-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LTaoMCpAIYnIU23bOt/n/6nQkGfwR22aaabDRWzA+APWlEz3w+9UGbUwD78fMulv RW+9kQCLsGn/81reEvl25Q== 0000950168-96-000029.txt : 19960112 0000950168-96-000029.hdr.sgml : 19960111 ACCESSION NUMBER: 0000950168-96-000029 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19960101 ITEM INFORMATION: Acquisition or disposition of assets FILED AS OF DATE: 19960110 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIRST UNION CORP CENTRAL INDEX KEY: 0000036995 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 560898180 STATE OF INCORPORATION: NC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-10000 FILM NUMBER: 96502621 BUSINESS ADDRESS: STREET 1: ONE FIRST UNION CTR CITY: CHARLOTTE STATE: NC ZIP: 28288-0630 BUSINESS PHONE: 7043746565 MAIL ADDRESS: STREET 1: FIRST UNION CORPORA STREET 2: ONE FIRST UNION CENTER CITY: CHARLOTTE STATE: NC ZIP: 28288-0630 FORMER COMPANY: FORMER CONFORMED NAME: CAMERON FINANCIAL CORP DATE OF NAME CHANGE: 19750522 FORMER COMPANY: FORMER CONFORMED NAME: FIRST UNION NATIONAL BANCORP INC DATE OF NAME CHANGE: 19721115 8-K 1 FIRST UNION 41507 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) January 1, 1996 First Union Corporation (Exact name of registrant as specified in its charter) North Carolina 1-10000 56-0898180 (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) One First Union Center Charlotte, North Carolina 28288-0013 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (704)374-6565 (Former name or former address, if changed since last report.) INFORMATION TO BE INCLUDED IN THE REPORT Item 2. Acquisition or Disposition of Assets. On January 1, 1996, First Union Corporation ("FUNC") acquired First Fidelity Bancorporation ("FFB") by means of a merger of FFB with and into a wholly-owned subsidiary of FUNC (the "Merger"). FFB is a New Jersey-based multi-bank holding company with banking offices in New Jersey, Maryland, Connecticut, New York and Delaware. As of September 30, 1995, FFB had $35.3 billion in assets. As a result of the merger, each of the 78.7 million net outstanding shares of FFB common stock was converted into 1.35 shares of FUNC common stock, with cash being paid for fractional share interests. In addition, the 3.0 million net outstanding shares of FFB Series B Convertible Preferred Stock ("FFB Series B") were converted into a like number of shares of FUNC Series B Convertible Class A Preferred Stock ("FUNC Series B") having substantially identical terms as the FFB Series B, the 350,000 outstanding shares of FFB Series D Adjustable Rate Cumulative Preferred Stock ("FFB Series D") were converted into a like number of shares of FUNC Series D Adjustable Rate Cumulative Class A Preferred Stock ("FUNC Series D") having substantially identical terms as the FFB Series D, and the 3.0 million net outstanding FFB Depositary Receipts (each representing a 1/40th interest in a share of FFB Series F 10.64% Preferred Stock ("FFB Series F")) were converted into a like number of FUNC Depositary Receipts (each representing 1/40th interest in FUNC Series F 10.64% Class A Preferred Stock ("FUNC Series F")) having substantially identical terms as the FFB Series F. The terms of the FUNC Series B, FUNC Series D and FUNC Series F are set forth in FUNC's Articles of Amendment to its Articles of Incorporation (the "Amendment"), a copy of which is being filed as an exhibit to this report. A copy of a deposit agreement, dated as of January 1, 1996, between FUNC and First Union National Bank of North Carolina, as Depositary ("Deposit Agreement"), relating to the FUNC Depositary Receipts, is also being filed as an exhibit to this report. The foregoing discussion is qualified in its entirely by reference to the Amendment and the Deposit Agreement. In connection with the Merger, Anthony P. Terracciano, Juan Rodriguez Inciarte, Edward E. Barr, Arthur M. Goldberg, Frank M. Henry and Joseph Neubauer, who formally were directors of FFB, have been elected directors of FUNC by the FUNC Board of Directors. Mr. Terracciano, the former Chairman, President and Chief Executive Officer of FFB, has also been elected President of FUNC. The information set forth under "THE MERGER - Interests of Certain Persons" in the Joint Proxy Statement/Prospectus, dated September 5, 1995 and included in FUNC's Registration Statement No. 33-62307, is incorporated herein by reference as additional information in response to this Item. Item 7. Financial Statements and Exhibits. (a) Financial Statements. In response to this Item, the financial state- ments of FFB for the year ended December 31, 1994, are incorporated herein by reference in Exhibit (99)(a). (b) Pro Forma Financial Information. In response to this Item, certain pro forma financial information with respect to the Merger and certain other acquisitions for the period ended September 30, 1995, is incorporated herein by reference in Exhibit (99)(b). (c) Exhibits. Exhibit No. Description (2) Agreement and Plan of Merger, dated as of June 18, 1995, by and among FUNC, FFB and First Union Corporation of New Jersey. (Incorporated by reference to Exhibit (99) to FUNC's Current Report on Form 8-K dated June 21, 1995.) (4)(a) Articles of Amendment to the Registrant's Articles of Incorporation, relating to the shares of Registrant's Series B Convertible Class A Preferred Stock, Series D Adjustable Rate Cumulative Class A Preferred Stock and Series F 10.64% Class A Preferred Stock, issued in connection with the acquisition of FFB. (4)(b) Deposit Agreement, dated as of January 1, 1996, between FUNC and First Union National Bank of North Carolina, relating to the Registrant's Depositary Receipts, each representing a 1/40th interest in a share of Registrant's Series F 10.64% Class A Preferred Stock. (99)(a) Financial statements of FFB. (Incorporated by reference to Exhibit (99)(b) to FUNC's current Report on Form 8-K dated June 30, 1995.) (99)(b) Pro forma financial infor- mation. (Incorporated by reference to Exhibit (99)(b) to FUNC's 1995 Third Quarter Report on Form 10-Q.) SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. FIRST UNION CORPORATION Date: January 10, 1996 By: /s/ James H. Hatch ------------------------ James H. Hatch Senior Vice President and Corporate Controller (Principal Accounting Officer) EXHIBIT INDEX Exhibit No. Description (2) Agreement and Plan of Merger, dated as of June 18, 1995, by and among FUNC, FFB and First Union Corporation of New Jersey. (Incorporated by reference to Exhibit (99) to FUNC's Current Report on Form 8-K dated June 21, 1995.) (4)(a) Articles of Amendment to the Registrant's Articles of Incorporation, relating to the shares of Registrant's Series B Convertible Class A Preferred Stock, Series D Adjustable Rate Cumulative Class A Preferred Stock and Series F 10.64% Class A Preferred Stock, issued in connection with the acquisition of FFB. (4)(b) Deposit Agreement, dated as of January 1, 1996, between FUNC and First Union National Bank of North Carolina, relating to the Registrant's Depositary Receipts, each representing a 1/40th interest in a share of Registrant's Series F 10.64% Class A Preferred Stock. (99)(a) Financial statements of FFB. (Incorporated by reference to Exhibit (99)(b) to FUNC's current Report on Form 8-K dated June 30, 1995.) (99)(b) Pro forma financial infor- mation. (Incorporated by reference to Exhibit (99)(b) to FUNC's 1995 Third Quarter Report on Form 10-Q.) EX-4 2 EXHIBIT 4(A) ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF FIRST UNION CORPORATION The undersigned corporation hereby submits these Articles of Amendment for the purpose of amending its Articles of Incorporation: I. The name of the corporation is First Union Corporation. II. On December 19, 1995, pursuant to N.C. Gen. Stat. 55-6-02, the following amendment to the Articles of Incorporation of the corporation was duly adopted by the board of directors of the corporation (shareholder approval was not required because the action was taken before issuance of any shares of the series affected): There is added to the end of Article 4 a new Section FFB as follows: SECTION FFB There is hereby created three separate series of Class A Preferred Stock of the Corporation (the "FFB Series"), each of which shall have such relative rights, preferences and limitations as hereinafter set forth. For purposes of this Section FFB, the term "Preferred Stock" shall mean the FFB Series and such other series of Class A Preferred Stock as hereafter may be created which are on a parity with the FFB Series, which are designated as a series of FFB Series Preferred Stock in the resolutions creating such series and which in the aggregate, together with other outstanding FFB Series, do not exceed 10,000,000 shares. For purposes of this Section FFB, the term "Preferred Stock" does not refer to the 10,000,000 shares of preferred stock authorized in the first paragraph of Section 4 of the Articles of Incorporation of the Corporation. No shares of the Preferred Stock shall be issued for a consideration of less than $1.00. DESIGNATIONS OF SERIES B, D, AND F PREFERRED STOCK (1) SERIES B CONVERTIBLE CLASS A PREFERRED STOCK There is hereby established a series of Class A Preferred Stock which is designated "Series B Convertible Class A Preferred Stock" (hereinafter called "Series B" or "Series B Shares"). Each share of Series B shall be identical in all respects with the other shares of Series B. The number of shares which will constitute such series shall be 4,892,837. Shares of this series will have a stated value of $1.00 per share. A. DIVIDENDS. (1) The holders of Series B Shares shall be entitled to receive, when and as declared by the Board, but only out of funds legally available therefor, cumulative cash dividends at the annual rate of $2.15 per share, without interest, and no more, payable in quarter-annual installments on the 1st day of January, April, July, and October in each year commencing (commencing April 1, 1996), to shareholders of record on the respective dates, not exceeding fifty days preceding such dividend payment date, fixed for that purpose by the Board in advance of payment of each particular dividend. The first dividend payable on the Series B Shares after the original issue of the shares of Series B shall be cumulative from the last dividend payment date of the security for which the Series B shares are exchanged and shall include any arrearage on the security for which the Series B Shares are exchanged. (2) So long as any Series B Share remains outstanding, no dividend whatever shall be paid or declared and no other distribution made on any junior stock other than a dividend payable in junior stock, and no shares of junior stock shall be purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly (other than as a result of a reclassification of junior stock or the exchange or conversion of one junior stock for or into another junior stock, or other than through the use of the proceeds of a substantially contemporaneous sale of other junior stock) unless (i) all dividends on shares of the Preferred Stock of all series for all quarterly dividend periods ended prior to such action shall have been paid and (ii) all prior sinking fund requirements, if any, with respect to all series of the Preferred Stock shall have been complied with. Subject to the foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board may be declared and paid on any junior stock from time to time out of any funds legally available therefor, and the Series B Shares shall not be entitled to participate in any such dividends, whether payable in cash, stock or otherwise. No 1 dividends shall be paid or declared upon any shares of any class or series of stock of the Corporation ranking on a parity with the Series B Shares in the payment of dividends for any period unless at or prior to the time of such payment or declaration all dividends payable on the Series B Shares for all quarterly dividend periods ended prior to the date of such payment or declaration shall have been paid. B. LIQUIDATION RIGHTS. (1) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, then before any distribution or payment shall be made to the holders of any junior stock, the holders of Series B shall be entitled to be paid in full an amount equal to $25.00 per share (which amount is hereinafter referred to as the "liquidation amount"), together with accrued dividends to such distribution or payment date whether or not earned or declared. In the event that, upon any such voluntary or involuntary liquidation, dissolution or winding up, the available assets of the Corporation are insufficient to pay such liquidation amount on all outstanding Series B Shares and the corresponding amounts payable on all shares of other classes or series of stock of the Corporation ranking on a parity with the Series B Shares in the distribution of assets, then the holders of Series B and of all other such classes or series shall share ratably in any distribution of assets in proportion to the full amounts to which they would otherwise be respectively entitled. (2) If such payment shall have been made in full to all holders of shares of the Preferred Stock, the remaining assets of the Corporation shall be distributed among the holders of junior stock, according to their respective rights and preferences and in each case according to their respective number of shares. For the purposes of this Section B, the consolidation or merger of the Corporation with any other corporation shall not be deemed to constitute a liquidation, dissolution or winding up of the Corporation. C. REDEMPTION. Subject to Section E(3), the Corporation, at the option of the Board, may redeem the whole or any part of the shares of Series B at the time outstanding, at any time or from time to time, upon notice given as hereinafter specified, at $25.00 per share, together with accrued dividends to the redemption date. (1) Notice of every redemption of shares of Series B shall be given by publication at least once in a newspaper printed in the English language and customarily published on each business day and of general circulation in Philadelphia, Pennsylvania, such publication to be at least 30 days and not more than 60 days prior to the date fixed for redemption. Notice of every such redemption shall also be mailed by first class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed at their respective last addresses as they shall appear on the books of the Corporation. Such mailing shall be at least 30 days and not more than 60 days prior to the date fixed for redemption; but failure to mail such notice or any defect therein or in the mailing thereof shall not affect the validity of the proceedings for the redemption of any shares so to be redeemed. (2) In case of redemption of a part only of the shares of Series B at the time outstanding, the redemption may be either pro rata or by lot. The Board shall have full power and authority, subject to the provisions herein contained, to prescribe the terms and conditions upon which shares of Series B shall be redeemed from time to time. (3) If notice of redemption shall have been duly given or if the Corporation shall have given to the bank or trust company hereinafter referred to irrevocable and unconditional authorization and direction to give such notice at least 30 days and not more than 60 days prior to the date fixed for redemption (which date shall be not more than 60 days after the date of such authorization and direction), and if on or before the redemption date specified therein the funds necessary for such redemption shall have been deposited by the Corporation with such bank or trust company in trust with irrevocable instruction and authority, subject to Section C(4), to pay the redemption price to the holders of the shares of Series B called for redemption upon surrender of the certificate therefor, then, notwithstanding that any certificate for shares of Series B so called for redemption shall not have been surrendered for cancellation, from and after the time of such deposit, all shares of Series B so called for redemption shall no longer be deemed to be outstanding and all rights with respect to such shares shall forthwith cease and terminate, except only the right of the holders thereof to receive from such bank or trust company at any time after the close of business on the date fixed for redemption the funds so deposited, without interest, and the right to exercise, before the close of business on the date fixed for redemption, privileges of conversion, if any, not theretofore expiring. The aforesaid bank or trust company shall be organized and in good standing under the laws of the United States of America or the Commonwealth of Pennsylvania, shall be doing business in Philadelphia, Pennsylvania, shall have capital, surplus and undivided profits aggregating at least $25,000,000 according to its last published statement of condition, and shall be identified in the notice of redemption. Any interest accrued on such funds shall be paid to the Corporation from time to time. 2 (4) Any funds so set aside or deposited by the Corporation which shall not be required for such redemption because of the exercise of any right of conversion subsequent to the date of such deposit shall be released or repaid to the Corporation forthwith. Any funds so set aside or deposited, as the case may be, and unclaimed at the end of three years from such redemption date shall, to the extent permitted by law, be released or repaid to the Corporation, after which repayment the holders of the shares so called for redemption shall look only to the Corporation for payment thereof. D. CONVERSION RIGHTS (1) Subject to the provisions for adjustment hereinafter set forth, each share of Series B shall be convertible, at the option of the holder thereof, upon surrender, at the principal office of the Corporation, or at such other office or offices as the Board may designate, of the certificate for the share of Series B so to be converted, duly endorsed or assigned to the Corporation in blank, into 1.0531 validly issued, fully paid and nonassessable shares of common stock of the Corporation. The right to convert shares of Series B called for redemption shall terminate at the close of business on the date fixed for redemption. Upon conversion no allowance or adjustment shall be made for dividends on either class of stock. (2) The number of shares of common stock and the number of any other shares of the Corporation, if any, into which each share of Series B is convertible shall be adjusted from time to time as follows: (a) In case the Corporation shall (i) pay a dividend on its common stock in shares of common stock, (ii) subdivide its outstanding common stock, (iii) combine its outstanding common stock into a smaller number of shares of common stock, or (iv) issue by reclassification of its common stock (whether pursuant to a merger or consolidation or otherwise) any other shares of the Corporation, then the holder of each share of Series B shall be entitled to receive upon the conversion of such share the number of shares of the Corporation which he would have owned or have been entitled to receive after the happening of any of the events described above had such share of Series B been converted immediately prior to the happening of such event. Such adjustment shall be made whenever any of the events listed above shall occur. Any adjustment made pursuant to this paragraph (a) shall become effective retroactively with respect to conversions made subsequent to the record date in the case of a dividend, and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification; (b) In case the Corporation shall issue rights or warrants to all holders of its common stock as such entitling them (for a period expiring within 90 days after the record date for the determination of shareholders entitled to receive such rights or warrants) to subscribe for or purchase shares of common stock at a price per share less than the current market price per share (as defined in Section D(3) below) on such record date, then in each such case the number of shares of common stock into which each share of Series B shall thereafter be convertible shall be determined by multiplying the number of shares of common stock into which such share of Series B was theretofore convertible by a fraction, of which the numerator shall be the number of shares of common stock outstanding on the date of issuance of such rights or warrants plus the number of additional shares of common stock so offered for subscription or purchase, and of which the denominator shall be the number of shares of common stock outstanding on the date of issuance of such rights or warrants plus the number of shares of common stock which the aggregate offering price of the total number of shares so offered for subscription or purchase would purchase at such current market price. For the purposes of this paragraph (b), the issuance of rights or warrants to subscribe for or purchase securities convertible into common stock shall be deemed to be the issuance of rights or warrants to purchase the shares of common stock into which such securities are convertible at an aggregate offering price equal to the aggregate offering price of such securities plus the minimum aggregate amount (if any) payable upon conversion of such securities into shares of common stock. Such adjustment shall be made whenever any such rights or warrants are issued, and shall become effective retroactively with respect to conversions made subsequent to the record date for the determination of shareholders entitled to receive such rights or warrants; (c) In case the Corporation shall distribute to holders of shares of its common stock (whether pursuant to a merger or consolidation or otherwise) evidence of its indebtedness or assets (including securities issued by the Corporation or by any other entity, but excluding (x) any shares referred to in paragraph (a) above, (y) any rights or warrants referred to in paragraph (b) above and (z) cash distributions after January 1, 1996 not exceeding (i) the aggregate net earnings of the Corporation and its subsidiaries on a consolidated basis after such date determined in accordance with generally accepted accounting principles, less (ii) dividends paid after such date on shares other than common stock), then in each such case the number of shares of common stock into which each share of Series B shall thereafter be convertible shall be determined by multiplying the number of shares of common stock into which such share of Series B was theretofore convertible by a fraction, of which the numerator shall be the current market price per share of common stock (as defined in Section D(3) below) on the record date for the determination of shareholders entitled to receive such distribution, and of which the denominator shall be such current market price per share of common stock less the fair value (as 3 determined by a resolution of the Board of the Corporation filed with each transfer agent for the Series B, which determination shall be conclusive) of the portion of the evidences of indebtedness or assets or rights to subscribe applicable to one share of common stock. Such adjustment shall be made whenever any such distribution is made, and shall become effective retroactively with respect to conversions made subsequent to the record date for the determination of shareholders entitled to receive such distribution; and (d) In case the Corporation shall issue shares of common stock to holders of shares of common stock pursuant to any dividend reinvestment plan at a price less than 95% of the current market price per share of common stock (as defined in Section D(3) below) on the date of issuance of such shares pursuant to such dividend reinvestment plan, then in each such case the number of shares of common stock into which each share of Series B shall thereafter be convertible shall be determined by multiplying the number of shares of common stock into which such share of Series B was theretofore convertible by a fraction whose numerator shall be the number of shares of common stock outstanding on the date of issuance of such shares plus the number of additional shares of common stock issued pursuant to such dividend reinvestment plan and whose denominator shall be the number of shares of common stock outstanding on such date of issuance plus the number of shares of common stock which the aggregate purchase price of shares being purchased on such date of issuance pursuant to such dividend reinvestment plan would purchase at such current market price. Such adjustment shall be made whenever such shares are issued and shall be effective as of the date immediately after such date of issuance. (3) For the purpose of any computation under Section D(2) above, the current market price per share of common stock on any date shall be deemed to be the average of the daily Closing Prices for 20 consecutive Trading Days selected by the Corporation commencing not more than 30 Trading Days before the date in question. The term "Closing Price" on any day shall mean the reported last sale price per share of common stock regular way on such day or, in case no such sale takes place on such day, the average of the reported closing bid and asked prices regular way, in each case on the principal national securities exchange on which the common stock is listed or admitted to trading, or, if the common stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as reported by the National Association of Securities Dealers' Automated Quotation System, or, if not so reported, as reported by the National Quotation Bureau, Incorporated, or any successor thereof, or, if not so reported, the average of the closing bid and asked prices as furnished by any member of the National Association of Securities Dealers, Inc. selected from time to time by the Corporation for that purpose; and the term "Trading Day" shall mean a day on which the principal national securities exchange on which the common stock is listed or admitted to trading is open for the transaction of business or, if the common stock is not listed or admitted to trading on any national securities exchange, a Monday, Tuesday, Wednesday, Thursday, or Friday on which banking institutions in the City of Philadelphia, Commonwealth of Pennsylvania are not authorized or obligated by law or executive order to close. (4) No adjustment in the conversion rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this Section D(4)) would require an increase or decrease of at least 1% in the number of shares of common stock into which each share of Series B is then convertible; PROVIDED, HOWEVER, that any adjustments which by reason of this Section D(4) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section D shall be made to the nearest one-hundred thousandth of a share. (5) The Board may make such adjustments in the conversion rate, in addition to those required by this Section D, as shall be determined by the Board, as evidenced by a Board resolution, to be advisable in order to avoid, so far as practicable, taxation to the recipients of any dividend of stock or stock rights or any event treated as such for Federal income tax purposes. The Board shall have the power to resolve any ambiguity or correct any error in this Section D, in a manner consistent with the intent of the provisions of this Section D, and its action in so doing, as evidenced by a Board resolution, shall be final and conclusive. (6) In the event that at any time, as a result of an adjustment made pursuant to clause (a) or (c) of Section D(2) above, the holder of any shares of Series B thereafter surrendered for conversion shall become entitled to receive any shares of capital stock of the Corporation other than common stock, thereafter the number of such shares so receivable upon conversion of such shares of Series B shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the common stock contained in paragraphs (a) through (d) inclusive of Section D(2) above, and the other provisions of this Section D with respect to the common stock shall apply on like terms to any such other shares. (7) Whenever any adjustment is required in the number of shares of common stock into which each share of Series B is convertible, the Corporation shall forthwith (i) file with each Transfer Agent of the Series B a statement of the Corporation's 4 independent accountants describing in reasonable detail the adjustment and the method of calculation used, and (ii) cause a copy of such statement to be mailed to the holders of record of the Series B as of the effective date of such adjustment. The certificate of any independent firm of public accountants of recognized standing selected by the Board shall be presumptive evidence of the correctness of any computation made under this Section D. (8) The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of common stock, for the purpose of issuance upon conversion of the Series B, the full number of shares of common stock then deliverable upon the conversion of all shares of Series B then outstanding. (9) The Corporation will pay any and all taxes that may be payable in respect of the issuance or delivery of shares of common stock on conversion of Series B Shares. The Corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of shares of common stock in a name other than that in which the Series B Shares so converted were registered, and no such issuance or delivery shall be made unless and until the person requesting such issuance has paid to the Corporation the amount of any such tax or has established to the satisfaction of the Corporation that such tax has been paid or is not payable. (10) For the purpose of this Section D, the term "common stock" shall include any shares of the Corporation of any class or series which has no preference or priority in the payment of dividends or in the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation and which is not subject to redemption by the Corporation. However, shares of common stock issuable upon conversion of Series B Shares shall include only shares of the class designated as common stock as of the original date of issuance of the Series B Shares, or shares of the Corporation of any classes or series resulting from any reclassification or reclassifications thereof and which have no preference or priority in the payment of dividends or in the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation and which are not subject to redemption by the Corporation, PROVIDED that if at any time there shall be more than one such resulting class or series, the shares of such class or series then so issuable shall be substantially in the proportion which the total number of shares of such class or series resulting from all such reclassifications bears to the total number of shares of all such classes and series resulting from all such reclassifications. (11) No fractional shares or scrip representing fractional shares shall be issued upon the conversion of Series B. If any such conversion would otherwise require the issuance of a fractional share, an amount equal to such fraction multiplied by the Closing Price of a share issuable (determined as provided in Section D(3) above) on the day of conversion shall be paid to the holder in cash by the Corporation. E. VOTING RIGHTS. The holders of Series B Shares shall vote on all matters on which the holders of common stock vote, voting together with the common stock as a single class. For purposes of such voting, each holder of Series B Shares shall be entitled to one-half of such number of votes as is equal to the number of shares of common stock into which the Series B Shares being voted by such holder is then convertible. In addition to such voting rights, the holders of Series B Shares shall have the voting rights set forth in this Section E and as provided by applicable law. For purposes of determining the voting rights of holders of Series B in relation to those of holders of other series of the Preferred Stock, each holder of Series B will be entitled to one vote for each $25.00 of involuntary liquidation preference in respect of such series. (1) If and whenever six quarterly dividends (whether or not consecutive) payable on any series of the Preferred Stock shall be in arrears in whole or in part whether or not earned or declared, the number of directors then constituting the Board shall be increased by two and the holders of shares of Series B, together with the holders of shares of every other series of the Preferred Stock similarly entitled to vote for the election of two additional directors, voting separately as a class, regardless of series, shall be entitled to elect the two additional directors at any annual meeting of shareholders or special meeting held in place thereof, or at a special meeting of the holders of such series of the Preferred Stock called as hereinafter provided. (a) Whenever all arrears in dividends on shares of the Preferred Stock then outstanding shall have been paid and dividends thereon for the current quarterly dividend period shall have been paid or declared and set apart for payment, then the right of the holders of such series of the Preferred Stock to elect two additional directors shall cease (but subject always to the same provisions for the vesting of voting rights in the case of any similar future arrearages in dividends), and the terms of office of all persons elected as directors by the holders of such series of the Preferred Stock shall terminate on the date of the first meeting of shareholders following the date of payment, or the date of declaration and setting aside for payment, and the number of members of the Board shall be reduced accordingly. 5 (b) At any time after voting power shall have been so vested in the holders of the shares of Series B and of any other such series of the Preferred Stock, the secretary of the Corporation may, and upon the written request of any holder of Series B (addressed to the secretary at the principal office of the Corporation) shall, call a special meeting of the holders of Series B and of such other series of the Preferred Stock for the election of the two directors to be elected by them as herein provided, the call to be made by notice similar to that provided in the by-laws for a special meeting of the shareholders or as required by law. If any special meeting required to be called as above provided shall not be called by the secretary within 20 days after receipt of the request, then any holder of shares of Series B may call the meeting, upon the notice above provided, and for that purpose shall have access to the stock books of the Corporation. (c) The directors elected at any such special meeting shall hold office until the next annual meeting of shareholders, or special meeting held in place thereof, and until their successors shall have been elected and qualified, if those offices shall not have previously terminated as above provided. In case any vacancy shall occur among the directors elected by the holders of shares of such series of the Preferred Stock, a successor shall be elected by the Board to serve until the next annual meeting of shareholders, or special meeting held in place thereof, and until their successors shall have been elected and qualified, upon the nomination of the then remaining director elected by the holders of such series or the successor of the remaining director. (d) At any meeting of shareholders held while holders of the Preferred Stock have the voting power to elect an additional two directors, the holders of a majority of the outstanding shares of the Preferred Stock so entitled to vote who are present in person or by proxy shall be sufficient to constitute a quorum for the election of the two additional directors as herein provided. (e) The two additional directors elected by the holders of the Preferred Stock shall hold office only until the next annual meeting of shareholders, and until their successors shall have been elected and qualified, unless their term of office is earlier terminated as provided herein. (f) Any new series of the Preferred Stock shall be entitled to participate with this Series and any other series so entitled in voting for the election of the two additional directors to the extent and under the conditions set forth in the resolutions creating such series. (2) So long as any shares of Series B are outstanding, in addition to any other vote or consent of shareholders required by law or by the Articles of Incorporation, the consent of the holders of at least sixty-six and two-thirds percent of the shares of Series B and of all other series of the Preferred Stock similarly entitled to vote upon the matter then being considered, acting as a single class regardless of series, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or validating: (a) Any amendment, alteration or repeal of any of the provisions of the Articles of Incorporation (whether pursuant to a merger or consolidation or otherwise) or of the by-laws of the Corporation which affects adversely the voting rights, designations, preferences, qualifications, privileges, limitations, conversion rights or other special rights, if any, of the holders of shares of the Preferred Stock; PROVIDED, HOWEVER, that, for purposes of this paragraph (a), the amendment of the provisions of the Articles of Incorporation so as to authorize or create, or to increase the authorized amount of, any junior stock or any shares of any class ranking on a parity with the Preferred Stock shall not be deemed to affect adversely the voting rights, designations, preferences, qualifications, privileges, limitations, conversion rights or other special rights, if any, of the holders of the Preferred Stock, and PROVIDED FURTHER that if any such amendment, alteration or repeal would affect adversely any voting rights, designations, preferences, qualifications, privileges, limitations, conversion rights or other special rights, if any, of the holders of the Series B which are not enjoyed by some or all of the other series otherwise entitled to vote in accordance with this paragraph (2), the consent of the holders of at least sixty-six and two-thirds percent of the Series B and of all other series, if any, similarly affected, similarly given, shall be required in lieu of the consent of the holders of at least sixty-six and two thirds percent of the shares of Series B and of all other series of the Preferred Stock otherwise entitled to vote in accordance with this paragraph (2); or (b) The authorization or creation of, or the increase in the authorized amount of, any shares of any class or series, or any security convertible into shares of any class or series, ranking prior to the Preferred Stock in the distribution of assets on any liquidation, dissolution, or winding up of the Corporation or in the payment of dividends; PROVIDED, HOWEVER, that no such consent of the holders of Series B pursuant to paragraphs 2(a) and 2(b) above shall be required if, at or prior to the time when any such action is to take effect or when the issuance of any such priority shares or convertible securities is to be made, as the case may be, provision is made pursuant to Section C hereof for the redemption of all shares of Series B at the time outstanding. 6 (3) If dividends for all past quarter yearly dividend periods shall not have been paid on all outstanding shares of Series B, the consent of the holders of at least sixty-six and two-thirds percent of the then outstanding shares of Series B, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, shall be necessary as a condition to the Corporation's right to purchase or redeem less than all then outstanding shares of Series B. (4) So long as any shares of Series B are outstanding, in addition to any other vote or consent of shareholders required by law or by the Articles of Incorporation, the consent of the holders of at least a majority of Series B and of all other series of the Preferred Stock similarly entitled to vote upon the matter then being considered, acting as a single class regardless of series, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or validating any increase in the authorized number of shares of the Preferred Stock (whether pursuant to a merger or consolidation or otherwise), or the authorization or creation of, or the increase in the authorized amount of, any shares of any class or any security convertible into shares of any class, ranking on a parity with the Preferred Stock in the distribution of assets on any liquidation, dissolution or winding up of the Corporation or in the payment of dividends; PROVIDED, HOWEVER, that no such consent shall be required if, at or prior to the time such increase, authorization or creation of parity shares is to be made, provision is made pursuant to Section C hereof for the redemption of all Series B Shares at the time outstanding. (5) So long as any shares of Series B are outstanding, the Corporation shall not issue any shares of the preferred stock authorized in the first paragraph of Section 4 of the Articles of Incorporation of the Corporation and shall not have issued and outstanding at any time in the aggregate more than 10,000,000 shares of Class A Preferred Stock, unless, prior thereto, the Corporation obtains, in addition to any other vote or consent of shareholders required by law or by the Articles of Incorporation, the consent of a majority of Series B, acting as a single class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for that purpose. F. DEFINITIONS. As used herein with respect to the Series B, D and F Shares, the following terms shall have the following meanings: (1) The term "junior stock" shall mean the common stock, and any other class or series of shares of the Corporation hereafter authorized over which the Series B, D and F have preference or priority in the payment of dividends and in the distribution of assets on any liquidation, dissolution or winding up of the Corporation. (2) The term "accrued dividends", with respect to any share of any class or series shall mean an amount computed at the annual dividend rate for the class or series of which the particular share is a part, from the date on which dividends on such share became cumulative to and including the date on which such dividends are to be accrued, less the aggregate amount of all dividends theretofore paid thereon. The amount accrued subsequent to the most recent full quarterly dividend period shall be computed by dividing the quarterly dividend payment by the actual number of days in the uncompleted quarter, and thereafter multiplying this figure by the number of days in such quarter up to and including the date to which dividends are to be accrued. G. The Series B Shares shall not have any relative, participating, optional or other special rights and powers other than as set forth herein. Unless these Articles of Incorporation provide otherwise, each series of the Preferred Stock shall be on a parity with each other series with respect to dividends and liquidation. 7 (2) SERIES D ADJUSTABLE RATE CUMULATIVE CLASS A PREFERRED STOCK There is hereby established a series of Class A Preferred Stock which is designated "Series D Adjustable Rate Class A Preferred Stock" (referred to herein as "Adjustable Class A Preferred Stock"). Each share of Adjustable Class A Preferred Stock shall be identical in all respects with the other shares of Adjustable Class A Preferred Stock. The number of shares which will constitute such series shall be 350,000. Shares of this series will have a stated value of $100.00 per share. A. DIVIDEND RATE. (1) Dividend rates on the shares of this Series shall be: (i) for the period (the "Initial Dividend Period") from the date of their original issue through the day prior to the first day of the succeeding Quarterly Dividend Period (as hereinafter defined) at the per annum rate equal to the rate applicable to the security for which the shares of the Adjustable Class A Preferred Stock are exchanged during the dividend period ending immediately prior to the issuance of the Adjustable Class A Preferred Stock, and (ii) for each quarterly dividend period (hereinafter referred to as a "Quarterly Dividend Period" and the Initial Dividend Period or in any Quarterly Dividend Period being hereinafter individually referred to as a "Dividend Period" and collectively referred to as "Dividend Periods") thereafter, which quarterly dividend periods shall commence on January 2, April 2, July 2 and October 2 in each year and shall end on and include the day next preceding the first day of the next quarterly dividend period, at a rate per annum of the stated value thereof equal to the Applicable Rate in respect of such Quarterly Dividend Period. Such dividends shall be cumulative from the last dividend payment date of the security for which the shares of the Adjustable Class A Preferred Stock are exchanged, shall include any arrearage on the security for which the Adjustable Class A Preferred Stock shares are exchanged, and shall be payable, when and as declared by the Board, on January 1, April 1, July 1 and October 1 of each year commencing on the last day of the Initial Dividend Period. Each such dividend shall be paid to the holders of record of shares of this Series as they appear on the stock register of the Corporation on such record date, not exceeding 60 days preceding the payment date thereof, as shall be fixed by the Board. Dividends on account of arrears for any past Dividend Periods may be declared and paid at any time, without reference to any regular dividend payment date, to holders of record on such date, not exceeding 60 days preceding the payment date thereof, as may be fixed by the Board. (2) Except as provided below in this paragraph, the "Applicable Rate" for any Quarterly Dividend Period shall be (a) .75% (the "Basic Percentage") less than (b) the highest of the Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Twenty Year Constant Maturity Rate (each as hereinafter defined) for such Dividend Period. In the event that the Corporation determines in good faith for any reason (i) that any one of the Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Twenty Year Constant Maturity Rate cannot be determined for any Quarterly Dividend Period, then the Applicable Rate for such Dividend Period shall be .75% (the "First Supplemental Percentage") less than the higher of whichever two of such Rates can be so determined; (ii) that only one of the Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Twenty Year Constant Maturity Rate can be determined for any Quarterly Dividend Period, then the Applicable Rate for such Dividend Period shall be .75% (the "Second Supplemental Percentage") less than whichever such Rate can be so determined; or (iii) that none of the Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Twenty Year Constant Maturity Rate can be determined for any Quarterly Dividend Period, then the Applicable Rate in effect for the preceding Dividend Period shall be continued for such Dividend Period. Anything herein to the contrary notwithstanding, the Applicable Rate for any Quarterly Dividend Period shall in no event be less than 6.25% (the "Minimum Dividend Rate") per annum or greater than 12.75% (the "Maximum Dividend Rate") per annum. (3) Except as provided below in this paragraph, the "Treasury Bill Rate" for each Quarterly Dividend Period shall be the arithmetic average of the two most recent weekly per annum market discount rates (or the one weekly per annum market discount rate, if only one such rate shall be published during the relevant Calendar Period as provided below) for three-month U.S. Treasury Bills, as published weekly by the Federal Reserve Board during the Calendar Period immediately prior to the last ten calendar days immediately preceding the January 1, April 1, July 1 or October 1, as the case may be, prior to the Quarterly Dividend Period for which the dividend rate on this Series is being determined. In the event that the Federal Reserve Board does not publish such a weekly per annum market discount rate during such Calendar Period, then the Treasury Bill Rate for such Dividend Period shall be the arithmetic average of the two most recent weekly per annum market 8 discount rates (or the one weekly per annum market discount rate, if only one such rate shall be published during the relevant Calendar Period as provided below) for three-month U.S. Treasury Bills, as published weekly during such Calendar Period by any Federal Reserve Bank or by any U.S. Government department or agency selected by the Corporation. In the event that a per annum market discount rate for three-month U.S. Treasury Bills shall not be published by the Federal Reserve Board or by any Federal Reserve Bank or by any U.S. Government department or agency during such Calendar Period, then the Treasury Bill Rate for such Dividend Period shall be the arithmetic average of the two most recent weekly per annum market discount rates (or the one weekly per annum market discount rate, if only one such rate shall be published during the relevant Calendar Period as provided below) for all of the U.S. Treasury Bills then having maturities of not less than 80 nor more than 100 days, as published during such Calendar Period by the Federal Reserve Board or, if the Federal Reserve Board shall not publish such rates, by any Federal Reserve Bank or by any U.S. Government department or agency selected by the Corporation. In the event that the Corporation determines in good faith that for any reason no such U.S. Treasury Bill rates are published as provided above during such Calendar Period, then the Treasury Bill Rate for such Dividend Period shall be the arithmetic average of the per annum market discount rates based upon the closing bids during such Calendar Period for each of the issues of marketable non-interest bearing U.S. Treasury securities with a maturity of not less than 80 nor more than 100 days from the date of each such quotation, as chosen and quoted daily for each business day in New York City (or less frequently if daily quotations shall not be generally available) to the Corporation by at least three recognized dealers in U.S. Government securities selected by the Corporation. In the event that the Corporation determines in good faith that for any reason the Corporation cannot determine the Treasury Bill Rate for any Quarterly Dividend Period as provided above in this paragraph, the Treasury Bill Rate for such Dividend Period shall be the arithmetic average of the per annum market discount rates based upon the closing bids during such Calendar Period for each of the issues of marketable interest-bearing U.S. Treasury securities with a maturity of not less than 80 nor more than 100 days, as chosen and quoted daily for each business day in New York City (or less frequently if daily quotations shall not be generally available) to the Corporation by at least three recognized dealers in U.S. Government securities selected by the Corporation. (4) Except as provided below in this paragraph, the "Ten Year Constant Maturity Rate" for each Quarterly Dividend Period shall be the arithmetic average of the two most recent weekly per annum Ten Year Average Yields (or the one weekly per annum Ten Year Average Yield, if only one such Yield shall be published during the relevant Calendar Period as provided below), as published weekly by the Federal Reserve Board during the Calendar Period immediately prior to the last ten calendar days immediately preceding the January 1, April 1, July 1 or October 1, as the case may be, prior to the Quarterly Dividend Period for which the dividend rate on this Series is being determined. In the event that the Federal Reserve Board does not publish such a weekly per annum Ten Year Average Yield during such Calendar Period, then the Ten Year Constant Maturity Rate for such Dividend Period shall be the arithmetic average of the two most recent weekly per annum Ten Year Average Yields (or the one weekly per annum Ten Year Average Yield, if only one such Yield shall be published during the relevant Calendar Period as provided below), as published weekly during such Calendar Period by any Federal Reserve Bank or by any U.S. Government department or agency selected by the Corporation. In the event that a per annum Ten Year Average Yield shall not be published by the Federal Reserve Board or by any Federal Reserve Bank or by any U.S. Government department or agency during such Calendar Period, then the Ten Year Constant Maturity Rate for such Dividend Period shall be the arithmetic average of the two most recent weekly per annum average yields to maturity (or the one weekly average yield to maturity, if only one such yield shall be published during the relevant Calendar Period as provided below) for all of the actively traded marketable U.S. Treasury fixed interest rate securities (other than Special Securities) then having maturities of not less than eight nor more than twelve years, as published during such Calendar Period by the Federal Reserve Board or, if the Federal Reserve Board shall not publish such yields, by any Federal Reserve Bank or by any U.S. Government department or agency selected by the Corporation. In the event that the Corporation determines in good faith that for any reason the Corporation cannot determine the Ten Year Constant Maturity Rate for any Quarterly Dividend Period as provided above in this paragraph, then the Ten Year Constant Maturity Rate for such Dividend Period shall be the arithmetic average of the per annum average yields to maturity based upon the closing bids during such Calendar Period for each of the issues of actively traded marketable U.S. Treasury fixed interest rate securities (other than Special Securities) with a final maturity date not less than eight nor more than twelve years from the date of each such quotation, as chosen and quoted daily for each business day in New York City (or less frequently if daily quotations shall not be generally available) to the Corporation by at least three recognized dealers in U.S. Government Securities selected by the Corporation. (5) Except as provided below in this paragraph, the "Twenty Year Constant Maturity Rate" for each Quarterly Dividend Period shall be the arithmetic average of the two most recent weekly per annum Twenty Year Average Yields (or the one weekly per annum Twenty Year Average Yield, if only one such Yield shall be published during the relevant Calendar Period as provided below), as published weekly by the Federal Reserve Board during the Calendar Period immediately prior to the last ten calendar days immediately preceding the January 1, April 1, July 1 or October 1, as the case may be, prior to the 9 Quarterly Dividend Period for which the dividend rate on this Series is being determined. In the event that the Federal Reserve Board does not publish such a weekly per annum Twenty Year Average Yield during such Calendar Period, then the Twenty Year Constant Maturity Rate for such Dividend Period shall be the arithmetic average of the two most recent weekly per annum Twenty Year Average Yields (or the one weekly per annum Twenty Year Average Yield, if only one such Yield shall be published during the relevant Calendar Period as provided below), as published weekly during such Calendar Period by any Federal Reserve Bank or by any U.S. Government department or agency selected by the Corporation. In the event that a per annum Twenty Year Average Yield shall not be published by the Federal Reserve Bank or by any U.S. Government department or agency during such Calendar Period, then the Twenty Year Constant Maturity Rate for such Dividend Period shall be the arithmetic average of the two most recent weekly per annum average yields to maturity (or the one weekly average yield to maturity, if only one such yield shall be published during the relevant Calendar Period as provided below) for all of the actively traded marketable U.S. Treasury fixed interest rate securities (other than Special Securities) then having maturities of not less than eighteen nor more than twenty-two years, as published during such Calendar Period by the Federal Reserve Board or, if the Federal Reserve Board shall not publish such yields, by any Federal Reserve Bank or by any U.S. Government department or agency selected by the Corporation. In the event that the Corporation determines in good faith that for any reason the Corporation cannot determine the Twenty Year Constant Maturity Rate for any Quarterly Dividend Period as provided above in this paragraph, then the Twenty Year Constant Maturity Rate for such Dividend Period shall be the arithmetic average of the per annum average yields to maturity based upon the closing bids during such Calendar Period for each of the issues of actively traded marketable U.S. Treasury fixed interest rate securities (other than Special Securities) with a final maturity date not less than eighteen nor more than twenty-two years from the date of each such quotation, as chosen and quoted daily for each business day in New York City (or less frequently if daily quotations shall not be generally available) to the Corporation by at least three recognized dealers in U.S. Government securities selected by the Corporation. (6) The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Twenty Year Constant Maturity Rate shall each be rounded to the nearest five hundredths of a percentage point. (7) The Applicable Rate with respect to each Quarterly Dividend Period will be calculated as promptly as practicable by the Corporation according to the appropriate method described herein. The mathematical accuracy of each such calculation will be confirmed in writing by independent accountants of recognized standing. The Corporation will cause each Applicable Rate to be published in a newspaper of general circulation in New York City prior to the commencement of the new Quarterly Dividend Period to which it applies and will cause notice of such Applicable Rate to be enclosed with the dividend payment checks next mailed to the holders of shares of this Series. (8) For purposes of this Section A, the term (i) "Calendar Period" shall mean a period of 14 calendar days; (ii) "Special Securities" shall mean securities which can, at the option of the holder, be surrendered at face value in payment of any Federal estate tax or which provide tax benefits to the holder and are priced to reflect such tax benefits or which were originally issued at a deep or substantial discount; (iii) "Ten Year Average Yield" shall mean the average yield to maturity for actively traded marketable U.S. Treasury fixed interest rate securities (adjusted to constant maturities of ten years); and (iv) "Twenty Year Average Yield" shall mean the average yield to maturity for actively traded marketable U.S. Treasury fixed interest rate securities (adjusted to constant maturities of 20 years). (9) No full dividends shall be declared or paid or set apart for payment on the Preferred Stock of any series ranking, as to dividends, on a parity with or junior to this Series for any period unless full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on this Series for all dividend payment periods terminating on or prior to the date of payment of such full cumulative dividends. When dividends are not paid in full, as aforesaid, upon the shares of this Series and any other series of the Preferred Stock ranking on a parity as to dividends with this Series, all dividends declared upon shares of this Series and any other series of the Preferred Stock ranking on a parity as to dividends with this Series shall be declared pro rata so that the amount of dividends declared per share on this Series and such other series of the Preferred Stock shall in all cases bear to each other the same ratio that accrued dividends per share on the shares of this Series and such other series of the Preferred Stock bear to each other. Holders of shares of this Series shall not be entitled to any dividend, whether payable in cash, property or stock, in excess of full cumulative dividends, as herein provided, on this Series. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on this Series which may be in arrears. 10 (10) So long as any shares of this Series are outstanding, no dividends (other than dividends or distributions paid in shares of, or options, warrants or rights to subscribe for or purchase shares of common stock or any other stock ranking junior to this Series as to dividends and upon liquidation and other than as provided in paragraph (9) of this Section A) shall be declared or paid or set aside for payment or other distribution declared or made upon the common stock or upon any other stock ranking junior to or on a parity with this Series as to dividends or upon liquidation, nor shall any common stock nor any other stock of the Corporation ranking junior to or on a parity with this Series as to dividends or upon liquidation be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Corporation (except by conversion into or exchange for stock of the Corporation ranking junior to this Series as to dividends and upon liquidation) unless, in each case, the full cumulative dividends on all outstanding shares of this Series shall have been paid for all past dividend payment periods. (11) Dividends payable on this Series for each full Quarterly Dividend Period shall be computed by annualizing the Applicable Rate and dividing by four. Dividends payable on this Series for any period shorter or longer than a full Quarterly Dividend Period, and for the Initial Dividend Period, shall be computed on the basis of 30-day months, a 360-day year and the actual number of days elapsed in the period. B. REDEMPTION. (1) Except as provided in subparagraph (3) of this Section B, the shares of this Series shall not be redeemable prior to March 31, 1988 (the "Optional Redemption Date"). On and after the Optional Redemption Date, the Corporation, at its option, may redeem shares of this Series, as a whole or in part, at any time or from time to time, at a redemption price (i) in the case of any redemption on a redemption date occurring on or after the Optional Redemption Date, and through March 31, 1993 (the "Subsequent Optional Redemption Date"), of $103.00, and (ii) in the case of any redemption on a date occurring after the Subsequent Optional Redemption Date, of $100.00 per share, plus in each case, accrued and unpaid dividends thereon to the date fixed for redemption. (2) In the event that fewer than all the outstanding shares of this Series are to be redeemed, the number of shares to be redeemed shall be determined by the Board and the shares to be redeemed shall be determined by lot or pro rata as may be determined by the Board or by any other method as may be determined by the Board in its sole discretion to be equitable. (3) Notwithstanding the provisions of subparagraph (1) of this Section B, the Corporation, at its option, may redeem all, but not less than all, of the outstanding shares of this Series if the holders of the shares of this Series shall be entitled to vote upon or consent to a merger or consolidation of the Corporation as provided in Section D and all of the following conditions have been satisfied: (i) the Corporation shall have requested the vote or consent of the holders of the shares of this Series to the consummation of such merger or consolidation stating in such request that failing the requisite favorable vote or consent the Corporation will have the option to redeem the shares of this Series, (ii) the Corporation shall not have received the favorable vote or consent requisite to the consummation of the transaction within 60 days after making such written request (which shall be deemed to have been made upon the mailing of the notice of any meeting of holders of the shares of this Series to vote upon granting such consent), and (iii) such transaction shall be consummated on the date fixed for such redemption, which date shall be no more than one year after such request is made. Any such redemption shall be on notice as aforesaid (and on any additional notice in accordance with subparagraph 2 of this Section B) at the redemption price of $105.00 per share, plus accrued and unpaid dividends thereon, if any, to the date fixed for redemption. (4) In the event the Corporation shall redeem shares of this Series, notice of such redemption shall be given by first class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the redemption date, to each holder of record of the shares to be redeemed, at such holder's address as the same appears on the stock register of the Corporation. Each such notice shall state: (i) the redemption date; (ii) the number of shares of this Series to be redeemed and, if fewer than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from such holder; (iii) the redemption price; (iv) the place or places where certificates for such shares are to be surrendered for payment of the redemption price; and (v) that dividends on the shares to be redeemed will cease to accrue on such redemption date. (5) If, on or prior to the date fixed for such redemption, the Corporation shall deposit with any bank or trust company in the States of New Jersey or New York as a trust fund a sum sufficient to redeem the shares of this Series thus called for redemption, with irrevocable instructions and authority to such bank or trust company to pay, on and after the date fixed for redemption, the redemption price of the shares of this Series thus called for redemption to the respective holders thereof upon the surrender of their share certificates, then from and after the date fixed for redemption, the shares of this Series so called shall be deemed to be redeemed, and dividends on those shares shall cease to accrue after the date fixed for redemption. The deposit shall be deemed to constitute full payment for the shares of this Series thus called for redemption to their holders, and 11 from and after the date of such deposit such shares shall be deemed to be no longer outstanding, and the holders thereof (to whom notice has been given in accordance with paragraph (4) of this Section B) shall cease to be shareholders of the Corporation with respect to such shares and shall have no rights with respect thereto except the right to receive from the bank or trust company payment of the redemption price of the shares without interest upon surrender of their certificates therefor. No interest shall be allowed or paid to the holders of the redeemed shares of the Series on the funds so deposited, and any such interest earned thereon shall be paid by such bank or trust company from time to time on demand to the Corporation. In case fewer than all the shares represented by a stock certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without cost to the holder thereof. (6) Any shares of this Series which shall at any time have been redeemed shall, after such redemption, have the status of authorized but unissued shares of Class A Preferred Stock of the Corporation. (7) Notwithstanding the foregoing provisions of this Section B, if any dividends on this Series are in arrears, no shares of this Series shall be redeemed unless all outstanding shares of this Series are simultaneously redeemed, and the Corporation shall not purchase or otherwise acquire any shares of this Series; PROVIDED, HOWEVER, that the foregoing shall not prevent the purchase or acquisition of shares of this Series pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding shares of this Series. C. CONVERSION OR EXCHANGE. The holders of shares of this Series shall not have any rights herein to convert such shares into or exchange such shares for shares of any other class or classes or of any other series of any class or classes of capital stock of the Corporation. D. VOTING. The shares of this Series shall not have any voting powers either general or special, except that: (1) Unless the vote or consent of the holders of a greater number of shares shall then be required by law, the consent of the holders of at least 66 2/3% of all of the shares of this Series at the time outstanding, given in person or by proxy, either in writing or by a vote at a meeting called for the purpose at which the holders of shares of this Series shall vote together as a separate class, shall be necessary for (a) authorizing, effecting or validating the amendment, alteration or repeal of any of the provisions of the Corporation's Articles of Incorporation or of the resolutions establishing this Series, whether by merger, consolidation or otherwise, so as to materially and adversely affect any relative preference, right, voting power or privilege of this Series granted by this Section (PROVIDED, HOWEVER, that any increase in the amount of the authorized Preferred Stock or the creation and issuance of any series of the Preferred Stock ranking on a parity with this Series as to dividends and upon liquidation shall not be deemed to materially or adversely affect such relative preferences, rights, voting powers or privileges); and (b) authorizing, effecting or validating the creation, authorization or issue (or the increase in the authorized or issued amount) of any shares ("prior shares") of any class of stock of the Corporation ranking prior to the shares of this Series as to dividends or upon liquidation, or the reclassification of any authorized stock of the Corporation into any such prior shares, or the creation, authorization or issue of any obligation or security convertible into or evidencing the right to purchase any such prior shares. (2) If and whenever six quarterly dividends (whether or not consecutive) payable on any series of the Preferred Stock shall be in arrears in whole or in part whether or not earned or declared, the number of directors then constituting the Board shall be increased by two and the holders of shares of this Series, together with the holders of shares of every other series of the Preferred Stock similarly entitled to vote for the election of two additional directors, voting separately as a class, regardless of series, shall be entitled to elect the two additional directors at any annual meeting of shareholders or special meeting held in place thereof, or at a special meeting of the holders of such series of the Preferred Stock called as hereinafter provided. (a) Whenever all arrears in dividends on shares of the Preferred Stock then outstanding shall have been paid and dividends thereon for the current quarterly dividend period shall have been paid or declared and set apart for payment, then the right of the holders of such series of the Preferred Stock to elect two additional directors shall cease (but subject always to the same provisions for the vesting of voting rights in the case of any similar future arrearages in dividends), and the terms of office of all persons elected as directors by the holders of such series of the Preferred Stock shall terminate on the date of the first meeting of shareholders following the date of payment, or the date of declaration and the setting aside for payment, and the number of members of the Board shall be reduced accordingly. (b) At any time after voting power shall have been so vested in the holders of shares of Adjustable Class A Preferred Stock and of any other such series of the Preferred Stock the secretary of the Corporation may, and upon the 12 written request of any holder of Adjustable Class A Preferred Stock (addressed to the secretary at the principal office of the Corporation) shall, call a special meeting of the holders of Adjustable Class A Preferred Stock and of such other series of the Preferred Stock for the election of the two directors to be elected by them as herein provided, the call to be made by notice similar to that provided in the by-laws for a special meeting of the shareholders or as required by law. If any special meeting required to be called as above provided shall not be called by the secretary within 20 days after receipt of the request, then any holder of shares of Adjustable Class A Preferred Stock may call the meeting, upon the notice above provided, and for that purpose shall have access to the stock books of the Corporation. (c) The directors elected at any such special meeting shall hold office until the next annual meeting of shareholders, or special meeting held in place thereof, and until their successors shall have been elected and qualified, if those offices shall not have been previously terminated as above provided. In case any vacancy shall occur among the directors elected by the holders of shares of such series of the Preferred Stock, a successor shall be elected by the Board to serve until the next annual meeting of shareholders, or special meeting held in place thereof, and until their successors shall have been elected and qualified, upon the nomination of the then remaining director elected by the holders of such series or the successor of the remaining director. (d) At any meeting of shareholders held while holders of the Preferred Stock have the voting power to elect an additional two directors, the holders of a majority of the outstanding shares of the Preferred Stock so entitled to vote who are present in person or by proxy shall be sufficient to constitute a quorum for the election of the two additional directors as herein provided. (e) The two additional directors elected by the holders of the Preferred Stock shall hold office only until the next annual meeting of shareholders, and until their successors shall have been elected and qualified, unless their term of office is earlier terminated as provided herein. (f) Any new series of the Preferred Stock shall be entitled to participate with this Series and any other series so entitled in voting for the election of the two additional directors to the extent and under the conditions set forth in the resolutions creating such series. (g) In the event that a holder of shares of this Series shall be entitled to vote in the manner described in this subparagraph (2), such holder shall be entitled to three votes for each such share held by such holder. E. LIQUIDATION RIGHTS. (1) Upon the dissolution, liquidation or winding up of the Corporation, the holders of the shares of this Series shall be entitled to receive out of the assets of the Corporation available for distribution to shareholders, before any payment or distribution shall be made on the common stock or on any other class of stock ranking junior to the Preferred Stock upon liquidation, the amount of $100.00 per share plus a sum equal to all dividends (whether or not earned or declared) on such shares accrued and unpaid thereon to the date of final distribution. (2) After the payment to the holders of the shares of this Series of the full preferential amounts provided for in this Section E, the holders of this Series as such shall have no right or claim to any of the remaining assets of the Corporation. (3) In the event the assets of the Corporation available for distribution to the holders of shares of this Series upon any dissolution, liquidation or winding up of the Corporation, whether voluntary or involuntary, shall be insufficient to pay in full all amounts to which such holders are entitled pursuant to paragraph (1) of this Section E, no such distribution shall be made on account of any shares ("Parity Shares") of any other class or series of the Preferred Stock ranking on a parity with the shares of this Series upon dissolution, liquidation or winding up unless proportionate distributive amounts shall be paid on account of the shares of this Series, ratably, in proportion to the full distributable amounts for which holders of all such parity shares are respectively entitled upon such dissolution, liquidation or winding up. (4) Upon the dissolution, liquidation or winding up of the Corporation, the holders of shares of this Series then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its shareholders all amounts to which such holders are entitled pursuant to paragraph (1) of this Section E before any payment shall be made to the holders of any class of capital stock of the Corporation ranking junior upon liquidation to this Series. F. RANK. Unless these Articles of Incorporation expressly provide otherwise, each series of the Preferred Stock shall be on a parity with each other series with respect to dividends and liquidation. 13 (3) SERIES F 10.64% CLASS A PREFERRED STOCK (LIQUIDATION PREFERENCE $1,000.00 PER SHARE) The shares of such series of Preferred Stock, stated value $1.00 per share, of the Corporation shall be designated as "Series F 10.64% Class A Preferred Stock" (hereinafter called "Series F" or "Series F Shares"). Each share of Series F shall be identical in all respects with the other shares of Series F. The number of shares which will constitute such series shall be 75,000 and each share shall have the rights, preferences and limitations (in addition to the provisions set forth in these Articles of Incorporation that are applicable to the Preferred Stock of all series) as follows: A. DIVIDENDS. (1) The holders of Series F Shares shall be entitled to receive, when and as declared by the Board, but only out of funds legally available therefor, cumulative cash dividends at the annual rate per share of 10.64% of $1,000.00, without interest, and no more, payable in quarter-annual installments on the 1st day of January, April, July and October in each year commencing (commencing April 1, 1996) to shareholders of record on the respective dates, not exceeding sixty days preceding such dividend payment date, fixed for that purpose by the Board in advance of payment of each particular dividend. The first dividend payable on the Series F Shares after the original issue of the shares of Series F shall be cumulative from the last dividend payment date of the security for which the Series F shares are exchanged and shall include any arrearage on the security for which the Series F Shares are exchanged. (2) So long as any Series F Share remains outstanding, no dividend whatever shall be paid or declared and no other distribution made on any junior stock other than a dividend payable in junior stock, and no shares of junior stock shall be purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly (other than as a result of a reclassification of junior stock or the exchange or conversion of one junior stock for or into another junior stock, or other than through the use of the proceeds of a substantially contemporaneous sale of other junior stock) unless (i) all dividends on shares of the Senior Preferred Stock of all series ranking on a parity as to dividends with the Series F Shares for all quarterly dividend periods ended prior to such action shall have been paid and (ii) all prior sinking fund requirements, if any, with respect to all series of the Senior Preferred Stock ranking on a parity as to dividends with the Series F Shares shall have been complied with. Subject to the foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board may be declared and paid on any junior stock from time to time out of any funds legally available therefor, and the Series F Shares shall not be entitled to participate in any such dividends, whether payable in cash, stock or otherwise. No dividends shall be paid or declared upon any shares of any class or series of stock of the Corporation ranking on a parity with the Series F Shares in the payment of dividends for any period unless at or prior to the time of such payment or declaration all dividends payable on the Series F Shares for all quarterly dividend periods ended prior to the date of such payment or declaration shall have been paid. When dividends are not paid in full, as aforesaid, upon the Series F Shares and any other series of Senior Preferred Stock ranking on a parity as to dividends with the Series F Shares, all dividends declared upon the Series F shares and any other series of Senior Preferred Stock ranking on a parity as to dividends with the Series F shares shall be declared pro rata so that the amount of dividends declared per share on the Series F shares and such other Senior Preferred Stock shall in all cases bear to each other the same ratio that accrued dividends per share on the Series F Shares and such other Senior Preferred Stock bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Series F which may be in arrears. B. LIQUIDATION RIGHTS. (1) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, then, before any distribution or payment shall be made to the holders of any junior stock, the holders of Series F shall be entitled to be paid in full an amount equal to $1,000.00 per share (which amount is hereinafter referred to as the "liquidation amount"), together with accrued dividends to such distribution or payment date whether or not earned or declared. In the event that, upon any such voluntary or involuntary liquidation, dissolution or winding up, the available assets of the Corporation are insufficient to pay such liquidation amount on all outstanding Series F Shares and the corresponding amounts payable on all shares of other classes or series of stock of the Corporation ranking on a parity with the Series F Shares in the distribution of assets, then the holders of Series F and of all other such classes or series shall share ratably in any distribution of assets in proportion to the full amounts to which they would otherwise be respectively entitled. (2) If such payment shall have been made in full to all holders of shares of Senior Preferred Stock, the remaining assets of the Corporation shall be distributed among the holders of junior stock, according to their respective rights and preferences and in each case according to their respective number of shares. For the purposes of this Section B, the consolidation or 14 merger of the Corporation with any other entity shall not be deemed to constitute a liquidation, dissolution or winding up of the Corporation. C. REDEMPTION. Subject to Section D(3), on or after July 1, 1996, the Corporation, at the option of the Board, may redeem the whole or any part of the shares of Series F at the time outstanding, at any time or from time to time, upon notice given as hereinafter specified, at $1,000.00 per share, together with accrued dividends to the redemption date. (1) Notice of every redemption of shares of Series F shall be given by first class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed at their respective last addresses as they shall appear on the books of the Corporation. Such mailing shall be at least 40 days and not more than 70 days prior to the date fixed for redemption; but failure to mail such notice or any defect therein or in the mailing thereof shall not affect the validity of the proceedings for the redemption of any shares so to be redeemed. (2) In case of redemption of a part only of the shares of Series F at the time outstanding, the redemption may be either pro rata or by lot, at the option of the Corporation. The Board shall have full power and authority, subject to the provisions herein contained, to prescribe the terms and conditions upon which shares of Series F shall be redeemed from time to time. (3) If notice of redemption shall have been duly given or if the Corporation shall have given to a bank or trust company designated to act as redemption agent irrevocable and unconditional authorization and direction to give such notice at least 40 days and not more than 70 days prior to the date fixed for redemption (which date shall not be more than 70 days after the date of such authorization and direction), and if on or before the redemption date specified therein the funds necessary for such redemption shall have been deposited by the Corporation with such bank or trust company in trust with irrevocable instruction and authority, subject to Section C(4), to pay the redemption price to the holders of the shares of Series F called for redemption upon surrender of the certificate therefor, then, notwithstanding that any certificate for shares of Series F so called for redemption shall not have been surrendered for cancellation, from and after the time of such deposit, all shares of Series F so called for redemption shall no longer be deemed to be outstanding and all rights with respect to such shares shall forthwith cease and terminate, except only the right of the holders thereof to receive from such bank or trust company at any time after the close of business on the date fixed for redemption the funds so deposited, without interest. Any bank or trust company selected by the Corporation to act as redemption agent shall be organized and in good standing under the laws of the United States of America or any State thereof, shall have capital, surplus and undivided profits aggregating at least $50,000,000 according to its last published statement of condition, and shall be identified in the notice of redemption. Any interest accrued on such funds shall be paid to the Corporation from time to time. In case fewer than all the shares of Series F represented by a stock certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without cost to the holder thereof; provided, however, that such replacement certificate shall be issuable only in denominations of whole shares and cash will be payable in respect of fractional interests. (4) Any funds so set aside or deposited, as the case may be, and unclaimed at the end of three years from such redemption date shall, to the extent permitted by law, be released or repaid to the Corporation, after which repayment the holders of the shares so called for redemption shall look only to the Corporation for payment thereof. D. VOTING RIGHTS. The holders of Series F shares shall not have any voting rights except as may be expressly provided for in this Section D or except as may be expressly required by law. For purposes of determining the voting rights of holders of Series F in relation to those of holders of other series of Senior Preferred Stock, each holder of Series F will be entitled to forty votes for each $1,000.00 of liquidation preference in respect of such share of Series F. (1) If and whenever six quarterly dividends (whether or not consecutive) payable on any series of Senior Preferred Stock shall be in arrears in whole or in part, whether or not earned or declared, the number of directors then constituting the Board shall be increased by two and the holders of shares of Series F, together with the holders of shares of every other series of Senior Preferred Stock similarly entitled to vote for the election of two additional directors, voting separately as a class, regardless of series, shall be entitled to elect the two additional directors at any annual meeting of shareholders or special meeting held in place thereof, or at a special meeting of the holders of such series of the Senior Preferred Stock called as hereinafter provided. (a) Whenever all arrears in dividends on shares of the Senior Preferred Stock then outstanding shall have been paid and dividends thereon for the current quarterly dividend period shall have been paid or declared and set apart for payment, then the right of the holders of such series of the Senior Preferred Stock to elect two additional directors shall cease (but subject always to the same provisions for the vesting of voting rights in the case of any similar future arrearages in dividends), and the terms of office of all persons elected as directors by the holders of such series of the Senior 15 Preferred Stock shall terminate on the date of the first meeting of shareholders following the date of payment, or the date of declaration and the setting aside for payment, and the number of members of the Board shall be reduced accordingly. (b) At any time after voting power shall have been so vested in the holders of shares of Series F and of any other such series of the Senior Preferred Stock, the secretary of the Corporation may, and upon the written request of any holders of Series F (addressed to the secretary at the principal office of the Corporation) shall, call a special meeting of the holders of Series F and of such other series of the Senior Preferred Stock for the election of the two directors to be elected by them as herein provided, the call to be made by notice similar to that provided in the by-laws for a special meeting of the shareholders or as required by law. If any special meeting required to be called as above provided shall not be called by the secretary within 20 days after receipt of the request, then any holder of shares of Series F may call the meeting, upon the notice above provided, and for that purpose shall have access to the stock books of the Corporation. (c) The directors elected at any such special meeting shall hold office until the next annual meting of shareholders, or special meeting held in place thereof, and until their successors shall have been elected and qualified, if those offices shall not have previously terminated as above provided. In case any vacancy shall occur among the directors elected by the holders of shares of such series of the Senior Preferred Stock, a successor shall be elected by the Board to serve until the next annual meeting of shareholders, or special meeting held in place thereof, and until their successors shall have been elected and qualified, upon the nomination of the then remaining director elected by the holders of such series or the successor of the remaining director. (d) At any meeting of shareholders held while holders of Senior Preferred Stock have the voting power to elect an additional two directors, the holders of a majority of the outstanding shares of Senior Preferred Stock so entitled to vote who are present in person or by proxy shall be sufficient to constitute a quorum for the election of the two additional directors as herein provided. (e) The two additional directors elected by the holders of Senior Preferred Stock shall hold office only until the next annual meeting of shareholders, and until their successors shall have been elected and qualified, unless their term of office is earlier terminated as provided herein. (f) Any new series of the Preferred Stock other than any junior stock shall be entitled to participate with this Series and any other series so entitled in voting for the election of the two additional directors to the extent and under the conditions set forth in the resolutions creating such series. (2) So long as any shares of Series F are outstanding, in addition to any other vote or consent of shareholders required by law or by these Articles of Incorporation, the consent of the holders of at least sixty-six and two-thirds percent of the shares of Series F and of all other series of the Senior Preferred Stock similarly entitled to vote upon the matters then being considered, acting as a single class regardless of series, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or validating: (a) Any amendment, alteration or repeal of any of the provisions of these Articles of Incorporation which affect materially and adversely the voting rights, designations, preferences, qualifications, privileges, limitations, conversion rights or other special rights, if any, of the holders of shares of Senior Preferred Stock; provided, however, that for purposes of this paragraph (a), the amendment of the provisions of the Articles of Incorporation so as to authorize or create, or to increase the authorized amount of, any junior stock or any shares of any class ranking on a parity with the Senior Preferred Stock with respect to liquidation or the payment of dividends shall not be deemed to affect adversely the voting rights, designations, preferences, qualifications, privileges, limitations, conversion rights or other special rights, if any, of the holders of the Senior Preferred Stock and provided, further, that if any such amendment, alteration or repeal would affect materially and adversely any voting rights, designations, preferences, qualifications, privileges, limitations or other special rights, if any, of the holders of the Series F which are not enjoyed by some or all of the other series otherwise entitled to vote in accordance with this paragraph (2), the consent of the holders of at least sixty-six and two-thirds percent of the Series F and of all other series, if any, similarly affected, similarly given, shall be required in lieu of the consent of the holders of at least sixty-six and two-thirds percent of the shares of Series F and of all other series of the Senior Preferred Stock otherwise entitled to vote in accordance with this paragraph (2); or (b) The authorization or creation of, or the increase in the authorized amount of, any shares of any class or series, or any security convertible into shares of any class or series, ranking prior to the Senior Preferred Stock in the distribution of assets on any liquidation, dissolution, or winding up of the Corporation or in the payment of dividends; provided, however, that no such consent of the holders of shares of Series F pursuant to paragraphs 2(a) and 2(b) above shall be 16 required if, at or prior to the time when any such action is to take effect or when the issuance of any such priority shares or convertible securities is to be made, as the case may be, provision is made pursuant to Section C hereof for the redemption of all shares of Series F at the time outstanding. (3) If dividends for any past quarterly dividend period shall not have been paid on all outstanding shares of Series F, the consent of the holders of at least sixty-six and two-thirds percent of the then outstanding shares of Series F, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, shall be necessary as a condition to the Corporation's right to purchase or redeem less than all then outstanding shares of Series F; provided, however, that the foregoing shall not prevent the purchase or acquisition of Series F Shares pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding Series F Shares. E. DEFINITIONS. As used herein with respect to the Series F Shares, the following term shall have the following meaning: (1) The term "Senior Preferred Stock" shall mean all outstanding shares of all series of the Preferred Stock, except any series of the Preferred Stock expressly excluded from the term "Senior Preferred Stock" as defined herein. F. RANK. The Series F Shares shall not have any relative, participating, optional or other special rights and powers other than as set forth herein. Unless the Articles of Incorporation provide otherwise, each series of Preferred Stock shall be on a parity with each other series with respect to dividends and liquidation. This the 29th day of December, 1995. FIRST UNION CORPORATION By: /s/ MARION A. COWELL, JR. Name: Marion A. Cowell, Jr. Title: Executive Vice President, Secretary and General Counsel 17 EX-4 3 EXHIBIT 4(B) FIRST UNION CORPORATION FIRST UNION NATIONAL BANK OF NORTH CAROLINA, As Depositary AND THE HOLDERS FROM TIME TO TIME OF THE DEPOSITARY RECEIPTS DESCRIBED HEREIN ------------------- Deposit Agreement ------------------- Dated as of January 1, 1996 TABLE OF CONTENTS
Page PARTIES........................................................................................................ 1 RECITALS....................................................................................................... 1 ARTICLE I DEFINITIONS Certificate.................................................................................................... 2 Company........................................................................................................ 2 Deposit Agreement.............................................................................................. 2 Depositary..................................................................................................... 3 Depositary Shares............................................................................................. 3 Depositary's Agent............................................................................................. 3 Depositary's Office............................................................................................ 3 Predecessor Depositary......................................................................................... 3 Predecessor Depositary Shares.................................................................................. 3 Predecessor Receipt............................................................................................ 3 Predecessor Stock.............................................................................................. 3 Receipt........................................................................................................ 3 record holder.................................................................................................. 4 Registrar...................................................................................................... 4 Stock.......................................................................................................... 4 ARTICLE II FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS SECTION 2.01. Form and Transfer of Receipts................................................................ 4 SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof................................................... 7 SECTION 2.03. Redemption of Stock......................................................................... 9 SECTION 2.04. Registration of Transfer of Receipts......................................................... 11 SECTION 2.05. Split-ups and Combination of Receipts; Surrender of Receipts and Withdrawal of Stock............................................................................. 12 SECTION 2.06. Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts.......................................................................... 14 SECTION 2.07. Lost Receipts, Etc........................................................................... 15 SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.......................................................................... 16 SECTION 2.09. Stock Purchase Plans......................................................................... 16 -i- Page ARTICLE III CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE COMPANY SECTION 3.01. Filing Proofs, Certificates and Other Information....................................................................... 16 SECTION 3.02. Payment of Taxes or Other Governmental Charges........................................................................... 17 SECTION 3.03. Warranty as to Stock......................................................................... 17 ARTICLE IV THE DEPOSITED SECURITIES; NOTICES SECTION 4.01. Cash Distributions........................................................................... 18 SECTION 4.02. Distributions Other than Cash................................................................ 18 SECTION 4.03. Subscription Rights, Preferences or Privileges........................................................................ 19 SECTION 4.04. Notice of Dividends, Etc.; Fixing of Record Date for Holders of Receipts............................................... 21 SECTION 4.05. Voting Rights................................................................................ 21 SECTION 4.06. Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, Etc............................................................ 22 SECTION 4.07. Inspection of Reports........................................................................ 24 SECTION 4.08. Lists of Receipt Holders..................................................................... 24 ARTICLE V THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY SECTION 5.01. Maintenance of Offices, Agencies, and Transfer Books by the Depositary; Registrar......................................................................... 25 SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the Depositary's Agents, the Registrar or the Company.............................................. 26 SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the Registrar and the Company................................................................... 27 SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor Depositary............................................... 28 SECTION 5.05. Corporate Notices and Reports................................................................ 30 SECTION 5.06. Indemnification by the Company............................................................... 30 SECTION 5.07. Charges and Expenses......................................................................... 31 -ii- Page ARTICLE VI AMENDMENT AND TERMINATION SECTION 6.01. Amendment.................................................................................... 32 SECTION 6.02. Termination.................................................................................. 33 ARTICLE VII MISCELLANEOUS SECTION 7.01. Counterparts................................................................................. 33 SECTION 7.02. Exclusive Benefit of Parties................................................................. 33 SECTION 7.03. Invalidity Of Provisions..................................................................... 34 SECTION 7.04. Notices...................................................................................... 34 SECTION 7.05. Depositary's Agents.......................................................................... 35 SECTION 7.06. Holders of Receipts Are Parties.............................................................. 36 SECTION 7.07. Governing Law................................................................................ 36 SECTION 7.08. Inspection of Deposit Agreement.............................................................. 36 SECTION 7.09. Headings..................................................................................... 36 TESTIMONIUM.................................................................................................... 37 SIGNATURES..................................................................................................... 37 EXHIBIT A: Depositary Receipt
-iii- DEPOSIT AGREEMENT dated as of January 1, 1996 among FIRST UNION CORPORATION a North Carolina corporation, FIRST UNION NATIONAL BANK OF NORTH CAROLINA a national banking association, AND THE HOLDERS FROM TIME TO TIME OF THE RECEIPTS DESCRIBED HEREIN WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit Agreement, for the deposit of shares of Series F 10.64% Class A Preferred Stock, no-par value, of FIRST UNION CORPORATION with the Depositary (as hereinafter defined) for the purposes set forth in this Deposit Agreement and for the issuance hereunder of Receipts (as hereinafter defined) by the Depositary evidencing Depositary Shares in respect of the Stock (as hereinafter defined) so deposited; and WHEREAS, effective as of the date hereof, First Fidelity Bancorporation, a New Jersey corporation, is merging with and into First Union Corporation of New Jersey, a New Jersey corporation and a wholly owned subsidiary of First Union Corporation (the "Merger"); and, in consequence of the Merger, the outstanding shares of Predecessor Stock (as hereinafter defined) and the outstanding Predecessor Depositary Shares (as hereinafter defined) are being exchanged for shares of Stock (as hereinafter defined) and Depositary Shares (as hereinafter defined); and WHEREAS, the Receipts are to be substantially in the form of the Predecessor Receipts (as hereinafter defined), with appropriate insertions, modifications and omissions as hereinafter provided in this Deposit Agreement; NOW, THEREFORE, in consideration of the premises contained herein and such other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE I DEFINITIONS The following definitions shall for all purposes, unless otherwise indicated, apply to the respective terms used in this Deposit Agreement and the Receipts (as hereinafter defined): "Certificate" shall mean the articles of amendment to the Articles of Incorporation, as amended, of the Company filed with the Secretary of State of the State of North Carolina establishing the Stock as a series of preferred stock of the Company. "Company" shall mean First Union Corporation, a North Carolina corporation, and its successors. "Deposit Agreement" shall mean this Deposit Agreement, as amended or supplemented from time to time in accordance with the terms hereof. "Depositary" shall mean First Union National Bank of North Carolina, a national banking association, and any successor Depositary hereunder. -2- "Depositary Shares" shall mean the Depositary Shares, each representing a one-fortieth (1/40th) interest in a share of Stock and which shall be evidenced by Receipts. "Depositary's Agent" shall mean an agent appointed by the Depositary pursuant to Section 7.05. "Depositary's Office" shall mean the principal office of the Depositary at which at any particular time its depositary business shall be administered. "Predecessor Depositary" shall mean First Fidelity Bank, N.A., New Jersey and its successor, First Fidelity Bank, N.A., as depositary with respect to the Predecessor Depositary Shares. "Predecessor Depositary Shares" shall mean the Depositary Shares, each representing a one-fortieth (1/40th) interest in a share of Predecessor Stock and which heretofore have been represented by Predecessor Receipts. "Predecessor Receipt" shall mean one of the depositary receipts issued by the Predecessor Depositary, each heretofore representing any number of whole Predecessor Depositary Shares. "Predecessor Stock" shall mean shares of the Series F 10.64% Preferred Stock, par value $1.00 per share, of First Fidelity Bancorporation, a New Jersey corporation. "Receipt" shall mean one of the depositary receipts, whether in definitive or temporary form, issued hereunder by the Depositary (or by the Predecessor Depositary to the extent described in Section 2.01), each representing any number of whole Depositary Shares. -3- "record holder" with respect to a Receipt shall mean the individual, entity or person in whose name a Receipt is registered on the books of the Depositary or any register of any Registrar maintained for such purpose at a given time. "Registrar" shall mean any bank or trust company which shall be appointed by the Depositary to register ownership and transfers of Receipts as herein provided and which may include the Depositary. "Stock" shall mean shares of the Company's Series F 10.64% Class A Preferred Stock, no-par value. ARTICLE II FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts shall be engraved or printed or lithographed on steel-engraved borders and shall be substantially in the form of the Predecessor Receipts, with appropriate insertions, modifications and omissions, as hereinafter provided. Pending the preparation of definitive Receipts, the Depositary, upon the written order of the Company delivered in compliance with Section 2.02, shall execute and deliver temporary Receipts which shall be printed, lithographed, typewritten, mimeographed or otherwise substantially of the tenor of the definitive Receipts in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the persons executing such Receipts may determine, as evidenced by their execution of such -4- Receipts; provided that such temporary Receipts may include Predecessor Receipts, appropriately overprinted to reflect the occurrence of the Merger. After the preparation of definitive Receipts, the temporary Receipts shall be exchangeable for definitive Receipts upon surrender of the temporary Receipts at the Depositary's Office, without charge to the holder. Upon surrender for cancellation of any one or more temporary Receipts, the Depositary shall execute and deliver in exchange therefor definitive Receipts representing the same number of Depositary Shares as represented by the surrendered temporary Receipt or Receipts registered in the name (and only the name) of the holder of the temporary Receipt. Such exchange shall be made at the Company's expense and without any charge therefor to the holder. Until so exchanged, the temporary Receipts shall in all respects be entitled to the same benefits under this Deposit Agreement and with respect to the Stock, as definitive Receipts. Receipts shall be executed by the Depositary by the manual signature of a duly authorized officer of the Depositary (or, in the case of temporary Receipts that are Predecessor Receipts, of the Predecessor Depositary); provided, that such signature may be a facsimile if a Registrar for the Receipts (other than the Depositary) shall have been appointed and such Receipts are countersigned by manual signature of a duly authorized officer of the Registrar. No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose unless it shall have been executed manually by a duly -5- authorized officer of the Depositary (or, in the case of Temporary Receipts that are Predecessor Receipts, the Predecessor Depositary) or, if a Registrar for the Receipts (other than the Depositary) shall have been appointed, by facsimile signature of a duly authorized officer of the Depositary (or, in the case of Temporary Receipts that are Predecessor Receipts, the Predecessor Depositary) and countersigned manually by a duly authorized officer of such Registrar. The Depositary shall record on its books each Receipt so signed and delivered as hereinafter provided. Receipts bearing the manual or facsimile signatures of individuals who were at any time proper officers of the Depositary, the Predecessor Depositary or the Registrar, as the case may be, shall constitute adequate signatures hereunder, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the delivery of such Receipts or did not hold such offices on the date of delivery of such Receipts. Receipts shall be in denominations of any number of whole Depositary Shares. Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Deposit Agreement as may be required by the Depositary and approved by the Company or required to comply with any applicable law or regulation or with the rules and regulations of any securities exchange upon which the Stock, the Depositary Shares or the Receipts may be listed or to conform with any usage with respect thereto, or to indicate any special -6- limitations or restrictions to which any particular Receipts are subject. Title to Depositary Shares evidenced by a Receipt which is properly endorsed, or accompanied by a properly executed instrument of transfer, shall be transferable by delivery of such Receipt with the same effect as if such Receipt were a negotiable instrument; provided, however, that until transfer of a Receipt shall be registered on the books of the Registrar, on behalf of the Depositary, as provided in Section 2.04, the Depositary may, notwithstanding any notice to the contrary, treat the record holder as the absolute owner thereof for the purpose of determining the person entitled to distributions of dividends or other distribu tions with respect to the Stock or to any notice provided for in this Deposit Agreement and for all other purposes. The Depositary shall not lend any Stock deposited hereunder. SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof. Subject to the terms and condi tions of this Deposit Agreement, the Company may from time to time deposit shares of Stock with the Depositary under this Deposit Agreement by delivery to the Depositary of a certificate or certificates representing the Stock to be deposited. Such certificate or certificates representing the Stock shall be properly endorsed or accompanied, if required by the Depositary, by a duly executed instrument of transfer or endorsement, in form satisfactory to the Depositary, together with all such -7- certifications as may be required by the Depositary in accordance with the provisions of this Deposit Agreement, and together with a written order of the Company directing the Depositary to execute and deliver to the person or persons named in such order, a Receipt or Receipts evidencing in the aggregate the number of Depositary Shares representing such deposited Stock. All Stock deposited by the Company or the Other Persons, as the case may be, with the Depositary shall be held by the Depositary at the Depositary's Office or at such other place or places as the Depositary shall determine. Upon receipt by the Depositary of a certificate or certificates representing Stock deposited, with the Depositary by the Company or the Other Persons, as the case may be, in accordance with the provisions of this Section, together with the other documents required as above specified, and upon recordation of the Stock so deposited on the books of the Company in the name of the Depositary, the Depositary shall execute and deliver, to the person or persons named in the written order delivered to the Depositary, a Receipt or Receipts, evidencing in the aggregate the number of Depositary Shares relating to the Stock so deposited. Such Receipt or Receipts shall be registered by the Depositary or the Registrar in such name or names as may be requested by the person or persons named in the written order. The Depositary shall execute and deliver such Receipts at the Depositary's Office or such other offices, if any, as such person may designate. Delivery at other -8- offices shall be at the risk and expense of the person requesting such delivery. Other than in the case of splits, combinations or other reclassifications affecting the Stock, or in the case of dividends or other distributions of Stock, if any, there shall be deposited with the Depositary hereunder not more than 75,000 shares of Stock. SECTION 2.03. Redemption of Stock. Whenever the Company shall elect to redeem shares of Stock in accordance with the provisions of the Certificate, it shall (unless otherwise agreed in writing with the Depositary) mail notice to the Depositary of such redemption, by first class mail, postage prepaid, not less than 40 nor more than 70 days prior to the date fixed for the redemption of Stock in accordance with Section (3) C(1) of Section FFB of the Certificate. On the date of such redemption, provided that the Company shall then have paid in full to the Depositary the redemption price required pursuant to the Certificate of the Stock to be redeemed, the Depositary shall redeem the Depositary Shares relating to such Stock. The Depositary shall mail notice of such redemption, and the simultaneous redemption of the number of Depositary Shares relating to the Stock to be redeemed, by first-class mail, postage prepaid, not less than 30 and not more than 60 days prior to the date fixed for redemption of such Stock and Depositary Shares (the "Redemption Date"), to the record holders of the Receipts evidencing the Depositary Shares to be so redeemed on the record date fixed pursuant to Section 4.04 hereof, at the addresses of such holders as they appear on the records of -9- the Depositary; provided, however, that neither failure to mail any such notice to one or more such holders nor any defect in any notice or in the mailing thereof to one or more such holders shall affect the validity of the proceedings for redemption of any Depositary Shares as to other holders. Each such notice of redemption shall state: (i) the Redemption Date; (ii) the number of Depositary Shares to be redeemed and, if less than all the Depositary Shares held by any such holder are to be redeemed, the number of such Depositary Shares held by such holder to be so redeemed and the method by which the Depositary Shares will be chosen for redemption; (iii) the redemption price (including cumulative dividends to the Redemption Date); (iv) the place or places where Receipts evidencing Depositary Shares are to be surrendered for payment of the redemption price; and (v) that dividends in respect of the Stock to be redeemed, which are represented by the Depositary Shares to be redeemed, will cease to accrue at the close of business on such Redemption Date. In case less than all the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed shall be selected by lot or pro rata as may be determined by the Company. Notice having been mailed by the Depositary as aforesaid, from and after the Redemption Date (unless the Company shall have failed to redeem the shares of Stock to be redeemed by it as set forth in the Company's notice provided for in the preceding paragraph), all dividends in respect of the shares of Stock so called for redemption shall cease to accrue, the Depositary Shares -10- being redeemed from such proceeds shall be deemed no longer to be outstanding, all rights of the holders of Receipts evidencing such Depositary Shares (except the right to receive the redemption price) shall, to the extent of such Depositary Shares, cease and terminate and, upon surrender in accordance with such notice of the Receipts evidencing any such Depositary Shares (properly endorsed or assigned for transfer, if the Depositary shall so require), such Depositary Shares shall be redeemed by the Depositary at a redemp tion price per Depositary Share equal to 1/40th of the redemption price per share paid in respect of the shares of Stock plus all money and other property, if any, underlying such Depositary Shares, including all amounts paid by the Company in respect of dividends which on the Redemption Date have accrued on the shares of Stock to be so redeemed and have not theretofore been paid. If less than all the Depositary Shares evidenced by a Receipt are called for redemption, the Depositary will deliver to the holder of such Receipt upon its surrender to the Depositary, together with the payment of the redemption price, a new Receipt evidencing such number of Depositary Shares as were evidenced by such prior Receipt and not called for redemption; provided, however, that such replacement Receipt shall be issued only in denominations of whole Depositary Shares and cash will be payable in respect of fractional interests. SECTION 2.04. Registration of Transfer of Receipts. Subject to the terms and conditions of this Deposit Agreement, the Registrar, on behalf of the Depositary, shall register on its books -11- transfers of Receipts from time to time upon notice to the Registrar by the Depositary of the surrender of a Receipt for transfer by the holder in person or by duly authorized attorney, which Receipt in each case must be properly endorsed or accompanied by a properly executed instrument of transfer. Upon surrender of a properly endorsed Receipt or Receipt accompanied by an instrument of transfer, the Depositary shall execute a new Receipt or Receipts evidencing the same aggregate number of Depositary Shares as those evidenced by the Receipt or Receipts surrendered and deliver such new Receipt or Receipts to or upon the order of the transferee named in the endorsement or instrument of transfer. SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at the Depositary's Office or at such other offices as it may designate for the purpose of effecting a split-up or combination of such Receipt or Receipts, the Depositary shall execute and deliver a new Receipt or Receipts to the holder thereof or to such holder's order in the denominations requested, evidencing the aggregate number of Depositary Shares evidenced by the Receipt or Receipts surrendered. The Depositary shall give prompt notice of such action and the certificate numbers to the Registrar for the purpose of recording such split-up or consolidation. Any holder of at least forty Depositary Shares may withdraw the number of whole shares of Stock underlying such Depositary Shares and all money and other property, if any, -12- represented thereby by surrendering such Receipt or Receipts at the Depositary's Office or at such other offices as the Depositary may designate for such withdrawals. Thereafter, without unreasonable delay, the Depositary shall deliver to such holder, or to the person or persons designated by such holder as hereinafter provided, the number of whole shares of Stock and all money and other property, if any, represented by the Receipt or Receipts so surrendered for withdrawal, but holders of such whole shares of Stock will not thereafter be entitled to deposit such Stock hereunder or to receive Depositary Shares therefor. If the Receipt or Receipts delivered by the holder to the Depositary in connection with such withdrawal shall evidence in the aggregate a number of Depositary Shares in excess of the number of Depositary Shares representing the number of whole shares of Stock to be so withdrawn, the Depositary shall at the same time, in addition to such number of whole shares of Stock and such money and other property, if any, to be so withdrawn, deliver to such holder, or (subject to Sections 2.04 and 3.02) upon his order, a new Receipt evidencing such excess number of Depositary Shares. Delivery of the Stock and the money and other property being withdrawn may be made by the delivery of such certificates, documents of title and other instruments as the Depositary may deem appropriate. If the Stock and the money and other property being withdrawn are to be delivered to a person or persons other than the record holder of the Receipt or Receipts being surrendered for withdrawal of Stock, such holder shall execute and deliver to the -13- Depositary a written order so directing the Depositary and the Depositary may require that the Receipt or Receipts surrendered by such holder for withdrawal of such shares of Stock be properly endorsed in blank or accompanied by a properly executed instrument of transfer in blank. Delivery of the Stock and the money and other property, if any, represented by Receipts surrendered for withdrawal shall be made by the Depositary at the Depositary's Office, except that, at the request, risk and expense of the holder surrendering such Receipt or Receipts and for the account of the holder thereof, such delivery may be made at such other place as may be designated by such holder. SECTION 2.06. Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts. As a condition precedent to the execution and delivery, registration of transfer, split-up, combination, surrender or exchange of any Receipt, the Depositary, any of the Depositary's Agents or the Company may require payment to it of a sum sufficient for the payment (or, in the event that the Depositary or the Company shall have made such payment, the reimbursement to it) of any charges or expenses payable by the holder of a Receipt pursuant to Section 5.07, may require the production of evidence satisfactory to it as to the identity and genuineness of any signature and may also require compliance with the rules and regulations of any governmental body, any stock exchange or any applicable self regulatory body, includ ing without limitation, the National Association of Securities -14- Dealers, Inc. (the "NASD") or such regulations, if any, as the Depositary or the Company may establish consistent with the provisions of this Deposit Agreement. The delivery of Receipts against Stock deposited with the Depositary may be suspended, the registration of transfer of Receipts may be refused and the registration of transfer, surrender or exchange of outstanding Receipts may be suspended (i) during any period when the register of stockholders of the Company is closed or (ii) if any such action is deemed necessary by the Depositary, any of the Depositary's Agents or the Company at any time or from time to time because of any requirement of law or of any government, governmental body or commission, stock exchange or the NASD or under any provision of this Deposit Agreement. SECTION 2.07. Lost Receipts, Etc. If any mutilated Receipt is surrendered to the Depositary, the Depositary shall execute and deliver in exchange therefor a new Receipt of like form and tenor in exchange and substitution for such mutilated Receipt. In case any Receipt shall be destroyed, lost or stolen, the Depositary shall execute and deliver a Receipt to the holder thereof of like form and tenor in exchange and substitution for such destroyed, lost or stolen Receipt, upon (i) the filing by the holder thereof with the Depositary of evidence satisfactory to the Depositary of such destruction or loss or theft of such Receipt, of the authenticity thereof and of such holder's ownership thereof and (ii) the holder's furnishing the Depositary with reasonable indemnification satisfactory to such Depositary. -15- SECTION 2.08. Cancellation and Destruction of Surrendered Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent shall be canceled by the Depositary. Except as prohibited by applicable law or regulation, the Depositary is authorized to destroy all Receipts so canceled. SECTION 2.09. Stock Purchase Plans. The Depositary shall take such action as shall be necessary or appropriate to permit the record holders of the Depositary Shares to participate in any dividend reinvestment or other stock purchase plan sponsored by the Company that permits the participation by such holders on such terms and conditions as the Company may determine. ARTICLE III CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE COMPANY SECTION 3.01. Filing Proofs, Certificates and Other Information. Any holder of a Receipt may be required from time to time to file such proof of residence, or other matters or other information, to obtain such guaranties of signature, to execute such certificates and to make such customary representations and warranties consistent with the terms of the Stock as the Depositary or the Company may reasonably deem necessary or proper. The Depositary or the Company may withhold the delivery, or delay the registration of transfer, redemption or exchange, of any Receipt or the distribution of any dividend or other distribution or the sale of any rights or of the proceeds thereof until such proof or other -16- information is filed or such certificates are executed or such representations and warranties are made. SECTION 3.02. Payment of Taxes or Other Governmental Charges. Holders of Receipts shall be obligated to make payments to the Depositary of certain charges and expenses as provided in Section 5.07. Registration of transfer of any Receipt and delivery of all money or other property, if any, represented by the Depositary Shares evidenced by such Receipt may be refused until any such payment due is made, and any dividends, interest payments or other distributions may be withheld or all or any part of the Stock or other property represented by the Depositary Shares evidenced by such Receipt and not theretofore sold may be sold for the account of the holder thereof (after attempting by reasonable means to notify such holder prior to such sale), and such dividends, interest payments or other distributions or the proceeds of any such sale may be applied to any payment of such charges or expenses, the holder of such Receipt remaining liable for any deficiency. SECTION 3.03. Warranty as to Stock. The Company hereby represents and warrants to the Depositary that the Stock, when issued, will be validly issued, fully paid and nonassessable. Such representation and warranty shall survive the deposit of the Stock and the issuance of Receipts. -17- ARTICLE IV THE DEPOSITED SECURITIES; NOTICES SECTION 4.01. Cash Distributions. Whenever the Depositary shall receive any cash dividend or other cash distribution with respect to the Stock, the Depositary shall, subject to Section 3.02, distribute to record holders of Receipts on the record date fixed pursuant to Section 4.04 the pro rata portion, as nearly as practicable, of such dividend or distribution applicable to the number of Depositary Shares evidenced by the Receipts held by such holders; provided, however, that in case the Company or the Depositary shall be required to withhold and shall withhold any monies from any cash dividend or other cash distribu tion in respect of the Stock on account of taxes, the distribution in respect of Depositary Shares shall be reduced accordingly. The Depositary shall distribute or make available for distribution, as the case may be, only such amount, however, as can be distributed without attributing to any holder of Depositary Shares a fraction of one cent, and any balance not so distributable shall be held by the Depositary (without liability for interest thereon) and shall be added to and be treated as part of the next succeeding distribution to record holders of Receipts. SECTION 4.02. Distributions Other than Cash. Whenever the Depositary shall receive any property (including securities) for distribution in a form other than cash with respect to the Stock, the Depositary shall, subject to Section 3.02, distribute to record holders of Receipts on the record date fixed pursuant to -18- Section 4.04 the pro rata portion, as nearly as practicable, of such property (including securities) received by it applicable to the number of Depositary Shares evidenced by the Receipts held by such holders, in any manner that the Depositary may deem equitable and practicable for accomplishing such distribution. If in the opinion of the Depositary such distribution cannot be made propor tionately among such record holders, or if for any other reason (including any requirement that the Company or the Depositary withhold an amount on account of taxes) the Depositary deems, after consultation with the Company, such distribution not to be feasible, the Depositary may, with the approval of the Company, adopt such method as it deems equitable and practicable for the purpose of effecting such distribution, including the sale of the property thus received, or any part thereof, in a commercially reasonable manner. The net proceeds of any such sale shall, subject to Section 3.02, be distributed or made available for distribution, as the case may be, by the Depositary to record holders of Receipts in accordance with the provisions of Sec tion 4.01 for a distribution received in cash. SECTION 4.03. Subscription Rights, Preferences or Privileges. If the Company shall at any time offer or cause to be offered to the persons in whose names Stock is recorded on the books of the Company any rights, preferences or privileges to subscribe for or to purchase any securities or any rights, prefer ences or privileges of any other nature, such rights, preferences or privileges shall in each such instance be made available by the -19- Depositary to the record holders of Receipts, pro rata in propor tion to the Stock represented by such Receipt, in such manner as the Depositary may determine, either by the issue to such record holders of warrants representing such rights, preferences or privileges or by such other method as may be approved by the Depositary in its discretion with the approval of the Company; provided, however, that (i) if at the time of issue or offer of any such rights, preferences or privileges the Depositary determines that it is not lawful or (after consultation with the Company) not feasible to make such rights, preferences or privileges available to holders of Receipts by the issue of warrants or otherwise, or (ii) if and to the extent so instructed by holders of Receipts who do not desire to exercise such rights, preferences or privileges, then the Depositary, in its discretion (with the approval of the Company, in any case where the Depositary has determined that it is not feasible to make such rights, preferences or privileges available), may, if applicable laws or the terms of such rights, preferences or privileges permit such transfer, sell such rights, preferences or privileges at public or private sale, at such place or places and upon such terms as it may deem proper. The net proceeds of any such sales shall be distributed by the Depositary to the record holders of Receipts entitled thereto as provided by Section 4.01 in the case of a distribution received in cash. If any other action under the laws of any jurisdiction or any governmental or administrative authorization, consent or permit is required in order for such rights, preferences or privileges to -20- be made available to holders of Receipts, the Company agrees with the Depositary that the Company will use its best efforts to take such action or obtain such authorization, consent or permit suffi ciently in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such rights, prefer ences or privileges. SECTION 4.04. Notice of Dividends, Etc.; Fixing of Record Date for Holders of Receipts. Whenever any cash dividend or other cash distribution shall become payable or any distribution of property (including securities) other than cash shall be made, or if rights, preferences or privileges shall at any time be offered, with respect to Stock, or whenever the Depositary shall receive notice of (i) any meeting at which holders of Stock are entitled to vote or of which holders of Stock are entitled to notice, or (ii) any election on the part of the Company to redeem any shares of Stock, the Depositary shall, in each such instance, fix a record date (which shall be the same date as the record date fixed by the Company with respect to the Stock) for the determination of the holders of Receipts who shall be entitled hereunder to receive a distribution in respect of such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof, or to give instructions for the exercise of voting rights at any such meeting, or to receive notice of such meeting. SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at which the holders of Stock are entitled to vote, the Depositary shall, as soon as practicable thereafter, mail to the -21- record holders of Receipts a notice which shall contain (i) such information as is contained in such notice of meeting and (ii) a statement that the holders may instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Stock underlying their respective Depositary Shares and a brief statement as to the manner in which such instructions may be given. Upon the written request of the holders of Receipts on the applicable record date, the Depositary shall endeavor, insofar as practicable, to vote or cause to be voted, in accordance with the instructions set forth in such requests, the votes relating to the shares of Stock (or portion thereof) underlying the Depositary Shares evidenced by all Receipts as to which any particular voting instructions are received. The Company hereby agrees to take all necessary action in order to enable the Depositary to vote such Stock or cause such Stock to be voted. In the absence of specific instructions from the holder of a Receipt, the Depositary will abstain from voting (but, at its discretion, not from appearing at any meeting with respect to such Stock unless directed to the contrary by the holders of all the Receipts) to the extent of the Stock (or portion thereof) underlying the Depositary Shares evidenced by such Receipt. SECTION 4.06. Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, Etc. Upon any change in par or stated value, split-up, combination or any other reclassifica tion of the Stock, or upon any recapitalization, reorganization, merger, amalgamation or consolidation to which the Company is a -22- party or sale of all or substantially all of the Company's assets, the Depositary may with the approval of, and shall upon the instructions of, the Company, and (in either case) in such manner as to retain as nearly as possible the percentage ownership interest in Stock of holders of the Receipts immediately prior to such event, (i) make such adjustments in (a) the fraction of an interest in one share of Stock underlying one Depositary Share and (b) the ratio of the redemption price per Depositary Share to the redemption price of a share of Stock, in each case as may be necessary fully to reflect the effects of such change in par or stated value, split-up, combination or other reclassification of Stock, or of such recapitalization, reorganization, merger, amal gamation or consolidation or sale, and (ii) treat any securities which shall be received by the Depositary in exchange for or upon conversion of or in respect of the Stock as new deposited securi ties so received in exchange for or upon conversion of or in respect of the Stock. In any such case the Depositary may, with the approval of the Company, execute and deliver additional Receipts, or may call for surrender of all outstanding Receipts to be exchanged for new Receipts specifically describing such new deposited securities. Anything to the contrary herein or in the Receipt notwithstanding, holders of Receipts shall have the right from and after the effective date or any such change in par or stated value, split-up, combination or other reclassification of the Stock or any such recapitalization, reorganization, merger, amalgamation, -23- consolidation or sale, to the extent that holders of Stock had the right, prior to or on the applicable effective date, to convert, exchange or surrender shares of Stock into or for other stock, securities, property or cash, to surrender such Receipts to the Depositary with instructions to convert, exchange or surrender the Stock represented thereby only into or for, as the case may be, the kind and amount of shares of stock and other securities and prop erty and cash into which the Stock represented by such Receipts has been converted or for which such Stock might have been exchanged or surrendered immediately prior to the effective date of such transaction. SECTION 4.07. Inspection of Reports. The Depositary shall make available for inspection by holders of Receipts at the Depositary's Office, and at such other places as it may from time to time deem advisable, any reports and communications received from the Company which are received by the Depositary as the holder of Stock. SECTION 4.08. List of Receipt Holders. Promptly, upon request by the Company, the Depositary shall furnish to it a list, as of a specified date, of the names and addresses of all persons in whose names Receipts are registered on the books of the Depositary, and the amount of Stock represented thereby. -24- ARTICLE V THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar. Upon execution of this Deposit Agreement, the Depositary shall maintain, at the Depositary's Office, facilities for the execution and delivery, registration and registration of transfer, surrender and exchange of Receipts, and at the offices of the Depositary's Agents, if any, facilities for the delivery, registration of transfer, surrender and exchange of Receipts, all in accordance with the provisions of this Deposit Agreement. The Depositary shall, with the approval of the Company, appoint a Registrar for registration of such Receipts or Depositary Shares in accordance with any requirements of any applicable stock exchange in which the Receipts or the Depositary Shares are listed. Such Registrar (which may be the Depositary if so permitted by the requirements of such exchange) may be removed and a substitute Registrar appointed by the Depositary upon the request or with the approval of the Company. If the Receipts, the Depositary Shares or the Stock are listed on one or more other stock exchanges, the Depositary will, at the request of the Company, arrange such facilities for the delivery, registration, registration of transfer, surrender and exchange of such Receipts, such Depositary Shares or such Stock as may be required by law or applicable stock exchange regulation. -25- The Registrar shall maintain books at the Depositary's Office for the registration and registration of transfer of Receipts or at such other place as shall be approved by the Company and of which the holders of Receipts shall have reasonable notice, which books at all reasonable times shall be open for inspection by the record holders of Receipts; provided, that any such holder requesting to exercise such right shall certify to the Registrar that such inspection shall be for a proper purpose reasonably related to such person's interest as an owner of Depositary Shares evidenced by the Receipts. The Depositary may cause the Registrar to close the books with respect to the Receipts, at any time or from time to time, when the register of stockholders of the Company is closed with respect to the Stock or when such action is deemed necessary or advisable by the Depositary, any Depositary's Agent or the Company because of any requirement of law or of any government, governmental body or commission, stock exchange or any applicable self-regulatory body, including, without limitation, the NASD. SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the Depositary's Agents, the Registrar or the Company. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall incur any liability to any holder of any Receipt if by reason of any provision of any present or future law, or regulation thereunder, of the United States of America or of any other governmental authority or, in the case of the Depositary, the Depositary's Agent or the Registrar, by reason -26- of any provision, present or future, of the Company's Articles of Incorporation, as amended (including the Certificate), or by reason of any act of God or war, the Depositary, the Depositary's Agent, the Registrar or the Company shall be prevented or forbidden from doing or performing any act or thing which the terms of this Deposit Agreement provide shall be done or performed; nor shall the Depositary, any Depositary's Agent, any Registrar or the Company incur any liability or be subject to any obligation (i) by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing which the terms of this Deposit Agreement provide shall or may be done or performed, or (ii) by reason of any exercise of, or failure to exercise, any discretion provided for in this Deposit Agreement, except in the event of the gross negligence or willful misconduct of the party charged with such exercise or failure to exercise. SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the Registrar and the Company. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity to such party against all expense and liability be furnished as often as required. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall be liable to any party hereto for -27- any action or any failure to act by it in reliance upon the written advice of legal counsel or accountants, or information from any person presenting Stock for deposit or any holder of a Receipt. The Depositary, any Depositary's Agent, any Registrar and the Company may each rely and shall each be protected in acting upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the party or parties specified in this Agreement. The Depositary undertakes and shall cause any Registrar to undertake, to perform such duties and only such duties as are specifically set forth in this Agreement using its best efforts and in good faith. The parties hereto acknowledge that no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar or against the Company with respect to the Depositary and any Registrar. The Depositary will indemnify the Company against any liability which may arise out of acts performed or omitted by the Depositary or any Depositary's Agent due to its or their negligence or bad faith. The Depositary, any Depositary's Agent, any Registrar and the Company may own and deal in any class of securities of the Company and its affiliates and in Receipts subject to the provisions of applicable law. The Depositary may also act as transfer agent or registrar of any of the securities of the Company and its affiliates. SECTION 5.04. Resignation and Removal of the Depositary: Appointment of Successor Depositary. The Depositary may at any time resign as Depositary hereunder by notice of its election so to -28- do delivered to the Company, such resignation to take effect upon the appointment of a successor Depositary and its acceptance of such appointment as hereinafter provided. The Depositary may at any time be removed by the Company by notice of such removal delivered to the Depositary, such removal to take effect upon the appointment of a successor Depositary and its acceptance of such appointment as hereinafter provided. In case the Depositary acting hereunder shall at any time resign or be removed, the Company shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depositary, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. Every successor Depositary shall execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder and agreeing to become a party to this Agreement, and thereupon such successor Depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depositary under this Deposit Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Company, shall execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any monies or property held hereunder to such successor and shall deliver to such -29- successor a list of the record holders of all outstanding Receipts. Any successor Depositary shall promptly mail notice of its appoint ment to the record holders of Receipts. Any corporation or other entity into or with which the Depositary may be merged, consolidated or converted, or to which the Depositary may sell all or substantially all its assets, shall be the successor of such Depositary without the execution or filing of any document or any further act. Such successor Depositary may authenticate the Receipts in the name of the predecessor Depositary or in the name of the successor Depositary. SECTION 5.05. Corporate Notices and Reports. The Company agrees that it will deliver to the Depositary and the Depositary will, promptly after receipt thereof, transmit to the record holders of Receipts, in each case at the address furnished to it pursuant to Section 4.08, all notices and reports (including without limitation financial statements) required by law, the rules of any national securities exchange upon which the Stock, the Depositary Shares or the Receipts are listed or by the Company's Articles of Incorporation, as amended (including the Certificate), to be furnished by the Company to holders of Stock. Such transmis sion will be at the Company's expense and the Company will provide the Depositary with such number of copies of such documents as the Depositary may reasonably request. SECTION 5.06. Indemnification by the Company. The Company shall indemnify the Depositary, any Depositary's Agent and any Registrar against, and hold each of them harmless from, any -30- loss, liability or expense (including the reasonable costs and expenses of defending itself) which may arise out of (i) acts performed or omitted in connection with this Agreement and the Receipts (a) by the Depositary, any Registrar or any of their respective agents (including any Depositary's Agent), except for any liability arising out of gross negligence or willful misconduct on the respective parts of any such person or persons, or (b) by the Company or any of its agents, or (ii) the offer, sale or registration of the Receipts or the Stock pursuant to the provisions hereof. SECTION 5.07. Charges and Expenses. The Company shall pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. The Company shall pay all charges of the Depositary in connection with the initial deposit of the Stock and the initial issuance of the Depositary Shares, and redemption of the Stock at the option of the Company. All other transfer and other taxes and governmental charges shall be at the expense of holders of Depositary Shares. If, at the request of a holder of Receipts, the Depositary incurs charges or expenses for which it is not otherwise liable hereunder, such holder will be liable for such charges and expenses. All other charges and expenses of the Depositary and any Depositary's Agent hereunder and of any Registrar (including, in each case, reasonable fees and expenses of counsel) incident to the performance of their respective obligations hereunder will be payable by the Company only after prior consultation and agreement -31- between the Depositary and the Company and consent by the Company to the incurrence of such expenses, which consent shall not be unreasonably withheld. The Depositary shall present any statement for charges and expenses to the Company promptly, unless the Company shall agree otherwise. ARTICLE VI AMENDMENT AND TERMINATION SECTION 6.01. Amendment. The form of the Receipts and any provisions of this Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary in any respect which they may deem necessary or desirable; provided, however, that no such amendment which shall materially and adversely alter the rights of the holders of Receipts shall be effective unless such amendment shall have been approved by the holders of at least 66 2/3% of the Depositary Shares then outstanding. Every holder of an outstanding Receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold such Receipt, to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. In no event shall any amendment impair the right, subject to the provisions of Sections 2.05 and 2.06 hereof, of any owner of any Depositary Shares to surrender any Receipt evidencing such Depositary Shares to the Depositary with instructions to deliver to the holder the Stock and all money and other property, if any, represented thereby, except in order to comply with mandatory -32- provisions of applicable law or the rules and regulations of any governmental body, agency or commission, the NASD or any applicable stock exchange. SECTION 6.02. Termination. This Agreement may be terminated by the Company or the Depositary only after (i) all outstanding Depositary Shares shall have been redeemed pursuant to Section 2.03 or (ii) there shall have been made a final distribu tion in respect of the Stock in connection with any liquidation, dissolution or winding up of the Company and such distribution shall have been distributed to the holders of Depositary Shares pursuant to Section 4.01 or 4.02, as applicable. Upon the termination of this Deposit Agreement, the parties hereto shall be discharged from all obligations under this Deposit Agreement except for their respective obligations under Sections 5.03, 5.06 and 5.07. ARTICLE VII MISCELLANEOUS SECTION 7.01. Counterparts. This Deposit Agreement may be executed in any number of counterparts, and by each of the parties hereto on separate counterparts, each of which counter parts, when so executed and delivered, shall be deemed an original, but all such counterparts taken together shall constitute one and the same instrument. SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement is for the exclusive benefit of the parties -33- hereto, and their respective successors hereunder, and shall not be deemed to give any legal or equitable right, remedy or claim to any other person whatsoever. SECTION 7.03. Invalidity of Provisions. In case any one or more of the provisions contained in this Deposit Agreement or in the Receipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or modified thereby. SECTION 7.04. Notices. Any and all notices to be given to the Company hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or telegram, telecopy or telex confirmed by letter, addressed to the Company at One First Union Center, Charlotte, North Carolina 28288-0630, telephone: (704) 374-4456, telecopy: (704) 374-3105, Attention: Kent S. Hathaway, or at any other address and to the attention of any other person of which the Company shall have notified the Depositary in writing. Any and all notices to be given to the Depositary hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or by telegram, telecopy or telex confirmed by letter, addressed to the Depositary at the Depositary's Office, at One First Union Center, Charlotte, North Carolina 28288-0133, telephone (704) 374-6828, telecopy (704) 374-3425, Attention: Marion A. Cowell, Jr., or at any other address and to the attention of any -34- other person of which the Depositary shall have notified the Company in writing. Any and all notices to be given to any record holder of a Receipt hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or by telegram, telecopy or telex confirmed by letter, addressed to such record holder at the address of such record holder as it appears on the books of the Depositary, or if such holder shall have filed with the Depositary a written request that notices intended for such holder be mailed to some other address, at the address designated in such request. Delivery of a notice sent by mail or by telegram, telecopy or telex shall be deemed to be effected at the time when a duly addressed letter containing the same (or a confirmation thereof in the case of a telegram or telex message) is deposited, postage prepaid, in a post office letter box. The Depositary or the Company may, however, act upon any telegram or telecopy message received by it from the other or from any holder of a Receipt, notwithstanding that such telegram or telecopy message shall not subsequently be confirmed by letter or as aforesaid. SECTION 7.05. Depositary Agents. The Depositary may from time to time appoint any Depositary's Agent to act in any respect for the Depositary for the purposes of this Deposit Agreement and may at any time appoint additional Depositary's Agents and vary or terminate the appointment of such Depositary's -35- Agents. The Depositary will promptly notify the Company of any such action. SECTION 7.06. Holders of Receipts Are Parties. By acceptance of delivery of the Receipts, any holder of such Receipt from time to time shall be deemed to have agreed to become a party to this Deposit Agreement and to be bound by all of the terms and conditions hereof and of the Receipts to the same extent as though such person executed this Agreement. SECTION 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS). SECTION 7.08. Inspection of Deposit Agreement. Copies of this Deposit Agreement shall be filed with the Depositary and the Depositary's Agents and shall be open to inspection during business hours at the Depositary's Office and the respective offices of the Depositary's Agents, if any, by any holder of a Receipt. SECTION 7.09. Headings. The headings of articles and sections in this Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto have been inserted for convenience only and are not to be regarded as a part of this Deposit Agreement or the Receipts or to have any bearing upon the meaning or inter pretation of any provision contained herein or in the Receipts. -36- IN WITNESS WHEREOF, the Company and the Depositary have duly executed this Agreement as of the day and year first above set forth, and all holders of Receipts shall become parties hereto by and upon acceptance by them of delivery of Receipts issued in accordance with the terms hereof. FIRST UNION CORPORATION by____________________________ Authorized Officer FIRST UNION NATIONAL BANK OF NORTH CAROLINA by____________________________ Authorized Officer -37- -----END PRIVACY-ENHANCED MESSAGE-----