-----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, CjCBeL7xLphud7RMkDN5lNA+KuaKFje4LaS5qZL06eqYmhxRkBVPLGlTu0VmEEbG Xf8J1qJozR0sX1FPco8qQw== 0000950144-99-010839.txt : 19990902 0000950144-99-010839.hdr.sgml : 19990902 ACCESSION NUMBER: 0000950144-99-010839 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19990901 EFFECTIVENESS DATE: 19990901 FILER: COMPANY DATA: COMPANY CONFORMED NAME: WACHOVIA CORP/ NC CENTRAL INDEX KEY: 0000774203 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 561473727 STATE OF INCORPORATION: NC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: SEC FILE NUMBER: 333-81627 FILM NUMBER: 99704340 BUSINESS ADDRESS: STREET 1: 100 N MAIN ST STREET 2: P O BOX 3099 CITY: WINSTON SALEM STATE: NC ZIP: 27150 BUSINESS PHONE: 3367705000 MAIL ADDRESS: STREET 1: 100 NORTH MAIN ST STREET 2: P O BOX 3099 CITY: WINSTON SALEM STATE: NC ZIP: 27150 FORMER COMPANY: FORMER CONFORMED NAME: FIRST WACHOVIA CORP DATE OF NAME CHANGE: 19910603 S-8 POS 1 WACHOVIA CORPORATION 1 ------------------------------ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------------ POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-8 TO REGISTRATION STATEMENT ON FORM S-4 UNDER THE SECURITIES ACT OF 1933 ------------------------------ WACHOVIA CORPORATION (Exact name of registrant as specified in its charter) NORTH CAROLINA 56-1473727 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 100 NORTH MAIN STREET, P.O. BOX 3099, WINSTON-SALEM, NORTH CAROLINA 27150 191 PEACHTREE STREET, N.E., P.O. BOX 4148, ATLANTA, GEORGIA 30303 (Address of principal executive offices, including zip code) OFFITBANK 1993 STOCK OPTION PLAN (Full title of the plan) ------------------------------ Kenneth W. McAllister Senior Executive Vice President and General Counsel Wachovia Corporation 100 North Main Street Post Office Box 3099 Winston-Salem, North Carolina 27150 (336) 732-5141 (Name, address and telephone number, including area code, of agent for service) This Post-Effective Amendment on Form S-8 covers 148,289 shares of the Registrant's $5.00 par value Common Stock which were included in the shares of such Common Stock originally registered on the Form S-4 (Registration Statement No. 333-81627) to which this is an amendment. The registration fee in respect to such Common Stock was paid at the time of the original filing of the Registration Statement relating to such Common Stock. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by Wachovia Corporation (the "Company") with the Securities and Exchange Commission (the "Commission") are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K for the year ended December 31, 1998, filed on March 29, 1999 pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); (b) The Company's Quarterly Reports on Form 10-Q for the quarter ended March 31, 1999, filed with the Commission on May 13, 1999, and for the quarter ended June 30, 1999, filed with the Commission on August 13, 1999; (c) The Company's Current Reports on Form 8-K, filed with the Commission on January 21, 1999 and May 14, 1999; (d) The description of the Company's Common Stock, par value $5.00 per share, contained in the Company's Registration Statement on Form 8-B filed pursuant to Section 12(b) of the Exchange Act, including any amendment or report filed for the purpose of updating such description; and (e) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year referred to in (a), above. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The legality of the securities offered hereby has been passed upon by William M. Watson, Jr., Senior Vice President, Corporate Secretary and Counsel of the Company, who owns approximately 5,300 shares of Common Stock and has been granted options to purchase 11,600 shares of Common Stock. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Sections 55-8-50 through 55-8-58 of the North Carolina Business Corporation Act contain specific provisions relating to indemnification of directors and officers of North Carolina corporations. In general, the statutes provide that (i) a corporation must indemnify a director or officer who is wholly successful in his defense of a proceeding to which he is a party because of his status as such, unless limited by the articles of incorporation, and (ii) a corporation may indemnify a director or officer if he is not wholly successful in such defense, if it is determined as provided by statute that the director or officer meets certain standards of conduct, provided when a director or officer is liable to the corporation or is adjudged liable on the basis that personal benefit was improperly received by him, the corporation may not indemnify him. A director or officer of a corporation who is a party to a proceeding may also apply to the courts for indemnification, unless the articles of incorporation provide otherwise, and the court may order indemnification under certain circumstances set forth in the statute. A corporation may, in II-1 3 its articles of incorporation or bylaws or by contract or resolution, provide indemnification in addition to that provided by statute, subject to certain conditions. The Company's bylaws provide for the indemnification of any director or officer of the Company or any wholly owned subsidiary of the Company against liabilities and litigation expenses arising out of his status as such, excluding (i) that portion of any liabilities or litigation expenses with respect to which such person is entitled to receive payment under any insurance policy other than a directors' and officers' insurance policy maintained by the Company or (ii) any liabilities or litigation expenses incurred on account of any of such person's activities which were at the time taken known or believed by such person to be clearly in conflict with the best interests of the Company. The Company's articles of incorporation provide for the elimination of the personal liability of each director of the Company to the fullest extent permitted by law. The Company has purchased a standard liability policy, which, subject to any limitations set forth in the policy, would pay on behalf of the Company's directors and officers for damages that they become legally obligated to pay as a result of any actual or alleged act, error, omission, misstatement, misleading statement or breach of duty committed while acting in their official capacity or any matter asserted against an officer or director solely by reason of his status as an officer or director. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The following exhibits are filed as a part of this Registration Statement: NUMBER DESCRIPTION ------ ----------- 4.1 Amended and Restated Articles of Incorporation of the Company, which are incorporated by reference to Exhibit 3.1 to the Company's Annual Report on Form 10-K for the year ended December 31, 1993 (File No. 1-9021) 4.2 Bylaws of the Company, which are incorporated by reference to Exhibit 3.2 to the Company's Registration Statement on Form S-4 filed December 14, 1998 (File No. 333-68823) 5 Opinion of William M. Watson, Jr., Esq., as to the legality of the Common Stock being registered 23.1 Consent of William M. Watson, Jr., Esq., which is contained in his opinion filed as Exhibit 5 23.2 Consent of Ernst & Young LLP 23.3 Consent of KPMG LLP 24 Power of Attorney 99 Offitbank 1993 Stock Option Plan II-2 4 ITEM 9. UNDERTAKINGS. (a) The Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the "Securities Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 5 SIGNATURES THE REGISTRANT Pursuant to the requirements of the Securities Act of 1933, Wachovia Corporation certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Post-Effective Amendment No. 1 on Form S-8 to Registration Statement No. 333-81627 on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Winston-Salem, State of North Carolina, on September 1, 1999. WACHOVIA CORPORATION By: /s/ Leslie M. Baker, Jr. ------------------------------------- Leslie M. Baker, Jr. Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on September 1, 1999. Leslie M. Baker, Jr. * James S. Balloun * - --------------------------------------- --------------------------------------- Name: Leslie M. Baker, Jr. Name: James S. Balloun Title: Chairman of the Board Title: Director and Chief Executive Officer (principal executive officer) Peter C. Browning * John T. Casteen III * - --------------------------------------- --------------------------------------- Name: Peter C. Browning Name: John T. Casteen III Title: Director Title: Director John L. Clendenin * Thomas K. Hearn, Jr. * - --------------------------------------- --------------------------------------- Name: John L. Clendenin Name: Thomas K. Hearn, Jr. Title: Director Title: Director George W. Henderson III * W. Hayne Hipp * - --------------------------------------- --------------------------------------- Name: George W. Henderson III Name: W. Hayne Hipp Title: Director Title: Director Robert A. Ingram * George R. Lewis * - --------------------------------------- --------------------------------------- Name: Robert A. Ingram Name: George R. Lewis Title: Director Title: Director Elizabeth Valk Long * John G. Medlin, Jr. * - --------------------------------------- --------------------------------------- Name: Elizabeth Valk Long Name: John G. Medlin, Jr. Title: Director Title: Director Lloyd U. Noland, III * G. Joseph Prendergast * - --------------------------------------- --------------------------------------- Name: Lloyd U. Noland, III Name: G. Joseph Prendergast Title: Director Title: Director II-4 6 Sherwood H. Smith, Jr. * John C. Whitaker, Jr. * - --------------------------------------- --------------------------------------- Name: Sherwood H. Smith, Jr. Name: John C. Whitaker, Jr. Title: Director Title: Director /s/ Robert S. McCoy, Jr. /s/ Donald K. Truslow - --------------------------------------- --------------------------------------- Name: Robert S. McCoy, Jr. Name: Donald K. Truslow Title: Vice Chairman and Title: Senior Executive Vice President Chief Financial Officer Treasurer and Comptroller (principal financial officer) (principal accounting officer) * By: /s/ William M. Watson, Jr. --------------------------------- Name: William M. Watson, Jr. Attorney-in-Fact II-5 7 EXHIBIT INDEX TO REGISTRATION STATEMENT ON FORM S-8 OF WACHOVIA CORPORATION EXHIBIT NO. DESCRIPTION ----------- ----------- 4.1 Amended and Restated Articles of Incorporation of the Company, which are incorporated by reference to Exhibit 3.1 to the Company's Annual Report on Form 10-K for the year ended December 31, 1993* 4.2 Bylaws of the Company, which are incorporated by reference to Exhibit 3.2 to the Company's Registration Statement on Form S-4 filed December 14, 1998 (File No. 333-68823)* 5 Opinion of William M. Watson, Jr., Esq., as to the legality of the Common Stock being registered 23.1 Consent of William M. Watson, Jr., Esq., which is contained in his opinion filed as Exhibit 5 23.2 Consent of Ernst & Young LLP 23.3 Consent of KPMG LLP 24 Power of Attorney 99 Offitbank 1993 Stock Option Plan - ------------ * Incorporated by reference. II-6 EX-5 2 OPINION OF WILLIAM M WATSON JR ESQ 1 EXHIBIT 5 September 1, 1999 Wachovia Corporation 100 North Main Street Post Office Box 3099 Winston-Salem, North Carolina 27150 Registration Statement on Form S-8 Relating to Offitbank 1993 Stock Option Plan Ladies and Gentlemen: I am familiar with the proceedings taken by Wachovia Corporation (the "Company") in connection with the preparation and filing with the Securities and Exchange Commission (the "Commission") of a Post-Effective Amendment No. 1 on Form S-8 (the "Registration Statement") to a Registration Statement on Form S-4 (File No. 333-81627) under the Securities Act of 1933, as amended, pertaining to the offer and sale of up to 148,289 shares of the Company's Common Stock, par value $5.00 per share (the "Shares") pursuant to certain obligations assumed by the Company with respect to the Offitbank 1993 Stock Option Plan (the "Plan"). The assumption by the Company of such obligations, and the offer and sale of the Shares, is contemplated pursuant to a certain Agreement and Plan of Merger dated as of May 13, 1999 by and between the Company and OFFITBANK Holdings, Inc. ("OFFIT Holdings"), pursuant to which OFFIT Holdings merged with and into the Company. As counsel for the Company, the Plan and the Registration Statement have been reviewed under my direction, and I have examined and am familiar with the records relating to the organization of the Company, including its articles of incorporation, bylaws and all amendments thereto, and the records of all proceedings taken by the Board of Directors of the Company pertinent to the rendering of this opinion. Based on the foregoing, and having regard for such legal considerations as I have deemed relevant, I am of the opinion that the Shares have been duly authorized and, upon issuance of the Shares and receipt by the Company of the consideration therefor in accordance with the terms of the Plan, the Shares will be validly issued, fully paid and nonassessable. I hereby consent to the filing of this opinion with the Commission as Exhibit 5 to the Registration Statement. In giving this consent, I do not admit that I am within the category of persons whose consent is required by Section 7 of the Securities Act, or other rules and regulations of the Commission thereunder. Sincerely, /s/ William M. Watson, Jr. Senior Vice President, Counsel and Corporate Secretary EX-23.2 3 CONSENT OF ERNST & YOUNG 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8), pertaining to the OFFITBANK 1993 Stock Option Plan, of our report dated January 14, 1999, with respect to the consolidated financial statements of Wachovia Corporation incorporated by reference in its Annual Report (Form 10-K) for the year ended December 31, 1998, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Winston-Salem, North Carolina August 27, 1999 EX-23.3 4 CONSENT OF KPMG 1 EXHIBIT 23.3 CONSENT OF INDEPENDENT AUDITORS The Board of Directors Wachovia Corporation: We consent to the use of our reports with respect to Central Fidelity National Bank and Central Fidelity Banks, Inc. incorporated herein by reference. /s/ KPMG LLP Richmond, Virginia August 27, 1999 EX-24 5 POWER OF ATTORNEY 1 EXHIBIT 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: We, the undersigned directors of Wachovia Corporation, and each of us, do hereby make, constitute and appoint Kenneth W. McAllister and William M. Watson, Jr., and each of them (either of whom may act without the consent or joinder of the other), our attorneys-in-fact and agents with full power of substitution for us and in our name, place and stead, in any and all capacities, to execute for us and in our behalf the Registration Statement on Form S-8 under the Securities Act of 1933, and any post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as we might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, we the undersigned have executed this Power of Attorney this 1st day of September, 1999. /s/ Leslie M. Baker, Jr. /s/ James S. Balloun - -------------------------------------- -------------------------------------- Leslie M. Baker, Jr. James S. Balloun /s/ Peter C. Browning /s/ John T. Casteen III - -------------------------------------- -------------------------------------- Peter C. Browning John T. Casteen III /s/ John L. Clendenin /s/ Thomas K. Hearn, Jr. - -------------------------------------- -------------------------------------- John L. Clendenin Thomas K. Hearn, Jr. /s/ George W. Henderson III /s/ W. Hayne Hipp - -------------------------------------- -------------------------------------- George W. Henderson III W. Hayne Hipp /s/ Robert A. Ingram /s/ George R. Lewis - -------------------------------------- -------------------------------------- Robert A. Ingram George R. Lewis /s/ Elizabeth Valk Long /s/ John G. Medlin, Jr. - -------------------------------------- -------------------------------------- Elizabeth Valk Long John G. Medlin, Jr. /s/ Lloyd U. Noland, III /s/ G. Joseph Prendergast - -------------------------------------- -------------------------------------- Lloyd U. Noland, III G. Joseph Prendergast /s/ Sherwood H. Smith, Jr. /s/ John C. Whitaker, Jr. - -------------------------------------- -------------------------------------- Sherwood H. Smith, Jr. John C. Whitaker, Jr. EX-99 6 OFFITBANK 1993 STOCK OPTION PLAN 1 EXHIBIT 99 OFFITBANK 1993 STOCK OPTION PLAN 1. PURPOSE; RESTRICTIONS ON AMOUNT AVAILABLE UNDER THE PLAN This Offitbank 1993 Stock Option Plan ("Plan") is intended to encourage stock ownership by employees of Offitbank, a New York state chartered trust company (the "Corporation"), its divisions and Parent Corporations or Subsidiary Corporations (as herein defined) and nonemployee directors of the Corporation, so that they may acquire or increase their proprietary interest in the Corporation, and to encourage such employees to remain in the employ of the Corporation, its divisions and Parent Corporations or Subsidiary Corporations (or, in the case of nonemployee directors, to remain in service as directors of the Corporation) and to put forth maximum efforts for the success of the business. It is further intended that options ("Options") granted by the Committee (as herein defined) pursuant to Section 6 of this Plan shall constitute "incentive stock options" ("Incentive Stock Options") within the meaning of Section 422 of the Internal Revenue Code of 1986, as thereafter amended, and the regulations issued thereunder (the "Code"), and options granted by the Committee pursuant to Section 7 of this Plan shall constitute "nonqualified stock options" ("Nonqualified Stock Options"). 2. DEFINITIONS As used in this Plan, the following words and phrases shall have the meanings indicated: a. BOARD shall mean the board of directors of the Corporation. b. CAUSE shall mean discharge of the Optionee (i) on account of fraud, embezzlement or other unlawful or tortious conduct, whether or not involving or against the Corporation or any Parent Corporation or Subsidiary Corporation, (ii) for violation of a policy of the Corporation or any Parent or Subsidiary Corporation, (iii) for serious and willful acts of misconduct detrimental to the business or reputation of the Corporation or any Parent or Subsidiary Corporation, or (iv) for "cause" or any like term as defined in any written employment contract between the Corporation or any Parent Corporation or Subsidiary Corporation and the Optionee. c. COMMITTEE shall mean the Administrative Committee of the Board. d. COMMON STOCK shall mean the Corporation's common stock, par value $7.00 per share, or par value $1.17 per share if the Split is effectuated. e. DISABILITY shall mean an Optionee's inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve (12) months. 1 2 f. DISINTERESTED PERSON means a person who has not, during the one year prior to service on the Committee, or at any time during such service, been granted or awarded any stock or stock-based derivative security (within the meaning of SEC Rule 16a-1(c) under the 1934 Act) pursuant to the Plan or any other plan of the Corporation or any Parent Corporation or Subsidiary Corporation, except as provided in SEC Rule 16b-3(c)(2)(i) under the 1934 Act. g. FAIR MARKET VALUE per share as of a particular date shall mean (i) the closing sales price per share of Common Stock on a national securities exchange for the last preceding date on which there was a sale of such Common Stock on such exchange, or (ii) if the shares of Common Stock are then traded on an over-the-counter market, the average of the closing bid and asked prices for the shares of Common Stock in such over-the-counter market for the last preceding date on which there was a sale of such Common Stock in such market, or (iii) if the shares of Common Stock are not then listed on a national securities exchange or traded in an over-the-counter market, such value as shall be determined by a nationally recognized independent appraiser selected by the Committee. h. 1933 ACT means the Securities Act of 1933, as amended. i. 1934 ACT shall mean the Securities Exchange Act of 1934, as amended. j. OPTION AGREEMENT shall mean a written agreement prepared by the Committee evidencing the grant of one or more Options to an Optionee under the Plan. k. OPTIONEE shall mean a person who is eligible under Section 4 of the Plan to be granted Options by the Committee and who has been granted Options. 1. OPTION PRICE shall mean the price per share of Common Stock at which an Option shall be exercisable. m. PARENT CORPORATION shall mean any corporation (other than the Corporation) in an unbroken chain of corporations ending with the employer corporation if, at the time of granting an Option, each of the corporations other than the employer owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. n. SEC means the Securities and Exchange Commission. o. SECTION 16 OPTIONEE means a person subject to potential liability under Section 16(b) of the 1934 Act with respect to transactions involving equity securities of the Corporation. p. SPLIT means the proposed 6-for-1 split of the Common Stock that was approved by the Board on November 29, 1993. 2 3 q. SUBSIDIARY CORPORATION shall mean any corporation (other than the Corporation) in an unbroken chain of corporations beginning with the employer corporation if, at the time of granting of an Option, each of the corporations other than the last corporation in the unbroken chain owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. r. TEN PERCENT STOCKHOLDER shall mean an Optionee who, at the time that an Incentive Stock Option is granted, owns stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Corporation or of its Parent Corporations or Subsidiary Corporations. 3. ADMINISTRATION The Plan shall be administered by the Committee, consisting of not less than two members of the Board who, if the Corporation becomes subject to the 1934 Act, are at all times thereafter (i) directors of the Corporation, (ii) not employees of the Corporation or any of its Parent Corporations or Subsidiary Corporations, and (iii) Disinterested Persons. Membership on the Committee shall be subject to such limitations as the Board deems appropriate to permit transactions in Common Stock pursuant to the Plan to be exempt from liability under Section 16(b) of the 1934 Act if the Corporation becomes subject to the provisions thereof. The Committee shall have the authority in its discretion, subject to and not inconsistent with the express provisions of the Plan, to administer the Plan and to exercise all the powers and authorities either specifically granted to it under the Plan or necessary or advisable in the administration of the Plan, including, without limitation, the authority to grant Options, provided that no member of the Committee shall be under consideration for a grant of options at the time the Committee acts; to determine which Options shall constitute Incentive Stock Options; to determine the Option Price of the shares of Common Stock covered by each Option; to determine the persons to whom, and the time or times at which, Options shall be granted; to determine the number of shares to be covered by each Option; to interpret the Plan; to prescribe, amend and rescind rules and regulations relating to the Plan; to determine the terms and provisions of the Option Agreements (which need not be identical) entered into in connection with Options granted under the Plan; and to make all other determinations deemed necessary or advisable for the administration of the Plan. The Committee may delegate to one or more of its members or to one or more agents such administrative duties as it may deem advisable, and the Committee or any person to whom it has delegated duties as aforesaid may employ one or more persons to render advice with respect to any responsibility the Committee or such person may have under the Plan. The Board shall fill all vacancies, however caused, in the Committee. The Board may from time to time appoint additional members to the Committee, and may at any time remove one or more Committee members and substitute others. One member of the Committee shall be selected by the Board as chairman. The 3 4 Committee shall hold its meetings at such times and places as it shall deem advisable. All determinations of the Committee shall be made by a majority of its members either present in person or participating by telephone conference at any meeting or by written consent. The Committee may appoint a secretary and make such rules and regulations for the conduct of its business as it shall deem advisable, and shall keep minutes of its meetings. No member of the Board or Committee shall be liable for any action taken or determination made in good faith with respect to the Plan or any Option granted hereunder. 4. ELIGIBILITY Options may be granted to employees (including, without limitation, officers and directors who are employees) of the Corporation, its present or future divisions, and its Parent Corporations or Subsidiary Corporations and to nonemployee directors of the Corporation. In determining the persons to whom Options shall be granted and the number of shares to be covered by each Option, the Committee shall take into account the duties of the respective persons, their present and potential contributions to the success of the Corporation or any Parent Corporation or Subsidiary Corporation and such other factors as the Committee shall deem relevant in connection with accomplishing the purpose of the Plan. An Optionee shall be eligible to receive more than one grant of an Option during the term of the Plan, but only on the terms and subject to the restrictions hereinafter set forth. 5. STOCK The stock subject to Options hereunder shall be the Corporation's Common Stock. Shares of Common Stock subject to Options hereunder may, in whole or in part, be authorized but unissued shares or shares that shall have been or that may be reacquired by the Corporation. The aggregate number of shares of Common Stock as to which Options may be granted from time to time under the Plan shall not exceed 37,887 (or 227,320 if the Split is effectuated). The limitation established by the preceding sentence shall be subject to adjustment as provided in Section 8(i) hereof. In the event that any outstanding Option under the plan for any reason expires or is terminated without having been exercised in full, the shares of Common Stock allocable to the unexercised portion of such Option shall (unless the Plan shall have been terminated) become available for subsequent grants of Options under the Plan. 4 5 6. INCENTIVE STOCK OPTIONS Options granted pursuant to this Section 6 are intended to constitute Incentive Stock Options and shall be subject to the following special terms and conditions (and such terms and conditions shall be incorporated by reference in the Option Agreements evidencing such Options), in addition to the general terms and conditions specified in Section 8 hereof. a. VALUE OF SHARES. The aggregate Fair Market Value (determined as of the date the Incentive Stock Option is granted) of the shares of Common Stock with respect to which Incentive Stock Options granted under this Plan and all other option plans of the Corporation and any Parent Corporation or Subsidiary Corporation become exercisable for the first time by an Optionee during any calendar year shall not exceed $100,000 (the "$100,000 Limit"). If the aggregate Fair Market Value of the shares of Common Stock (determined as of the date that the Incentive Stock Option is granted) with respect to all Incentive Stock Options previously granted under the Plan and any other plans ("Prior Grants") and any Incentive Stock Options under a current grant (a "Current Grant") which are exercisable for the first time during any calendar year would exceed the $100,000 Limit, the Option shall be exercisable as follows: (1) the portion of the Current Grant exercisable for the first time by the Optionee during any calendar year which would, when added to any portions of any Prior Grants, be exercisable for the first time by the Optionee during such calendar year with respect to Common Stock which would have an aggregate Fair Market Value (determined as of the respective grant date for such Incentive Stock Options) in excess of the $100,000 Limit shall, notwithstanding the terms of the Current Grant, be exercisable for the first time by the Optionee in the first subsequent calendar year or years in which it could be exercisable for the first time by the Optionee when added to all Prior Grants without exceeding the $100,000 Limit; and (2) if, viewed as of the date of the Current Grant, any portion of a Current Grant could not be exercised under the provisions of the immediately preceding provision during any calendar year commencing with the calendar year in which it is first exercisable through and including the last calendar year in which it may by its terms be exercised, such portion of the Current Grant shall not constitute an Incentive Stock Option, but shall be exercisable as a separate Nonqualified Stock Option at such date or dates as shall be provided in the Current Grant; b. TEN PERCENT STOCKHOLDER. In the case of an Incentive Stock Option granted to a Ten Percent Stockholder, (i) the Option Price shall not be less than one hundred ten percent (110%) of the Fair Market Value of the shares of Common Stock of the Corporation on the date of grant of such Incentive Stock Option, 5 6 and (ii) the exercise period shall not exceed five (5) years from the date of grant of such Incentive Stock Option. 7. NONQUALIFIED STOCK OPTIONS Options granted pursuant to this Section 7 are intended to constitute Nonqualified Stock Options and shall be subject only to the general terms and conditions specified in Section 8 hereof. 8. TERMS AND CONDITIONS OF OPTIONS Each Option granted pursuant to the Plan shall be evidenced by a written Option Agreement between the Corporation and the Optionee, which agreement shall comply with and be subject to the following terms and conditions (and such terms and conditions shall be incorporated by reference in the Option Agreements evidencing such Options): a. NUMBER OF SHARES. Each Option Agreement shall state the number of shares of Common Stock to which the Option relates. b. TYPE OF OPTION. Each Option Agreement shall specifically identify the portion, if any, of the Option which constitutes an Incentive Stock Option and the portion, if any, which constitutes a Nonqualified Stock Option. c. OPTION PRICE. Each Option Agreement shall state the Option Price, which, shall be not less than one hundred percent (100%) of the Fair Market Value of the shares of Common Stock of the Corporation on the date of grant of the Option. The Option Price shall be subject to adjustment as provided in Section 8(i) hereof. The date on which the Committee adopts a resolution expressly granting an Option shall be considered the day on which such Option is granted. d. MEDIUM AND TIME OF PAYMENT. The Option Price shall be paid in full, at the time of exercise, in cash and may be effected in whole or in part (i) with monies received from the Corporation or any Parent Corporation or Subsidiary Corporation at the time of exercise as a compensatory cash payment, or (ii) with monies borrowed from the Corporation or any Parent Corporation or Subsidiary Corporation pursuant to repayment terms and conditions as shall be determined from time-to-time by the Committee, in its discretion, separately with respect to each exercise of Options and each Optionee; provided, however, that each such method and time for payment and each such borrowing and terms and conditions of repayment shall be permitted by and be in compliance with applicable law, and provided, further, that in the event the Option Price is paid with monies borrowed from the Corporation or any Parent Corporation or Subsidiary Corporation, such fact shall be noted conspicuously on the certificate for such shares in accordance with applicable law. 6 7 e. TERM AND EXERCISE OF OPTIONS. Options shall be exercisable over the exercise period as and at the times and upon the conditions that the Committee may determine, as reflected in the Option Agreement; provided, however, that the Committee shall have the authority to accelerate the exercisability of any outstanding Option at such time and under such circumstances as it, in its sole discretion, deems appropriate. The exercise period for each Option shall be determined by the Committee; provided, however, that such exercise period shall not exceed eight (8) years from the date of grant of such Option. The exercise period of an Option shall be subject to earlier termination as provided in Sections 8(f) and 8(g) hereof. An Option may be exercised, as to any or all full shares of Common Stock as to which the Option has become exercisable, by giving written notice of such exercise to the Committee; provided, however, that an Option may not be exercised at any one time as to fewer than 100 shares (or such number of shares as to which the Option is then exercisable if such number of shares is less than 100). f. TERMINATION. Except as provided in this Section 8(f) and in Section 8(g) hereof, an Option may not be exercised unless the Optionee is then in the employ of the Corporation (or a division) or a Parent or Subsidiary Corporation thereof and unless the Optionee has remained continuously so employed since the date of grant of the Option. In the event that the employment of an Optionee shall terminate (other than by reason of death, Disability or retirement), all Options of such Optionee that are exercisable at the time of such termination may, unless earlier terminated in accordance with their terms, be exercised within three (3) months after such termination; provided, however, that if the employment of an Optionee shall terminate for Cause, all Options theretofore granted to such Optionee shall, to the extent not theretofore exercised, terminate forthwith. In the case of an Option granted to an individual who at the time of grant was not an employee of the Corporation or a Parent or Subsidiary Corporation, such Option shall cease to be exercisable in accordance with the terms established by the Committee which shall be set forth in the Option Agreement. g. DEATH, DISABILITY OR RETIREMENT OF OPTIONEE. If an Optionee shall die while employed by the Corporation or a Parent or Subsidiary Corporation or within three (3) months after the termination of such Optionee's employment, other than for Cause, or if the Optionee's employment shall terminate by reason of Disability or retirement, all Options theretofore granted to such Optionee (to the extent otherwise exercisable) may, unless earlier terminated in accordance with their terms, be exercised by the Optionee or by the Optionee's estate or by a person who acquired the right to exercise such Option by bequest or inheritance or otherwise by reason of the death or Disability of the Optionee, at any time within (i) one year after the date of death, Disability or retirement of the Optionee, if the Common Stock is then publicly traded on a national securities exchange or on an over-the-counter market and (ii) the earlier of (x) the original expiration date set forth in the Option Agreement and (y) thirty (30) 7 8 days after the date of an initial public offering by the Corporation of its Common Stock, if the Common Stock is not then publicly traded on a national securities exchange or on an the over-the-counter market. h. NONTRANSFERABILITY OF OPTIONS. Options granted under the Plan shall not be transferable or assignable otherwise than by will or by the laws of descent and distribution, and Options may be exercised, during the lifetime of the Optionee, only by the Optionee or by his guardian or legal representative. i. EFFECT OF CERTAIN CHANGES. (1) Subject to the approval (if required) of the Superintendent of Banks of the New York State Banking Department (the "Superintendent"), if there is any change in the number of shares of Common Stock through the declaration of stock dividends, or through recapitalization resulting in stock splits, or combinations or exchanges of such shares, then the number of shares of Common Stock available for Options, the number of such shares covered by outstanding Options and the price per share of such Options, shall be equitably adjusted by the Board to reflect any increase or decrease in the number of issued shares of Common Stock; provided, however, that any fractional shares resulting from such adjustment shall be eliminated. (2) In the event of the proposed dissolution or liquidation of the Corporation, in the event of any corporate separation or division, including, but not limited to, split-up, split-off or spin-off, or in the event of a merger or consolidation of the Corporation with another corporation, the Committee may provide that the holder of each Option then exercisable shall have the right to exercise such Option (at its then Option Price) solely for the kind and amount of shares of stock and other securities, property, cash or any combination thereof receivable upon such dissolution, liquidation, or corporate separation or division, or merger or consolidation by a holder of the number of shares of Common Stock for which such Option might have been exercised immediately prior to such dissolution, liquidation, or corporate separation or division, or merger or consolidation; or the Committee may provide, in the alternative, that each Option granted under the Plan shall terminate as of a date to be fixed by the Committee; provided, however, that not less than thirty (30) days' written notice of the date so fixed shall be given to each Optionee, who shall have the right, during the period of thirty (30) days preceding such termination, to exercise the Options as to all or any part of the shares of Common Stock covered thereby, including shares as to which such Options would not otherwise be exercisable; provided, further, that failure to provide such notice shall not invalidate or affect the action with respect to which such notice was required. (3) If while unexercised Options remain outstanding under the Plan - - 8 9 i) the stockholders of the Corporation approve a definitive agreement to merge or consolidate the Corporation with or into another corporation or to sell or otherwise dispose of substantially all of its assets, or adopt a plan of liquidation, or ii) the "beneficial ownership" (as defined in Rule 13d-3 under the 1934 Act) of securities representing more than 50% of the combined voting power of the Corporation is acquired by any "person" as defined in Sections 13(d) and 14(d) of the 1934 Act, then from and after the date of any such stockholder approval or adoption, or the date on which public announcement of the acquisition of such percentage shall have been made, whichever is applicable (the applicable date being referred to herein as the "Acceleration Date"), all Options shall be exercisable in full, whether or not otherwise exercisable. Following the Acceleration Date, (a) the Committee shall, in the case of a merger, consolidation or sale or disposition of assets, promptly make an equitable adjustment to the number and class of shares of Common Stock available for Options, and to the amount and kind of shares or other securities or property receivable upon exercise of any outstanding Options after the effective date of such transaction, and the price thereof, and (b) the Committee may, in its discretion, permit the cancellation of outstanding Options in exchange for a cash payment in an amount per share subject to any such Option equal to the difference between the Fair Market Value (or, if greater, the price per share being paid in such Offer) of the shares of Common Stock subject to such Option and the Option Price set forth in the Option Agreement evidencing such Option. (4) Paragraphs (2) and (3) of this Section 8(i) shall not apply to a merger or consolidation in which the Corporation is the surviving corporation and shares of Common Stock are not converted into or exchanged for stock, securities of any other corporation, cash or any other thing of value. Paragraph (3) of this Section 8(i) shall also not apply to any public offering of securities by the Corporation. Notwithstanding the preceding sentence, in case of any consolidation or merger of another corporation into the Corporation in which the Corporation is the surviving corporation and in which there is a reclassification or change (including a change to the right to receive cash or other property) of the shares of Common Stock (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination, but including any change in such shares into two or more classes or series of shares), the Committee may provide that the holder of each Option then exercisable shall have the right to exercise such Option solely for the kind and amount of shares of stock and other securities (including those of any new direct or indirect Parent Corporation), property, cash or any combination thereof receivable upon such reclassification, change, consolidation or merger by the holder of the 9 10 number of shares of Common Stock for which such Option might have been exercised. (5) In the event of a change in the Common Stock of the Corporation as presently constituted, which is limited to a change of all of its authorized shares with par value into the same number of shares with a different par value or without par value, the shares resulting from any such change shall be deemed to be the Common Stock within the meaning of the Plan. (6) To the extent that the foregoing adjustments relate to stock or securities of the Corporation, such adjustments shall be made by the Committee, whose determination in that respect shall be final, binding and conclusive. (7) Except as hereinbefore expressly provided in this Section 8(i), the Optionee shall have no rights by reason of any subdivision or consolidation of shares of stock of any class or the payment of any stock dividend or any other increase or decrease in the number of shares of stock of any class or by reason of any dissolution, liquidation, merger, or consolidation or spin-off of assets or stock of another corporation; and any issue by the Corporation of shares of stock of any class, or securities convertible into shares of stock of any class, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to the Option. The grant of an Option pursuant to the Plan shall not affect in any way the right or power of the Corporation to make adjustments, reclassification, reorganizations or changes of its capital or business structures or to merge or to consolidate or to dissolve, liquidate or sell, or transfer all or part of its business or assets. j. RIGHTS AS A STOCKHOLDER; STOCKHOLDER AGREEMENT. An Optionee or a transferee of an Option shall have no rights as a stockholder with respect to any shares covered by the Option until the date of the issuance of a stock certificate to him for such shares. No adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distribution of other rights for which the record date is prior to the date such stock certificate is issued, except as provided in Section 8(i) hereof. If shares of Common Stock are not publicly traded on a national securities exchange or on an over-the-counter market at the time that an Optionee exercises an Option, then as a condition of exercise of such Option, the Optionee shall be required to execute the Corporation's Stockholder Agreement dated as of July 13, 1990 (in the form attached hereto as Exhibit A) as may be revised from time to time. k. OTHER PROVISIONS. The Option Agreements authorized under the Plan shall contain such other provisions, including, without limitation, (i) the imposition of restrictions upon the exercise of an Option, and (iii) in the case of an Incentive Stock Option, the inclusion of any condition not inconsistent with such Option 10 11 qualifying as an Incentive Stock Option, as the Committee shall deem advisable. 9. AGREEMENT BY OPTIONEE REGARDING WITHHOLDING TAXES If the Committee shall so require, as a condition of exercise, each Optionee shall agree that -- (a) No later than the date of exercise of any Option hereunder, (i) the Optionee shall remit an amount sufficient to satisfy all federal, state and local withholding tax requirements related thereto, (ii) the Committee shall withhold such sums from compensation otherwise due to the Optionee or from any shares of Common Stock due to the Optionee under the Plan, or (iii) any combination of the foregoing, or (b) If any disqualifying disposition (within the meaning of Section 422(a)(1) of the Code) is made with respect to shares of Common Stock acquired under an Incentive Stock Option granted pursuant to the Plan, then the person making such disqualifying disposition shall remit to the Corporation an amount sufficient to satisfy all federal, state and local withholding taxes thereby incurred. 10. SECURITIES LAW MATTERS (a) If the Committee deems necessary to comply with the Securities Act of 1933, the Committee may require a written investment intent representation by the Grantee and may require that a restrictive legend be affixed to certificates for shares of Stock. (b) If the Committee determines that, based upon the opinion of counsel for the Corporation, the Committee determines that the exercise or nonforfeitability of, or delivery of benefits pursuant to, any Option would violate any applicable provision of (1) federal or state securities law or (2) the listing requirements of any securities exchange on which are listed any of the Corporation's equity securities, then, notwithstanding anything herein or in any Option Agreement to the contrary, the Committee may postpone any such exercise, nonforfeitability or delivery, as the case may be, but the Corporation shall use its best efforts to cause such exercise, nonforfeitability or delivery to comply with all such provisions at the earliest practicable date. The Committee's authority under this Section 10(b) shall expire on an Acceleration Date. 11 12 11. BANKING LAW MATTERS The Plan shall at all times be subject to the provisions of section 140-a of the New York State Banking Law, the regulations of the New York State Banking Department and any other applicable law of regulation. 12. FUNDING Benefits payable under the Plan to any person shall be paid directly by the Corporation. The Corporation shall not be required to fund, or otherwise segregate assets to be used for, benefits under the Plan. 13. NO EMPLOYMENT RIGHTS Neither the establishment of the Plan nor the granting of any Option shall be construed to (a) give any Optionee the right to remain employed by the Corporation or any of its Parent or Subsidiary Corporations or to any benefits not specifically provided by the Plan or (b) in any manner modify the right of the Corporation or any Parent or Subsidiary Corporation to modify, amend, or terminate any of its employee benefit plans. 14. TERM OF PLAN; APPROVAL OF STOCKHOLDERS The Plan shall become effective upon the close of business on the date that the Superintendent files the restated Organization Certificate for the Corporation reflecting the Split and approval of the Plan (the "Filing Date") but shall be subject to (i) the adoption of the Plan by the Board and (ii) the approval of the Plan by the holders of a majority of the issued and outstanding shares of Common Stock of the Corporation, which approval must occur within twelve months before or after the date that the Plan is adopted by the Board. Subject to the preceding sentence, Options may be granted pursuant to the Plan from time to time within a period of ten (10) years of the earliest to occur of (i) the Filing Date, (ii) the date that the Plan has been adopted by the Board, or (iii) the date that the Plan has been approved by the stockholders of the Corporation. 15. AMENDMENT AND TERMINATION OF THE PLAN Notwithstanding any other provision of this Plan, the Board at any time and from time to time may suspend, terminate, modify or amend the Plan or, subject to the last sentence of this Section 15, any Option; provided, however, (A) that any amendment or modification to the Plan or any Option that would (i) require an amendment to the Corporation's Organization Certificate, (ii) increase the number of shares of Common Stock as to which Options may be granted, (iii) change the number of shares of Common Stock which may be optioned to any single individual, (iv) decrease an Option's exercise price, (v) extend the term of the Plan or of an Option, or (vi) change the persons or category of persons eligible to be granted Options, shall require the approval of the Superintendent and of a majority 12 13 of the shares of Common Stock issued and outstanding and (B) any modification or amendment to the Plan, other than those amendments listed in clause (A) of this Section 15 of the Plan, shall require the approval of the Superintendent. Except as provided in Section 8 hereof, no suspension, termination, modification or amendment of the Plan may adversely affect any Option previously granted, unless the written consent of the Optionee is obtained. 16. EFFECT OF HEADINGS The section and subsection headings contained herein are for convenience only and shall not affect the construction hereof. 13 14 WACHOVIA CORPORATION 1999 Declaration of Amendment to Offitbank 1993 Stock Option Plan THIS DECLARATION OF AMENDMENT, made effective this 1st day of September, 1999, by WACHOVIA CORPORATION, a North Carolina corporation (the "Corporation"), to the Offitbank 1993 Stock Option Plan (the "Plan"). R E C I T A L S: WHEREAS, the Plan provides for the grant of stock options to selected employees of Offitbank ("Offitbank"), its divisions, parent corporations and subsidiary corporations, and selected non-employee directors of Offitbank; and WHEREAS, pursuant to an Agreement and Plan of Merger (the "Merger Agreement") dated as of May 13, 1999 by and between the Corporation and OFFITBANK Holdings, Inc. ("OFFIT Holdings"), the parent corporation of Offitbank, OFFIT Holdings will merge into the Corporation, with the Corporation as the surviving corporation; and WHEREAS, pursuant to Section 6.09(b) of the Merger Agreement, at the effective time of the merger (the "Merger"), each outstanding option to purchase shares of OFFIT Holdings common stock under the Plan, whether vested or unvested, will be converted into an option to acquire shares of the common stock of the Corporation (the "Common Stock"); and WHEREAS, pursuant to Section 15 of the Plan, the Board at any time and from time to time may suspend, terminate, modify or amend the plan or any option, subject to certain terms stated in the Plan; and WHEREAS, subject to consummation of the Merger, the Corporation has determined that it would be in the best interests of the Corporation to reflect the Corporation's assumption of certain options under the Plan and make certain amendments to the Plan in order to facilitate plan administration; NOW, THEREFORE, IT IS DECLARED, that, subject to consummation of the Merger and effective immediately following the effective time of the Merger, the Plan shall be amended as follows: 1. References in the Plan to the "Corporation," including but in no way limited to the definition of the term contained in Section 1, shall hereafter be deemed to be references to Wachovia Corporation. Notwithstanding the foregoing, however, for purposes of determining eligibility to participate in the Plan (including but not limited to the provisions of Section 4), the term "Corporation" shall refer to Offitbank, its present or future divisions, its parent corporations and subsidiary corporations, as defined in the Plan. 15 2. All references to the term "Common Stock," including but not limited to the definition of such term contained in Section 2(d), shall hereafter be deemed to be references to the Common Stock of Wachovia Corporation. 3. All references to the term "Committee," including but not limited to the definition of the term contained in Section 2(c), shall hereafter be deemed to be references to the Management Resources and Compensation Committee of the Board of Directors of Wachovia Corporation. 4. The first paragraph of Section 3 ("Administration") shall be deleted and the following sentences shall be inserted in lieu thereof, with the remainder of Section 3 being unchanged: "The Plan shall be administered by the Committee. If deemed necessary or advisable to comply with the provisions of Rule 16b-3 of the Exchange Act, the Committee shall be comprised solely of "non-employee directors," as such term is defined in Rule 16b-3." 5. The second sentence of Section 5 ("Stock") shall be deleted and the following sentence shall be inserted in lieu thereof, with the remainder of Section 5 being unchanged: "Shares of Common Stock subject to Options hereunder may, in whole or in part, be authorized but unissued shares." 6. Section 8(j) ("Rights as a Stockholder; Stockholder Agreement") shall be amended by deleting the reference to Stockholder Agreement in the heading and by deleting the last sentence thereof, with the remainder of Section 8(j) being unchanged. IN WITNESS WHEREOF, this Declaration of Amendment is executed on behalf of Wachovia Corporation as of the day and year first above written. WACHOVIA CORPORATION By: /s/ L.M. Baker, Jr. --------------------------------- Chief Executive Officer ATTEST: /s/ William M. Watson, Jr. - ---------------------------------- Secretary [Corporate Seal] 2 -----END PRIVACY-ENHANCED MESSAGE-----