-----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, S99gWqaKkyFI2q64vkWbcDrmhmHd9ciVpAcLFVGKgpJlXkvu0fUF/ROBd6s4yCtb rKYgOJykUyft5TiO62t9rg== 0000950168-97-003264.txt : 19971114 0000950168-97-003264.hdr.sgml : 19971114 ACCESSION NUMBER: 0000950168-97-003264 CONFORMED SUBMISSION TYPE: POS AM PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 19971112 SROS: NYSE 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: POS AM SEC ACT: SEC FILE NUMBER: 333-36889 FILM NUMBER: 97714554 BUSINESS ADDRESS: STREET 1: 100 N MAIN ST STREET 2: P O BOX 3099 CITY: WINSTON SALEM STATE: NC ZIP: 27150 BUSINESS PHONE: 9107705000 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 POS AM 1 WACHOVIA CORPORATION POS AM 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 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) 1ST UNITED BANCORP 1997 KEY EMPLOYEES' STOCK OPTION PLAN 1ST UNITED BANCORP KEY EMPLOYEES STOCK OPTION PLAN (1993) (Full title of the plans) Alice Washington Grogan Secretary and Counsel Wachovia Corporation 100 North Main Street Post Office Box 3099 Winston-Salem, North Carolina 27150 (910) 732-5801 (Name, address and telephone number, including area code, of agent for service) This Post-Effective Amendment covers 57,300 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 (File No. 333-36889) 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. 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, 1996, filed on March 26, 1997 pursuant to Section 13 of the Securities Exchange Act of 1934 (the "Exchange Act"). (b) 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. (c) 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. 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 Kenneth W. McAllister, Esq., General Counsel of the Company, who owns approximately 23,000 shares of Common Stock and has been granted options to purchase 55,007 shares of Common Stock and restricted awards for 25,000 shares of Common Stock under plans of the Company. 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 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 II - 1 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 Articles IV, VII, IX, X and XI of the Company's Amended and Restated Articles of Incorporation, 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 Article 1, Section 1.8 and Article 6 of the Company's Bylaws, which are incorporated by reference to Exhibit 3.2 to the Company's Registration Statement on Form S-4 filed October 1, 1997 (File No. 333-36889) 4.3 All instruments defining the rights of holders of long-term debt of the Company and its subsidiaries (Not filed pursuant to 4(iii) of Item 601(b) of Regulation S-K; to be furnished upon the request of the Commission) 5 Opinion of Kenneth W. McAllister, Esq., as to the legality of the Common Stock being registered 23.1 Consent of Kenneth W. McAllister, Esq., which is contained in his opinion filed as Exhibit 5 23.2 Consent of Ernst & Young LLP 23.3 Consent of KPMG Peat Marwick LLP 24 Power of Attorney 99.1 1st United Bancorp 1997 Key Employees' Stock Option Plan 99.2 1997 Declaration of Amendment to 1st United Bancorp 1997 Key Employees' Stock Option Plan II - 2 99.3 1st United Bancorp Key Employees Stock Option Plan (1993) 99.4 1997 Declaration of Amendment to 1st United Bancorp Key Employees Stock Option Plan (1993) 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 II - 3 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 - 4 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. 333-36889 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 this 7th day of November, 1997. WACHOVIA CORPORATION By: Leslie M. Baker, Jr. -------------------------- Leslie M. Baker, Jr. President 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 November 7, 1997. Leslie M. Baker, Jr. John G. Medlin, Jr. - ---------------------------------------- ----------------------------------- Name: Leslie M. Baker, Jr. Name: John G. Medlin, Jr. Title: Director, President and Title: Chairman of the Board Chief Executive Officer (principal executive officer) James S. Balloun * Peter C. Browning * - ---------------------------------------- ----------------------------------- Name: James S. Balloun Name: Peter C. Browning Title: Director Title: Director John T. Casteen III * John L. Clendenin * - ---------------------------------------- ----------------------------------- Name: John T. Casteen III Name: John L. Clendenin Title: Director Title: Director Lawrence M. Gressette, Jr. * Thomas K. Hearn, Jr. * - ---------------------------------------- ----------------------------------- Name: Lawrence M. Gressette, Jr. 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 M. Holder, Jr. * Robert A. Ingram * - ---------------------------------------- ----------------------------------- Name: Robert M. Holder, Jr. Name: Robert A. Ingram Title: Director Title: Director James W. Johnston * - ---------------------------------------- Name: James W. Johnston Title: Director II - 5 Wyndham Robertson * Herman J. Russell * - ---------------------------------------- ----------------------------------- Name: Wyndham Robertson Name: Herman J. Russell Title: Director Title: Director Sherwood H. Smith, Jr. * John C. Whitaker, Jr. * - ---------------------------------------- ----------------------------------- Name: Sherwood H. Smith, Jr. Name: John C. Whitaker, Jr. Title: Director Title: Director Robert S. McCoy, Jr. Donald K. Truslow - ---------------------------------------- ----------------------------------- Name: Robert S. McCoy, Jr. Name: Donald K. Truslow Title: Executive Vice President and Title: Comptroller (principal Chief Financial Officer accounting officer) (principal financial officer) *By: Kenneth W. McAllister --------------------------------- Name: Kenneth W. McAllister --------------------------------- Attorney-in-Fact
II - 6 EXHIBIT INDEX TO REGISTRATION STATEMENT ON FORM S-8 OF WACHOVIA CORPORATION EXHIBIT NO. DESCRIPTION 4.1 Articles IV, VII, IX, X and XI of the Company's Amended and Restated Articles of Incorporation, 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 Article 1, Section 1.8 and Article 6 of the Company's Bylaws, which are incorporated by Reference to Exhibit 3.2 to the Company's Registration Statement on Form S-4 filed October 1, 1997 (File No. 333-36889) * 4.3 All instruments defining the rights of holders of long-term debt of the Company and its subsidiaries (Not filed pursuant to 4(iii) of Item 601(b) of Regulation S-K; to be furnished upon the request of the Commission) 5 Opinion of Kenneth W. McAllister, Esq., as to the legality of the Common Stock being registered 23.1 Consent of Kenneth W. McAllister, Esq., which is contained in his opinion filed as Exhibit 5 23.2 Consent of Ernst & Young LLP 23.3 Consent of KPMG Peat Marwick LLP 24 Power of Attorney 99.1 1st United Bancorp 1997 Key Employees' Stock Option Plan 99.2 1997 Declaration of Amendment to 1st United Bancorp 1997 Key Employees' Stock Option Plan 99.3 1st United Bancorp Key Employees Stock Option Plan 99.4 1997 Declaration of Amendment to 1st United Bancorp Key Employees Stock Option Plan (1993) - ------ * Incorporated by reference. II - 7 EX-5 2 EXHIBIT 5 EXHIBIT 5 WACHOVIA - -------------------------------------------------------------------------------- Kenneth W. McAllister Executive Vice President and General Counsel Wachovia Corporation 100 North Main Street Winston-Salem, North Carolina 27150 November 12, 1997 Wachovia Corporation 100 North Main Street P.O. Box 3099 Winston-Salem, North Carolina 27150 Re: Registration Statement on Form S-8 Relating to the 1st United Bancorp 1997 Key Employees' Stock Option Plan and 1st United Bancorp Key Employees Stock Option Plan (1993) 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 of a Post-Effective Amendment No. 1 on Form S-8 (the "Registration Statement") to a Registration Statement on Form S-4 (File No. 333-36889) under the Securities Act of 1933, as amended, pertaining to the issuance of up to 57,300 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 1st United Bancorp 1997 Key Employees' Stock Option Plan and 1st United Bancorp Key Employees Stock Option Plan (1993) (collectively, the "Plans"). The assumption by the Company of such obligations, and the issuance and sale of the Shares, is contemplated pursuant to a certain Agreement and Plan of Merger, dated August 6, 1997, by and between the Company and 1st United Bancorp ("1st United"), pursuant to which 1st United merged with and into the Company. As counsel for the Company, I have reviewed the Plans and the Registration Statement, 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, when issued and paid for in accordance with the terms of each respective Plan, will be validly issued, fully paid and nonassessable. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Sincerely, /s/ Kenneth W. McAllister Kenneth W. McAllister EX-23 3 EXHIBIT 23.2 EXHIBIT 23.2 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement (Post-Effective Amendment No. 1 Form S-8 filed on or about November 11, 1997) pertaining to the 1st United Bancorp 1997 Key Employees' Stock Option Plan and the 1st United Bancorp Employees' Stock Option Plan (1993) of our report dated January 15, 1997, 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, 1996, filed with the Securities and Exchange Commission. Ernst & Young LLP Winston-Salem, North Carolina November 10, 1997 EX-23 4 EXHIBIT 23.3 EXHIBIT 23.3 CONSENT OF INDEPENDENT AUDITORS The Board of Directors Central Fidelity Banks, Inc.: We consent to the use of our report dated January 15, 1997, with respect to the consolidated balance sheet of Central Fidelity Banks, Inc. and subsidiaries as of December 31, 1996 and 1995, and the related statements of consolidated income, consolidated cash flows and changes in consolidated shareholders' equity for each of the years in the three-year period ended December 31, 1996, which report appears in Wachovia Corporation's Current Report on Form 8-K dated September 8, 1997 and is incorporated by reference in the Post-Effective Amendment No. 1 on Form S-8 to the Registration Statement on Form S-4 of Wachovia Corporation. KPMG Peat Marwick LLP Richmond, Virginia November 10, 1997 EX-24 5 EXHIBIT 24 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 Alice Washington Grogan, 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 Post-Effective Amendment No. 1 on Form S-8 to the Registration Statement on Form S-4 (File No. 333-36889) 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 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 7th day of November, 1997. /s/ James S. Balloun /s/ Peter C. Browning - -------------------------------- ------------------------------- James S. Balloun Peter C. Browning /s/ John T. Casteen III /s/ John L. Clendenin - -------------------------------- ------------------------------- John T. Casteen III John L. Clendenin /s/ Lawrence M. Gressette, Jr. /s/ Thomas K. Hearn, Jr. - -------------------------------- ------------------------------- Lawrence M. Gressette, Jr. Thomas K. Hearn, Jr. /s/ George W. Henderson III /s/ W. Hayne Hipp - -------------------------------- ------------------------------- George W. Henderson III W. Hayne Hipp /s/ Robert M. Holder, Jr. /s/ Robert A. Ingram - -------------------------------- ------------------------------- Robert M. Holder, Jr. Robert A. Ingram /s/ James W. Johnston /s/ Wyndham Robertson - -------------------------------- ------------------------------- James W. Johnston Wyndham Robertson /s/ Herman J. Russell /s/ Sherwood H. Smith, Jr. - -------------------------------- ------------------------------- Herman J. Russell Sherwood H. Smith, Jr. /s/ John C. Whitaker, Jr. - -------------------------------- John C. Whitaker, Jr.
EX-99 6 EXHIBIT 99.1 EXHIBIT 99.1 1ST UNITED BANCORP 1997 KEY EMPLOYEES' STOCK OPTION PLAN 1. Purpose. The purpose of the 1997 Key Employees' Stock Option Plan ("Plan") of 1st United Bancorp (the "Company") is to provide a means through which the Company and its Subsidiaries may attract able persons to enter and remain in the employ or other service of the Company and its Subsidiaries, and to provide a means whereby those key persons upon whom the responsibilities of the successful administration and management of the Company rest, and whose present and potential contributions to the welfare of the Company are of importance, can acquire and maintain stock ownership, thereby strengthening their commitment to the welfare of the Company and promoting an identity of interest between shareholders and these key persons. A further purpose of the Plan is to provide such key persons with additional incentive and reward opportunities designed to enhance the profitable growth of the Company. The Plan provides for granting Incentive Stock Options and Non-Qualified Stock Options to eligible participants. 2. Definitions. The following definitions shall be applicable throughout the Plan. (a) "Award" shall mean, individually or collectively, any Incentive Stock Option or Non-Qualified Stock Option. (b) "Board" shall mean the Board of Directors of the Company. (c) "Change in Control" shall, unless the Board otherwise directs by resolution adopted prior thereto, be deemed to occur if (i) any "person" (as that term is used in Sections 13 and 14(d)(2) of the Exchange Act) is or becomes the beneficial owner (as that term is used in Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder), directly or indirectly, of twenty-five percent (25%) or more of the voting stock; or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board cease for any reason to constitute at least a majority thereof, unless the election or the nomination for election by the Company's shareholders of each new director was approved by a vote of at least three-quarters of the directors then still in office who were directors at the beginning of the period. Any merger, consolidation or corporate reorganization in which the owners of the Company's capital stock entitled to vote in the election of directors ("Voting Stock") prior to said combination, own fifty percent (50%) or more of the resulting entity's Voting Stock shall not, by itself, be considered a Change in Control. (d) "Code" shall mean the Internal Revenue Code of 1986, as amended. Reference in the Plan to any section of the Code shall be deemed to include any amendments or successor provisions to such section and any regulations under such section. (e) "Committee" shall mean the Compensation Committee of the Board, or such other committee as may be appointed by the Board, each member of which shall be a Non- Employee Director and which shall be the administrative committee for the Plan. In the absence of such committee, the Board shall serve as the Committee. (f) "Common Stock" shall mean the Common Stock of the Company, $0.01 par value per share. (g) "Company" shall mean 1st United Bancorp, a Florida corporation. (h) "Date of Grant" shall mean the date on which the granting of an Award is authorized or such other date as may be specified in such authorization. (i) "Eligible Employee" shall mean any person regularly employed by the Company or a Subsidiary on a full-time salaried basis who satisfies all of the requirements of Section 6 hereof. (j) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (k) "Fair Market Value" shall mean (i) the average of the high and low prices of the Common Stock on the principal national securities exchange on which the Common Stock is traded for the ten (10) trading days immediately preceding the date of determination, if the Common Stock is then traded on a national securities exchange; or (ii) the average of the last reported sale price of the Common Stock on the NASDAQ National Market List for the ten (10) trading days immediately preceding the date of determination, if the Common Stock is not then traded on a national securities exchange; or (iii) the closing bid price (or average of bid prices) last quoted by an established quotation service for over-the-counter securities for the ten (10) trading days immediately preceding the date of determination, if the Common Stock is not reported on the NASDAQ National Market List. However, if the Common Stock is not publicly-traded at the time an option is granted under the Plan, "Fair Market Value" shall be deemed to be the fair value of the Common Stock as determined by the Compensation Committee of the Board of the Company (the "Committee") after taking into consideration all factors which it deems appropriate, including, without limitation, recent sale and offer prices of the Common Stock in private transactions negotiated at arm's length. (l) "Holder" shall mean a Participant who has been granted an Option. (m) "Incentive Stock Option" shall mean an Option granted by the Committee to a Participant under the Plan which is designated by the Committee as an Incentive Stock Option pursuant to Section 422 of the Code. (n) "Non-Employee Director" shall mean a director of the Company who: 2 (i) Is not currently an officer of the Company or any of its parents or Subsidiaries, or otherwise is not currently employed by the Company or any of its parents or Subsidiaries; (ii) Does not receive compensation, either directly or indirectly, from the Company or any of its parents or Subsidiaries, for services rendered as a consultant or in any capacity other than as a director, except for an amount that does not exceed the dollar amount for which disclosure would be required pursuant to Item 404(a) of Regulation S-K promulgated under the Exchange Act; (iii) Does not possess an interest in any other transaction for which disclosure would be required pursuant to Item 404(a) of Regulation S-K promulgated under the Exchange Act; (iv) Is not engaged in a business relationship for which disclosure would be required pursuant to Item 404(b) of Regulation S-K promulgated under the Exchange Act; and (v) Is an "outside director" within the meaning of Section 162(m)(4)(C) of the Code and Treasury Regulation Section 1.162-27(e)(3). (o) "Non-Qualified Stock Option" shall mean an Option granted by the Committee to a Participant under the Plan which is not designated by the Committee as an Incentive Stock Option. (p) "Option" shall mean an Award granted under Section 7 of the Plan. (q) "Option Period" shall mean the period described in Section 7(d). (r) "Participant" shall mean a person who has been selected to participate in the Plan and to receive an Award pursuant to Section 6. Participants are limited to Eligible Employees. (s) "Plan" shall mean the 1997 Key Employees' Stock Option Plan of 1st United Bancorp. (t) "Securities Act" shall mean the Securities Act of 1933, as amended. (u) "Stock" shall mean the Common Stock or such other authorized shares of stock of the Company as the Committee may from time to time authorize for use under the Plan. (v) "Subsidiary" shall mean any corporation which is a "subsidiary corporation" of the Company within the meaning of Section 424(f) of the Code. 3. Effective Date, Duration and Shareholder Approval. Subject to the approval of this Plan by the shareholders of the Company at a duly convened meeting of shareholders, the 3 Plan shall become effective on the date of approval by the Board, and no further Awards may be made after December 31, 2006. The Plan shall continue in effect until all matters relating to the payment of Awards and administration of the Plan have been settled. 4. Administration. The Committee shall administer the Plan. The Committee shall consist of at least two (2) members, each of whom shall be a Non-Employee Director. A majority of the members of the Committee shall constitute a quorum. The acts of a majority of the members present at any meeting at which a quorum is present or acts approved in writing by a majority of the Committee shall be deemed the acts of the Committee. Subject to the provisions of the Plan, the Committee shall have exclusive power to: (a) Select the persons to be Participants in the Plan; (b) Determine the nature and extent of the Awards to be made to each Participant; (c) Determine the time or times when Awards will be made; (d) Determine the conditions to which the payment of Awards may be subject; (e) Prescribe the form or forms evidencing Awards; and (f) Cause records to be established in which there shall be entered, from time to time as Awards are made to Participants, the date of each Award, the number of Incentive Stock Options or Non-Qualified Stock Options awarded by the Committee to each Participant, and the expiration date of each such Award. The Committee shall have the authority, subject to the provisions of the Plan, to establish, adopt, or revise such rules and regulations and to make all such determinations relating to the Plan as it may deem necessary or advisable for the administration of the Plan. The Committee's interpretation of the Plan or any Awards granted pursuant thereto and all decisions and determinations by the Committee with respect to the Plan shall be final, binding, and conclusive on all parties unless otherwise determined by the Board. 5. Grant of Options; Shares Subject to the Plan. The Committee may, from time to time, grant Awards of Options to one or more Participants; provided, however, that: (a) Subject to Section 9, the aggregate number of shares of Stock made subject to Awards may not exceed six hundred thousand (600,000); 4 (b) Such shares shall be deemed to have been used in payment of Awards whether they are actually delivered or the Fair Market Value equivalent of such shares is paid in cash. In the event any Option shall be surrendered, terminate, expire, or be forfeited, the number of shares of Stock no longer subject thereto shall thereupon be released and shall thereafter be available for new Awards under the Plan to the fullest extent permitted by the Exchange Act (if applicable at the time); and (c) Stock delivered by the Company in settlement of Awards under the Plan may be authorized and unissued Stock or may be purchased on the open market or by private purchase at prices no higher than the Fair Market Value at the time of purchase. 6. Eligibility. Participants shall be limited to officers and employees of the Company and its Subsidiaries, in each case who have received written notification from the Committee or from a person designated by the Committee that they have been selected to participate in the Plan. 7. Stock Options. One or more Incentive Stock Options or Non-Qualified Stock Options can be granted to any Participant; provided, however, that Incentive Stock Options may be granted only to Eligible Employees and Non-Employee Directors. Each Option so granted shall be subject to the following conditions. (a) OPTION PRICE. The option price ("Option Price") per share of Stock shall be set by the Committee at the time of grant but shall not be less than (i) in the case of an Incentive Stock Option, the Fair Market Value of a share of Stock at the Date of Grant, and (ii) in the case of a Non-Qualified Stock Option, the par value per share of Stock. (b) MANNER OF EXERCISE AND FORM OF PAYMENT. Options which have become exercisable may be exercised by delivery of written notice of exercise to the Committee accompanied by payment of the Option Price. The Option Price shall be payable in cash and/or shares of Stock valued at the Fair Market Value at the time the Option is exercised, or, in the discretion of the Committee, either (i) in other property having a Fair Market Value on the date of exercise equal to the Option Price, or (ii) by delivering to the Company a copy of irrevocable instructions to a stockbroker to deliver promptly to the Company an amount of sale or loan proceeds sufficient to pay the Option Price. (c) STOCK OPTION AGREEMENT. Each Option granted under the Plan shall be evidenced by a "Stock Option Agreement" between the Company and the Holder of the Option containing such provisions as may be determined by the Committee, but shall be subject to the following terms and conditions. (i) Each Option or portion thereof that is exercisable shall be exercisable for the full amount or for any part thereof, except as otherwise determined by the terms of the Stock Option Agreement. 5 (ii) Each share of Stock purchased through the exercise of an Option shall be paid for in full at the time of the exercise. Each Option shall cease to be exercisable, as to any share of Stock, when the Holder purchases the share or when the Option lapses. (iii) Options shall not be transferable by the Holder except by will or the laws of descent and distribution and shall be exercisable during the Holder's lifetime only by him or her. (iv) Each Option shall become exercisable by the Holder in three equal installments over a three-year period, with the first vesting to occur upon the first anniversary of the date of the Stock Option Agreement and with subsequent vestings to occur on the second and third anniversaries of the date of the Stock Option Agreement; provided, however, that the Holder is an employee of the Company on each such anniversary date. (v) Each Stock Option Agreement may contain an agreement that, upon demand by the Committee for such a representation, the Holder shall deliver to the Committee at the time of any exercise of an Option a written representation that the shares to be acquired upon such exercise are to be acquired for investment and not for resale or with a view to the distribution thereof. Upon such demand, delivery of such representation prior to the delivery of any shares issued upon exercise of an Option shall be a condition precedent to the right of the Holder or such other person to purchase any shares. In the event certificates for Stock are delivered under the Plan with respect to which such investment representation has been obtained, the Committee may cause a legend or legends to be placed on such certificates to make appropriate reference to such representation and to restrict transfer in the absence of compliance with applicable federal or state securities laws. (d) OTHER TERMS AND CONDITIONS. An Option granted pursuant to the Plan shall become exercisable and shall lapse in such manner and within such period or periods ("Option Period"), not to exceed ten (10) years from its Date of Grant (or such shorter time period as may be otherwise specified herein), and shall contain such other terms and conditions, all of which shall not be inconsistent with the Plan, as provided in the Stock Option Agreement to be entered into in connection with the grant of such Option. (e) GRANTS TO 10% HOLDERS OF COMPANY VOTING STOCK. Notwithstanding Sections 7(a) and 7(d), if an Incentive Stock Option is granted to a Holder who owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or of the Company and its Subsidiaries, the period specified in the Stock Option 6 Agreement for which the Option thereunder is granted and at the end of which such Option shall expire shall not exceed five (5) years from the Date of Grant of such Option and the Option Price shall be at least one hundred ten percent (110%) of the Fair Market Value (on the Date of Grant) of the Stock subject to the Option. (f) LIMITATION. To the extent the aggregate Fair Market Value (as determined as of the Date of Grant) of Stock for which Incentive Stock Options are exercisable for the first time by any Participant during any calendar year (under all plans of the Company and its Subsidiaries) exceeds One Hundred Thousand Dollars ($100,000), such excess Incentive Stock Options shall be treated as Non-Qualified Stock Options. (g) VOLUNTARY SURRENDER. The Committee may permit the voluntary surrender of all or any portion of any Non-Qualified Stock Option granted under the Plan to be conditioned upon the granting to the Holder of a new Option for the same or a different number of shares as the Option surrendered or require such voluntary surrender as a condition precedent to a grant of a new Option to such Participant. Such new Option shall be exercisable at the Option Price, during the exercise period, and in accordance with any other terms or conditions specified by the Committee at the time the new Option is granted, all determined in accordance with the provisions of the Plan without regard to the Option Price, exercise period, or any other terms and conditions of the Non-Qualified Stock Option surrendered. (h) ORDER OF EXERCISE. Options granted under the Plan may be exercised in any order, regardless of the Date of Grant or the existence of any other outstanding Option. (i) NOTICE OF DISPOSITION. Participants shall give prompt notice to the Company of any disposition of Stock acquired upon exercise of an Incentive Stock Option if such disposition occurs within either two (2) years after the Date of Grant of such Option and/or one (1) year after the receipt of such Stock by the Holder. 8. General. (a) ADDITIONAL PROVISIONS OF AN AWARD. The award of any benefit under the Plan may also be subject to such other provisions (whether or not applicable to the benefit awarded to any other Participant) as the Committee determines appropriate including, without limitation, provisions to assist the Participant in financing the purchase of Common Stock through the exercise of Options, provisions for the forfeiture of or restrictions on resale or other disposition of shares acquired under any form of benefit, provisions giving the Company the right to repurchase shares acquired under any form of benefit in the event the Participant elects to dispose of such shares, and provisions to comply with Federal and state securities laws and Federal and state income tax withholding requirements. (b) PRIVILEGES OF STOCK OWNERSHIP. Except as otherwise specifically provided in the Plan, no person shall be entitled to the privileges of stock ownership in respect of shares of stock 7 which are subject to Options hereunder until such shares have been issued to that person upon exercise of an Option according to its terms. (c) GOVERNMENT AND OTHER REGULATIONS. The obligation of the Company to make payment of Awards in Stock or otherwise shall be subject to all applicable laws, rules, and regulations, and to such approvals by governmental agencies as may be required. The Company shall be under no obligation to register under the Securities Act any of the shares of Stock issued under the Plan. If the shares issued under the Plan may in certain circumstances be exempt from registration under the Securities Act, the Company may restrict the transfer of such shares in such manner as it deems advisable to ensure the availability of any such exemption. (d) TAX WITHHOLDING. Notwithstanding any other provision of the Plan, the Company or a Subsidiary, as appropriate, shall have the right to deduct from all Awards, to the extent paid in cash, all federal, state or local taxes as required by law to be withheld with respect to such Awards and, in the case of Awards paid in Stock, the Holder or other person receiving such Stock may be required to pay to the Company or a Subsidiary, as appropriate prior to delivery of such Stock, the amount of any such taxes which the Company or Subsidiary is required to withhold, if any, with respect to such Stock. Subject in particular cases to the disapproval of the Committee, the Company may accept shares of Stock of equivalent Fair Market Value in payment of such withholding tax obligations if the Holder of the Award elects to make payment in such manner at least six months prior to the date such tax obligation is determined. (e) CLAIM TO AWARDS AND EMPLOYMENT RIGHTS. No employee or other person shall have any claim or right to be granted an Award under the Plan nor, having been selected for the grant of an Award, to be selected for a grant of any other Award. Neither this Plan nor any action taken hereunder shall be construed as giving any Participant any right to be retained in the employ of the Company or a Subsidiary. (f) CONDITIONS. Each Participant to whom Awards are granted under the Plan shall be required to enter into a Stock Option Agreement in a form authorized by the Committee, which may include provisions that the Participant shall not disclose any confidential information of the Company or any of its Subsidiaries acquired during the course of such Participant's employment. (g) PAYMENTS TO PERSONS OTHER THAN PARTICIPANTS. If the Committee shall find that any person to whom any amount is payable under the Plan is unable to care for his affairs because of illness or accident, or is a minor, or has died, then any payment due to such person or his estate (unless a prior claim therefor has been made by a duly appointed legal representative), may, if the Committee so directs the Company, be paid to his spouse, child, relative, an institution maintaining or having custody of such person, or any other person deemed by the Committee to be a proper recipient on behalf of such person otherwise entitled to payment. Any such payment shall be a complete discharge of the liability of the Committee and the Company therefor. 8 (h) NO LIABILITY OF COMMITTEE MEMBERS. No member of the Committee shall be personally liable by reason of any contract or other instrument executed by such member or on his behalf in his capacity as a member of the Committee nor for any mistake of judgment made in good faith, and the Company shall indemnify and hold harmless each member of the Committee and each other employee, officer or director of the Company to whom any duty or power relating to the administration or interpretation of the Plan may be allocated or delegated, against any cost or expense (including counsel fees) or liability (including any sum paid in settlement of a claim) arising out of any act or omission to act in connection with the Plan unless arising out of such person's own fraud or bad faith; provided, however, that approval of the Board shall be ----------------- required for the payment of any amount in settlement of a claim against any such person. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled under the Company's Articles of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless. (i) GOVERNING LAW. The Plan will be administered in accordance with federal laws, or in the absence thereof, the laws of the State of Florida. (j) FUNDING. No provision of the Plan shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or otherwise to segregate any assets, nor shall the Company maintain separate bank accounts, books, records, or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes. Holders shall have no rights under the Plan other than as unsecured general creditors of the Company, except that insofar as they may have become entitled to payment of additional compensation by performance of services, they shall have the same rights as other employees under general law. (k) NONTRANSFERABILITY. A person's rights and interest under the Plan, including amounts payable, may not be sold, assigned, donated or transferred or otherwise disposed of, mortgaged, pledged or encumbered except, in the event of a Holder's death, to a designated beneficiary to the extent permitted by the Plan, or in the absence of such designation, by will or the laws of descent and distribution. (l) RELIANCE ON REPORTS. Each member of the Committee and each member of the Board shall be fully justified in relying, acting or failing to act, and shall not be liable for having so relied, acted or failed to act in good faith, upon any report made by the independent public accountant of the Company and its Subsidiaries and upon any other information furnished in connection with the Plan by any person or persons other than himself. (m) RELATIONSHIP TO OTHER BENEFITS. No payment under the Plan shall be taken into account in determining any benefits under any pension, retirement, profit sharing, group insurance or other benefit plan of the Company or any Subsidiary except as otherwise specifically provided. 9 (n) EXPENSES. The expenses of administering the Plan shall be borne by the Company and its Subsidiaries. (o) PRONOUNS. Masculine pronouns and other words of masculine gender shall refer to both men and women. (p) TITLES AND HEADINGS. The titles and headings of the sections in the Plan are for convenience of reference only, and in the event of any conflict, the text of the Plan, rather than such titles or headings shall control. 9. Changes in Capital Structure. Awards of Options and any agreements evidencing such Awards shall be subject to adjustment or substitution, as determined by the Committee in its sole discretion, as to the number, price or kind of a share of Stock or other consideration subject to such Awards or as otherwise determined by the Committee to be equitable (i) in the event of changes in the outstanding Stock or in the capital structure of the Company, by reason of stock dividends, stock splits, recapitalizations, reorganizations, mergers, consolidations, combinations, exchanges or other relevant changes in capitalization occurring after the Date of Grant of any such Award or (ii) in the event of any change in applicable laws or any change in circumstances which results in or would result in any substantial dilution or enlargement of the rights granted to, or available for, Participants in the Plan, or which otherwise warrants equitable adjustment because it interferes with the intended operation of the Plan. In addition, in the event of any such adjustments or substitution, the aggregate number of shares of Stock available under the Plan shall be appropriately adjusted by the Committee, whose determination shall be conclusive. Any adjustment in Incentive Stock Options under this Section 9 shall be made only to the extent not constituting a "modification" within the meaning of Section 424(h)(3) of the Code, and any adjustments under this Section 9 shall be made in a manner which does not adversely affect the exemption provided pursuant to Rule 16b-3 under the Exchange Act. The Company shall give each Participant notice of an adjustment hereunder and, upon notice, such adjustment shall be conclusive and binding for all purposes. 10. Effect of Change in Control. (a) In the event of a Change in Control, notwithstanding any vesting schedule provided for hereunder or by the Committee with respect to an Award of Options, an Option shall become immediately exercisable for such period of time specified in the Optionee's Stock Option Agreement with respect to one hundred percent (100%) of the shares subject to such Option. (b) The obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the merger, consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to substantially all of the assets and business of the Company. The Company agrees that it will make appropriate provisions for the preservation of Participant's rights under the Plan in any agreement or plan which it may enter into or adopt to effect any such merger, consolidation, reorganization or transfer of assets. 10 11. Nonexclusivity of the Plan. Neither the adoption of this Plan by the Board nor the submission of this Plan to the shareholders of the Company for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of stock options otherwise than under this Plan, and such arrangements may be either applicable generally or only in specific cases. 12. Amendments and Termination. The Board may at any time terminate the Plan. With the express written consent of an individual Participant, the Board may cancel or reduce or otherwise alter the outstanding Awards thereunder if, in its judgment, the tax, accounting, or other effects of the Plan or potential payouts thereunder would not be in the best interest of the Company. The Board may, at any time, or from time to time, amend or suspend and, if suspended, reinstate, the Plan in whole or in part; provided, however, that without further shareholder approval, the Board shall not: (a) Increase the maximum number of shares of Common Stock which may be issued on exercise of Options except as provided in Section 9 of the Plan; (b) Change the maximum Option Price; (c) Extend the maximum Option Term; (d) Extend the termination date of the Plan; or (e) Change the class of persons eligible to receive Awards under the Plan. 11 EX-99 7 EXHIBIT 99.2 EXHIBIT 99.2 WACHOVIA CORPORATION 1997 DECLARATION OF AMENDMENT TO 1ST UNITED BANCORP 1997 KEY EMPLOYEES' STOCK OPTION PLAN THIS DECLARATION OF AMENDMENT, made this 24th day of October, 1997, by WACHOVIA CORPORATION, a North Carolina corporation (the "Corporation"), to the 1st United Bancorp 1997 Key Employees' Stock Option Plan (the "Plan"). R E C I T A L S: WHEREAS, pursuant to an Agreement and Plan of Merger (the "Merger Agreement") dated as of August 6, 1997 by and between the Corporation and 1st United Bancorp ("1st United"), 1st United will merge with and into the Corporation, with the Corporation as the surviving corporation; and WHEREAS, pursuant to Section 3.06 of the Merger Agreement, as of the effective time of the merger (the "Merger"), each outstanding option to purchase shares of 1st United 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"), subject to the right of each individual optionee to receive a cash payment in exchange for cancellation of each such individual's option(s); and WHEREAS, pursuant to Section 6.13 of the Merger Agreement, the Corporation shall honor, in accordance with the terms of the Plan, all outstanding obligations to current and former 1st United employees; and WHEREAS, pursuant to Section 12 of the Plan, the Board may amend or terminate the Plan, subject to the terms of the Plan; and WHEREAS, in connection with its assumption of awards under the Plan, and subject to the consummation of the Merger, the Corporation has determined that it would be in the best interest of the Corporation to make certain amendments to the Plan in order to facilitate administration of the Plan and to conform certain provisions in the Plan with other stock incentive plans maintained by the Corporation. NOW, THEREFORE, IT IS DECLARED, that, effective immediately following the effective time of the Merger, the Plan shall be amended as follows: 1. All references in the Plan to the "Company," including but in no way limited to the definition of the term contained in Section 2(g), shall hereafter be deemed to be references to Wachovia Corporation. 2. All references to the terms "Common Stock" and "Stock," including but not limited to the definition of such terms contained in Section 2(f) and 2(u), respectively, 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(e), shall hereafter be deemed to be references to the Management Resources and Compensation Committee of the Board of Directors of Wachovia Corporation. 4. Section 8(i) shall be deleted in its entirety and the following shall be inserted in lieu thereof: "(i) Governing Law. The Plan shall be administered in accordance with federal laws, or in the absence thereof, the laws of the State of North Carolina." 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/ Leslie M. Baker, Jr. _______________________________ Chief Executive Officer ATTEST: /s/ Alice Washington Grogan __________________________________ Secretary [Corporate Seal] 2 EX-99 8 EXHIBIT 99.3 EXHIBIT 99.3 KEY EMPLOYEES STOCK OPTION PLAN 1. PURPOSES. The purposes of this Key Employees Stock Option Plan are to attract and retain the best available personnel for positions of substantial responsibility, to provide additional incentive to the Employees of the Company or its Subsidiaries as well as other individuals who perform services for the Company or its Subsidiaries, and to promote the success of the Company's business. 2. DEFINITIONS. As used herein, the following definitions shall apply: (a) "Board" shall mean the Committee, if one has been appointed, or the Board of Directors of the Company, if no Committee is appointed. (b) "CEO Options" shall mean Mr. Orlando's options provided in the Employment Agreement. (c) "Committee" shall mean the committee appointed by the Board of Directors in accordance with paragraph (a) of Section 4 of the Plan, if one is appointed. (d) "Common Stock" shall mean the common stock of the Company, $.01 par value. (e) "Company" shall mean Mizner/1st United Bancorp, a Florida corporation. (f) "Continuous Status as an Employee" shall mean the absence of any interruption or termination of service as an Employee. Continuous Status as any Employee shall not be considered interrupted in the case of sick leave, military leave, or any other leave of absence approved by the Board. (g) "Employee" shall mean any person employed by the Company or any Parent or Subsidiary of the Company. The payment of a director's fee by the Company shall not be sufficient, in and of itself, to constitute "employment" by the Company. (h) "Employment Agreement" shall mean the Amended and Restated Employment Agreement between Warren S. Orlando and the Company dated September 1, 1991, as amended. (i) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (j) "Option" shall mean a stock option granted pursuant to the Plan. (k) "Optioned Stock" shall mean the Common Stock subject to an option. (l) "Optionee" shall mean an Employee or other person who receives an Option. (m) "Parent" shall mean a "parent corporation", whether now or hereafter existing, as defined in Section 424(e) of the Internal Revenue Code of 1986, as amended. (n) "Share" shall mean a share of the Common Stock, as adjusted in accordance with Section 11 of the Plan. (o) "Subsidiary" shall mean a "subsidiary corporation", whether now or hereafter existing, as defined in Section 424(f) of the Internal Revenue Code of 1986, as amended. 3. STOCK Subject to the provisions of Section 11 of the Plan, the maximum aggregate number which may be Optioned and sold under the Plan is 524,128 shares of authorized, but unissued, $.01 par value, Common Stock. (a) CEO Options Pursuant To Employment Agreement. Options for 324,128 shares shall be granted to Mr. Warren Orlando under this Plan (the "CEO Options") in exchange for options previously issued pursuant to his employment agreement with the Company. Of the CEO Options, options for 175,228 shares shall be exercisable at a price of $3.33 and expire in increments of 35,046 shares per year over the period 1997 through 2001. CEO Options for the remaining 148,900 shares are exercisable at $3.70 and expire in 2001. Notwithstanding anything herein to the contrary, to the extent there is a conflict between the terms of Mr. Orlando's Employment Agreement and the terms of this Plan, the terms of Mr. Orlando's Employment Agreement shall control.
(b) Outstanding Options Options for 96,500 shares shall be issued to the following individuals, in the following amounts, with the following terms, upon exchange by such individuals of their previously issued options (the "Outstanding Options"): Exercise Original Expiration Vested Name Amount Price Grant Date Date Shares - ------ ------- ------- ---------- --------- --------- Susan Ross 9,000 $3.33 04/30/90 12/17/98 9,000 June Owens 15,000 3.33 04/30/90 12/17/98 15,000 Ken Jones 15,000 3.33 04/30/90 12/17/98 15,000 -2- Dana Kilborne 9,000 3.33 09/01/91 08/10/02 3,000 Ward Kellogg 15,000 3.33 04/30/90 12/17/98 15,000 Joyce Enstrom 9,000 3.33 04/30/90 12/17/98 9,000 Todd Wenzel 5,000 3.33 04/30/90 12/17/98 5,000 Jean Heinley 4,500 3.33 04/20/90 05/01/00 4,500 John Marino 15,000 $3.36 08/10/92 08/10/02 0 ------ ------- 96,500 75,500 ======= =======
Notwithstanding anything herein to the contrary, to the extent there is a conflict between the terms of the agreements governing the Outstanding Options and the terms of this Plan, the terms of the agreements governing the Outstanding Options shall control. (c) Other Options The Board may issue, at its discretion, Options for up to 103,500 shares pursuant to this Plan. An individual shall vest in the Options issued pursuant to this Section 3(c) in accordance with the following schedule: Years from Date of Original Grant of Options Percentage -------------------------- --------- Less than 1 0 1 33-1/3 2 66-2/3 3 or more 100 If an Option should expire or become unexercisable for any reason without having been exercised in full, the unpurchased Shares which were subject thereto shall, unless the Plan shall have been terminated, become available for further grant under the Plan. 4. ADMINISTRATION (a) Procedure. The Company's Board of Directors may appoint a Committee to administer the Plan. The Committee shall consist of not less than three members of the Board of Directors who shall administer the Plan on behalf of the Board of Directors, subject to such terms and conditions as the Board of Directors may prescribe. Once appointed, the Committee shall continue to serve until otherwise directed by the Board of Directors. From time to time the Board of Directors may increase the size of the Committee and appoint additional members thereof, remove members (with or without cause), and appoint new members in substitution therefore, fill vacancies however caused, or remove -3- all members of the Committee and thereafter directly administer the Plan; provided, however, that at no time shall a Committee of less than three (3) members administer the plan. If a majority of the Board of Directors is eligible to the granted Options or has been eligible at any time the preceding year, a Committee must be appointed to administer the Plan. The Committee must consist of not less than three members of the Board of Directors, all of whom are "disinterested persons" as defined in Regulation 240.16b-3 of the Exchange Act. The terms upon which and the times at which such stock options may be exercised or acquired are subject to the further limitations set forth in this Plan. Members of the Board of Directors who are either presently eligible or who have been eligible at any time within the preceding year to receive Options at any time within such year may not vote on any matters affecting the administration of the Plan nor on the grant of any Options pursuant to the Plan, but any such member may be counted in determining the existence of a quorum at any meeting of the Board of Directors during which action is taken with respect to the granting of Options or the administration of the Plan. (b) Powers of the Board. Subject to the provisions of the Plan, the Board shall have the authority, in its discretion: (i) to grant Stock Options; (ii) to determine, upon review of relevant information and in accordance with Section 8(b) of the Plan, the fair market value of the Common Stock; (iii) to determine the exercise price per share of Options to be granted which exercise price shall be determined in accordance with Section 8(a) of the Plan; (iv) to determine the persons to whom, and the time or times at which, Options shall be granted and the number of shares to be represented by each Options; (v) to interpret the Plan; (vi) to prescribe, amend and rescind rules and regulations relating to the Plan; (vii) to determine the terms and provisions of each Option granted (which need not be identical) and, with the consent of the holder thereof, modify or amend each Option; (viii) to accelerate or defer (with the consent of the Optionee) the exercise date of any Option; (ix) to authorize any person to execute on behalf of the Company any instrument required to effectuate the grant of an Option previously granted by the Board; and (x) to make all other determinations deemed necessary or advisable for the administration of the Plan. (c) Effect of the Board's Decision. All decisions, determinations and interpretations of the Board shall be final and binding on all Optionees and any other holders of any Options granted under the Plan. 5. ELIGIBILITY. Stock Options may be granted to Employees as determined by the Board. Any person who has been granted an Option may, if he is otherwise eligible, be granted an additional Option or Options. 6. TERM OF PLAN. The Plan shall become effective upon the earlier to occur of (i) its adoption by the Board of Directors, or (ii) its approval by vote of the holders of a majority of the outstanding shares of the Company -4- entitled to vote on the adoption of the Plan. The Plan shall continue in effect until June 30, 1996 unless sooner terminated under Section 13 of the Plan. 7. TERM OF OPTION. The term of each Option shall be ten years from the date of grant thereof or such shorter term as may be provided in each Optionee's Stock Option Agreement. 8. EXERCISE PRICE AND CONSIDERATION. (a) The per Share exercise price for the Shares to be issued pursuant to exercise of an Option shall by such price as is determined by the Board, but shall be no less than one hundred percent (100%) of the fair market value per Share on the date of grant. (b) The fair market shall be determined by the Board in its discretion, provided, however, that where there is a public market for the Common Stock, the fair market value per Share shall be the bid price or, if applicable, the closing price of the Common Stock for the day immediately prior to the date of grant. (c) The consideration to be paid for the Shares to be issued upon exercise of an Option, including the method of payment, shall be determined by the Board and may consist entirely of cash, other Shares of Common Stock having a fair market value on the date of surrender equal to the aggregate exercise price of the Shares as to which said option shall be exercised, or a combination of cash and Shares of Common Stock. 9. EXERCISE OF OPTION. (a) PROCEDURE FOR EXERCISE; NO RIGHTS AS A SHAREHOLDER. An Option may not be exercised for a fraction of a Share. An Option shall be deemed to be exercised when written notice of such exercise has been given to the Company in accordance with the terms of the Option by the person entitled to exercise the Option and full payment for the Shares with respect to which the Option is exercised has been received by the Company. Full payment may, as authorized by the Board, consist of any consideration and method of payment allowable under Section 8(c) of the Plan. Until the issuance, which in no event will be delayed more than thirty (30) days from the date of the exercise of the Option, (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company) of the stock certificate evidencing such Shares, no right to vote or receive dividends or any other rights as a shareholder shall exist with respect to the Optioned Stock, notwithstanding the exercise of the Option. No adjustment will be made for a dividend or other right for which the record date is prior to the date the stock certificate is issued, except as provided in the Plan. Exercise of an Option in any manner shall result in a decrease in the number of Shares which thereafter may be available, both for purposes of the -5- Plan and for sale under the Option, by the number of Shares as to which the Option is exercised. (b) TERMINATION OF STATUS OF AN EMPLOYEE. Except with respect to the CEO options and Outstanding Options which shall be governed by their own terms, if any Employee ceases to serve as an Employee, he may, but only within ninety (90) days after the date he ceases to be an Employee of the Company, exercise his Option to the extent that he was entitled to exercise it as of the date of such termination. To the extent that he was not entitled to exercise the Option at the date of such termination, or if he does not exercise such Option which he was entitled to exercise within the time specified herein, the Option shall terminate. (c) TERMINATION OF EMPLOYMENT BY DISABILITY OR RETIREMENT. Notwithstanding Section 9(b) above, if an optionee's employment terminates by reason of disability or retirement after grant of an option, the option thereafter may be exercised, during the three years after the date of such termination of employment or the remaining stated period of the option, whichever period is shorter, to the extent to which such option was exercisable at the time of such termination of employment or thereafter would become exercisable during such period in accordance with its terms. For purposes of the Plan, "retirement" means termination of employment with the Company after the optionee has attained age 55 and completed ten or more years of employment; or after the optionee has attained age 65, regardless of the length of such optionee's employment. An optionee shall not be considered disabled unless he or she furnishes such medical or other evidence of the existence of the disability as the Committee, in its sole discretion, may require. (d) TERMINATION OF EMPLOYMENT BY DEATH. If an optionee's employment terminates by reason of death after grant of an option, the option thereafter may be exercised, during the three years after the date of death or the remaining stated period of the option, whichever period is shorter, to the extent to which it was exercisable at the time of death or thereafter would become exercisable during such period in accordance with its terms. 10. NON-TRANSFERABILITY OF OPTIONS. The option may not be sold, pledged, assigned, hypothecated, transferred, or disposed or in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Optionee, only by the Optionee. 11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. Subject to any required action by the shareholders of the Company, the number of shares of Common Stock covered by each outstanding Option, and the number of shares of Common Stock which have been authorized for issuance under the Plan but as to which no Options have yet been granted or which have been returned to the Plan upon cancellation or expiration of an Option, as well as the price per share of Common Stock covered by each outstanding Option, shall be proportionately adjusted for any increase or decrease in the number of issued shares of Common Stock resulting from a stock split or the payment of a stock dividend with respect to the Common Stock or any other increase or decrease in -6- the number of issued shares of Common Stock "effected without receipt of consideration". Such adjustment shall be made by the Board, whose determination in that respect shall be final, binding and conclusive. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to an Option. In the event of the proposed dissolution or liquidation of the Company, or in the event of a proposed sale of all or substantially all of the assets of the Company, or the merger of the Company with or into another corporation, the Option will terminate immediately prior to the consummation of such proposed action, unless otherwise provided by the Board. The Board may, in the exercise of its sole discretion in such instances, declare that any Option shall terminate as of a date fixed by the Board and give each Optionee the right to exercise his Option as to all or any part of the Optioned Stock, including Shares as to which the Option would not otherwise be exercisable. In addition to and without limiting Mr. Orlando's rights under Section 3(a) above, the CEO Options shall be adjusted in accordance with Section 6 of the Employment Agreement. 12. TIME FOR GRANTING OPTIONS. The date of grant of an Option shall, for all purposes, be the date on which the Board makes the determination granting such Option. Notice of the determination shall be given to each Employee to whom an Option is so granted within a reasonable time after the date of such grant. 13. AMENDMENT AND TERMINATION OF THE PLAN. (a) The Board may amend or terminate the Plan from time to time in such respects as the Board may deem advisable; provided that, the following revisions or amendments shall require approval of the holders of a majority of the outstanding shares of the Company entitled to vote: (i) any increase in the number of Shares subject to the Plan, other than in connection with an adjustment under Section 11 of the Plan; (ii) any change in the designation of the class of persons eligible to be granted options; or (iii) any material increase in the benefits accruing to participants under the Plan. (b) SHAREHOLDER APPROVAL. If any amendment requiring shareholder approval under Section 13(a) of the Plan is made, such shareholder approval shall be solicited as described in Section 17 of the Plan. (c) EFFECT OF AMENDMENT OR TERMINATION. Any such amendment or termination of the Plan shall not affect Options already granted and such -7- Options shall remain in full force and effect as if this Plan had not been amended or terminated, unless mutually agreed otherwise between the Optionee and the Board, which agreement must be in writing and signed by the Optionee and the Company. 14. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued pursuant to the exercise of an Option unless the exercise of such Option and the issuance and delivery of such Shares pursuant thereto shall comply with all relevant provisions of law, including, without limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated thereunder, and the requirements of any stock exchange upon which the Shares may then be listed, and shall be further subject to the approval of counsel for the Company with respect to such compliance. 15. RESERVATION OF SHARES. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements of the Plan. Inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company's counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority shall have not been obtained. 16. OPTION AGREEMENT. Options shall be evidenced by written option agreements in such form as the Board shall approve. 17. SHAREHOLDER APPROVAL. Continuance of the Plan shall be subject to approval by the shareholders of the Company within twelve months before or after the date the Plan is adopted. If such shareholder approval is obtained at a duly held shareholders' meeting, it may be obtained by the affirmative vote of the holders of a majority of the outstanding shares of the Company present or represented and entitled to vote thereon. The approval of such shareholders of the Company shall be; (1) solicited substantially in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder, or (2) solicited after the Company has furnished in writing to the holders entitled to vote substantially the same information concerning the Plan as that which would be required by the rules and regulations in effect under Section 14(a) of the Exchange Act at the time such information is furnished. If such shareholder approval is obtained by written consent in the absence of a Shareholders' Meeting, it must be obtained by the written consent of a majority-in-interest of the shareholders of the Company who would have been entitled to cast the minimum number of votes which would be necessary to authorize such action at a meeting at which all Shareholders entitled to vote thereon were present and voting. -8- 18. MISCELLANEOUS PROVISIONS. An Optionee shall have no rights as a shareholder with respect to any Shares covered by his Option until the date of the issuance of a stock certificate to him for such shares. 19. OTHER PROVISIONS. The Stock Option Agreement authorized under the Plan shall contain such other provisions, including, without limitation, restrictions upon the exercise of the Option, as the Board of Directors of the Company shall deem advisable. 20. INDEMNIFICATION OF BOARD. In addition to such other rights of indemnification as they may have as Directors or as members of the Board, the members of the Board shall be indemnified by the Company against the reasonable expenses, including attorneys' fees actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan or any Option granted thereunder, and against all amounts paid them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a judgement in any such action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such Board member is liable for negligence or misconduct in the performance of his duties; provided that within 60 days after institution of any such action, suit or proceeding a Board member shall in writing offer the Company the opportunity at its own expense, to handle and defend the same. 21. APPLICATION OF FUNDS. The proceeds received by the Company from the sale of Common Stock pursuant to Options will be used for general corporate purposes. 22. NO OBLIGATION TO EXERCISE OPTION. The granting of an Option shall impose no obligation upon the Optionee to exercise such Option. 23. NO RIGHT TO CONTINUATION OF EMPLOYMENT. The Plan shall not confer upon any Optionee any right with respect to continuation of employment by the Company, nor shall it interfere in any way with his right or the Company's right to terminate his employment at any time. 24. OTHER COMPENSATION PLANS. The adoption of the Plan shall not affect any other stock option or incentive or other compensation plans in effect for the Company or any Subsidiary, nor shall the Plan preclude the Company from establishing any other forms of incentive or other compensation for employees and directors of the Company or any Subsidiary. 25. SINGULAR, PLURAL, GENDER. Whenever used herein, nouns in the singular shall include the plural, and the masculine pronoun shall include the feminine gender. -9- 26. HEADINGS, ETC., NO PART OF PLAN. Headings of Articles and Sections hereof are inserted for convenience and reference; they constitute no part of the Plan. DATED: May 25, 1993 By: /s/ June Owens ------------- ----------------- June Owens Vice President Corporate Secretary -10- EX-99 9 EXHIBIT 99.4 EXHIBIT 99.4 WACHOVIA CORPORATION 1997 DECLARATION OF AMENDMENT TO KEY EMPLOYEES STOCK OPTION PLAN OF 1ST UNITED BANCORP (1993) THIS DECLARATION OF AMENDMENT, made this 24th day of October, 1997, by WACHOVIA CORPORATION, a North Carolina corporation (the "Corporation"), to the Key Employees Stock Option Plan of 1st United Bancorp (the "Plan"). R E C I T A L S: WHEREAS, pursuant to an Agreement and Plan of Merger (the "Merger Agreement") dated as of August 6, 1997 by and between the Corporation and 1st United Bancorp ("1st United"), 1st United will merge with and into the Corporation, with the Corporation as the surviving corporation; and WHEREAS, pursuant to Section 3.06 of the Merger Agreement, as of the effective time of the merger (the "Merger"), each outstanding option to purchase shares of 1st United 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"), subject to the right of each individual optionee to receive a cash payment in exchange for cancellation of each such individual's option(s); and WHEREAS, pursuant to Section 6.13 of the Merger Agreement, the Corporation shall honor, in accordance with the terms of the Plan, all outstanding obligations to current and former 1st United employees; and WHEREAS, pursuant to Section 13 of the Plan, the Board may amend or terminate the Plan, subject to the terms of the Plan; and WHEREAS, in connection with its assumption of awards under the Plan, and subject to the consummation of the Merger, the Corporation has determined that it would be in the best interest of the Corporation to make certain amendments to the Plan in order to facilitate administration of the Plan and to conform certain provisions in the Plan with other stock incentive plans maintained by the Corporation. NOW, THEREFORE, IT IS DECLARED, that, effective immediately following the effective time of the Merger, the Plan shall be amended as follows: 1. All references in the Plan to the "Company," including but in no way limited to the definition of the term contained in Section 2(e), shall hereafter be deemed to be references to Wachovia Corporation. 2. All references to the terms "Common Stock" and "Share," including but not limited to the definition of such terms contained in Section 2(d) and 2(n), respectively, 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 second and third paragraphs of Section 4(a) of the Plan shall be deleted in their entirety and the following shall be inserted in lieu thereof: "To the extent required by Rule 16b-3, (i) each member of the Committee shall be a 'non-employee director' as such term is defined in Rule 16b-3 or any successor rule; and (ii) the Committee shall be comprised of no fewer than the minimum number of non-employee directors as may be required by Rule 16b-3." 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/ Leslie M. Baker, Jr. _____________________________ Chief Executive Officer ATTEST: /s/ Alice Washington Grogan _____________________________ Secretary [Corporate Seal] 2 -----END PRIVACY-ENHANCED MESSAGE-----