements of the Act, the Trust
Indenture Act and the respective rules and regulations of the Commission
thereunder, and no such document, as of such respective dates and, in the
case of the Prospectus and any amendments thereof or supplements thereto,
as of the Closing Date (as hereinafter defined), included or will include
any untrue statement of a material fact or omitted or will omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading, provided that First Union makes no representations or
warranties as to (i) the Statement of Eligibility (Form T-1) under the
Trust Indenture Act of any trustee or (ii) the information contained in or
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omitted from the Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with information furnished in writing to
First Union by or on behalf of any Underwriter specifically for use in
connection with the preparation of the Prospectus or any amendment thereof
or supplement thereto.
(c) First Union has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and has all power and authority (corporate and other)
necessary to own or hold its material properties and to conduct its
business substantially in the manner in which it presently conducts such
business.
(d) The [shares of Preferred Stock represented by the] Securities
being delivered to the Underwriters at the Closing Date have been duly
authorized and, when issued and delivered as provided in this Agreement,
will be duly and validly issued, fully paid and nonassessable, and will
have the rights set forth in First Union's Articles of Incorporation, as
amended to the Closing Date], including the Articles of Amendment relating
to such shares (the "Amendment") filed under Section ____ of the North
Carolina Business Corporation Act].
(e) First Union has all corporate power and authority necessary to
execute and deliver this Agreement, [the Preferred Stock,] the Securities
[and the Deposit Agreement] and to perform its obligations hereunder and
thereunder; the execution, delivery and performance of this Agreement, [the
Preferred Stock,] the Securities [and the Deposit Agreement] by First Union
and compliance with the provisions hereof and thereof by First Union will
not constitute a breach of or default under, the corporate charter or by-
laws of First Union, or any material agreement, indenture or other
instrument relating to indebtedness for money borrowed to which First Union
is a party, or, to the best of First Union's knowledge, any law, order,
rule, regulation or decree of any court, governmental agency or authority
located in the United States having jurisdiction over First Union or any
property of First Union, which breach or default would be reasonably
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likely to have a material adverse effect on First Union and its
subsidiaries taken as a whole; and no consent, authorization or order of,
or filing or registration with, any court or governmental agency or
authority is required for the execution, delivery and performance of this
Agreement, [the Preferred Stock,] the Securities [and the Deposit
Agreement] by First Union except such as have been made or obtained or will
be made or obtained on or before the Closing Date (as defined in Section 3)
and except such as may be required under applicable state securities or
"blue sky" laws.
[( ) The Amendment has been duly filed with the Secretary of State
of the State of North Carolina in accordance with the North Carolina
Business Corporation Act and with all other offices where such filing is
required.]
[( ) The Securities being delivered to the Underwriters at the
Closing Date have been duly authorized and, when issued and delivered
against payment therefor as provided in this Agreement, will be duly and
validly issued, fully paid and nonassessable and will be entitled to the
rights under, and the benefits of, the Deposit Agreement.]
[( ) The Deposit Agreement has been duly authorized, executed and
delivered by First Union and the Depositary and constitutes a valid and
legally binding agreement of First Union and the Depositary, enforceable
against First Union and the Depositary in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general principles of
equity.]
( ) The [Preferred Stock, the] Securities [and the Deposit
Agreement] conform in all material respects to the descriptions thereof in
the Prospectus.
2. Purchase and Sale. Subject to the terms and conditions and in
-----------------
reliance upon the representations and warranties herein set forth, First Union
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
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not jointly, to purchase from First Union, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
--------------------
shall be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the Represen-
tatives and First Union (such date and time of delivery of and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Under writers through the
Representatives of the purchase price thereof to or upon the order of First
Union in the manner and type of funds specified in Schedule I. Certificates for
the Securities shall be registered in such names and in such denominations as
the Representatives may request not less than one full business day in advance
of the Closing Date.
First Union agrees to have the Securities avail able for inspection,
checking and packaging in New York, New York, on the business day prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the several
------------------------
Underwriters propose to offer the Securities for sale as set forth in the
Prospectus.
5. Agreements. First Union agrees with the several Underwriters
----------
that:
(a) First Union will cause the Prospectus to be filed, or transmitted
for filing, with the Commission pursuant to Rule 424 under the Act and will
promptly advise the Representatives when the Prospectus has been so filed
or transmitted for filing, and, prior to the termination of the offering of
the Securities to which such Prospectus relates, also will promptly advise
the Representatives (i) when any amendment to the Registration Statement
has become effective or any further supplement to the Prospectus has been
so filed or transmitted for filing, (ii) of any request by the Commission
for any amendment of the Registration Statement or the Prospectus or for
any additional
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information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose, and (iv) of
the receipt by First Union of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. First Union will use its reasonable best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
reasonably possible the withdrawal thereof. For so long as a prospectus
relating to the Securities is required to be delivered under the Act, First
Union will not file or transmit for filing any amendment to the
Registration Statement or supplement to the Prospectus which relates to the
Securities unless First Union has furnished you or counsel for the
Underwriters a copy for your review prior to filing or transmission for
filing.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend or supplement the Prospectus in connection with the sale of the
Securities to comply with the Act or the rules and regulations of the
Commission thereunder, promptly after becoming aware thereof, First Union
will notify the Representatives or counsel for the Underwriters and, upon
their or its reasonable request, prepare and file or transmit for filing
with the Commission an amendment or supplement which will correct such
statement or omission or effect such compliance.
(c) First Union will make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 45
days after the end of the 12-month period beginning at the end of the
fiscal quarter of First Union during which the filing, or transmission for
filing, of the Prospectus pursuant to Rule 424 under the Act occurs (except
not later than
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90 days after the end of such period if such quarter is the last fiscal
quarter), an earnings statement (which need not be audited) of First Union
and its subsidiaries, covering such 12-month period, which will satisfy
the provisions of Section 11(a) of the Act.
(d) First Union will use its best efforts to furnish in New York City
to each of the Underwriters prior to 10:00 a.m., New York City time, on the
New York business day next succeeding the date of this Agreement and from
time to time, as many copies of the Prospectus, each related preliminary
prospectus supplement and all amendments of and supplements to such
documents as may be reasonably requested.
(e) First Union will pay all expenses incident to the performance of
its obligations under this Agreement, and will pay the expenses of
printing and filing all documents relating to the offering and mailing and
delivering such to Underwriters and dealers, any filing fee incident to any
required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities, all expenses in connection with
the qualification of the Securities for offering and sale under state
securities laws (including the fees and disbursements of counsel to the
Underwriters in connection with such qualification and the preparation of
the Blue Sky and legal investment surveys), any taxes payable in connection
with the sale and delivery of the Securities by First Union to the
Underwriters, and any fees charged for rating the Securities.
(f) First Union will use its reasonable best efforts to arrange for
the qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and to maintain such
qualifications in effect so long as required for the distribution of the
Securities; provided that First Union shall not be required to qualify to
do business in any jurisdiction where it is not now qualified or to take
any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
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(g) During the period beginning from the date of this Agreement and
continuing until the Closing Date or such longer period as may be agreed to
by First Union and set forth in Schedule I hereto relating to the
Securities, First Union will not offer, sell, contract to sell or otherwise
dispose of any of its securities which are substantially similar to the
Securities without the prior written consent of the Representatives [,
other than shares of its Common Stock pursuant to its dividend reinvestment
plan, stock options and other benefit plans, or commitments existing prior
to the date of this Agreement].
6. Conditions to the Obligations of the Under writers. The
--------------------------------------------------
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy in all material respects of the representations and warranties on
the part of First Union contained herein as of the date hereof and the Closing
Date, to the accuracy in all material respects of the statements of First Union
made in any certificates pursuant to the provisions hereof, to the performance
in all material respects by First Union of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted and be pending or have been threatened as of the
Closing Date; and all requests for additional information on the part of
the Commission shall have been complied with.
(b) First Union shall have furnished to the Representatives a
certificate, dated the Closing Date, of First Union, signed by the
principal financial or accounting officer of First Union, to the effect
that, to the best of his knowledge after reasonable investigation:
(i) The representations and warranties of First Union in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and First Union has complied with all the
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agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date, in all
material respects;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted and are pending or have been threatened
as of such date;
(iii) Since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse change
in the financial position, results of operations, cash flows or
prospects relating thereto of First Union and its subsidiaries
consolidated, except as set forth in or contemplated by the
Prospectus; and
(iv) Since the date of this Agreement, (A) no downgrading has
occurred in the rating accorded First Union's unsecured debt
securities or preferred stock as described in Section 6(h)(i) and (B)
no announcement has been made with respect to any rating accorded
First Union's unsecured debt securities or preferred stock as
described in Section 6(h)(ii).
(c) First Union shall have furnished to the Underwriters the opinion,
dated the Closing Date, of Xxxx X. Xxxxxxxx, Esq., Senior Vice President
and Deputy General Counsel of First Union, to the effect that:
(i) First Union has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of North Carolina, with corporate power and authority under such laws
to own its material properties and to conduct its business
substantially as described in the Prospectus;
(ii) The [shares of Preferred Stock represented by the]
Securities being delivered to the Underwriters at the Closing Date
have been duly authorized and, when issued and delivered as
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provided in this Agreement, will be duly and validly issued, fully
paid and nonassessable, and will have the rights set forth in First
Union's Articles of Incorporation, as amended to the Closing Date[,
including the Amendment];
(iii) First Union has all corporate power and authority
necessary to execute and deliver this Agreement, [the Preferred
Stock,] the Securities [and the Deposit Agreement] and to perform its
obligations hereunder and thereunder; the execution, delivery and
performance of this Agreement, [the Preferred Stock,] the Securities
[and the Deposit Agreement] by First Union and compliance with the
provisions hereof and thereof by First Union will not constitute a
breach of or default under, the corporate charter or by-laws of First
Union, or any material agreement, indenture or other instrument
relating to indebtedness for money borrowed known to such counsel to
which First Union is a party, or, to the best of such counsel's
knowledge, any law, order, rule, regulation or decree of any court,
governmental agency or authority located in the United States having
jurisdiction over First Union or any property of First Union, which
breach or default would be reasonably likely to have a material
adverse effect on First Union and its subsidiaries taken as a whole;
and no consent, authorization or order of, or filing or registration
with, any court or governmental agency or authority is required for
the execution, delivery and performance of this Agreement, [the
Preferred Stock,] the Securities [and the Deposit Agreement] by First
Union except such as have been made or obtained or will be made or
obtained on or before the Closing Date (as defined in Section 3) and
except such as may be required under applicable state securities or
"blue sky" laws;
[( ) The Amendment has been duly filed with the Secretary of
State of the State of North Carolina in accordance with the North
Carolina Business Corporation Act and with all other offices where
such filing is required;]
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[( ) The Securities being delivered to the Underwriters at the
Closing Date have been duly authorized and, when issued and delivered
against payment therefor as provided in this Agreement, will be duly
and validly issued, fully paid and nonassessable and will be entitled
to the rights under, and the benefits of, the Deposit Agreement;]
[( ) The Deposit Agreement has been duly authorized, executed
and delivered by First Union and the Depositary and constitutes a
valid and legally binding agreement of First Union and the Depositary,
enforceable against First Union and the Depositary in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights generally and by
general principles of equity;]
( ) The [Preferred Stock, the] Securities [and the Deposit
Agreement] conform in all material respects to the descriptions
thereof in the Prospectus; and
( ) The Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or threatened under the Act, and each part of the Registration
Statement, when such part became effective, any amendments thereof
filed prior to the date of this Agreement, as of their respective
effective dates, and the Registration Statement and the Prospectus, as
of the date of the Prospectus Supplement, and each amendment thereof
or supplement thereto, as of their respective effective or issue
dates, appeared on their face to be appropriately responsive in all
material respects to the requirements of the Act, the Trust Indenture
Act and the respective rules and regula-
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tions of the Commission thereunder; such counsel has no reason to
believe that any part of the Registration Statement, when such part
became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus, as of the date of the Prospectus Supplement, or any
amendments thereof or supplements thereto, as of their respective
effective or issue dates, contained any untrue statement of a material
fact or omitted to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or that, as of the Closing Date, either the
Prospectus or any further amendment or supplement thereto made by the
Company prior to the Closing Date contained any untrue statement of a
material fact or omitted to state any material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; it being understood that such counsel
need express no opinion as to the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of the Trustee, as to the financial
statements or other financial data contained in any part of the
Registration Statement or the Prospectus, as to any statements or
omissions made in reliance upon or in conformity with information
furnished in writing to First Union by or on behalf of an Underwriter
for use therein.
As to matters governed by New York law, such counsel may rely upon the
opinion of Xxxxxxxx & Xxxxxxxx.
(d) The Representatives shall have received from Xxxxxxxx & Xxxxxxxx,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to such matters as the Representatives may reasonably
require.
As to matters governed by North Carolina law, Xxxxxxxx & Xxxxxxxx may
rely upon the opinion of Kent
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X. Xxxxxxxx, Esq., Senior Vice President and Deputy General Counsel of
First Union, delivered pursuant to Section 6(c).
(e) KPMG Peat Marwick LLP, as independent accountants of First Union,
shall have furnished to the Representatives a letter, dated as of the
Closing Date, to the effect set forth in Schedule III hereto.
(f) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting
the financial position, long-term debt, stockholders' equity or results of
operations of First Union and its consolidated subsidiaries which the
Representatives conclude, after consultation with First Union, in the
judgment of the Representatives is so material and adverse as to make it
impractical or inadvisable to proceed with the public offering or the
delivery of the Securities as contemplated by the Prospectus.
(g) First Union shall have furnished to the Representatives such
further information, certificates and documents as they may reasonably
request prior to the Closing Date.
(h) Subsequent to the date of this Agreement, (i) no downgrading
shall have occurred in the rating accorded First Union's unsecured debt
securities or preferred stock by Standard & Poor's Ratings Group or by
Xxxxx'x Investors Service, Inc. and (ii) neither such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of First Union's
unsecured debt securities or preferred stock.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be cancelled at, or at any time
prior to, the Closing Date by the
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Representatives. Notice of such cancellation shall be given to First Union in
writing or by telephone or telegraph confirmed in writing.
7. Indemnification and Contribution. (a) First Union agrees to
--------------------------------
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement or in any
amendment thereof filed prior to the date hereof, or in the Registration
Statement or the Prospectus, or in any amendment thereof or supplement thereto,
or in any related preliminary prospectus or preliminary prospectus supplement,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) First Union will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to First Union by or on behalf of any
Underwriter through the Representatives specifically for use in the Prospectus
or any supplement thereto or any related preliminary prospectus or preliminary
prospectus supplement or of the Statement of Eligibility (Form T-1) under the
Trust Indenture Act of the Trustee, and (ii) such indemnity with respect to any
related preliminary prospectus or preliminary prospectus supplement shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof if such person
was not sent or given a copy of the Prospectus (or the
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Prospectus as amended or supplemented), excluding documents incorporated therein
by reference, at or prior to the confirmation of the sale of such Securities to
such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in such related
preliminary prospectus or preliminary prospectus supplement was corrected in
the Prospectus (or the Prospectus as amended or supplemented). This indemnity
agreement will be in addition to any liability which First Union may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
First Union, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls First Union within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from First Union to each Under writer, but only with
reference to written information furnished to First Union by or on behalf of
such Underwriter through the Representatives specifically for use in the
Prospectus or any supplement thereto or any related preliminary prospectus or
preliminary prospectus supplement. This indemnity agreement will be in addition
to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under Section 7(a)
or (b) of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
such subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability which it may have to any indemnified
party otherwise than under Section 7(a) or (b). In case any such action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may
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be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under Section 7(a) or (b) for any legal or other expenses subsequently incurred
by such indemnified party (other than reasonable costs of investigation) in
connection with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate national counsel, approved by the Representatives,
representing the indemnified parties who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by First Union on the one hand and the Underwriters
of the Securities on the other from the offering of the Securities to which such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the
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immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of First Union on the one
hand and the Underwriters of the Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by First Union on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by First Union bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by First Union on the one hand
or such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. First Union and the Under writers agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the applicable Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
18-
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Under
writers of Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to the
Securities and not joint.
8. Termination. This Agreement shall be subject to termination in
-----------
the absolute discretion of the Representatives, by notice given to First Union
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of the Representatives, impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities as contemplated by the
Prospectus.
9. Substituted Underwriters. If, on the Closing Date, any one or
------------------------
more of the Underwriters shall fail or refuse to purchase Securities that it or
they have agreed to purchase hereunder on such date, and the aggregate number of
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate number of the
Securities to be purchased on the Closing Date, the other Underwriters shall be
obligated severally in the proportions that the number of Securities set forth
opposite their respective names in Schedule II bears to the aggregate number of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Underwriters may agree, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on the Closing Date; provided that in no event shall the
number of Securities that any Underwriter has agreed to purchase pursuant to
Section 2 above be increased pursuant to this Section 9 by an amount in excess
of one-ninth of such number of Securities without
19-
the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Securities and the
aggregate number of Securities with respect to which such default occurs is more
than one-tenth of the aggregate number of Securities to be purchased on the
Closing Date, and arrangements satisfactory to the Underwriters and First Union
for the purchase of such Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or First Union. In such case either the Underwriters
or First Union shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this Section 9 shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. Certain Liabilities Upon Termination. If this Agreement shall be
------------------------------------
terminated pursuant to Section 9 hereof, the Company shall not then be under any
liability to any Underwriter except as provided in Sections 5(e) and 7 hereof;
but, if for any other reason, any Securities are not delivered by or on behalf
of the Company as provided herein, the Company will reimburse the Underwriters
through you for all actual out-of-pocket expenses approved in writing by you,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Securities not so delivered, but the Company shall then be under no further
liability to any Underwriter in respect of the Securities not so delivered
except as provided in Sections 5(e) and 7 hereof.
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of
First Union or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or First Union or any
of the officers, directors or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 5(e), 7, 9, 12, 13 and 14 hereof
20-
shall survive the termination or cancellation of this Agreement.
12. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto (including any Underwriter or Underwriters added
pursuant to Section 9 hereof)and their respective successors, heirs, executors,
administrators and the officers and directors and controlling persons referred
to in Section 7 hereof, and no other person will have any right or obligation
hereunder.
13. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of New York.
14. Counterparts; Notices. This Agreement may be signed in any
---------------------
number of counterparts, each of which shall be deemed an original, which taken
together shall constitute one and the same instrument.
All notices hereunder shall be in writing or by telegram if promptly
confirmed in writing, and if to the Underwriters shall be sufficient in all
respects if delivered or sent by registered mail to the address of the
Representatives as set forth in Schedule I hereto; and if to First Union shall
be sufficient in all respects if delivered or sent by registered mail to the
address of First Union set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 7(c) hereof shall be delivered or sent by registered mail to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to First
Union by the Representatives upon request.
15. Action by Underwriters. Any action under this Agreement taken by
----------------------
the Underwriters jointly or by the firm signing below on behalf of you as the
Representatives will be binding upon all the Underwriters.
21-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between
First Union and the Underwriters.
Very truly yours,
FIRST UNION CORPORATION
____________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and
accepted as of the date
first above written.
By: [Representatives]
On behalf of the Underwriters
set forth in Schedule II
By: ______________________________
Name:
Title:
22-
SCHEDULE I
Title of Designated Securities:
[Common Stock, par value $3.33 1/3 per share]
[[Class A] Preferred Stock [, Series __], no-par value]
[Depositary Shares, each representing a [Fraction] Interest in a Share of
[Class A] Preferred Stock [, Series __], no-par value]
Amount of Securities:
_____________
Price to Public:
$_____ per Security [, plus accrued dividends, if any, from _________ __,
____]
Purchase Price by Underwriters:
$_____ per Security [, plus accrued dividends, if any, from _________ __,
____]
Specified Funds for Payment of Purchase Price:
Immediately available funds by wire
Deposit Agreement:
[Deposit Agreement, dated as of ________ __, ____, between First Union and
__________, as Depositary]
Maturity:
[________ __, ____]
Dividend Rate:
[_____% per annum] [describe floating rate provisions]
Dividend Payment Dates:
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[________ __, ________ __, ________ __ and ________ __ of each year,
commencing _______ __, ____]
Regular Record Dates:
[________ __, ________ __, ________ __ and ________ __ of each year,
commencing _______ __, ____]
Repayment Provisions:
[Describe repayment provisions, if any]
Redemption Provisions:
[Describe redemption provisions, if any]
Sinking Fund Provisions:
[Describe sinking fund provisions, if any]
Conversion Provisions:
[Describe conversion provisions, if any]
Exchange Provisions:
[Describe exchange provisions, if any]
Other Terms:
[Describe additional terms, if any]
Additional Comfort Letter Coverage:
[Describe additional coverage, if any]
Form of Designated Security:
[[Global] [Certificated] [in denominations set forth in the Prospectus
Supplement]]
Closing Date:
________ __, ____ at [time]
24-
Restricted Period Under Section 5(g) of Underwriting Agreement:
[Describe period if other than through Closing Date]
Office for Delivery of Designated Securities:
[insert address]
Office for Payment for Designated Securities:
[insert address]
Name of Representatives:
[insert names]
Address for Notices, etc.:
[insert address]
25-
SCHEDULE II
Amount of
Securities
to be
Underwriter Purchased
----------- ---------
[underwriters names]
----------
Total
SCHEDULE III
Pursuant to Section 6(e) of the Underwriting Agreement, the
independent accountants of First Union shall provide a comfort letter to the
effect that:
(i) They are independent certified public accountants with respect
to First Union and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules examined by them and included
or incorporated by reference in the Prospectus as amended or supplemented comply
as to form in all material respects with the applicable accounting requirements
of the Act or the Exchange Act, as applicable, and the published rules and
regulations thereunder;
(iii) On the basis of limited procedures, not constituting an
audit, consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of First Union and its subsidiaries, inspection of the
minute books of First Union and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus as amended or supplemented, inquiries of officials of First Union and
its subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of changes in
financial position included or incorporated by reference in First Union's
most recent Quarterly Report on Form 10-Q incorporated by reference in the
Prospectus (if any) as amended or supplemented does not comply as to form
in all material respects with the applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the related published rules and
regulations thereunder or are not
III-1
in conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited consolidated
financial statements included or incorporated by reference in First Union's
most recent Annual Report on Form 10-K;
(B) any unaudited financial data included in the Prospectus as
amended or supplemented as at any time, or for any period ending, after the
end of the latest interim period covered by a Quarterly Report on Form 10-Q
of First Union or year ended for which First Union has filed an Annual
Report on Form 10-K (whichever is more recent) (and any data for any
comparable prior period included therein) do not agree with the
corresponding amounts in the unaudited consolidated financial statements
from which such data are derived, or any such unaudited financial data were
not determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements
included or incorporated by reference in First Union's most recent Annual
Report on Form 10-K;
(C) the unaudited pro forma consolidated condensed financial
statements (if any) included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those statements;
(D) as of a specified date not more than five days prior to
the date of delivery of such letter there have been any changes in the
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn outs of performance
shares and upon conversions of convertible securities, in each case which
were outstanding on the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented) or long-term debt of First Union or any of its subsidiaries,
or any decreases in
III-2
consolidated stockholders' equity, consolidated assets, consolidated
deposits, or allowance for loan losses of First Union or other items
specified by the Representatives, or any increases in any items specified
by the Representatives, in each case as compared with amounts shown in the
latest balance sheet included or incorporated by reference in the
Prospectus as amended or supplemented except in each case for changes,
increases or decreases which the Prospectus as amended or supplemented
discloses have occurred or may occur or which are described in such letter;
and
(E) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented to the end of the latest period for which financial
statements are available there were any decreases in consolidated net
interest income, net interest income after provision for loan losses, or
the total or per share amounts of net income of First Union or other items
specified by the Representatives, or any increases in any items specified
by the Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding length
specified by the Representatives, except in each case for increases or
decreases which the Prospectus as amended or supplemented discloses have
occurred or may occur or which are described in such letter;
(iv) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures referred
to in subparagraph (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and financial information specified by the Representatives which are
derived from the general accounting records of First Union and its subsidiaries,
which appear in the Prospectus as amended or supplemented (excluding documents
incorporated by reference), in exhibits to the Registration Statement specified
by the Representatives, or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with the accounting
records of First Union and its subsidiaries and have found them to be in
agreement.
