As filed with the Securities and Exchange Commission on October 26, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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Wachovia Corporation
(Exact Name of Registrant as Specified in Its Charter)
North Carolina 56-0898180
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
One First Union Center
Charlotte, North Carolina 28288-0013
(704) 374-6565
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
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ROSS E. JEFFRIES, JR., ESQ.
Senior Vice President and Assistant General Counsel
Wachovia Corporation
One First Union Center
Charlotte, North Carolina 28288-0630
(704) 374-6611
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
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with a copy to:
MARK J. MENTING, ESQ.
Sullivan & Cromwell
125 Broad Street
New York, New York 10004-2498
(212) 558-4000
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement, as determined
in light of market and other conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
CALCULATION OF REGISTRATION FEE
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Amount ProposedMaximum ProposedMaximum
Title of each Class of to be Aggregate Price Aggregate Amount of
Securities to be Registered Registered Per Unit Offering Price Registration Fee
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Common Stock (par value $3.33 1/3 per share) (1)(2) (1) (1)(2) N/A
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Preferred Stock (no-par value).............. (1) (1) (1) N/A
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Class A Preferred Stock (no-par value)...... (1) (1) (1) N/A
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Depository Shares........................... (1)(3) (1) (1)(3) N/A
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Debt Securities............................. (1) (1) (1) N/A
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Warrants.................................... (1) (1) (1) N/A
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Total....................................... $10,000,000,000(4) (1) $10,000,000,000(4) $ 2,500,000(4)(5)
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(1)There are being registered hereunder such indeterminate number of shares of
Common Stock, Preferred Stock and Class A Preferred Stock, such
indeterminate number of Depositary Shares and Warrants to purchase Debt
Securities, Preferred Stock, Class A Preferred Stock, Depositary Shares or
Common Stock, and such indeterminate principal amount of Debt Securities of
the Registrant as shall have an aggregate initial offering price not to
exceed $10,000,000,000. If any Debt Securities are issued at an original
issue discount, then the securities registered shall include such additional
Debt Securities as may be necessary such that the aggregate initial public
offering price of all securities issued pursuant to this Registration
Statement will equal $10,000,000,000. Any securities registered hereunder
may be sold separately or as units with other Securities registered
hereunder. The proposed maximum initial offering price per unit will be
determined, from time to time, by the Registrant in connection with the
issuance by the Registrant of the securities registered hereunder. There are
also being registered hereunder an indeterminate number of shares of Common
Stock, Preferred Stock and Class A Preferred Stock, an indeterminate number
of Depositary Shares and an indeterminate principal amount of Debt
Securities of the Registrant as shall be issuable upon conversion or
exchange of convertible or exchangeable Debt Securities or of shares of
convertible or exchangeable Preferred Stock or Class A Preferred Stock
registered hereby, or as shall be issuable pursuant to anti-dilution
provisions.
(2)Each share of Common Stock includes a right to purchase shares of a
participating series of Class A Preferred Stock of the Registrant (the
"Rights"). Prior to the occurrence of certain events, none of which have
occurred as of the date hereof, the Rights will not be exercisable or
evidenced separately from the Common Stock.
(3)Subject to footnote (1), there are being registered hereunder an
indeterminate number of Depositary Shares to be evidenced by Depositary
Receipts issued pursuant to a Deposit Agreement. If the Registrant elects to
offer to the public fractional interests in shares of the Preferred Stock or
Class A Preferred Stock registered hereunder, Depositary Receipts will be
distributed to those persons purchasing such fractional interests, and the
shares of Preferred Stock or Class A Preferred Stock, as the case may be,
will be issued to the Depositary under the Deposit Agreement.
(4)Pursuant to Rule 429 under the Securities Act, the prospectus contained
herein relates to an aggregate of $12,415,000,000 principal amount of
securities, consisting of $10,000,000,000 principal amount of securities
being registered hereby and $2,415,000,000 principal amount of yet unsold
securities that were previously registered under the Registrant's
Registration Statement No. 333-41046 on Form S-3, filed and declared
effective on July 21, 2000, for which a filing fee of $1,056,000 has
previously been paid.
(5)Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until the Registration Statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
Pursuant to Rule 429 under the Securities Act, this Registration Statement
contains a combined prospectus that also relates to Registration Statement No.
333-41046 on Form S-3 previously filed by the Registrant and declared effective
July 21, 2000.
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SUBJECT TO COMPLETION, DATED OCTOBER 26, 2001
One First Union Center
301 South College Street
Charlotte, North Carolina 28288
(704) 374-6565
WACHOVIA CORPORATION
(formerly named First Union Corporation)
$12,415,000,000
COMMON STOCK
PREFERRED STOCK
CLASS A PREFERRED STOCK
DEPOSITARY SHARES
DEBT SECURITIES
WARRANTS
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We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any prospectus supplement
carefully before you invest.
Our common stock is listed and traded on the New York Stock Exchange under
the symbol ''WB''. Prior to September 1, 2001, our company was named ''First
Union Corporation''. We changed our name on September 1, 2001, following our
merger with the former Wachovia Corporation.
These securities have not been approved or disapproved by the SEC, any state
securities commission or the Commissioner of Insurance of the state of North
Carolina nor have these organizations determined if this prospectus is truthful
or complete. Any representation to the contrary is a criminal offense.
These securities will be our equity securities or our unsecured obligations
and will not be savings accounts, deposits or other obligations of any bank or
non-bank subsidiary of ours and are not insured by the Federal Deposit
Insurance Corporation, the Bank Insurance Fund or any other governmental
agency.
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This prospectus is dated , 2001
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the SEC
is effective. This prospectus is not an offer to sell these securities and we
are not soliciting an offer to buy these securities in any state where the
offer or sale is prohibited.
TABLE OF CONTENTS
Page
----
About This Prospectus..................................... 1
Where You Can Find More Information....................... 2
Forward-Looking Statements................................ 3
Wachovia Corporation...................................... 3
Use of Proceeds........................................... 4
Consolidated Earnings Ratios.............................. 4
Regulatory Considerations................................. 5
Description of Common Stock............................... 6
Description of Preferred Stock and Class A Preferred Stock 9
Description of Depositary Shares.......................... 13
Description of Debt Securities............................ 16
Description of Warrants................................... 25
ERISA Considerations...................................... 28
Global Securities......................................... 28
Plan of Distribution...................................... 30
Validity of Securities.................................... 32
Experts................................................... 32
ABOUT THIS PROSPECTUS
This document is called a prospectus and is part of a registration statement
that we filed with the SEC using a "shelf" registration or continuous offering
process. Under this shelf process, we may from time to time sell any
combination of the securities described in this prospectus in one or more
offerings up to a total dollar amount of $12,415,000,000.
This prospectus provides you with a general description of the securities we
may offer. Each time we sell securities we will provide a prospectus supplement
containing specific information about the terms of the securities being
offered. That prospectus supplement may include a discussion of any risk
factors or other special considerations that apply to those securities. The
prospectus supplement may also add, update or change the information in this
prospectus. If there is any inconsistency between the information in this
prospectus and any prospectus supplement, you should rely on the information in
that prospectus supplement. You should read both this prospectus and any
prospectus supplement together with additional information described under the
heading "Where You Can Find More Information".
The registration statement containing this prospectus, including exhibits to
the registration statement, provides additional information about us and the
securities offered under this prospectus. The registration statement can be
read at the SEC web site or at the SEC offices mentioned under the heading
"Where You Can Find More Information".
When acquiring any securities discussed in this prospectus, you should rely
only on the information provided in this prospectus and in any prospectus
supplement, including the information incorporated by reference. Neither we nor
any underwriters or agents have authorized anyone to provide you with different
information. We are not offering the securities in any state where the offer is
prohibited. You should not assume that the information in this prospectus, any
prospectus supplement or any document incorporated by reference is truthful or
complete at any date other than the date mentioned on the cover page of these
documents.
We may sell securities to underwriters who will sell the securities to the
public on terms fixed at the time of sale. In addition, the securities may be
sold by us directly or through dealers or agents designated from time to time,
which agents may be our affiliates. If we, directly or through agents, solicit
offers to purchase the securities, we reserve the sole right to accept and,
together with our agents, to reject, in whole or in part, any of those offers.
The prospectus supplement will contain the names of the underwriters,
dealers or agents, if any, together with the terms of offering, the
compensation of those underwriters and the net proceeds to us. Any
underwriters, dealers or agents participating in the offering may be deemed
"underwriters" within the meaning of the Securities Act of 1933.
One or more of our subsidiaries, including Wachovia Securities, may buy and
sell any of the securities after the securities are issued as part of their
business as a broker-dealer. Those subsidiaries may use this prospectus and the
related prospectus supplement in those transactions. Any sale by a subsidiary
will be made at the prevailing market price at the time of sale.
Unless otherwise mentioned or unless the context requires otherwise, all
references in this prospectus to "Wachovia", "we", "us", "our", or similar
references mean Wachovia Corporation and its subsidiaries.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. In addition, our SEC filings are
available to the public at the SEC's web site at http://www.sec.gov. You can
also inspect reports, proxy statements and other information about us at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York.
The SEC allows us to "incorporate by reference" into this prospectus the
information in documents we file with it. This means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be a part of this
prospectus and should be read with the same care. When we update the
information contained in documents that have been incorporated by reference by
making future filings with the SEC the information incorporated by reference in
this prospectus is considered to be automatically updated and superseded. In
other words, in the case of a conflict or inconsistency between information
contained in this prospectus and information incorporated by reference into
this prospectus, you should rely on the information contained in the document
that was filed later. We incorporate by reference the documents listed below
and any documents we file with the SEC in the future under Section 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until our offering
is completed:
. Annual Report on Form 10-K for the year ended December 31, 2000
. Quarterly Reports on Form 10-Q for the periods ended March 31, 2001 (as
amended on June 26, 2001) and June 30, 2001 and
. Current Reports on Form 8-K dated January 18, 2001, April 16, 2001 (as
amended on June 25, 2001), May 3, 2001, May 15, 2001 (as amended on June
25, 2001), July 12, 2001, July 20, 2001, July 23, 2001, August 30, 2001,
September 6, 2001, and October 23, 2001.
You may request a copy of these filings, other than an exhibit to a filing
unless that exhibit is specifically incorporated by reference into that filing,
at no cost, by writing to or telephoning us at the following address:
Corporate Relations
Wachovia Corporation
One First Union Center
301 South College Street
Charlotte, North Carolina 28288-0206
(704) 374-6782
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FORWARD-LOOKING STATEMENTS
This prospectus and accompanying prospectus supplements contain or
incorporate statements that are "forward-looking statements" within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange Act. These
statements can be identified by the use of forward-looking language such as
"will likely result", "may", "are expected to", "is anticipated", "estimate",
"projected", "intends to", or other similar words. Our actual results,
performance or achievements could be significantly different from the results
expressed in or implied by these forward-looking statements. These statements
are subject to certain risks and uncertainties, including but not limited to
certain risks described in the prospectus supplement or the documents
incorporated by reference. When considering these forward-looking statements,
you should keep in mind these risks, uncertainties and other cautionary
statements made in this prospectus and the prospectus supplements. You should
not place undue reliance on any forward-looking statement, which speaks only as
of the date made. You should refer to our periodic and current reports filed
with the SEC for specific risks which could cause actual results to be
significantly different from those expressed or implied by these
forward-looking statements.
WACHOVIA CORPORATION
Wachovia was incorporated under the laws of North Carolina in 1967. We are
registered as a financial holding company and a bank holding company under the
Bank Holding Company Act of 1956, as amended, and are supervised and regulated
by the Board of Governors of the Federal Reserve System. Our banking and
securities subsidiaries are supervised and regulated by various federal and
state banking and securities regulatory authorities. On September 1, 2001, the
former Wachovia Corporation merged with and into First Union Corporation, and
First Union Corporation changed its name to "Wachovia Corporation".
In addition to North Carolina, Wachovia's full-service banking subsidiaries
operate in Connecticut, Delaware, Florida, Georgia, Maryland, New Jersey, New
York, Pennsylvania, South Carolina, Virginia and Washington, D.C. These
full-service banking subsidiaries provide a wide range of commercial and retail
banking and trust services. Wachovia also provides various other financial
services, including mortgage banking, home equity lending, leasing, investment
banking, insurance and securities brokerage services through other
subsidiaries.
In 1985, the Supreme Court upheld regional interstate banking legislation.
Since then, Wachovia has concentrated its efforts on building a large regional
banking organization in what it perceives to be some of the better banking
markets in the eastern United States. Since November 1985, Wachovia has
completed over 90 banking-related acquisitions.
Wachovia continually evaluates its business operations and organizational
structures to ensure they are aligned closely with its goal of maximizing
performance in its core business lines, Capital Management, Wealth Management,
the General Bank and Corporate and Investment Banking. When consistent with our
overall business strategy, we may consider the disposition of certain of our
assets, branches, subsidiaries or lines of business. We continue to routinely
explore acquisition opportunities, particularly in areas that would complement
our core business lines, and frequently conduct due diligence activities in
connection with possible acquisitions. As a result, acquisition discussions
and, in some cases, negotiations frequently take place, and future acquisitions
involving cash, debt or equity securities can be expected.
Wachovia is a separate and distinct legal entity from its banking and other
subsidiaries. Dividends received from our subsidiaries are our principal source
of funds to pay dividends on our common and preferred stock and debt service on
our debt. Various federal and state statutes and regulations limit the amount
of dividends that our banking and other subsidiaries may pay to us without
regulatory approval.
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USE OF PROCEEDS
Wachovia currently intends to use the net proceeds from the sale of any
securities for general corporate purposes, which may include
. reducing debt
. investments at the holding company level
. investing in, or extending credit to, our operating subsidiaries
. possible acquisitions
. stock repurchases and
. other purposes as mentioned in any prospectus supplement.
Pending such use, we may temporarily invest the net proceeds. The precise
amounts and timing of the application of proceeds will depend upon our funding
requirements and the availability of other funds. Except as mentioned in any
prospectus supplement, specific allocations of the proceeds to such purposes
will not have been made at the date of that prospectus supplement.
Based upon our historical and anticipated future growth and our financial
needs, we may engage in additional financings of a character and amount that we
determine as the need arises.
CONSOLIDATED EARNINGS RATIOS
The following table provides Wachovia's consolidated ratios of earnings to
fixed charges:
Years Ended December 31,
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Six Months Ended
June 30, 2001 2000 1999 1998 1997 1996
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Consolidated Ratios of Earnings to Fixed Charges
Excluding interest on deposits.................. 1.86x 1.13 2.29 2.13 2.50 2.58
Including interest on deposits.................. 1.39x 1.06 1.62 1.51 1.57 1.56
For purposes of computing these ratios
. earnings represent income from continuing operations before
extraordinary items and cumulative effect of a change in accounting
principles, plus income taxes and fixed charges (excluding capitalized
interest)
. fixed charges, excluding interest on deposits, represent interest
(including capitalized interest), one-third of rents and all
amortization of debt issuance costs and
. fixed charges, including interest on deposits, represent all interest
(including capitalized interest), one-third of rents and all
amortization of debt issuance costs.
One-third of rents is used because it is the proportion deemed
representative of the interest factor.
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REGULATORY CONSIDERATIONS
As a financial holding company and a bank holding company under the Bank
Holding Company Act, the Federal Reserve Board regulates, supervises and
examines Wachovia. For a discussion of the material elements of the regulatory
framework applicable to financial holding companies, bank holding companies and
their subsidiaries and specific information relevant to Wachovia, please refer
to Wachovia's annual report on Form 10-K for the fiscal year ended December 31,
2000, quarterly reports on Form 10-Q, and any subsequent reports we file with
the SEC, which are incorporated by reference in this prospectus. This
regulatory framework is intended primarily for the protection of depositors and
the federal deposit insurance funds and not for the protection of security
holders. As a result of this regulatory framework, Wachovia's earnings are
affected by actions of the Federal Reserve Board, the Office of Comptroller of
the Currency, that regulates our banking subsidiaries, the Federal Deposit
Insurance Corporation, that insures the deposits of our banking subsidiaries
within certain limits, and the SEC, that regulates the activities of certain
subsidiaries engaged in the securities business.
Wachovia's earnings are also affected by general economic conditions, our
management policies and legislative action.
In addition, there are numerous governmental requirements and regulations
that affect our business activities. A change in applicable statutes,
regulations or regulatory policy may have a material effect on Wachovia's
business.
Depository institutions, like Wachovia's bank subsidiaries, are also
affected by various federal laws, including those relating to consumer
protection and similar matters. Wachovia also has other financial services
subsidiaries regulated, supervised and examined by the Federal Reserve Board,
as well as other relevant state and federal regulatory agencies and
self-regulatory organizations. Wachovia's non-bank subsidiaries may be subject
to other laws and regulations of the federal government or the various states
in which they are authorized to do business.
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DESCRIPTION OF COMMON STOCK
The following information outlines some of the provisions in Wachovia's
articles of incorporation, bylaws and the North Carolina Business Corporation
Act (the "NCBC Act"). This information is qualified in all respects by
reference to the provisions of Wachovia's articles, bylaws and the NCBC Act.
Authorized Common Stock
Wachovia's authorized common stock consists of 3,000,000,000 shares of
common stock, par value $3.33 1/3 per share. On September 30, 2001,
1,360,996,314 shares of common stock were issued and outstanding. Wachovia's
common stock is listed on the New York Stock Exchange under the symbol "WB".
General
Subject to the prior rights of any Wachovia preferred stockholder, Class A
preferred stockholder and depositary shareholder then outstanding, common
stockholders are entitled to receive such dividends as Wachovia's board of
directors may declare. In the event of liquidation or dissolution, common
stockholders are entitled to receive Wachovia's net assets remaining after
paying all liabilities and after paying all preferred stockholders, Class A
preferred stockholders, holders of Wachovia's Dividend Equalization Preferred
shares and depositary shareholders the full preferential amounts to which those
holders are entitled.
Under an indenture between Wachovia and Wilmington Trust Company, as
trustee, Wachovia agreed not to pay any dividends on, or acquire or make a
liquidation payment relating to, any of Wachovia's common stock, preferred
stock and Class A preferred stock, if, at that time, there is a default under
the indenture or a related Wachovia guarantee or Wachovia has deferred interest
payments on the securities issued under the indenture.
Subject to the prior rights of any preferred stockholders, Class A preferred
stockholders and depositary shareholders, common stockholders have all voting
rights, each share being entitled to one vote on all matters requiring
stockholder action and in electing directors. Common stockholders have no
preemptive, subscription or conversion rights. All of the outstanding shares of
common stock are, and any common stock issued and sold hereunder will be, fully
paid and nonassessable.
First Union National Bank is the transfer agent, registrar and dividend
disbursement agent for the common stock.
Where appropriate, the applicable prospectus supplement will describe the
U.S. federal income tax considerations relevant to the common stock.
Rights Plan
Under Wachovia's Shareholder Protection Rights Agreement, each outstanding
common stock share has a right attached to it. This right remains attached
unless a separation time occurs. At separation time, common stockholders will
receive separate certificates for these rights. Each right entitles its owner
to purchase at separation time one one-hundredth of a share of a participating
series of Class A preferred stock for $105. This series of Class A preferred
stock would have economic and voting terms similar to those of one common stock
share. Separation time would generally occur at the earlier of the following
two dates:
. the tenth business day after any person commences a tender or exchange
offer that entitles that person to 10% or more of Wachovia's outstanding
common stock
or
. the tenth business day after Wachovia publicly announces that a person
has acquired beneficial ownership of 10% or more of Wachovia's
outstanding common stock.
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These rights will not trade separately from the shares of common stock until
the separation time occurs, and may be exercised on the business day
immediately after the separation time. The rights will expire at the earliest
of:
. the date on which Wachovia's board of directors elects to exchange the
rights for Wachovia common stock shares as described below
. the close of business on December 28, 2010, unless extended by our board
of directors or
. the date on which the rights are terminated as described below.
Once Wachovia publicly announces that a person has acquired 10% of
Wachovia's outstanding common stock, Wachovia can allow for rights holders to
buy our common stock for half of its market value. For example, Wachovia would
sell to each rights holder common stock shares worth $210 for $105 in cash. At
the same time, any rights held by the 10% owner or any of his affiliates,
associates or transferees will be void. In addition, if Wachovia is acquired in
a merger or other business combination after a person has become a 10% owner,
the rights held by stockholders would become exercisable to purchase the
acquiring company's common stock for half of its market value.
In the alternative, Wachovia's board of directors may elect to exchange all
of the then outstanding rights for shares of common stock at an exchange ratio
of two common stock shares for one right. Upon election of this exchange, a
right will no longer be exercisable and will only represent a right to receive
two common stock shares.
If Wachovia is required to issue common stock shares upon the exercise of
rights, or in exchange for rights, the board may substitute shares of
participating Class A preferred stock. The substitution will be at a rate of
two one-hundredths of a share of participating Class A preferred stock for each
right exchanged.
The rights may be terminated without any payment to holders before their
exercise date. The rights have no voting rights and are not entitled to
dividends.
The rights will not prevent a takeover of Wachovia. The rights, however, may
cause substantial dilution to a person or group that acquires 10% or more of
common stock unless Wachovia's board first terminates the rights. Nevertheless,
the rights should not interfere with a transaction that is in Wachovia's and
its stockholders' best interests because the rights can be terminated by the
board before that transaction is completed.
The complete terms of the rights are contained in the Shareholder Protection
Rights Agreement. This agreement is incorporated by reference as an exhibit to
the registration statement of which this prospectus is a part, and the
description above is qualified entirely by that document. A copy of this
agreement can be obtained upon written request to First Union National Bank,
1525 West W.T. Harris Blvd., Charlotte, North Carolina 28288-1153.
Other Provisions
Wachovia's articles and bylaws contain various provisions which may
discourage or delay attempts to gain control of Wachovia. Wachovia's articles
include provisions
. classifying the board of directors into three classes, each class to
serve for three years, with one class elected annually
. authorizing the board of directors to fix the size of the board between
nine and 30 directors
. authorizing directors to fill vacancies on the board occurring between
annual stockholder meetings, except that vacancies resulting from a
director's removal by a stockholder vote may only be filled by a
stockholder vote
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. providing that directors may be removed only for a valid reason and only
by majority vote of shares entitled to vote in electing directors,
voting as a single class
. authorizing only the board of directors, Wachovia's Chairman or
President to call a special meeting of stockholders, except for special
meetings called under special circumstances for classes or series of
stock ranking superior to common stock and
. requiring an 80% stockholder vote by holders entitled to vote in
electing directors, voting as a single class, to alter any of the above
provisions.
Wachovia's bylaws include specific conditions under which business may be
transacted at annual stockholders' meetings, and persons may be nominated for
election as Wachovia directors at annual stockholders' meetings.
The Change in Bank Control Act prohibits a person or group of persons from
acquiring "control" of a bank holding company unless
. the Federal Reserve Board has been given 60 days' prior written notice
of the proposed acquisition and
. within that time period, the Federal Reserve Board has not issued a
notice disapproving the proposed acquisition or extending for up to
another 30 days the period during which such a disapproval may be issued
or unless the acquisition otherwise requires Federal Reserve Board approval. An
acquisition may be made before expiration of the disapproval period if the
Federal Reserve Board issues written notice that it intends not to disapprove
the action. It is generally assumed that the acquisition of more than 10% of a
class of voting stock of a bank holding company with publicly held securities,
such as Wachovia, would constitute the acquisition of control.
In addition, any "company" would be required to obtain Federal Reserve Board
approval before acquiring 25% or more of the outstanding common stock of
Wachovia. If the acquiror is a bank holding company, this approval is required
before acquiring 5% of the outstanding common stock. Obtaining "control" over
Wachovia would also require Federal Reserve Board prior approval. "Control"
generally means
. the ownership or control of 25% or more of a bank holding company voting
securities class,
. the ability to elect a majority of the bank holding company's directors,
or
. the ability otherwise to exercise a controlling influence over the bank
holding company's management and policies.
Two North Carolina shareholder protection statutes adopted in 1987, The
North Carolina Shareholder Protection Act and The North Carolina Control Share
Acquisition Act, allowed North Carolina corporations to elect to either be
covered or not be covered by these statutes. Wachovia elected not to be covered
by these statutes.
In addition, in certain instances the ability of Wachovia's board to issue
authorized but unissued shares of common stock, preferred stock or Class A
preferred stock may have an anti-takeover effect.
Existence of the above provisions could result in Wachovia being less
attractive to a potential acquiror, or result in Wachovia stockholders
receiving less for their shares of common stock than otherwise might be
available if there is a takeover attempt.
8
DESCRIPTION OF PREFERRED STOCK AND CLASS A PREFERRED STOCK
The following information outlines some of the provisions of the preferred
stock and the Class A preferred stock. This information may not be complete in
all respects and is qualified entirely by reference to Wachovia's articles, as
amended with respect to each series of preferred stock or Class A preferred
stock. Our articles are, and any amendments to the articles will be,
incorporated by reference in the registration statement of which this
prospectus is a part for the issuance of any series of preferred stock or Class
A preferred stock. This information relates to terms and conditions that apply
to the preferred stock as a class and the Class A preferred stock as a class.
The specific terms of any series of preferred stock or Class A preferred stock
will be described in the relevant prospectus supplement. If so described in a
prospectus supplement, the terms of that series may differ from the general
description of the terms described below.
Authorized Preferred Stock
Wachovia's authorized preferred stock consists of 10,000,000 shares of
preferred stock, no-par value, and 40,000,000 shares of Class A preferred
stock, no-par value. On September 30, 2001, no shares of preferred stock and no
shares of Class A preferred stock were issued and outstanding.
General
Under Wachovia's articles, the preferred stock and the Class A preferred
stock may be issued from time to time in one or more series, upon board
authorization and without stockholder approval. Within certain legal limits,
the board is authorized to determine the
. voting powers
. designation
. preferences and relative, participating, optional or other rights
. qualifications, limitations or restrictions, including any
. dividend rights
. conversion rights
. exchange rights
. redemption rights
. liquidation preferences
. voting rights and
. the designation and number of shares and the terms and conditions of
their issuance
of any series of preferred stock or Class A preferred stock. Thus, the board,
without stockholder approval, could authorize preferred stock or Class A
preferred stock to be issued with voting, conversion and other rights that
could adversely affect the voting power and other rights of common stockholders
or other outstanding series of preferred stock or Class A preferred stock.
Each series of preferred stock or Class A preferred stock will have the
dividend, liquidation, redemption and voting rights described below unless
otherwise described in a prospectus supplement pertaining to a specific series
of preferred stock or Class A preferred stock. The relevant prospectus
supplement will describe the following terms of the series of preferred stock
or Class A preferred stock in respect of which this prospectus is being
delivered
. the designation of that series and the number of shares offered
. the amount of the liquidation preference per share or the method of
calculating that amount
9
. the initial public offering price at which shares of that series will be
issued
. the dividend rate or the method of calculating that rate, the dates on
which dividends will be paid and the dates from which dividends will
begin to cumulate
. any redemption or sinking fund provisions
. any conversion or exchange rights
. any additional voting and other rights, preferences, privileges,
qualifications, limitations and restrictions
. any securities exchange listing
. the relative ranking and preferences of that series as to dividend
rights and rights upon any liquidation, dissolution or winding up of
Wachovia and
. any other terms of that series.
Under the indenture between Wachovia and Wilmington Trust Company, as
trustee, Wachovia agreed not to pay any dividends on, or acquire or make a
liquidation payment relating to, any of Wachovia's common stock, preferred
stock and Class A preferred stock, if, at that time, there is a default under
the indenture or a related Wachovia guarantee or Wachovia has delayed interest
payments on the securities issued under the indenture.
Shares of preferred stock and Class A preferred stock, when issued against
full payment of their purchase price, will be fully paid and nonassessable. The
liquidation preference of any series of preferred stock or Class A preferred
stock does not necessarily indicate the price at which shares of that series of
preferred stock or Class A preferred stock will actually trade on or after the
issue date.
Where appropriate, the applicable prospectus supplement will describe the
U.S. federal income tax considerations relevant to the preferred stock.
Rank
Each series of preferred stock and Class A preferred stock will, with
respect to dividend rights and rights upon Wachovia's liquidation, dissolution
or winding up, rank prior or superior to common stock. All shares of each
series of preferred stock will be of equal rank with each other. Shares of
Class A preferred stock will rank equal or junior to, but not prior or superior
to, any series of preferred stock. Subject to the foregoing and the terms of
any particular Class A preferred stock series, Class A preferred stock series
may vary as to priority within that class.
Dividends
Holders of each series of preferred stock and Class A preferred stock will
be entitled to receive, when, as and if Wachovia's board declares, cash
dividends, payable at the dates and at the rates per share as described in the
relevant prospectus supplement. Those rates may be fixed, variable or both.
Dividends may be cumulative or noncumulative, as described in the relevant
prospectus supplement. If dividends on a series of preferred stock or Class A
preferred stock are noncumulative and if Wachovia's board fails to declare a
dividend for a dividend period for that series, then holders of that preferred
stock or Class A preferred stock will have no right to receive a dividend for
that dividend period, and Wachovia will have no obligation to pay the dividend
for that period, whether or not dividends are declared for any future dividend
payment dates. If dividends on a series of preferred stock or Class A preferred
stock are cumulative, the dividends on those shares will accrue from and after
the date mentioned in the relevant prospectus supplement.
10
No full dividends may be paid on any series of preferred stock or Class A
preferred stock ranking as to dividends equal or junior to the series of
preferred stock or Class A preferred stock offered by the relevant prospectus
supplement for any period unless full dividends for the immediately preceding
dividend period on that offered stock, including any accumulation of unpaid
dividends, if dividends on such offered stock are cumulative, are paid. When
dividends are not paid in full upon such offered stock and any other parity
stock, dividends upon that stock will be declared on a proportional basis so
that the amount of dividends declared per share will bear to each other the
same ratio that accrued dividends for the current dividend period per share on
the offered stock, including any accumulated unpaid dividends, if dividends on
such offered stock are cumulative, and accrued dividends, including any
accumulations on such parity stock, bear to each other. No interest will be
payable in respect of any dividend payment on such offered stock that may be in
arrears. Unless full dividends on the offered stock have been paid for the
immediately preceding dividend period, including any accumulated dividends, if
dividends on such offered stock are cumulative
. no cash dividend or distribution (other than in junior stock) may be
paid on junior stock (including common stock)
. Wachovia may not acquire any junior stock except by conversion into or
exchange for junior stock and
. Wachovia may not acquire any parity stock otherwise than pursuant to pro
rata offers to purchase all, or a pro rata portion, of the offered stock
and such parity stock, except by conversion into or exchange for junior
stock.
Any dividend payment made on a preferred stock or Class A preferred stock
series will first be credited against the earliest accrued but unpaid dividend
due with respect to shares of that series that remains payable.
Redemption
The terms on which any series of preferred stock or Class A preferred stock
may be redeemed will be in the relevant prospectus supplement. All shares of
preferred stock or Class A preferred stock Wachovia redeems, purchases or
acquires, including shares surrendered for conversion or exchange, shall be
cancelled and restored to the status of authorized but unissued shares of
preferred stock or Class A preferred stock, as the case may be, undesignated as
to series.
Liquidation
In the event of Wachovia's voluntary or involuntary liquidation, dissolution
or winding up, preferred stockholders or Class A preferred stockholders will be
entitled, subject to creditors' rights, but before any distribution to common
stockholders or any other junior stock, to receive a liquidating distribution
in the amount of the liquidation preference per share as mentioned in the
relevant prospectus supplement, plus accrued and unpaid dividends for the
current dividend period. This would include any accumulation of unpaid
dividends for prior dividend periods, if dividends on that series of preferred
stock or Class A preferred stock are cumulative. If the amounts available for
distribution upon Wachovia's liquidation, dissolution or winding up are not
sufficient to satisfy the full liquidation rights of all the outstanding
preferred stock or Class A preferred stock and all stock ranking equal to that
preferred stock or Class A preferred stock, then the holders of each series of
that stock will share ratably in any distribution of assets in proportion to
the full respective preferential amount, which may include accumulated
dividends, to which they are entitled. After the full amount of the liquidation
preference is paid, the holders of preferred stock or Class A preferred stock
will not be entitled to any further participation in any distribution of
Wachovia's assets.
Voting
The voting rights of preferred stock or Class A preferred stock of any
series will be described in the relevant prospectus supplement. The shares of
any series of preferred stock having voting rights may not have more than
11
one vote per share. The shares of any series of Class A preferred stock having
voting rights shall have the number of votes per share, which may be more or
less than one, as are specified in the amendment to Wachovia's articles with
respect to that series and in the relevant prospectus supplement.
The NCBC Act provides that, regardless of whether a class or series of
shares is granted voting rights by the terms of Wachovia's articles, the
shareholders of that class or series are entitled to vote as a separate voting
group, or together with other similarly affected series, on certain amendments
to Wachovia's articles and certain other fundamental changes to Wachovia that
directly affect that class or series.
Under Federal Reserve Board regulations, if the holders of any series of
preferred stock or Class A preferred stock become entitled to vote for the
election of directors because dividends on that series are in arrears, that
series may then be deemed a "class of voting securities," and a holder of 25%
or more of that series (or a holder of 5% or more if it otherwise exercises a
"controlling influence" over Wachovia) may then be subject to regulation as a
bank holding company. In addition, in that event
. any bank holding company may be required to obtain Federal Reserve Board
approval, and any foreign bank, and any company that controls a foreign
bank, that has certain types of U.S. banking operations may be required
to obtain Federal Reserve Board approval under the International Banking
Act of 1978, to acquire 5% or more of any series of preferred stock or
Class A preferred stock and
. any person other than a bank holding company may be required to obtain
Federal Reserve Board approval under the Change in Bank Control Act to
acquire 10% or more of that series of preferred stock or Class A
preferred stock.
Conversion or Exchange
The terms on which preferred stock or Class A preferred stock of any series
may be converted into or exchanged for another class or series of securities
will be described in the relevant prospectus supplement.
Other Rights
The shares of a series of preferred stock or Class A preferred stock may
have the preferences, voting powers or relative, participating, optional or
other special rights as may be described in the relevant prospectus supplement,
Wachovia's articles, or as otherwise required by law. The holders of preferred
stock and Class A preferred stock will not have any preemptive rights to
subscribe to any Wachovia securities.
Title
Wachovia, the transfer agent and registrar for a series of preferred stock
or Class A preferred stock, and any of their agents may treat the registered
owner of that preferred stock or Class A preferred stock as the absolute owner
of that stock, whether or not any payment for that preferred stock or Class A
preferred stock shall be overdue and despite any notice to the contrary, for
any purpose. See also "Global Securities".
Transfer Agent and Registrar
The transfer agent, registrar and dividend disbursement agent for each
series of preferred stock or Class A preferred stock will be named in the
relevant prospectus supplement.
12
DESCRIPTION OF DEPOSITARY SHARES
The following information outlines some of the provisions of the deposit
agreement, the depositary shares and the depositary receipts. This information
may not be complete in all respects and is qualified entirely by reference to
the relevant deposit agreement and depositary receipts with respect to the
depositary shares relating to any particular series of preferred stock or Class
A preferred stock. The specific terms of any series of depositary shares will
be described in the relevant prospectus supplement. If so described in the
prospectus supplement, the terms of that series of depositary shares may differ
from the general description of terms presented below.
General
Wachovia may elect to offer fractional interests in shares of preferred
stock or Class A preferred stock, instead of whole shares of preferred stock or
Class A preferred stock. If so, Wachovia will allow a depositary to issue to
the public depositary shares, each of which will represent a fractional
interest as described in the relevant prospectus supplement, of a share of
preferred stock or Class A preferred stock.
The shares of the preferred stock or the Class A preferred stock series
underlying any depositary shares will be deposited under a separate deposit
agreement between Wachovia and a bank or trust company acting as depositary
with respect to that series. The depositary will have its principal office in
the United States and have a combined capital and surplus of at least
$50,000,000. The relevant prospectus supplement relating to a series of
depositary shares will mention the name and address of the depositary. Under
the relevant deposit agreement, each owner of a depositary share will be
entitled, in proportion to its fractional interest in a share of the preferred
stock or the Class A preferred stock underlying that depositary share, to all
the rights and preferences of that preferred stock or Class A preferred stock,
including dividend, voting, redemption, conversion, exchange and liquidation
rights.
Depositary shares will be evidenced by one or more depositary receipts
issued under the relevant deposit agreement.
Pending the preparation of definitive engraved depositary receipts, a
depositary may, upon Wachovia's order, issue temporary depositary receipts
substantially identical to and entitling their holders to all the rights
pertaining to the definitive depositary receipts but not in definitive form.
Definitive depositary receipts will be prepared without unreasonable delay, and
the temporary depositary receipts will be exchangeable for definitive
depositary receipts at Wachovia's expense.
Where appropriate, the applicable prospectus supplement will describe the
U.S. federal income tax considerations relevant to the depositary shares.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash
distributions in respect of the preferred stock or the Class A preferred stock
to the record depositary shareholders based on the number of the depositary
shares owned by that holder on the relevant record date. The depositary will
distribute only that amount which can be distributed without attributing to any
depositary shareholders a fraction of one cent, and any balance not so
distributed will be added to and treated as part of the next sum received by
the depositary for distribution to record depositary shareholders.
If there is a distribution other than in cash, the depositary will
distribute property to the entitled record depositary shareholders, unless the
depositary determines that it is not feasible to make that distribution. In
that case the depositary may, with Wachovia's approval, adopt the method it
deems equitable and practicable for making that distribution, including any
sale of property and the distribution of the net proceeds from this sale to the
concerned holders.
13
Each deposit agreement will also contain provisions relating to the manner
in which any subscription or similar rights Wachovia offers to preferred
stockholders or the Class A preferred stockholders of the relevant series will
be made available to depositary shareholders.
Withdrawal of Stock
Upon surrender of depositary receipts at the depositary's office, the holder
of the relevant depositary shares will be entitled to the number of whole
shares of the related preferred stock series or Class A preferred stock series
and any money or other property those depositary shares represent. Depositary
shareholders will be entitled to receive whole shares of the related preferred
stock series or Class A preferred stock series on the basis described in the
relevant prospectus supplement, but holders of those whole preferred stock
shares or Class A preferred stock shares will not afterwards be entitled to
receive depositary shares in exchange for their shares. If the depositary
receipts the holder delivers evidence a depositary share number exceeding the
whole share number of the related preferred stock series or Class A preferred
stock series to be withdrawn, the depositary will deliver to that holder a new
depositary receipt evidencing the excess depositary share number.
Redemption; Liquidation
The terms on which the depositary shares relating to the preferred stock or
the Class A preferred stock of any series may be redeemed, and any amounts
distributable upon Wachovia's liquidation, dissolution or winding up, will be
described in the relevant prospectus supplement.
Voting
Upon receiving notice of any meeting at which preferred stockholders or
Class A preferred stockholders of any series are entitled to vote, the
depositary will mail the information contained in that notice to the record
depositary shareholders relating to those series of preferred stock or Class A
preferred stock. Each depositary shareholder on the record date will be
entitled to instruct the depositary on how to vote the shares of preferred
stock or Class A preferred stock underlying that holder's depositary shares.
The depositary will vote the preferred stock shares or Class A preferred stock
shares underlying those depositary shares according to those instructions, and
Wachovia will take reasonably necessary actions to enable the depositary to do
so. If the depositary does not receive specific instructions from the
depositary shareholders relating to such preferred stock or Class A preferred
stock, it will abstain from voting those preferred stock shares or Class A
preferred stock shares, unless otherwise mentioned in the relevant prospectus
supplement.
Amendment and Termination of Depositary Agreement
The depositary receipt form evidencing the depositary shares and the
relevant deposit agreement may be amended by Wachovia and the depositary.
However, any amendment that significantly affects the rights of the depositary
shareholders will not be effective unless a majority of the outstanding
depositary shareholders approve that amendment. Wachovia or the depositary may
terminate a deposit agreement only if
. Wachovia has redeemed or reacquired all outstanding depositary shares
relating to the deposit agreement
. all preferred stock or Class A preferred stock of the relevant series
has been withdrawn or
. there has been a final distribution in respect of the preferred stock or
the Class A preferred stock of the relevant series in connection with
Wachovia's liquidation, dissolution or winding up and such distribution
has been made to the related depositary shareholders.
Charges of Depositary
Wachovia will pay all charges of each depositary in connection with the
initial deposit and any redemption of the preferred stock or the Class A
preferred stock. Depositary shareholders will be required to pay any other
transfer and other taxes and governmental charges and any other charges
expressly provided in the deposit agreement to be for their accounts.
14
Miscellaneous
Each depositary will forward to the relevant depositary shareholders all
Wachovia reports and communications that Wachovia is required to furnish to
preferred stockholders or Class A preferred stockholders of the relevant
series.
Neither any depositary nor Wachovia will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under any deposit agreement. The obligations of Wachovia and each
depositary under any deposit agreement will be limited to performance in good
faith of their duties under that agreement, and they will not be obligated to
prosecute or defend any legal proceeding in respect of any depositary shares,
preferred stock or Class A preferred stock unless they are provided with
satisfactory indemnity. They may rely upon written advice of counsel or
accountants, or information provided by persons presenting preferred stock or
Class A preferred stock for deposit, depositary shareholders or other persons
believed to be competent and on documents believed to be genuine.
Title
Wachovia, each depositary and any of their agents may treat the registered
owner of any depositary share as the absolute owner of that share, whether or
not any payment for that depositary share is overdue and despite any notice to
the contrary, for any purpose. See "Global Securities".
Resignation and Removal of Depositary
A depositary may resign at any time by delivering to Wachovia notice of its
election, and Wachovia may remove a depositary, and resignation or removal will
take effect upon the appointment of a successor depositary and its acceptance
of appointment. That successor depositary must
. be appointed within 60 days after delivery of the notice of resignation
or removal
. be a bank or trust company having its principal office in the United
States and
. have combined capital and surplus of at least $50,000,000.
15
DESCRIPTION OF DEBT SECURITIES
General
The following information outlines some of the provisions of the indentures
and the debt securities. This information may not be complete in all respects,
and is qualified entirely by reference to the indenture under which the debt
securities are issued. These indentures are incorporated by reference as
exhibits to the registration statement of which this prospectus is a part. This
information relates to certain terms and conditions that generally apply to the
debt securities. The specific terms of any series of debt securities will be
described in the relevant prospectus supplement. If so described in a
prospectus supplement, the terms of that series may differ from the general
description of the terms presented below.
Senior debt securities will be issued under an indenture between Wachovia
and The Chase Manhattan Bank, as trustee. Subordinated debt securities will be
issued under an indenture between Wachovia and Bank One Trust Company, N.A., as
trustee. Whenever we refer to specific provisions or defined terms in one or
both of the indentures, those provisions or defined terms are incorporated in
this prospectus by reference. Section references used in this discussion are
references to the relevant indenture. Capitalized terms which are not otherwise
defined shall have the meaning given to them in the relevant indenture.
The debt securities will be limited to an aggregate initial offering price
of $12,415,000,000, or at Wachovia's option if so specified in the relevant
prospectus supplement, the equivalent of this amount in any other currency or
currency unit, and will be Wachovia's direct, unsecured obligations. The debt
securities will not be deposits or other bank obligations and will not be FDIC
insured.
The indentures do not limit the aggregate principal amount of debt
securities or of any particular series of debt securities which may be issued
under the indentures and provide that these debt securities may be issued at
various times in one or more series, in each case with the same or various
maturities, at par or at a discount. (Section 301) The indentures provide that
there may be more than one trustee under the indentures with respect to
different series of debt securities. As of June 30, 2001, $10.9 billion
aggregate principal amount of senior debt securities was outstanding under the
senior indenture. The senior trustee is trustee for such series. As of June 30,
2001, $25.2 billion aggregate principal amount of subordinated debt securities
was outstanding under the subordinated indenture. The subordinated trustee is
trustee for such series.
The indentures do not limit the amount of other debt that Wachovia may issue
and do not contain financial or similar restrictive covenants. As of June 30,
2001, Wachovia had an aggregate of $4.4 billion of short-term senior
indebtedness outstanding which consisted primarily of commercial paper.
Wachovia expects from time to time to incur additional senior indebtedness and
Other Financial Obligations (as defined below). The indentures do not prohibit
or limit additional senior indebtedness or Other Financial Obligations.
Because Wachovia is a holding company and a legal entity separate and
distinct from its subsidiaries, Wachovia's rights to participate in any
distribution of assets of any subsidiary upon its liquidation, reorganization
or otherwise, and the holders of debt securities' ability to benefit indirectly
from such distribution, would be subject to prior creditor's claims, except to
the extent that Wachovia itself may be a creditor of that subsidiary with
recognized claims. Claims on Wachovia's subsidiary banks by creditors other
than Wachovia include long-term debt and substantial obligations with respect
to deposit liabilities and federal funds purchased, securities sold under
repurchase agreements, other short-term borrowings and various other financial
obligations. The indentures do not contain any covenants designed to afford
holders of debt securities protection in the event of a highly leveraged
transaction involving Wachovia.
16
The following information relating to the debt securities will be described
in the relevant prospectus supplement
. the title of the debt securities
. whether the debt securities are senior debt securities or subordinated
debt securities
. any limit upon the aggregate principal amount of the debt securities and
the percentage of such principal amount at which they may be issued
. the date on which the principal of the debt securities must be paid
. the interest rates per annum of the debt securities, the method of
determining these rates, the dates from which the interest will accrue,
the interest payment dates, the regular record date for the interest
payable on any interest payment date, the person to whom any payment
must be made, if other than the person in whose name that debt security
is registered on the regular record date for such interest, and the
payment method of any interest payable on a global debt security on an
interest payment date
. if other than the location specified in this prospectus, the place where
any principal, premium or interest on the debt securities must be paid
. any redemption and any mandatory or optional sinking fund provisions
. any repayment provision
. if other than denominations of $1,000 and any integral multiple of
$1,000, the denominations in which the debt securities shall be issued
. if other than the principal amount, the portion of the debt securities'
principal amount which shall be payable upon an acceleration of their
maturity
. the currency or currency unit of payment of principal, premium, if any,
and interest on the debt securities, and any index used to determine the
amount of payment of principal, premium, if any, and interest on these
debt securities
. whether the debt securities will be issued in permanent global form and,
in such case, the initial depository and the circumstances under which
such permanent global debt security may be exchanged
. whether the subordination provisions summarized below or other
subordination provisions, including a different definition of "senior
indebtedness", "Entitled Persons", "Existing Subordinated Indebtedness"
or "Other Financial Obligations" shall apply to the debt securities
. the terms and conditions of any obligation or right of Wachovia or a
holder to convert or exchange subordinated debt securities into other
securities and
. any other key aspects of the debt securities not specified in this
prospectus. (Section 301)
Where appropriate, the applicable prospectus supplement will describe the U. S.
federal income tax considerations relevant to the debt securities.
Unless otherwise described in the relevant prospectus supplement, principal,
premium, and interest, if any, on the debt securities will be payable, and the
debt securities will be transferable, at the Corporate Trust Office of First
Union National Bank in Charlotte, North Carolina, except that interest may be
paid at Wachovia's option by check mailed to the address of the holder entitled
to it as it appears on the security register. (Sections 301, 305 and 1002)
17
Unless otherwise described in the relevant prospectus supplement, the debt
securities will be issued only in fully registered form, without coupons, in
denominations of $1,000 and any integral multiples of $1,000. (Section 302) The
indentures provide that debt securities of any series may be issued in
permanent global form (Section 301) and, unless otherwise described in the
relevant prospectus supplement, debt securities will be issued in permanent
global form. See "Global Securities". No service charge will be made for any
registration of transfer or exchange of the debt securities, but Wachovia may
require payment to cover any tax or other governmental charge payable in
connection with a transfer or exchange. (Section 305)
Both senior debt securities and subordinated debt securities may be issued
as original issue discount securities to be offered and sold at a substantial
discount below their stated principal amount. Federal income tax consequences
and other special considerations that apply to any original issue discount
securities will be described in the relevant prospectus supplement. The term
"original issue discount security" means any security which provides for an
amount less than its principal amount to be due and payable upon the
acceleration of its maturity in accordance with the related indenture. (Section
101)
We refer to the relevant prospectus supplement relating to any series of
debt securities that are original issue discount securities for the particular
provisions relating to acceleration of the maturity of a portion of the
principal amount of such original issue discount securities upon a continuing
event of default.
Subordination of the Subordinated Debt Securities
Wachovia's obligations to make any payment of the principal and interest on
any subordinated debt securities will, to the extent the subordinated indenture
specifies, be subordinate and junior in right of payment to all of Wachovia's
senior indebtedness. Unless otherwise specified in the prospectus supplement
relating to a specific series of subordinated debt securities, Wachovia's
"senior indebtedness" is defined in the subordinated indenture to mean the
principal of, premium and interest, if any, on
. all Wachovia indebtedness for money borrowed, including indebtedness
Wachovia guarantees, other than the subordinated debt securities,
whether outstanding on the date of execution of the indenture or
incurred afterward, except
. any obligations on account of Existing Subordinated Indebtedness and
. indebtedness as is by its terms expressly stated to be not superior
in payment right to the subordinated debt securities or to rank equal
to the subordinated debt securities and
. any deferrals, renewals or extensions of any such senior indebtedness.
(Section 101 of the subordinated indenture)
The payment of the principal and interest on the subordinated debt
securities will, to the extent described in the subordinated indenture, be
subordinated in payment right to the prior payment of all senior indebtedness.
Unless otherwise described in the prospectus supplement relating to the
specific series of subordinated debt securities, in certain events of
insolvency, the payment of the principal and interest on the subordinated debt
securities, other than subordinated debt securities that are also Existing
Subordinated Indebtedness, will, to the extent described in the subordinated
indenture, also be effectively subordinated in payment right to the prior
payment of all Other Financial Obligations. Upon any payment or distribution of
assets to creditors under Wachovia's liquidation, dissolution, winding up,
reorganization, assignment for the benefit of creditors, or any bankruptcy,
insolvency or similar proceedings, all senior indebtedness holders will be
entitled to receive payment in full of all amounts due before the subordinated
debt securities holders will be entitled to receive any payment in respect of
the principal or interest on their securities. If upon any such payment or
asset distribution to creditors, there remains, after giving effect to those
subordination provisions in favor of senior indebtedness holders, any amount of
cash, property or securities available for payment or distribution in respect
of
18
subordinated debt securities (defined in the subordinated indenture as "Excess
Proceeds") and if, at that time, any Entitled Persons (as defined below) in
respect of Other Financial Obligations have not received payment of all amounts
due on such Other Financial Obligations, then such Excess Proceeds shall first
be applied to pay these Other Financial Obligations before any payment may be
applied to the subordinated debt securities which are not Existing Subordinated
Indebtedness. In the event of the acceleration of the maturity of any
subordinated debt securities, all senior indebtedness holders will be entitled
to receive payment of all amounts due before the subordinated debt securities
holders will be entitled to receive any payment upon the principal of or
interest on their subordinated debt securities. (Sections 1403, 1404 and 1413
of the subordinated indenture)
By reason of such subordination in favor of senior indebtedness holders, in
the event of insolvency, Wachovia's creditors who are not senior indebtedness
holders or subordinated debt securities holders may recover less, ratably, than
senior indebtedness holders and may recover more, ratably, than subordinated
debt securities holders. By reason of subordinated debt securities' holders
(other than Existing Subordinated Indebtedness) to pay over any Excess Proceeds
to Entitled Persons in respect to Other Financial Obligations, in the event of
insolvency, Existing Subordinated Indebtedness holders may recover less,
ratably, than Entitled Persons in respect of Other Financial Obligations and
may recover more, ratably, than the subordinated debt securities holders (other
than Existing Subordinated Indebtedness).
Unless otherwise specified in the prospectus supplement relating to the
particular subordinated debt securities series offered by it, "Existing
Subordinated Indebtedness" means subordinated debt securities issued under the
subordinated indenture prior to November 15, 1992. (Section 101 of the
subordinated indenture)
Unless otherwise specified in the prospectus supplement relating to the
particular subordinated debt securities series offered by it, "Other Financial
Obligations" means all obligations of Wachovia to make payment under the terms
of financial instruments, such as
. securities contracts and foreign currency exchange contracts
. derivative instruments such as
. swap agreements (including interest rate and foreign exchange rate
swap agreements)
. cap agreements
. floor agreements
. collar agreements
. interest rate agreements
. foreign exchange rate agreements
. options
. commodity futures contracts
. commodity option contracts and
. similar financial instruments other than
. obligations on account of senior indebtedness and
. obligations on account of indebtedness for money borrowed ranking
equal or subordinate to the subordinated debt securities. (Section
101 of the subordinated indenture)
Unless otherwise described in the prospectus supplement relating to a specific
series of subordinated debt securities, "Entitled Persons" means any person who
is entitled to payment under the terms of Other Financial Obligations. (Section
101 of the subordinated indenture)
19
Wachovia's obligations under the subordinated debt securities shall rank
equal in right of payment with each other and with the Existing Subordinated
Indebtedness, subject, unless otherwise described in the prospectus supplement
relating to a specific series of subordinated debt securities, to the
obligations of subordinated debt securities holders (other than Existing
Subordinated Indebtedness) to pay over any Excess Proceeds to Entitled Persons
in respect of Other Financial Obligations as provided in the subordinated
indenture. (Section 1413 of the subordinated indenture)
The relevant prospectus supplement may further describe the provisions, if
any, applicable to the subordination of the subordinated debt securities of a
particular series.
Conversion or Exchange
If and to the extent mentioned in the relevant prospectus supplement, any
subordinated debt securities series may be convertible or exchangeable into
other debt securities or common stock, preferred stock, Class A preferred stock
or depositary shares. The specific terms on which any subordinated debt
securities series may be so converted or exchanged will be described in the
relevant prospectus supplement. These terms may include provisions for
conversion or exchange, either mandatory, at the holder's option or at
Wachovia's option, in which case the amount or number of securities the
subordinated debt securities holders would receive would be calculated at the
time and manner described in the relevant prospectus supplement.
Defaults
The Senior Indenture
The senior indenture defines an "event of default" as
. default in any principal or premium payment on any senior debt security
of that series at maturity
. default for 30 days in interest payment of any senior debt security of
that series
. failure to deposit any sinking fund payment when due in respect of that
series
. Wachovia's failure for 60 days after notice in performing any other
covenants or warranties in the senior indenture (other than a covenant
or warranty solely for the benefit of other senior debt securities
series)
. failure to pay when due any Wachovia indebtedness or First Union
National Bank indebtedness in excess of $5,000,000, or maturity
acceleration of any indebtedness exceeding that amount if acceleration
results from a default under the instrument giving rise to that
indebtedness and is not annulled within 30 days after due notice
. Wachovia's or First Union National Bank's bankruptcy, insolvency or
reorganization and
. any other event of default provided for senior debt securities of that
series. (Section 501)
The senior indenture provides that, if any event of default for senior debt
securities of any series outstanding occurs and is continuing, either the
senior trustee or the holders of not less than 25% in principal amount of the
outstanding senior debt securities of that series may declare the principal
amount (or, if the securities of that series are original issue discount
securities, such principal amount portion as the terms of that series specify)
of all senior debt securities of that series to be due and payable immediately.
However, no such declaration is required upon certain bankruptcy events. In
addition, upon fulfillment of certain conditions, this declaration may be
annulled and past defaults waived by the holders of a majority in principal
amount of the outstanding senior debt securities of that series on behalf of
all senior debt securities holders of that series. (Sections 502 and 513) In
the event of Wachovia's bankruptcy, insolvency or reorganization, senior debt
securities holders' claims would fall under the broad equity power of a federal
bankruptcy court, and to that court's determination of the nature of those
holders' rights.
20
The senior indenture contains a provision entitling the senior trustee,
acting under the required standard of care, to be indemnified by the holders of
any outstanding senior debt securities series before proceeding to exercise any
right or power under the senior indenture at the holders' request. (Section
603) The holders of a majority in principal amount of outstanding senior debt
securities of any series may direct the time, method and place of conducting
any proceeding for any remedy available to the senior trustee, or exercising
any trust or other power conferred on the senior trustee, with respect to the
senior debt securities of such series. The senior trustee, however, may decline
to act if that direction is contrary to law or the senior indenture or would
involve the senior trustee in personal liability. (Section 512)
Wachovia will file annually with the senior trustee a compliance certificate
as to all conditions and covenants in the senior indenture. (Section 1007)
The Subordinated Indenture
Subordinated debt securities principal payment may be accelerated only upon
an event of default. There is no acceleration right in the case of a default in
the payment of interest or principal prior to the maturity date or a default in
Wachovia performing any covenants in the subordinated indenture, unless a
specific series of subordinated debt securities provide otherwise, which will
be described in the relevant prospectus supplement.
The subordinated indenture defines an "event of default" as certain events
involving Wachovia's bankruptcy, insolvency or reorganization and any other
event of default provided for the subordinated debt securities of that series.
(Section 501) The subordinated indenture defines a "default" to include
. any event of default
. a default in any principal or premium payment of any subordinated debt
security of that series at maturity
. default in any interest payment when due and continued for 30 days
. a default in any required designation of funds as "available funds" or
. default in the performance, or breach, of Wachovia's covenants in the
subordinated indenture or in the subordinated debt securities of that
series and continued for 90 days after written notice to
. Wachovia by the subordinated trustee or
. Wachovia and the subordinated trustee by the holders of not less than
25% in aggregate principal amount of the outstanding subordinated
debt securities of that series. (Section 503)
If an event of default for subordinated debt securities of any series occurs
and is continuing, either the subordinated trustee or the holders of not less
than 25% in aggregate principal amount of the outstanding subordinated debt
securities of that series may accelerate the maturity of all outstanding
subordinated debt securities of such series. The holders of a majority in
aggregate principal amount of the outstanding subordinated debt securities of
that series may waive an event of default resulting in acceleration of the
subordinated debt securities of such series, but only if all events of default
have been remedied and all payments due on the subordinated debt securities of
that series (other than those due as a result of acceleration) have been made
and certain other conditions have been met. (Section 502) Subject to
subordinated indenture provisions relating to the subordinated trustee's
duties, in case a default shall occur and be continuing, the subordinated
trustee will be under no obligation to exercise any of its rights or powers
under the subordinated indenture at the holders' request or direction, unless
such holders shall have offered to the subordinated trustee reasonable
indemnity. (Section 603) Subject to such indemnification provisions, the
holders of a majority in aggregate principal amount of the outstanding
subordinated debt securities of that series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the subordinated trustee or exercising any trust or power conferred on the
subordinated trustee. (Section 512) The holders of a majority in aggregate
principal amount of the outstanding subordinated debt securities of that series
may waive any past default under the
21
subordinated indenture with respect to such series, except a default in
principal or interest payment or a default of a subordinated indenture covenant
which cannot be modified without the consent of each outstanding subordinated
debt security holder of the series affected. (Section 513) In the event of
Wachovia's bankruptcy, insolvency or reorganization, subordinated debt
securities holders' claims would fall under the broad equity power of a federal
bankruptcy court, and to that court's determination of the nature of those
holders' rights.
Wachovia will file annually with the subordinated trustee a compliance
certificate as to all conditions and covenants in the subordinated indenture.
(Section 1007)
Modification and Waiver
Each indenture may be modified and amended by Wachovia and the relevant
trustee. Certain modifications and amendments require the consent of the
holders of at least a majority in aggregate principal amount of the outstanding
debt securities of each series issued under that indenture and affected by the
modification or amendment. No such modification or amendment may, without the
consent of the holder of each outstanding debt security issued under such
indenture and affected by it
. change the stated maturity of the principal, or any installment of
principal or interest, on any outstanding debt security
. reduce any principal amount, premium or interest, on any outstanding
debt security, including in the case of an original issue discount
security the amount payable upon acceleration of the maturity of that
security
. change the place of payment where, or the coin or currency or currency
unit in which, any principal, premium or interest, on any outstanding
debt security is payable
. impair the right to institute suit for the enforcement of any payment on
or after the stated maturity, or in the case of redemption, on or after
the redemption date
. reduce the above-stated percentage of outstanding debt securities
necessary to modify or amend the applicable indenture or
. modify the above requirements or reduce the percentage of aggregate
principal amount of outstanding debt securities of any series required
to be held by holders seeking to waive compliance with certain
provisions of the relevant indenture or seeking to waive certain
defaults. (Section 902)
The holders of at least a majority in aggregate principal amount of the
outstanding debt securities of any series may on behalf of all outstanding debt
securities holders of that series waive, insofar as that series is concerned,
Wachovia's compliance with certain restrictive provisions of the relevant
indenture. (Section 1008) The holders of at least a majority in aggregate
principal amount of the outstanding debt securities of any series may on behalf
of all outstanding debt securities holders of that series waive any past
default under the relevant indenture with respect to that series, except a
default in the payment of the principal, or premium, if any, or interest on any
outstanding debt security of that series or in respect of an indenture covenant
which cannot be modified or amended without each outstanding debt security
holder consenting. (Section 513)
Certain modifications and amendments of each indenture may be made by
Wachovia and the relevant trustee without the outstanding debt securities
holders consenting. (Section 901)
Each indenture provides that in determining whether the holders of the
requisite principal amount of the outstanding debt securities have given any
request, demand, authorization, direction, notice, consent or waiver under that
indenture or are present at a meeting of holders of outstanding debt securities
for quorum purposes
. the principal amount of an original issue discount security that shall
be deemed to be outstanding shall be the amount of the principal that
would be due and payable as of the date of such determination upon
acceleration of its maturity and
22
. the principal amount of outstanding debt securities denominated in a
foreign currency or currency unit shall be the U.S. dollar equivalent,
determined on the date of original issuance of that outstanding debt
security, of the principal amount of that outstanding debt security or,
in the case of an original issue discount security, the U.S. dollar
equivalent, determined on the date of original issuance of such
outstanding debt security, of the amount determined as provided in the
above bullet-point. (Section 101)
Consolidation, Merger and Sale of Assets
The indentures each provide that Wachovia may not consolidate with or merge
into any other corporation or transfer its properties and assets substantially
as an entirety to any person unless
. the corporation formed by the consolidation or into which Wachovia is
merged, or the person to which Wachovia's properties and assets are so
transferred, shall be a corporation organized and existing under the
laws of the U.S., any state or Washington, D.C. and shall expressly
assume by supplemental indenture the payment of any principal, premium
or interest on the debt securities, and the performance of Wachovia's
other covenants under the relevant indenture
. immediately after giving effect to this transaction, no event of default
or default, as applicable, and no event which, after notice or lapse of
time or both, would become an event of default or default, as
applicable, shall have occurred and be continuing and
. certain other conditions are met. (Section 801)
Limitation on Disposition of First Union National Bank Stock
The indentures each contain Wachovia's covenant that, so long as any of the
debt securities issued under that indenture before August 1, 1990 are
outstanding, but subject to Wachovia's rights in connection with its
consolidation with or merger into another corporation or a sale of Wachovia's
assets, it will not sell, assign, transfer, grant a security interest in or
otherwise dispose of any shares of, securities convertible into, or options,
warrants or rights to subscribe for or purchase shares of, First Union National
Bank voting stock, nor will it permit First Union National Bank to issue any
shares of, or securities convertible into, or options, warrants or rights to
subscribe for or purchase shares of, First Union National Bank voting stock,
unless
. any such sale, assignment, transfer, issuance, grant of a security
interest or other disposition is made for fair market value, as
determined by Wachovia's board and
. Wachovia will own at least 80% of the issued and outstanding First Union
National Bank voting stock free and clear of any security interest after
giving effect to such transaction. (Section 1006)
The above covenant is not a covenant for the benefit of any series of debt
securities issued on or after August 1, 1990.
Restriction on Sale or Issuance of Voting Stock of Major Subsidiary Banks
The indentures each contain Wachovia's covenant that it will not, and will
not permit any subsidiary to, sell, assign, transfer, grant a security interest
in, or otherwise dispose of, any shares of voting stock, or any securities
convertible into shares of voting stock, of any "Major Subsidiary Bank" (as
defined below) or any subsidiary owning, directly or indirectly, any shares of
voting stock of any Major Subsidiary Bank and that it will not permit any Major
Subsidiary Bank or any subsidiary owning, directly or indirectly, any shares of
voting stock of a Major Subsidiary Bank to issue any shares of its voting stock
or any securities convertible into shares of its voting stock, except for
sales, assignments, transfers or other dispositions which
. are for the purpose of qualifying a person to serve as a director
. are for fair market value, as determined by Wachovia's board, and, after
giving effect to such dispositions and to any potential dilution,
Wachovia will own not less than 80% of the shares of
23
voting stock of such Major Subsidiary Bank or any such subsidiary owning
any shares of voting stock of such Major Subsidiary Bank
. are made
. in compliance with court or regulatory authority order or
. in compliance with a condition imposed by any such court or authority
permitting Wachovia's acquisition of any other bank or entity or
. in compliance with an undertaking made to such authority in
connection with such an acquisition; provided, in the case of the two
preceding bullet-points, the assets of the bank or entity being
acquired and its consolidated subsidiaries equal or exceed 75% of the
assets of such Major Subsidiary Bank or such subsidiary owning,
directly or indirectly, any shares of voting stock of a Major
Subsidiary Bank and its respective consolidated subsidiaries on the
date of acquisition or
. to Wachovia or any wholly-owned subsidiary.
Despite the above requirements, any Major Subsidiary Bank may be merged into
or consolidated with another banking institution organized under U.S. or state
law, if after giving effect to that merger or consolidation Wachovia or any
wholly-owned subsidiary owns at least 80% of the voting stock of the other
banking institution free and clear of any security interest and if, immediately
after the merger or consolidation, no event of default, and no event which,
after notice or lapse of time or both, would become an event of default, shall
have happened and be continuing. (Section 1007) A "Major Subsidiary Bank" is
defined in each indenture to mean any subsidiary which is a bank and has total
assets equal to 25% or more of Wachovia's consolidated assets determined on the
date of the most recent audited financial statements of these entities. At
present, the Major Subsidiary Banks are First Union National Bank and Wachovia
Bank, N.A.
The above covenant is not a covenant for the benefit of any series of debt
securities issued before August 1, 1990, or, in the case of subordinated debt
securities, issued after November 15, 1992.
Trustees
Either or both of the trustees may resign or be removed with respect to one
or more series of debt securities and a successor trustee may be appointed to
act with respect to that series. (Section 610) In the event that two or more
persons are acting as trustee with respect to different series of debt
securities, each such trustee shall be a trustee of a trust under the relevant
indenture separate and apart from the trust administered by any other such
trustee (Section 611), and any action to be taken by the "trustee" may then be
taken by each such trustee with respect to, and only with respect to, the one
or more series of debt securities for which it is trustee.
In the normal course of business, Wachovia and its subsidiaries conduct
banking transactions with the trustees, and the trustees conduct banking
transactions with Wachovia and its subsidiaries.
Title
Wachovia, the trustees and any of their agents may treat the registered
owner of any debt security as the absolute owner of that security, whether or
not that debt security is overdue and despite any notice to the contrary, for
any purpose. See "Global Securities".
24
DESCRIPTION OF WARRANTS
The following information outlines some of the provisions of each warrant
agreement, the warrants and the warrant certificates. This information may not
be complete in all respects and is qualified entirely by reference to the
relevant warrant agreement with respect to the warrants of any particular
series. The specific terms of any series of warrants will be described in the
relevant prospectus supplement. If so described in a prospectus supplement, the
terms of that series of warrants may differ from the general description of
terms presented below.
General
Wachovia may issue warrants for the purchase of its debt securities,
preferred stock, Class A preferred stock, depositary shares or common stock.
Warrants may be issued independently or together with debt securities,
preferred stock, Class A preferred stock, depositary shares or common stock,
and may be attached to or separate from those securities.
Each series of warrants will be evidenced by certificates issued under a
separate warrant agreement to be entered into between Wachovia and a bank, as
warrant agent, selected by Wachovia with respect to such series, having its
principal office in the U.S. and having combined capital and surplus of at
least $50,000,000.
The relevant prospectus supplement relating to a series of warrants will
mention the name and address of the warrant agent. The relevant prospectus
supplement will describe the terms of the series of warrants in respect of
which this prospectus is being delivered, including
. the offering price
. the currency for which such warrants may be purchased
. the designation and terms of the securities with which the warrants are
issued and the number of warrants issued with each such security or each
principal amount of such security
. the date which the warrants and the related securities will be
separately transferable
. in the case of warrants to purchase debt securities, the principal
amount of debt securities that can be purchased upon exercise of one
warrant, and the price and currency for purchasing those debt securities
upon exercise and, in the case of warrants to purchase preferred stock,
Class A preferred stock, depositary shares or common stock, the number
of depositary shares or shares of preferred stock, Class A preferred
stock or common stock, as the case may be, that can be purchased upon
the exercise of one warrant, and the price for purchasing such shares
upon this exercise
. the dates on which the right to exercise the warrants will commence and
expire
. certain federal income tax consequences of holding or exercising those
warrants
. the terms of the securities issuable upon exercise of those warrants and
. any other terms of the warrants.
Warrant certificates may be exchanged for new warrant certificates of
different denominations, may be presented for transfer registration, and may be
exercised at the warrant agent's corporate trust office or any other office
indicated in the relevant prospectus supplement. If the warrants are not
separately transferable from the securities with which they were issued, this
exchange may take place only if the certificates representing such related
securities are also exchanged. Prior to warrant exercise, warrantholders will
not have any rights as holders of the securities purchasable upon such
exercise, including, in the case of warrants to purchase debt securities, the
right to receive principal, premium, if any, or interest payments, on the debt
securities purchasable upon such exercise or to enforce covenants in the
applicable indenture or, in the case of warrants to purchase preferred
25
stock, Class A preferred stock, depositary shares or common stock, the right to
receive any dividends, or payments upon Wachovia's liquidation, dissolution or
winding up or to exercise any voting rights.
Where appropriate, the applicable prospectus supplement will describe the
U.S. federal income tax considerations relevant to the warrants.
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities specified in
the relevant prospectus supplement at the exercise price mentioned in, or
calculated as described in, the relevant prospectus supplement. Unless
otherwise specified in the relevant prospectus supplement, warrants may be
exercised at any time up to 5:00 p.m., New York time, on the expiration date
mentioned in that prospectus supplement. After the close of business on the
expiration date, unexercised warrants will become void.
Warrants may be exercised by delivery of the warrant certificate
representing the warrants to be exercised, or in the case of global securities,
as described below under "Global Securities", by delivery of an exercise notice
for those warrants, together with certain information, and payment to the
warrant agent in immediately available funds, as provided in the relevant
prospectus supplement, of the required purchase amount. The information
required to be delivered will be on the reverse side of the warrant certificate
and in the relevant prospectus supplement. Upon receipt of such payment and the
warrant certificate or exercise notice properly executed at the warrant agent's
corporate trust office or any other office indicated in the relevant prospectus
supplement, Wachovia will, in the time period the relevant warrant agreement
provides, issue and deliver the securities purchasable upon such exercise. If
fewer than all of the warrants represented by such warrant certificate are
exercised, a new warrant certificate will be issued for the remaining amount of
warrants.
If mentioned in the relevant prospectus supplement, securities may be
surrendered as all or part of the exercise price for warrants.
Antidilution Provisions
In the case of warrants to purchase common stock, the exercise price payable
and the number of common stock shares to be purchased upon warrant exercise may
be adjusted in certain events, including
. the issuance of a stock dividend to common stockholders or a
combination, subdivision or reclassification of common stock
. the issuance of rights, warrants or options to all common stockholders
entitling them to purchase common stock for an aggregate consideration
per share less than the current market price per common stock share
. any Wachovia distribution to its common stockholders of evidences of
Wachovia's indebtedness or of assets, excluding cash dividends or
distributions referred to above and
. any other events mentioned in the relevant prospectus supplement.
No adjustment in the number of shares purchasable upon warrant exercise will
be required until cumulative adjustments require an adjustment of at least 1%
of such number. No fractional shares will be issued upon warrant exercise, but
Wachovia will pay the cash value of any fractional shares otherwise issuable.
Modification
Wachovia and the relevant warrant agent may amend any warrant agreement and
the terms of the related warrants by executing a supplemental warrant
agreement, without any such warrantholders consent, for the purpose of
. curing any ambiguity, any defective or inconsistent provision contained
in the warrant agreement, or making any other corrections to the warrant
agreement that are not inconsistent with the provisions of the warrant
certificates
26
. evidencing the succession of another corporation to Wachovia and their
assumption of Wachovia's covenants contained in the warrant agreement
and the warrants
. appointing a successor depository, if the warrants are issued in the
form of global securities
. evidencing a successor warrant agent's acceptance of appointment with
respect to the warrants
. adding to Wachovia's covenants for the warrantholders' benefit or
surrendering any right or power conferred upon Wachovia under the
warrant agreement
. issuing warrants in definitive form, if such warrants are initially
issued in the form of global securities or
. amending the warrant agreement and the warrants as Wachovia deems
necessary or desirable and that will not adversely affect the
warrantholders' interests in any material respect.
Wachovia and the warrant agent may also amend any warrant agreement and the
related warrants by a supplemental agreement with the consent of the holders of
a majority of the unexercised warrants such amendment affects, for the purpose
of adding, modifying or eliminating any of the warrant agreement's provisions
or of modifying the holders' rights. However, no such amendment that
. changes the number or amount of securities purchasable upon warrant
exercise so as to reduce the number of securities receivable upon this
exercise
. shortens the time period during which the warrants may be exercised
. otherwise adversely affects the exercise rights of such warrantholders
in any material respect or
. reduces the number of unexercised warrants the consent of holders of
which is required for amending the warrant agreement or the related
warrants,
may be made without the consent of each holder affected by that amendment.
Consolidation, Merger and Sale of Assets
Each warrant agreement will provide that Wachovia may consolidate or merge
with or into any other corporation or sell, lease, transfer or convey all or
substantially all of its assets to any other corporation, provided that
. either Wachovia must be the continuing corporation, or the corporation
other than Wachovia formed by or resulting from any consolidation or
merger or that receives the assets must be organized and existing under
U.S. or state law and must assume Wachovia's obligations for the
unexercised warrants and the performance of all covenants and conditions
of the relevant warrant agreement and
. Wachovia or that successor corporation must not immediately be in
default under that warrant agreement.
Enforceability of Rights by Holders of Warrants
Each warrant agent will act solely as Wachovia's agent under the relevant
warrant agreement and will not assume any obligation or relationship of agency
or trust for any warrantholder. A single bank or trust company may act as
warrant agent for more than one issue of warrants. A warrant agent will have no
duty or responsibility in case Wachovia defaults in performing its obligations
under the relevant warrant agreement or warrant, including any duty or
responsibility to initiate any legal proceedings or to make any demand upon
Wachovia. Any warrantholder may, without the warrant agent's consent or of any
other warrantholder, enforce by appropriate legal action its right to exercise,
and receive the securities purchasable upon exercise of, that warrant.
27
Replacement of Warrant Certificates
Wachovia will replace any destroyed, lost, stolen or mutilated warrant
certificate upon delivery to Wachovia and the relevant warrant agent of
evidence satisfactory to them of the ownership of that warrant certificate and
of the destruction, loss, theft or mutilation of that warrant certificate, and
(in the case of mutilation) surrender of that warrant certificate to the
relevant warrant agent, unless Wachovia or the warrant agent has received
notice that the warrant certificate has been acquired by a bona fide purchaser.
That warrantholder will also be required to provide indemnity satisfactory to
the relevant warrant agent and Wachovia before a replacement warrant
certificate will be issued.
Title
Wachovia, the warrant agents and any of their agents may treat the
registered holder of any warrant certificate as the absolute owner of the
warrants evidenced by that certificate for any purpose and as the person
entitled to exercise the rights attaching to the warrants so requested, despite
any notice to the contrary. See "Global Securities".
ERISA CONSIDERATIONS
This section is only relevant to you if you are an insurance company or the
fiduciary of a pension plan or an employee benefit plan proposing to invest in
the securities.
Wachovia and certain of its affiliates may each be considered a "party in
interest" within the meaning of the U.S. Employee Retirement Income Security
Act of 1974, as amended, which we call "ERISA", or a "disqualified person"
within the meaning of the U.S. Internal Revenue Code of 1986, as amended, with
respect to many employee benefit plans. Prohibited transactions within the
meaning of ERISA or the Internal Revenue Code may arise, for example, if the
debt securities or warrants are acquired by or with the assets of a pension or
other employee benefit plan for which Wachovia or any of its affiliates is a
service provider, unless those securities are acquired under an exemption for
transactions effected on behalf of that plan by a "qualified professional asset
manager" or an "in-house asset manager" or under any other available exemption.
The assets of a pension or other employee benefit plan may include assets held
in the general account of an insurance company that are deemed to be "plan
assets" under ERISA.
If you are an insurance company or the fiduciary of a pension plan or an
employee benefit plan and propose to invest in the securities described in this
prospectus or the applicable prospectus supplement, you should consult your
legal counsel.
GLOBAL SECURITIES
Unless otherwise mentioned in the relevant prospectus supplement, securities
other than common stock will be issued in the form of one or more global
certificates, or "global securities", registered in the name of a depositary or
its nominee. Unless otherwise mentioned in the relevant prospectus supplement,
the depositary will be The Depository Trust Company, commonly referred to as
DTC. DTC has informed Wachovia that its nominee will be Cede & Co. Accordingly,
we expect Cede & Co. to be the initial registered holder of all securities that
are issued in global form. No person that acquires a beneficial interest in
those securities will be entitled to receive a certificate representing that
person's interest in the securities except as mentioned herein or in the
relevant prospectus supplement. Unless and until definitive securities are
issued under the limited circumstances described below, all references to
actions by holders of securities issued in global form shall refer to actions
taken by DTC upon instructions from its participants, and all references to
payments and notices to holders shall refer to payments and notices to DTC or
Cede & Co., as the registered holder of these securities.
28
DTC has informed Wachovia that it is a limited-purpose trust company
organized under the New York Banking Law, a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code, and a "clearing agency" registered pursuant to the provisions of Section
17A of the Exchange Act . DTC holds securities that DTC participants deposit
with DTC. DTC also facilitates the settlement among DTC participants of
securities transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in DTC participants'
accounts, thereby eliminating the need for physical movement of certificates.
DTC participants include securities brokers and dealers, banks, trust companies
and clearing corporations, and may include other organizations. DTC is owned by
a number of its direct participants and by the New York Stock Exchange, Inc.,
the American Stock Exchange, LLC and the National Association of Securities
Dealers, Inc. Indirect access to the DTC system also is available to others
such as banks, brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a participant, either directly or
indirectly. The rules applicable to DTC and DTC participants are on file with
the Commission.
Persons that are not participants or indirect participants but desire to
purchase, sell or otherwise transfer ownership of, or other interests in,
securities may do so only through participants and indirect participants. Under
a book-entry format, holders may experience some delay in their receipt of
payments, as such payments will be forwarded by Wachovia's designated agent to
Cede & Co., as nominee for DTC. DTC will forward such payments to its
participants, who will then forward them to indirect participants or holders.
Holders will not be recognized by the relevant registrar, transfer agent,
trustee, depositary or warrant agent as registered holders of the securities
entitled to the benefits of Wachovia's articles or the applicable indenture,
deposit agreement or warrant agreement. Beneficial owners that are not
participants will be permitted to exercise their rights only indirectly through
and according to the procedures of participants and, if applicable, indirect
participants.
Under the rules, regulations and procedures creating and affecting DTC and
its operations as currently in effect, DTC will be required to make book-entry
transfers of securities among participants and to receive and transmit payments
to participants. DTC rules require participants and indirect participants with
which beneficial securities owners have accounts to make book-entry transfers
and receive and transmit payments on behalf of their respective account
holders.
Because DTC can act only on behalf of
. participants, who in turn act only on behalf of participants or indirect
participants and
. certain banks, trust companies and other persons approved by it,
the ability of a beneficial owner of securities issued in global form to pledge
such securities to persons or entities that do not participate in the DTC
system may be limited due to the unavailability of physical certificates for
these securities.
DTC has advised Wachovia that DTC will take any action permitted to be taken
by a registered holder of any securities under Wachovia's articles or the
relevant indenture, deposit agreement or warrant agreement only at the
direction of one or more participants to whose accounts with DTC such
securities are credited.
Unless otherwise mentioned in the relevant prospectus supplement, a global
security will be exchangeable for the relevant definitive securities registered
in the names of persons other than DTC or its nominee only if
. DTC notifies Wachovia that it is unwilling or unable to continue as
depositary for that global security or if DTC ceases to be a clearing
agency registered under the Exchange Act when DTC is required to be so
registered
. Wachovia executes and delivers to the relevant registrar, transfer
agent, trustee, depositary and/or warrant agent an order complying with
the requirements of Wachovia's articles or the relevant indenture,
deposit agreement and/or warrant agreement that this global security
shall be so exchangeable or
29
. there has occurred and is continuing a default in the payment of any
amount due in respect of the securities or, in the case of debt
securities, an event of default or an event that, with the giving of
notice or lapse of time, or both, would constitute an event of default
with respect to these debt securities.
Any global security that is exchangeable under the preceding sentence will be
exchangeable for securities registered in such names as DTC directs.
Upon the occurrence of any event described in the above paragraph, DTC is
generally required to notify all participants of the availability of definitive
securities. Upon DTC surrendering the global security representing the
securities and delivery of instructions for re-registration, the registrar,
transfer agent, trustee, depositary or warrant agent, as the case may be, will
reissue the securities as definitive securities, and then such persons will
recognize the holders of such definitive securities as registered holders of
securities entitled to the benefits of Wachovia's articles or the relevant
indenture, deposit agreement and/or warrant agreement.
Except as described above, the global security may not be transferred except
as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or to a successor depositary Wachovia appoints. Except as
described above, DTC may not sell, assign, transfer or otherwise convey any
beneficial interest in a global security evidencing all or part of any
securities unless the beneficial interest is in an amount equal to an
authorized denomination for these securities.
None of Wachovia, the trustees, any registrar and transfer agent, any
warrant agent or any depositary, or any agent of any of them, will have any
responsibility or liability for any aspect of DTC's or any participant's
records relating to, or for payments made on account of, beneficial interests
in a global security, or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
Secondary trading in notes and debentures of corporate issuers is generally
settled in clearing-house or next-day funds. In contrast, beneficial interests
in a global security, in some cases, may trade in the DTC's same-day funds
settlement system, in which secondary market trading activity in those
beneficial interests would be required by DTC to settle in immediately
available funds. There is no assurance as to the effect, if any, that
settlement in immediately available funds would have on trading activity in
such beneficial interests. Also, settlement for purchases of beneficial
interests in a global security upon the original issuance of this security may
be required to be made in immediately available funds.
PLAN OF DISTRIBUTION
Wachovia may sell securities to or through underwriters, including Wachovia
Securities, an affiliate of Wachovia, to be designated at various times, and
also may sell securities directly to other purchasers or through agents.
Wachovia conducts its investment banking, institutional and capital markets
business businesses through its various bank, broker-dealer and non-bank
subsidiaries, including First Union Securities, Inc., under the trade name
"Wachovia Securities." Unless otherwise stated, any reference to "Wachovia
Securities" herein shall mean First Union Securities, Inc., and shall not
include Wachovia Securities, Inc., member NASD/SIPC, a separate broker-dealer
subsidiary of Wachovia, which is not participating in this distribution. The
distribution of securities may be effected at various times in one or more
transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices.
The debt securities, preferred stock, Class A preferred stock, depositary
shares and warrants will be new issues of securities with no established
trading market. It has not presently been established whether the underwriters,
if any, of these securities will make a market in these securities. If a market
in these securities is made by those underwriters, this market making may be
discontinued at any time without notice. No assurance can be given as to the
liquidity of the trading market for these securities.
This prospectus and the related prospectus supplements may be used by First
Union Securities, Inc., an indirect, wholly-owned subsidiary of Wachovia, for
offers and sales related to market-making transactions in the securities.
Wachovia Securities may act as principal or agent in these transactions. These
sales will be made at prices related to prevailing market prices at the time of
sale or otherwise.
30
In facilitating the sale of securities, underwriters may receive
compensation from Wachovia or from purchasers of securities for whom they may
act as agents in the form of discounts, concessions or commissions.
Underwriters may sell securities to or through dealers, and these dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act
as agents. Underwriters, dealers and agents that participate in the
distribution of securities may be considered underwriters, and any discounts or
commissions received by them from Wachovia and any profit on the resale of
securities by them may be considered underwriting discounts and commissions
under the Securities Act. Any such underwriter or agent will be identified, and
any such compensation received from Wachovia will be described, in the
prospectus supplement relating to those securities.
Unless otherwise mentioned in the relevant prospectus supplement, the
obligations of any underwriters to purchase the securities will be subject to
certain conditions precedent, and each of the underwriters with respect to a
sale of securities will be obligated to purchase all of its securities if any
are purchased. Unless otherwise mentioned in the relevant prospectus
supplement, any such agent involved in the offer and sale of the securities in
respect of which this prospectus is being delivered will be acting on a best
efforts basis for the period of its appointment.
In connection with an offering of securities, underwriters may purchase and
sell these securities in the open market. These transactions may include
over-allotment and stabilizing transactions and purchases to cover short
positions created by underwriters with respect to the offering. Stabilizing
transactions consist of certain bids or purchases for preventing or retarding a
decline in the market price of the securities; and short positions created by
underwriters involve the sale by underwriters of a greater number of securities
than they are required to purchase from Wachovia in the offering. Underwriters
also may impose a penalty bid, by which selling concessions allowed to
broker-dealers in respect of the securities sold in the offering may be
reclaimed by underwriters if such securities are repurchased by underwriters in
stabilizing or covering transactions. These activities may stabilize, maintain
or otherwise affect the market price of the securities, which may be higher
than the price that might otherwise prevail in the open market; and these
activities, if commenced, may be discontinued at any time. These transactions
may be effected on the New York Stock Exchange, in the over-the-counter market
or otherwise.
Under agreements which Wachovia may enter into, underwriters, agents and
their controlling persons who participate in the distribution of securities may
be entitled to indemnification by Wachovia against certain liabilities,
including liabilities under the Securities Act.
If so noted in the prospectus supplement relating to any securities,
Wachovia will authorize dealers or other persons acting as Wachovia's agents to
solicit offers by certain institutions to purchase any securities from Wachovia
under contracts providing for payment and delivery on a future date.
Institutions with which these contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others. Wachovia must approve such
institutions in all cases. The obligations of any purchaser under any of these
contracts will be subject to the condition that the purchase of any securities
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and such
other agents will not have any responsibility in respect of the validity or
performance of such contracts.
The participation of Wachovia Securities in the offer and sale of the
securities must comply with the requirements of Rule 2720 of the National
Association of Securities Dealers, Inc. regarding underwriting securities of an
"affiliate". No NASD member participating in offers and sales will execute a
transaction in the securities in a discretionary account without the prior
specific written approval of such member's customer.
If Wachovia offers and sells securities directly to a purchaser or
purchasers in respect of which this prospectus is delivered, purchasers
involved in the reoffer or resale of such securities, if these purchasers may
be considered underwriters as that term is defined in the Securities Act, will
be named and the terms of their reoffers
31
or resales will be mentioned in the relevant prospectus supplement. These
purchasers may then reoffer and resell such securities to the public or
otherwise at varying prices to be determined by such purchasers at the time of
resale or as otherwise described in the relevant prospectus supplement.
Purchasers of securities directly from Wachovia may be entitled under
agreements that they may enter into with Wachovia to indemnification by
Wachovia against certain liabilities, including liabilities under the
Securities Act, and may engage in transactions with or perform services for
Wachovia in the ordinary course of their business or otherwise.
Underwriters or agents and their associates may be customers of (including
borrowers from), engage in transactions with, and/or perform services for,
Wachovia, the senior trustee and the subordinated trustee, in the ordinary
course of business.
VALIDITY OF SECURITIES
The validity of any securities will be passed upon for Wachovia by Ross E.
Jeffries, Jr., Esq., Senior Vice President and Assistant General Counsel of
Wachovia, and for any underwriters or agents by Sullivan & Cromwell, 125 Broad
Street, New York, New York. Sullivan & Cromwell will rely upon the opinion of
Mr. Jeffries as to matters of North Carolina law, and Mr. Jeffries will rely
upon the opinion of Sullivan & Cromwell as to matters of New York law. Mr.
Jeffries owns shares of Wachovia's common stock and holds options to purchase
additional shares of Wachovia's common stock. Sullivan & Cromwell regularly
performs legal services for Wachovia. Certain members of Sullivan & Cromwell
performing these legal services own shares of Wachovia's common stock.
EXPERTS
The consolidated balance sheets of Wachovia Corporation (formerly named
First Union Corporation) as of December 31, 2000 and 1999, and the related
consolidated statements of income, changes in stockholders' equity and cash
flows for each of the years in the three-year period ended December 31, 2000,
included in Wachovia's 2000 Annual Report to Stockholders which is included in
Wachovia's Annual Report on Form 10-K for the year ended December 31, 2000, and
incorporated by reference in this prospectus, have been incorporated by
reference in this prospectus in reliance upon the report of KPMG LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
The restated audited financial statements of Wachovia Corporation at
December 31, 2000 and 1999, and for each of the three years in the period ended
December 31, 2000, included in Wachovia Corporation's (formerly named First
Union Corporation) Current Report on Form 8-K dated August 30, 2001 and
incorporated by reference herein, have been incorporated by reference herein in
reliance upon the report of Ernst & Young LLP, independent auditors. The
restated audited financial statements referred to above are included in
reliance upon such report given on the authority of said firm as experts in
accounting and auditing.
32
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with this offering, other than
underwriting discounts and commissions, are as follows:
Registration Statement filing fee.................................................... $ 2,500,000
Trustees', Registrar and Transfer Agents', Depositaries' and Warrant Agents' fees and
expenses........................................................................... 150,000
Legal fees and expenses.............................................................. 20,000
Blue Sky fees and expenses........................................................... 10,000
Accounting fees and expenses......................................................... 15,000
Listing fees and expenses............................................................ 125,000
Rating agency fees................................................................... 1,000,000
Printing and engraving costs......................................................... 200,000
Miscellaneous........................................................................ 50,000
-----------
Total............................................................................. $ 4,070,000
===========
Item 15. Indemnification of Directors and Officers.
Sections 55-8-50 through 55-8-58 of the NCBC Act contain specific provisions
relating to indemnification of directors and officers of North Carolina
corporations. In general, the statute provides that (i) a corporation must
indemnify a director or officer against reasonable expenses 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 in the statute that the
director or officer meets a certain standard of conduct, provided when a
director or officer is liable to the corporation or liable on the basis of
receiving a personal benefit, the corporation may not indemnify him. The
statute also permits a director or officer of a corporation who is a party to a
proceeding to 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. The statute further provides
that a corporation may in its articles of incorporation or bylaws or by
contract or resolution provide indemnification in addition to that provided by
the statute, subject to certain conditions set forth in the statute.
Wachovia's bylaws provide for the indemnification of Wachovia's directors
and executive officers by Wachovia against liabilities arising out of his
status as such, excluding any liability relating to activities which were at
the time taken known or believed by such person to be clearly in conflict with
the best interests of Wachovia. Wachovia's articles of incorporation provide
for the elimination of the personal liability of each director of Wachovia to
the fullest extent permitted by the provisions of the NCBC Act, as the same may
from time to time be in effect.
Wachovia maintains directors and officers liability insurance. In general,
the policy insures (i) Wachovia's directors and officers against loss by reason
of any of their wrongful acts, and/or (ii) Wachovia against loss arising from
claims against the directors and officers by reason of their wrongful acts, all
subject to the terms and conditions contained in the policy.
Under agreements which may be entered into by Wachovia, certain controlling
persons, directors and officers of Wachovia may be entitled to indemnification
by underwriters and agents who participate in the distribution of securities
covered by the registration statement against certain liabilities, including
liabilities under the Securities Act of 1933.
II-1
Item 16. Exhibits.
Exhibit No. Exhibit
----------- -------
(1)(a) Form of Underwriting Agreement for Common Stock, Preferred Stock, Class A Preferred Stock,
Depositary Shares and Warrants. (Incorporated by reference to Exhibit (1)(a) to Wachovia's
Registration Statement No. 333-31462.)
(1)(b) Form of Underwriting Agreement for Debt Securities. (Incorporated by reference to Exhibit (1)(b)
to Wachovia's Registration Statement No. 333-31462.)
(3)(a) Restated Articles of Incorporation of Wachovia, as amended. (Incorporated by reference to Exhibit
(4) to Wachovia's 1998 Third Quarter Report on Form 10-Q.)
(3)(b) By-laws of Wachovia, as amended. (Incorporated by reference to Exhibit (3)(b) to Wachovia's
1995 Annual Report on Form 10-K.)
(4)(a) Shareholder Protection Rights Agreement. (Incorporated by reference to Exhibit (4) to Wachovia's
Current Report on Form 8-K dated December 20, 2000 and to Exhibit (4)(a) to Wachovia's 2001
Second Quarter Report on Form 10-Q.)
(4)(b) Form of Deposit Agreement. (Incorporated by reference to Exhibit (4)(d) to Wachovia's
Registration Statement No. 333-34151.)
(4)(c) Specimen Depositary Receipt. (Incorporated by reference to Exhibit (4)(e) to Wachovia's
Registration Statement No. 333-34151.)
(4)(d) Senior Indenture (including form of Senior Debt Security). (Incorporated by reference to Exhibit
(4) to Wachovia's Registration Statement No. 2-98213.)
(4)(e) Supplemental Indenture, dated as of May 17, 1986, between Wachovia and Chemical Bank, as
Trustee. (Incorporated by reference to Exhibit (4)(a)(ii) to Amendment No. 1 to Wachovia's
Registration Statement No. 33-30122.)
(4)(f) Supplemental Indenture, dated as of July 1, 1988, between Wachovia and Chemical Bank, as
Trustee. (Incorporated by reference to Exhibit (4)(a)(iii) to Amendment No. 1 to Wachovia's
Registration Statement No. 33-30122.)
(4)(g) Supplemental Indenture, dated as of August 1, 1990, between Wachovia and Chemical Bank, as
Trustee. (Incorporated by reference to Exhibit (4)(a)(iv) to Wachovia's Registration Statement
No. 33-40456.)
(4)(h) Subordinated Indenture (including form of Subordinated Debt Security). (Incorporated by reference
to Exhibit (4)(a) to Amendment No. 1 to Wachovia's Registration Statement No. 33-1852.)
(4)(i) Supplemental Indenture, dated as of August 1, 1990, between Wachovia and The Bank of New
York, as Trustee. (Incorporated by reference to Exhibit (4)(b)(ii) to Wachovia's Registration
Statement No. 33-40456.)
(4)(j) Supplemental Indenture, dated as of November 15, 1992, between Wachovia and The Bank of
New York, as Trustee. (Incorporated by reference to Exhibit (4) to Wachovia's Current Report on
Form 8-K dated November 17, 1992.)
(4)(k) Form of Instrument of Resignation, Appointment and Acceptance, dated as of February 7, 1996,
among Wachovia, Harris Trust and Savings Bank and The Bank of New York (formerly Irving
Trust Company). (Incorporated by reference to Exhibit (4)(a) to Wachovia's Current Report on
Form 8-K dated February 7, 1996.)
(4)(l) Supplemental Indenture, dated as of February 7, 1996, between Wachovia and Harris Trust and
Savings Bank, as Trustee. (Incorporated by reference to Exhibit (4)(b) to Wachovia's Current
Report on Form 8-K dated February 7, 1996.)
(4)(m) Form of Instrument of Resignation, Appointment and Acceptance, dated as of July 7, 2000, among
Wachovia, The Bank of New York, as successor to Harris Trust and Savings Bank and Bank One
Trust Company, N.A. (Incorporated--- by reference to Exhibit (4)(a) to Wachovia's Current Report
on Form 8-K dated July 7, 2000.)
(4)(n) Supplemental Indenture, dated as of July 7, 2000, between Wachovia and Bank One Trust
Company, N.A., as Trustee. (Incorporated by reference to Exhibit (4)(b) to Wachovia's Current
Report on Form 8-K dated July 7, 2000.)
II-2
Exhibit No. Exhibit
------- -------
(4)(o) Form of Senior Medium-Term Notes. (Incorporated by reference to Exhibit (4)(c)(i) to
Wachovia's Registration Statement No. 33-40456.)
(4)(p) Form of Subordinated Medium-Term Notes. (Incorporated by reference to Exhibit (4)(c)(ii) to
Wachovia's Registration Statement No. 33-40456.)
(4)(q) Form of Warrant Agreement. (Incorporated by reference to Exhibit (4)(q) to Wachovia's
Registration Statement No. 333-34151.)
(4)(r) Form of Warrant Certificate. (Incorporated by reference to Exhibit (4)(r) to Wachovia's
Registration Statement No. 333-34151.)
(4)(s) Indenture, dated as of November 27, 1996, between Wachovia and Wilmington Trust Company, as
Debenture Trustee. (Incorporated by reference to Exhibit (4)(a) to Wachovia's Registration
Statement Nos. 333-19039 and 333-19039-01.)
(4)(t) Upon the request of the Securities and Exchange Commission, Wachovia will furnish a copy of all
other instruments defining the rights of holders of long-term debt of Wachovia.
(5) Opinion of Ross E. Jeffries, Jr., Esq. as to the validity of the securities.
(12) Computations of Consolidated Ratios of Earnings to Fixed Charges. (Incorporated by reference to
Exhibit (12) to Wachovia's 2001 Second Quarter Report on Form 10-Q.)
(23)(a) Consent of Ross E. Jeffries, Jr., Esq. (Included in Exhibit (5).)
(23)(b) Consent of KPMG LLP.
(23)(c) Consent of Ernst & Young LLP.
(24) Power of Attorney.
(25)(a) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Chase Manhattan
Bank (formerly Chemical Bank).
(25)(b) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Bank One Trust
Company, N.A.
Item 17. Undertakings.
(a) The undersigned registrant 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. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(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 registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
II-3
(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.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to 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 therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of Wachovia
pursuant to the foregoing provisions or otherwise (other than insurance),
Wachovia has been advised that in the opinion of the Securities and Exchange
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 insurance or the payment
by Wachovia of expenses incurred or paid by a director, officer or controlling
person of Wachovia 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, Wachovia will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question of 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
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-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Charlotte, State of North Carolina, as of the
26th day of October, 2001.
WACHOVIA CORPORATION
/s/ MARK C. TREANOR
By: _________________________________
Mark C. Treanor
Executive Vice President,
Secretary and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title
--------- -----
L.M. BAKER, JR.* Chairman and Director
---------------------
L.M. Baker, Jr.
G. KENNEDY THOMPSON* President and Chief Executive Officer and
--------------------- Director
G. Kennedy Thompson
ROBERT P. KELLY* Executive Vice President and Chief Financial
--------------------- Officer
Robert P. Kelly
DAVID M. JULIAN* Senior Vice President and Corporate
--------------------- Controller (Principal Accounting Officer)
David M. Julian
F. DUANE ACKERMAN* Director
---------------------
F. Duane Ackerman
JAMES S. BALLOUN* Director
---------------------
James S. Balloun
ROBERT J. BROWN* Director
---------------------
Robert J. Brown
PETER C. BROWNING* Director
---------------------
Peter C. Browning
JOHN T. CASTEEN, III* Director
---------------------
John T. Casteen, III
II-5
Signature Title
--------- -----
WILLIAM H. GOODWIN, JR.* Director
---------------------------------
William H. Goodwin, Jr.
ROBERT A. INGRAM* Director
---------------------------------
Robert A. Ingram
RADFORD D. LOVETT* Director
---------------------------------
Radford D. Lovett
MACKEY J. MCDONALD* Director
---------------------------------
Mackey J. McDonald
JOSEPH NEUBAUER* Director
---------------------------------
Joseph Neubauer
LLOYD U. NOLAND, III* Director
---------------------------------
Lloyd U. Noland, III
RUTH G. SHAW* Director
---------------------------------
Ruth G. Shaw
LANTY L. SMITH* Director
---------------------------------
Lanty L. Smith
JOHN C. WHITAKER, JR.* Director
---------------------------------
John C. Whitaker, Jr.
DONA DAVIS YOUNG* Director
---------------------------------
Dona Davis Young
*By MARK C. TREANOR
---------------------------------
Mark C. Treanor, Attorney-in-fact
Dated: October 26, 2001
II-6
EXHIBIT INDEX
Exhibit No. Exhibit
----------- -------
(1)(a) Form of Underwriting Agreement for Common Stock, Preferred Stock, Class A Preferred Stock,
Depositary Shares and Warrants. (Incroporated by reference to Exhibit (1)(a) to Wachovia's
Registration Statement No. 333-31462).
(1)(b) Form of Underwriting Agreement for Debt Securities. (Incorporated by reference to Exhibit (1)(b)
to Wachovia's Registration Statement No. 333-31462).
(3)(a) Restated Articles of Incorporation of Wachovia, as amended. (Incorporated by reference to Exhibit
(4) to Wachovia's 1998 Third Quarter Report on Form 10-Q.)
(3)(b) By-laws of Wachovia, as amended. (Incorporated by reference to Exhibit (3)(b) to Wachovia's
1995 Annual Report on Form 10-K.)
(4)(a) Shareholder Protection Rights Agreement. (Incorporated by reference to Exhibit (4) to Wachovia's
Current Report on Form 8-K dated December 20, 2000 and to Exhibit (4)(a) to Wachovia's 2001
Second Quarter Report on Form 10-Q.)
(4)(b) Form of Deposit Agreement. (Incorporated by reference to Exhibit (4)(d) to Wachovia's
Registration Statement No. 333-34151.)
(4)(c) Specimen Depositary Receipt. (Incorporated by reference to Exhibit (4)(e) to Wachovia's
Registration Statement No. 333-34151.)
(4)(d) Senior Indenture (including form of Senior Debt Security). (Incorporated by reference to Exhibit
(4) to Wachovia's Registration Statement No. 2-98213.)
(4)(e) Supplemental Indenture, dated as of May 17, 1986, between Wachovia and Chemical Bank, as
Trustee. (Incorporated by reference to Exhibit (4)(a)(ii) to Amendment No. 1 to Wachovia's
Registration Statement No. 33-30122.)
(4)(f) Supplemental Indenture, dated as of July 1, 1988, between Wachovia and Chemical Bank, as
Trustee. (Incorporated by reference to Exhibit (4)(a)(iii) to Amendment No. 1 to Wachovia's
Registration Statement No. 33-30122.)
(4)(g) Supplemental Indenture, dated as of August 1, 1990, between Wachovia and Chemical Bank, as
Trustee. (Incorporated by reference to Exhibit (4)(a)(iv) to Wachovia's Registration Statement
No. 33-40456.)
(4)(h) Subordinated Indenture (including form of Subordinated Debt Security). (Incorporated by reference
to Exhibit (4)(a) to Amendment No. 1 to Wachovia's Registration Statement No. 33-1852.)
(4)(i) Supplemental Indenture, dated as of August 1, 1990, between Wachovia and The Bank of New
York, as Trustee. (Incorporated by reference to Exhibit (4)(b)(ii) to Wachovia's Registration
Statement No. 33-40456.)
(4)(j) Supplemental Indenture, dated as of November 15, 1992, between Wachovia and The Bank of
New York, as Trustee. (Incorporated by reference to Exhibit (4) to Wachovia's Current Report on
Form 8-K dated November 17, 1992.)
(4)(k) Form of Instrument of Resignation, Appointment and Acceptance, dated as of February 7, 1996,
among Wachovia, Harris Trust and Savings Bank and The Bank of New York (formerly Irving
Trust Company). (Incorporated by reference to Exhibit (4)(a) to Wachovia's Current Report on
Form 8-K dated February 7, 1996.)
(4)(l) Supplemental Indenture, dated as of February 7, 1996, between Wachovia and Harris Trust and
Savings Bank, as Trustee. (Incorporated by reference to Exhibit (4)(b) to Wachovia's Current
Report on Form 8-K dated February 7, 1996.)
(4)(m) Form of Instrument of Resignation, Appointment and Acceptance, dated as of July 7, 2000, among
Wachovia, The Bank of New York, as successor to Harris Trust and Savings Bank and Bank One
Trust Company, N.A. (Incorporated--- by reference to Exhibit (4)(a) to Wachovia's Current Report
on Form 8-K dated July 7, 2000.)
(4)(n) Supplemental Indenture, dated as of July 7, 2000, between Wachovia and Bank One Trust
Company, N.A., as Trustee. (Incorporated by reference to Exhibit (4)(b) to Wachovia's Current
Report on Form 8-K dated July 7, 2000.)
Exhibit No. Exhibit
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(4)(o) Form of Senior Medium-Term Notes. (Incorporated by reference to Exhibit (4)(c)(i) to
Wachovia's Registration Statement No. 33-40456.)
(4)(p) Form of Subordinated Medium-Term Notes. (Incorporated by reference to Exhibit (4)(c)(ii) to
Wachovia's Registration Statement No. 33-40456.)
(4)(q) Form of Warrant Agreement. (Incorporated by reference to Exhibit (4)(q) to Wachovia's
Registration Statement No. 333-34151.)
(4)(r) Form of Warrant Certificate. (Incorporated by reference to Exhibit (4)(r) to Wachovia's
Registration Statement No. 333-34151.)
(4)(s) Indenture, dated as of November 27, 1996, between Wachovia and Wilmington Trust Company, as
Debenture Trustee. (Incorporated by reference to Exhibit (4)(a) to Wachovia's Registration
Statement Nos. 333-19039 and 333-19039-01.)
(4)(t) Upon the request of the Securities and Exchange Commission, Wachovia will furnish a copy of all
other instruments defining the rights of holders of long-term debt of Wachovia.
(5) Opinion of Ross E. Jeffries, Jr., Esq. as to the validity of the securities.
(12) Computations of Consolidated Ratios of Earnings to Fixed Charges. (Incorporated by reference to
Exhibit (12) to Wachovia's 2001 Second Quarter Report on Form 10-Q.)
(23)(a) Consent of Ross E. Jeffries Jr., Esq. (Included in Exhibit (5).)
(23)(b) Consent of KPMG LLP.
(23)(c) Consent of Ernst & Young LLP.
(24) Power of Attorney.
(25)(a) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Chase Manhattan
Bank (formerly Chemical Bank).
(25)(b) Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Bank One Trust
Company, N.A.