FIRST CITIZENS BANCSHARES, INC.
8.05% JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURES
DUE MARCH 1, 2028
No.____________ $_________
FIRST CITIZENS BANCSHARES, INC., a Delaware corporation (hereinafter called
the "Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to FCB/NC
CAPITAL TRUST I, or registered assigns, the principal sum of ______________
Dollars ($_____________ ) on March 1, 2028, or such other principal amount
represented hereby as may be set forth in the records of the Securities
Registrar hereinafter referred to in accordance with the Indenture. The Company
further promises to pay interest on said principal from [ISSUANCE DATE], or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually (subject to deferral as set forth herein) in arrears
on March 1 and September 1 of each year, commencing on _____________________,
_______ at the rate of 8.05% per annum, together with Additional Sums, if any,
as provided in Section 10.6 of the Indenture, until the principal hereof is paid
or duly provided for or made available for payment; provided that any overdue
principal, premium or Additional Sums and any overdue installment of interest
shall bear Additional Interest at the rate of 8.05% per annum (to the extent
that the payment of such interest shall be legally enforceable), compounded
semiannually, from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand. The amount
of interest payable for any period less than a full interest period shall be
computed on the basis of a 360-day year of twelve 30-day months and the actual
days elapsed in a partial month in such period. The amount of interest payable
for any full interest period shall be computed by dividing the applicable rate
per annum by two. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest installment, which shall be the February 15 or August 15 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee (notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date) or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
So long as no Event of Default has occurred and is continuing, the Company
shall have the right, at any time during the term of this Security, from time to
time to defer the payment of interest on this Security for up to 10 consecutive
semi-annual interest payment periods with respect to each deferral period (each
an "Extension Period"), during which Extension Periods the Company shall have
the right to make partial payments of interest on any Interest Payment Date, and
at the end of which the Company shall pay all interest then accrued and unpaid
including Additional Interest, as provided below; provided, however, that no
Extension Period shall extend beyond the Stated Maturity of the principal of
this Security and no such Extension Period may end on a date other than an
Interest Payment Date; and provided, further, however, that, during any such
Extension Period the Company shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Company's capital stock, or (ii) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Company that rank pari passu in all respects with or
junior in interest to this Security (other than (a) repurchases, redemptions or
other acquisitions of shares of capital stock of the Company in connection with
any employment contract, benefit plan or other similar arrangement with or for
the benefit of any one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or shareholder stock purchase plan or in
connection with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable Extension Period,
(b) as a result of an exchange or conversion of any class or series of the
Company's capital stock (or any capital stock of a Subsidiary of the Company)
for any class or series of the Company's capital stock or of any class or series
of the Company's indebtedness for any class or series of the Company's capital
stock, (c) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (d) any declaration of a
dividend in connection with any Rights Plan, or the issuance of rights, stock or
other property under any Rights Plan, or the redemption or repurchase of rights
pursuant thereto, or (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with or junior to such stock). Prior
to the termination of any such Extension Period, the Company may further defer
the payment of interest, provided that no Extension Period shall exceed 10
consecutive semi-annual interest payment periods, extend beyond the Stated
Maturity of the principal of this Security or end on a date other than an
Interest Payment Date. Upon the termination of any such Extension Period and
upon the payment of all accrued and unpaid interest and any Additional Interest
then due on any Interest Payment Date, the Company may elect to begin a new
Extension Period, subject to the above conditions. No interest shall be due and
payable during an Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable during
such Extension Period shall bear Additional Interest (to the extent that the
payment of such interest shall be legally enforceable) at the rate of 8.05% per
annum, compounded semiannually and calculated as set forth in the first
paragraph of this Security, from the date on which such amounts would otherwise
have been due and payable until paid or made available for payment. The Company
shall give the Holder of this Security and the Trustee notice of its election to
begin any Extension Period at least one Business Day prior to the next
succeeding Interest Payment Date on which interest on this Security would be
payable but for such deferral or, so long as such securities are held by FCB/NC
Capital Trust I (the "Issuer Trust"), at least one Business Day prior to the
earlier of (i) the next succeeding date on which Distributions on the Capital
Securities of such Issuer Trust would be payable but for such deferral, and (ii)
the date on which the Property Trustee of such Issuer Trust is required to give
notice to holders of such Capital Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business Day prior
to such record date.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the United States, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that, at the option of the Company, payment of
interest may be made (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Securities Register, or (ii) if to a
Holder of $1,000,000 or more in aggregate principal amount of this Security, by
wire transfer in immediately available funds upon written request to the Trustee
not later than 15 calendar days prior to the date on which the interest is
payable.
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such actions as
may be necessary or appropriate to effectuate the subordination so provided, and
(c) appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred and waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
FIRST CITIZENS BANCSHARES, INC.
By:_______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and Chief
Financial Officer
ATTEST:
-----------------------------------
Secretary or Assistant Secretary
[SEAL]
This is one of the Securities of the 8.05% Junior Subordinated Deferrable
Interest Debentures series designated therein referred to in the
within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By:_______________________________
Authorized Signatory
(Reverse of Security)
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under the Junior Subordinated Indenture, dated as of March 5, 1998
(herein called the "Indenture"), between the Company and Bankers Trust Company,
as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee, the holders of Senior Indebtedness and the Holders of the Securities,
and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the 8.05% Junior Subordinated Deferrable
Interest Debentures (the "Junior Subordinated Debentures") series designated
herein, limited in aggregate principal amount to $____________.
All terms used in this Security that are defined in the Indenture, in the
Amended and Restated Trust Agreement, dated as of March 5, 1998 (as modified,
amended or supplemented from time to time, the "Trust Agreement"), relating to
the Issuer Trust among the Company, as Depositor, the Trustees named therein,
the Administrators named therein and the Holders from time to time of the Trust
Securities issued pursuant thereto, or in the Registration Rights Agreement,
dated as of March 5, 1998 (the "Registration Rights Agreement"), among the
Company, the Issuer Trust and Wheat, First Securities, Inc., shall have the
meanings assigned to them in the Indenture, the Trust Agreement, or the
Registration Rights Agreement, as the case may be.
The Company has the right to redeem this Security (i) on or after March 1,
2008, in whole at any time or in part from time to time, or (ii) in whole (but
not in part), at any time within 90 days following the occurrence and during the
continuation of a Tax Event, Investment Company Event, or Capital Treatment
Event, in each case at the Redemption Price described below, and subject to
possible regulatory approval.
In the case of a redemption on or after March 1, 2008, the Redemption Price
shall equal the following prices, expressed in percentages of the principal
amount hereof, together with accrued interest to but excluding the date fixed
for redemption, if redeemed during the 12-month period beginning March 1:
Year Redemption Price
2008 104.03%
2009 103.62%
2010 103.22%
2011 102.82%
2012 102.42%
2013 102.01%
2014 101.61%
2015 101.21%
2016 100.81%
2017 100.40%
and 100% on or after March 1, 2018.
In the case of a redemption on or after March 1, 2008 following a Tax
Event, Investment Company Event or Capital Treatment Event, the Redemption Price
shall equal the Redemption Price then applicable to a redemption under the
preceding paragraph.
In the case of a redemption prior to March 1, 2008 following a Tax Event,
Investment Company Event or Capital Treatment Event in respect of the Issuer
Trust, the Redemption Price shall equal the Make-Whole Amount for a
corresponding $1,000 principal amount hereof, together with accrued interest to
but excluding the date fixed for redemption, which Make-Whole Amount will be
equal to the greater of (i) 100% of the principal amount hereof, and (ii) as
determined by a Quotation Agent (as defined in the Trust Agreement), the sum of
the present values of the principal amount hereof and premium, if any, payable
as part of the Redemption Price with respect to an optional redemption hereof on
March 1, 2008, together with the present values of scheduled payments of
interest from the Redemption Date to March 1, 2008, in each case discounted to
the Redemption Date on a semi-annual basis (assuming a 360-day year consisting
of 30-day months) at the Adjusted Treasury Rate (as defined in the Trust
Agreement).
In the event of redemption of this Security in part only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of each series to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, if an Event
of Default with respect to the Securities of this series at the time Outstanding
occurs and is continuing, then and in every such case the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Outstanding Securities
of this series may declare the principal amount of all the Securities of this
series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), provided that, if upon an Event of
Default, the Trustee or such Holders fail to declare the principal of all the
Outstanding Securities of this series to be immediately due and payable, the
Holders of at least 25% in aggregate Liquidation Amount of the Capital
Securities then outstanding shall have the right to make such declaration by a
notice in writing to the Company and the Trustee; and upon any such declaration
the principal amount of and the accrued interest (including any Additional
Interest) on all the Securities of this series shall become immediately due and
payable, provided that the payment of principal and interest (including any
Additional Interest) on such Securities shall remain subordinated to the extent
provided in Article XIII of the Indenture.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest (including Additional Interest) on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company maintained under Section 10.2 of the Indenture for such
purpose, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Securities Registrar duly executed by,
the Holder hereof or such ▇▇▇▇▇▇'s attorney duly authorized in writing, and
thereupon one or more new Securities of this series, of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $100,000 and any integral multiple of $1,000 in
excess thereof. Securities or portions thereof may be transferred or exchanged
only in principal amounts of not less than $100,000. Any transfer, exchange or
other disposition of Securities in contravention of Section 3.6(b)(v) of the
Indenture shall be deemed to be void and of no legal effect whatsoever, any such
transferee shall be deemed not to be the Holder or owner of any beneficial
interest in such Securities for any purpose, including but not limited to the
receipt of interest payable on such Securities, and such transferee shall be
deemed to have no interest whatsoever in such Securities. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agrees that for United States Federal, state and
local tax purposes it is intended that this Security constitute indebtedness.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
THIS SECURITY IS A DIRECT AND UNSECURED OBLIGATION OF THE COMPANY, DOES NOT
EVIDENCE DEPOSITS OF A BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER INSURER OR GOVERNMENT AGENCY.