Exhibit (99)
SECOND AMENDMENT, dated as of June 15, 1995 (this
"Amendment"), to the SHAREHOLDER PROTECTION RIGHTS
AGREEMENT, dated December 18, 1990 (as heretofore amended,
the "Rights Agreement"), between First Union Corporation, a
North Carolina corporation (the "Company"), and First Union
National Bank of North Carolina, a national banking
association (the "Rights Agent").
WITNESSETH
WHEREAS, on December 18, 1990, the Board of
Directors of the Company (i) authorized and declared a
dividend of one Right with respect to each share of Common
Stock held of record as of the Record Time and (ii) autho-
rized the issuance of one Right with respect to each share
of Common Stock issued after the Record Time and prior to
any Separation Time, each Right representing the right to
purchase securities of the Company pursuant to the terms and
conditions of the Rights Agreement; and
WHEREAS, the Rights remain issued and outstanding
and the Rights Agreement remains in effect with respect
thereto; and
WHEREAS, the Board of Directors of the Company has
approved, in accordance with Section 5.4 of the Rights
Agreement, this Amendment and has directed the appropriate
officers of the Company to take all appropriate steps to
execute and deliver this Amendment.
NOW, THEREFORE, in consideration of the premises
and the respective agreements set forth herein, the parties
hereby agree as follows:
(1) Amendment and Addition to Section 1.1.
(a) The definition of "Acquiring Person" appearing
in Section 1.1. of the Rights Agreement is amended to read
in its entirety as follows:
"`Acquiring Person' shall mean either of the
following:
(i) any Person that is a Beneficial Owner of 15%
or more of the outstanding shares of Common Stock;
provided, however, that, for the purposes of this
paragraph (i), the term "Acquiring Person" shall not
include (a) any Person who shall become the Beneficial
Owner of 15% or more of the outstanding shares of
Common Stock solely as a result of an acquisition by
the Company of shares of Common Stock, until such time
thereafter as such Person shall become the Beneficial
Owner (other than by means of a stock dividend or stock
split) of any additional shares of Common Stock, or
(b) any Person who acquired Beneficial Ownership of
shares of Common Stock without any plan or intention to
seek or affect control of the Company and without
knowledge that such acquisition would make such Person
an Acquiring Person, if such Person, upon notice by the
Company, promptly enters into an irrevocable commitment
promptly to divest, and thereafter promptly divests
(without exercising or retaining any power, including
voting, with respect to such shares), sufficient shares
of Common Stock (or securities convertible into,
exchangeable into or exercisable for Common Stock) so
that such Person ceases to be the Beneficial Owner of
15% or more of the outstanding shares of Common Stock;
or
(ii) any Person that is determined by the Federal
Reserve Board to Control the Company; provided,
however, that for purposes of this subparagraph (ii)
the term 'Acquiring Person' shall not include (x) any
Person as to which the Federal Reserve Board's
determination of Control would not have been made but
for such Person's violation of, or non-compliance with,
a customary agreement with, or commitment to, the
Federal Reserve Board relating to Control or the
failure of such person to enter into such an agreement
or commitment if necessary to avoid or eliminate a
determination of Control containing standard Federal
Reserve Board commitments similar to those in the
Federal Reserve Board order issued to North Fork
Bancorporation on March 29, 1995 other than number 2
relating to employees, number 10 relating to banking or
non-banking transactions and number 11 relating to
board representation (any such violation or non-
compliance or failure, a "Compliance Failure") so long
as such person obtains a determination from the Federal
Reserve Board within 30 days of being so determined in
Control that it no longer Controls the Company (a "Non-
Control Determination") (or within 60 days if the Board
of Directors of the Company in its discretion
determines to grant an extension of up to an additional
30 days) or (y) any Person as to which the Federal
Reserve Board's determination of Control does not
result from a Compliance Failure, so long as such
person obtains a Non-Control Determination on or before
the third anniversary of first being determined in such
Control and such Person has not failed to use its best
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efforts to take, or cause to be taken, all actions and
to do, or cause to be done, all things necessary or
appropriate to procure any action by or in respect of,
or to make any filing with, any governmental body,
agency, official or authority required to permit the
Company or any of its affiliates, directly or
indirectly, to acquire any Person or the assets thereof
(or to assume the liabilities thereof) or to permit the
Company or any affiliate thereof to engage in any
legally permissible activity to the extent that the
Company or such affiliate shall have determined to do
so as notified in writing by the Company to such
Person.
(b) The following new definitions are added to
Section 1.1 of the Rights Agreement, inserted in conformity
with the alphabetical order of Section 1.1 and shall read as
follows:
"`Control' shall have the meaning ascribed to
such term in the Bank Holding Company Act of 1956,
as amended.
"`Federal Reserve Board' shall mean the Board
of Governors of the Federal Reserve System (or any
successor agency) and the staff thereof.
(2) Amendment and Addition to Section 5.4.
Section 5.4 of the Rights Agreement is amended in
its entirety as follows:
"5.4 Supplements and Amendments. The Company and
the Rights Agent may from time to time supplement or
amend this Agreement without the approval of any
holders of Rights (i) in any respect prior to the close
of business on the Flip-in Date (other than to change
the Expiration Time, except as contemplated elsewhere
herein), (ii) to make any changes that the Company may
deem necessary or desirable and which shall not
materially adversely affect the interests of the
holders of Rights generally, (iii) in order to cure any
ambiguity or to correct or supplement any provision
contained herein which may be inconsistent with any
other provisions herein or otherwise defective or
(iv) as provided in Section 5.1(a). Notwithstanding
the foregoing, the Company may not amend or supplement
this Agreement to lower the Beneficial Owner threshold
of 15% in the definition of "Acquiring Person" without
the prior approval of the holders of a majority in
interest of the Common Stock; provided that the Board
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of Directors may amend or delete this sentence only (i)
if it determines that it would have a material adverse
effect on the Company's regulatory capital position or
(ii) if the amendment or deletion is approved by the
holders of a majority interest of the Common Stock.
The Rights Agent will duly execute and deliver any
supplement or amendment hereto requested by the Company
which satisfies the terms of the preceding sentence."
(4) Effectiveness. This Amendment shall be
deemed to be in force and effective immediately upon the
close of business on the date first written herein above.
Except as amended hereby, the Rights Agreement shall remain
in full force and effect and shall be otherwise unaffected
hereby.
(5) Defined Terms. Unless otherwise defined
herein, all defined terms used herein shall have the same
meanings given to them in the Rights Agreement.
(6) Governing Law. This Amendment shall be
deemed to be a contract made under the laws of the State of
North Carolina and for all purposes shall be governed by and
construed in accordance with the laws of such State
applicable to contracts to be made and performed entirely
within such State.
(7) Counterparts. This Amendment may be executed
in any number of counterparts, each of which shall for all
purposes be deemed an original and all of which shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed as of the day and year
first above written.
FIRST UNION CORPORATION
By:______________________
Name:
Title:
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By:______________________
Name:
Title:
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