AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 9, 1999
REGISTRATION NOS. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------
<TABLE>
<CAPTION>
FIRST UNION CAPITAL I
FIRST UNION CAPITAL II
FIRST UNION CORPORATION FIRST UNION CAPITAL III
<S> <C>
(Exact name of registrant as specified in its charter) (Exact name of each registrant as specified in its Trust
Agreements)
NORTH CAROLINA DELAWARE
(State or other jurisdiction of incorporation or organization) (State or other jurisdiction of incorporation
or organization of each registrant)
56-0898180 EACH TO BE APPLIED FOR
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
C/O FIRST UNION CORPORATION
ONE FIRST UNION CENTER ONE FIRST UNION CENTER
CHARLOTTE, NORTH CAROLINA 28288-0013 CHARLOTTE, NORTH CAROLINA 28288-0013
(704) 374-6565 (704) 374-6565
(Address, including zip code, and telephone number, (Address, including zip code, and telephone number,
including area code, of registrant's including area code, of each registrant's
principal executive offices) principal executive offices)
</TABLE>
---------------
MARK C. TREANOR, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
FIRST UNION CORPORATION
ONE FIRST UNION CENTER
CHARLOTTE, NORTH CAROLINA 28288-0013
(704) 374-6565
(Name, address, including zip code, and telephone number, including area code,
of agent for service of each registrant)
COPY TO:
MARK J. MENTING, ESQ.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 558-4000
---------------
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, 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, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [X] 333-15743;
333-15743-01; 333-15743-02; and 333-15743-03
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,
please check the following box. [ ]
---------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==============================================================================================================================
TITLE OF EACH PROPOSED MAXIMUM PROPOSED MAXIMUM
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT (1) OFFERING PRICE (1) REGISTRATION FEE
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------
Junior Subordinated Deferrable Interest
Debentures of First Union Corporation (2) $ 50,000,000 $ 25.00 $ 50,000,000 N/A
- ------------------------------------------------------------------------------------------------------------------------------
Preferred Securities of First Union Capital
I, First Union Capital II and First Union
Capital III (3) 2,000,000 $ 25.00 $ 50,000,000 $13,900
- ------------------------------------------------------------------------------------------------------------------------------
First Union Corporation Guarantee with
respect to Preferred Securities (3)(4) N/A N/A N/A N/A
- ------------------------------------------------------------------------------------------------------------------------------
Total $ 50,000,000(5) 100% $50,000,000 (5) $13,900
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee.
(2) The Junior Subordinated Deferrable Interest Debentures will be purchased by
First Union Capital I, First Union Capital II and First Union Capital III
with the proceeds of the sale of the Preferred Securities.
(3) The obligations of First Union Corporation under the Junior Subordinated
Deferrable Interest Debentures, the Indenture, the Trust Agreement, the
Guarantee and the Expense Agreement, taken together, provide a full and
unconditional guarantee of the obligations of each issuer of Preferred
Securities under the corresponding Preferred Securities.
(4) No separate consideration will be received for the First Union Corporation
Guarantee.
(5) Such amount represents the principal amount of Junior Subordinated
Deferrable Interest Debentures issued at their principal amount and the
issue price rather than the principal amount of Junior Subordinated
Deferrable Interest Debentures issued at an original issue discount. Such
amount also represents the initial public offering price of the First
Union Capital I, First Union Capital II and First Union Capital III
Preferred Securities.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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 OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE>
EXPLANATORY NOTE
This registration statement is being filed with the Securities and
Exchange Commission pursuant to Rule 462(b) under the Securities Act of 1933 by
First Union Corporation, First Union Capital I, First Union Capital II and
First Union Capital III (the "Registrants"). This registration statement
relates to (i) First Union Corporation's junior subordinated deferrable
interest debentures, (ii) the preferred securities of First Union Capital I,
First Union Capital II and First Union Capital III and (iii) the guarantee of
First Union Corporation with respect to the preferred securities contemplated
by the Registration Statements (Nos. 333-15743, 333-15743-01, 333-15743-02 and
333-15743-03) on Form S-3 (the "Prior Registration Statement").
This registration statement is being filed for the sole purpose of (i)
increasing the amount of First Union Corporation's junior subordinated
deferrable interest debentures, (ii) increasing the amount of the preferred
securities of First Union Capital I, First Union Capital II and First Union
Capital III and (iii) registering the guarantee of First Union Corporation with
respect to the preferred securities. The contents of the Prior Registration
Statement are hereby incorporated by reference.
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
5.1 Opinion of Kent S. Hathaway, Esq.
5.2 Opinion of Richards, Layton & Finger LLP
5.3 Opinion of Richards, Layton & Finger LLP
5.4 Opinion of Sullivan & Cromwell
23.1 Consent of KPMG LLP
23.2 Consent of Kent S. Hathaway, Esq. (included in Exhibit 5.1)
23.3 Consent of Richards, Layton & Finger LLP (included in Exhibits 5.2 and 5.3)
23.4 Consent of Sullivan & Cromwell (included in Exhibit 5.4)
24.1 Powers of Attorney (incorporated by reference to Exhibit 24 to First Union Corporation, First Union
Capital I, First Union Capital II and First Union Capital III's Registration Statements Nos. 333-15743,
333-15743-01, 333-15743-02 and 333-15743-03 on Form S-3)
</TABLE>
II-1
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
First Union 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 9th day of November, 1999.
FIRST UNION CORPORATION
By: /s/MARK C. TREANOR
--------------------------------------
MARK C. TREANOR, EXECUTIVE VICE
PRESIDENT, SECRETARY AND GENERAL
COUNSEL
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated below and as of the date indicated above.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
--------- --------
<S> <C>
*EDWARD E. CRUTCHFIELD Chairman and Chief Executive Officer
----------------------------------
EDWARD E. CRUTCHFIELD and Director
*ROBERT T. ATWOOD Executive Vice President and Chief
----------------------------------
ROBERT T. ATWOOD Financial Officer
*JAMES H. HATCH Senior Vice President and Corporate
----------------------------------
JAMES H. HATCH Controller (Principal Accounting
Officer)
*EDWARD E. BARR Director
----------------------------------
EDWARD E. BARR
Director
----------------------------------
G. ALEX BERNHARDT
Director
----------------------------------
ERSKINE B. BOWLES
*W. WALDO BRADLEY Director
----------------------------------
W. WALDO BRADLEY
*ROBERT J. BROWN Director
----------------------------------
ROBERT J. BROWN
Director
----------------------------------
A. DANO DAVIS
Director
----------------------------------
NORWOOD H. DAVIS
*R. STUART DICKSON Director
----------------------------------
R. STUART DICKSON
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
--------- --------
<S> <C>
*B.F. DOLAN Director
----------------------------------
B.F. DOLAN
*RODDEY DOWD, SR. Director
----------------------------------
RODDEY DOWD, SR.
Director
----------------------------------
ARTHUR M. GOLDBERG
*WILLIAM H. GOODWIN Director
----------------------------------
WILLIAM H. GOODWIN
Director
----------------------------------
FRANK M. HENRY
Director
----------------------------------
JAMES E. S. HYNES
Director
----------------------------------
ERNEST E. JONES
Director
----------------------------------
HERBERT LOTMAN
*RADFORD D. LOVETT Director
----------------------------------
RADFORD D. LOVETT
Director
----------------------------------
MACKEY J. MCDONALD
Director
----------------------------------
PATRICIA A. MCFATE
*JOSEPH NEUBAUER Director
----------------------------------
JOSEPH NEUBAUER
*RANDOLPH N. REYNOLDS Director
----------------------------------
RANDOLPH N. REYNOLDS
Director
----------------------------------
JAMES M. SEABROOK
Director
----------------------------------
RUTH G. SHAW
*LANTY L. SMITH Director
----------------------------------
LANTY L. SMITH
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
--------- --------
<S> <C>
/s/ G. KENNEDY THOMPSON Director
- ----------------------------------
G. KENNEDY THOMPSON
</TABLE>
* By: Kent S. Hathaway, Attorney-in-Fact
/s/ KENT S. HATHAWAY
- ----------------------------------
KENT S. HATHAWAY
Date: November 9, 1999
II-4
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
First Union Capital I certifies that it has reasonable grounds to believe that
it meets all 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
9th day of November, 1999.
FIRST UNION CAPITAL I
By: First Union Corporation, as Depositor
By: /s/ THOMAS J. WURTZ
--------------------------------------
THOMAS J. WURTZ
SENIOR VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
First Union Capital II certifies that it has reasonable grounds to believe that
it meets all 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
9th day of November, 1999.
FIRST UNION CAPITAL II
By: First Union Corporation, as Depositor
By: /s/ THOMAS J. WURTZ
--------------------------------------
THOMAS J. WURTZ
SENIOR VICE PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended,
First Union Capital III certifies that it has reasonable grounds to believe
that it meets all 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 9th day of November, 1999.
FIRST UNION CAPITAL III
By: First Union Corporation, as Depositor
By: /s/ THOMAS J. WURTZ
--------------------------------------
THOMAS J. WURTZ
SENIOR VICE PRESIDENT
II-5
<PAGE>
EXHIBIT INDEX
The following Exhibits indicated by an asterisk preceding the Exhibit
number are filed herewith.
<TABLE>
<S> <C>
*5.1 Opinion of Kent S. Hathaway, Esq.
*5.2 Opinion of Richards, Layton & Finger LLP
*5.3 Opinion of Richards, Layton & Finger LLP
*5.4 Opinion of Sullivan & Cromwell
*23.1 Consent of KPMG LLP
23.2 Consent of Kent S. Hathaway, Esq. (included in Exhibit 5.1)
23.3 Consent of Richards, Layton & Finger LLP (included in Exhibits 5.2 and 5.3)
23.4 Consent of Sullivan & Cromwell (included in Exhibit 5.4)
24.1 Powers of Attorney (incorporated by reference to Exhibit 24 to First Union Corporation, First Union Capital I,
First Union Capital II and First Union Capital III's Registration Statements Nos. 333-15743, 333-15743-01,
333-15743-02 and 333-15743-03 on Form S-3)
</TABLE>
EXHIBIT 5.1
November 9, 1999
Board of Directors,
First Union Corporation
Charlotte, North Carolina 28288
Gentlemen:
I am Senior Vice President and Deputy General Counsel of First Union
Corporation, a North Carolina corporation (the "Corporation"), and am rendering
this opinion in connection with the registration under the Securities Act of
1933 (the "Act") of $50,000,000 aggregate principal amount of Junior
Subordinated Deferrable Interest Debentures (the "Debt Securities") of First
Union Corporation, a North Carolina corporation (the "Corporation"),
$50,000,000 aggregate liquidation amount of Preferred Securities (the
"Preferred Securities") of First Union Capital I, First Union Capital II and
First Union Capital III, each of which is a Delaware statutory business trust
(each, an "Issuer"), and the Guarantees with respect to the Preferred
Securities (the "Guarantees") to be executed and delivered by the Corporation
for the benefit of the holders from time to time of the Preferred Securities.
In that connection, I have examined such documents, corporate records and
other instruments as I have deemed necessary for the purposes of this opinion.
Based upon the foregoing, I am of the opinion as follows:
(1) The Corporation has been duly incorporated and is a validly existing
corporation under the laws of the State of North Carolina.
(2) When:
(i) the Registration Statement on Form S-3 relating to the Debt
Securities, the Preferred Securities and the Guarantees (the "Registration
Statement") has become effective under the Act;
(ii) the Guarantee Agreement relating to the Guarantee with respect to
the Preferred Securities of an Issuer has been duly executed and delivered;
(iii) the Amended and Restated Trust Agreement of such Issuer has been
duly executed and delivered;
(iv) the terms of the Debt Securities and of their issuance and sale have
been duly established in conformity with the Indenture so as not to violate
any applicable law or result in a default under or breach of any agreement
or instrument binding upon the Corporation and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Corporation;
(v) the terms of the Preferred Securities of such Issuer and of their
issuance and sale have been duly established in conformity with the Amended
and Restated Trust Agreement of such Issuer so as not to violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon such Issuer and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over such Issuer;
(vi) the Debt Securities have been duly executed and authenticated in
accordance with the Indenture and issued and sold as contemplated in the
Registration Statement; and
(vii) the Preferred Securities have been duly executed in accordance with
the Amended and Restated Trust Agreement of such Issuer and issued and sold
as contemplated in the Registration Statement;
the Debt Securities and the Guarantee relating to the Preferred Securities of
such Issuer will constitute valid and legally binding obligations of the
Corporation, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
I note that, as of the date of this opinion, a judgment for money in an
action based on a Debt Security denominated in a foreign currency or currency
unit in a federal or state court in the United States ordinarily would be
enforced in the United States only in United States dollars. The date used to
determine the rate of conversion of the foreign currency or currency unit in
which a particular Debt Security is denominated into United States dollars will
depend upon various factors, including which court renders the judgment. In the
case of a Debt Security denominated in a foreign currency, a state court in the
<PAGE>
State of New York rendering a judgment on such Debt Security would be required
under Section 27 of the New York Judiciary Law to render such judgment in the
foreign currency in which the Debt Security is denominated, and such judgment
would be converted into United States dollars at the exchange rate prevailing
on the date of entry of the judgment.
I am licensed to practice law only in the State of North Carolina. The
foregoing opinion is limited to the Federal laws of the United States and the
laws of the State of North Carolina, and I am expressing no opinion as to the
effect of the laws of any jurisdiction. I have relied as to certain matters on
information obtained from public officials, officers of the Corporation and
other sources believed by me to be responsible.
I understand that the Corporation has received an opinion regarding the
Preferred Securities from Richards, Layton & Finger, LLP, special Delaware
counsel for the Corporation and the Issuers. I am expressing no opinion with
respect to the matters contained in such opinion.
I hereby consent to the use of this opinion for filing with the
Registration Statement as Exhibit 5.1 thereto. By providing such consent, I do
not admit that I am within the class of persons whose consent is required under
Section 7(a) of the Act.
Sullivan & Cromwell may rely on this opinion as if it were addressed to
them for purposes of rendering their opinion dated the date hereof with respect
to the Debt Securities and the Guarantees.
Very truly yours,
KENT S. HATHAWAY, ESQ.
EXHIBIT 5.2
-----------
[Letterhead of Richards, Layton & Finger]
November 9, 1999
First Union Capital II
c/o First Union Corporation
One Union Center
Charlotte, NC 28288-0013
Re: First Union Capital II
Ladies and Gentlemen:
We have acted as special Delaware counsel for First Union Corporation, a
North Carolina corporation (the "Company"), and First Union Capital II, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of the Trust, dated November 6, 1996 (the
"Certificate"), as filed in the office of the Secretary of State of the State
of Delaware (the "Secretary of State") on November 6, 1996;
(b) The Trust Agreement of the Trust, dated as of November 6, 1996,
between the Company, as Depositor, and the trustee of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form S-3,
incorporating a preliminary prospectus (the "Prospectus"), relating to
preferred securities of the Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as proposed to be filed by the
Company, the Trust and others as set forth therein with the Securities and
Exchange Commission on or about November 9, 1999;
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, as Depositor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust (including Exhibits A, C and E thereto) (the "Trust
Agreement"), incorporated by reference into the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated November 9, 1999,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are used
as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in
paragraphs (a) through (e) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent
with the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
<PAGE>
First Union Capital II
November 9, 1999
Page 2
For purposes of this opinion, we have assumed (i) that the Trust Agreement
and the Certificate are in full force and effect and have not been amended,
(ii) except to the extent provided in paragraph 1 below, the due creation or
due organization or due formation, as the case may be, and valid existence in
good standing of each party to the documents examined by us under the laws of
the jurisdiction governing its creation, organization or formation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) that each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its obligations under,
such documents, (v) the due authorization, execution and delivery by all
parties thereto of all documents examined by us, (vi) the receipt by each
Person to whom a Preferred Security is to be issued by the Trust (collectively,
the "Preferred Security Holders") of a Preferred Securities Certificate for
such Preferred Security and the payment for the Preferred Security acquired by
it, in accordance with the Trust Agreement and the Registration Statement, and
(vii) that the Preferred Securities are issued and sold to the Preferred
Security Holders in accordance with the Trust Agreement and the Registration
Statement. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our opinions are rendered only
with respect to Delaware laws and rules, regulations and orders thereunder that
are currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust, will
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. In addition, we hereby
consent to the use of our name under the heading "Validity of Securities" in
the Prospectus. In giving the foregoing consents, we do not thereby admit that
we come within the category of Persons whose consent is required under Section
7 of the Securities Act of 1933, as amended, or the rules and regulations of
the Securities and Exchange Commission thereunder. Except as stated above,
without our prior written consent, this opinion may not be furnished or quoted
to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
EXHIBIT 5.3
-----------
[Letterhead of Richards, Layton & Finger]
November 9, 1999
First Union Capital III
c/o First Union Corporation
One Union Center
Charlotte, NC 28288-0013
Re: First Union Capital III
Ladies and Gentlemen:
We have acted as special Delaware counsel for First Union Corporation, a
North Carolina corporation (the "Company"), and First Union Capital III, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of the Trust, dated November 6, 1996 (the
"Certificate"), as filed in the office of the Secretary of State of the State
of Delaware (the "Secretary of State") on November 6, 1996;
(b) The Trust Agreement of the Trust, dated as of November 6, 1996,
between the Company, as Depositor, and the trustee of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form S-3,
incorporating a preliminary prospectus (the "Prospectus"), relating to
preferred securities of the Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as proposed to be filed by the
Company, the Trust and others as set forth therein with the Securities and
Exchange Commission on or about November 9, 1999;
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, as Depositor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust (including Exhibits A, C and E thereto) (the "Trust
Agreement"), incorporated by reference into the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated November 9, 1999,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are used
as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in
paragraphs (a) through (e) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent
with the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
<PAGE>
First Union Capital III
November 9, 1999
Page 2
For purposes of this opinion, we have assumed (i) that the Trust Agreement
and the Certificate are in full force and effect and have not been amended,
(ii) except to the extent provided in paragraph 1 below, the due creation or
due organization or due formation, as the case may be, and valid existence in
good standing of each party to the documents examined by us under the laws of
the jurisdiction governing its creation, organization or formation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) that each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its obligations under,
such documents, (v) the due authorization, execution and delivery by all
parties thereto of all documents examined by us, (vi) the receipt by each
Person to whom a Preferred Security is to be issued by the Trust (collectively,
the "Preferred Security Holders") of a Preferred Securities Certificate for
such Preferred Security and the payment for the Preferred Security acquired by
it, in accordance with the Trust Agreement and the Registration Statement, and
(vii) that the Preferred Securities are issued and sold to the Preferred
Security Holders in accordance with the Trust Agreement and the Registration
Statement. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our opinions are rendered only
with respect to Delaware laws and rules, regulations and orders thereunder that
are currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust, will
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. In addition, we hereby
consent to the use of our name under the heading "Validity of Securities" in
the Prospectus. In giving the foregoing consents, we do not thereby admit that
we come within the category of Persons whose consent is required under Section
7 of the Securities Act of 1933, as amended, or the rules and regulations of
the Securities and Exchange Commission thereunder. Except as stated above,
without our prior written consent, this opinion may not be furnished or quoted
to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
EXHIBIT 5.4
November 9, 1999
First Union Corporation,
One First Union Center,
Charlotte, North Carolina 28288.
Ladies and Gentlemen:
In connection with the preparation and filing of a Registration Statement
on Form S-3 (the "Registration Statement") pursuant to Rule 462(b) under the
Securities Act of 1933 (the "Act") for the purpose of registering: (i)
$50,000,000 aggregate principal amount of Junior Subordinated Deferrable
Interest Debentures (the "Debt Securities") of First Union Corporation, a North
Carolina corporation (the "Corporation"); (ii) $50,000,000 aggregate
liquidation amount of Preferred Securities (the "Preferred Securities") of
First Union Capital I, First Union Capital II and First Union Capital III, each
of which is a business trust created under the laws of the State of Delaware
(each, an "Issuer"), and (iii) the Guarantees with respect to the Preferred
Securities (the "Guarantees") to be executed and delivered by the Corporation
for the benefit of the holders from time to time of the Preferred Securities,
we, as counsel for the prospective underwriters, have examined such corporate
records, certificates and other documents, and such questions of law, as we
have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, it is our opinion that, when:
(i) the Registration Statement relating to the Debt Securities, the
Preferred Securities and the Guarantees has become effective under the Act;
(ii) the Indenture relating to the Debt Securities has been duly executed
and delivered;
(iii) the Guarantee Agreement relating to the Guarantee with respect to
the Preferred Securities of a Issuer has been duly executed and delivered;
(iv) the Amended and Restated Trust Agreement of such Issuer has been
duly executed and delivered;
(v) the terms of the Debt Securities and of their issuance and sale have
been duly established in conformity with the Indenture so as not to violate
any applicable law or result in a default under or breach of any agreement
or instrument binding upon the Corporation and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over the Corporation;
(vi) the terms of the Preferred Securities of such Issuer and of their
issuance and sale have been duly established in conformity with the Amended
and Restated Trust Agreement of such Issuer so as not to violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon such Issuer and so as to comply with any
requirement or restriction imposed by any court or governmental body having
jurisdiction over such Issuer;
(vii) the Debt Securities have been duly executed and authenticated in
accordance with the Indenture and issued and sold as contemplated in the
Registration Statement; and
(viii) the Preferred Securities have been duly executed in accordance
with the Amended and Restated Trust Agreement of such Issuer and issued and
sold as contemplated in the Registration Statement,
the Debt Securities and the Guarantee relating to the Preferred Securities of
such Issuer will constitute valid and legally binding obligations of the
Corporation, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
The foregoing opinion is limited to the Federal laws of the United States,
the laws of the State of New York and the laws of the State of North Carolina,
and we are expressing no opinion as to the effect of the laws of any other
jurisdiction.
<PAGE>
With respect to all matters of North Carolina law, we have relied upon the
opinion, dated November 9, 1999, of Kent S. Hathaway, and our opinion is
subject to the same qualifications and limitations with respect to such matters
as are contained in Mr. Hathaway's opinion.
We understand that you have received an opinion regarding the Preferred
Securities from Richards, Layton & Finger, LLP, special Delaware counsel for
the Corporation and the Issuers. We are expressing no opinion with respect to
the matters contained in such opinion.
Also, we have relied as to certain matters on information obtained from
public officials, officers of the Corporation and other sources believed by us
to be responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to us under the heading "Validity
of Securities" in the Prospectus. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Act.
Very truly yours,
SULLIVAN & CROMWELL
EXHIBIT 23.1
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CONSENT OF KPMG LLP
BOARD OF DIRECTORS
FIRST UNION CORPORATION:
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of First Union Corporation, First Union Capital I, First Union Capital
II and First Union Capital III, respectively, of our report dated January 14,
1999, relating to the consolidated balance sheets of First Union Corporation
and subsidiaries as of December 31, 1998 and 1997, 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, 1998, which report
appears in the 1998 Annual Report to Stockholders which is incorporated by
reference in First Union Corporation's 1998 Form 10-K which is incorporated by
reference in this Registration Statement on Form S-3. We also consent to the
reference to our firm under the caption "Experts" in this Registration
Statement.
/s/ KPMG LLP
Charlotte, North Carolina
November 9, 1999
