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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 19, 1996
REGISTRATION NO. 33-
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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
WACHOVIA CORPORATION
(Exact name of registrant as specified in its charter)
NORTH CAROLINA 56-1473727
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
100 NORTH MAIN STREET 191 PEACHTREE STREET, N.E.
WINSTON-SALEM, NORTH CAROLINA 27101 AND ATLANTA, GEORGIA 30303
(910) 770-5000 (404) 332-5000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
KENNETH W. MCALLISTER
WACHOVIA CORPORATION
100 NORTH MAIN STREET
WINSTON-SALEM, NORTH CAROLINA 27101
(910) 732-5141
(Name and address, including zip code, and telephone number, including area
code, of registrant's agent for service)
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COPY TO:
JEFFREY M. STEIN
KING & SPALDING
191 PEACHTREE STREET
ATLANTA, GEORGIA 30303
(404) 572-4600
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
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/
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
CLASS OF SECURITIES TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER UNIT(2) PRICE(2) FEE
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Subordinated Debt
Securities............ $1,000,000,000(1) 100% $1,000,000,000 $344,828
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(1) If any Subordinated Debt Securities are issued (i) with a principal amount
denominated in a foreign currency, such principal amount as shall result in
an aggregate initial offering price equivalent to 1,000,000,000 or (ii) at
an original issue discount, such greater principal amount as shall result
in proceeds to the Registrant of .
(2) Estimated solely for the purpose of calculating the registration fee.
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 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.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION -- DATED JUNE 19, 1996
PROSPECTUS
$1,000,000,000
WACHOVIA CORPORATION
SUBORDINATED DEBT SECURITIES
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Wachovia Corporation (the "Corporation") may offer from time to time up to
$1,000,000,000 aggregate principal amount (or its equivalent based on the
applicable exchange rate at the time of offering if denominated in foreign
currencies) of its subordinated debt securities (the "Securities") on terms to
be determined by market conditions at the time of sale. As used herein, the
Securities shall include securities denominated in U.S. dollars or, if so
specified in the applicable Prospectus Supplement, in any other currency,
including composite currencies such as the European Currency Unit. The
Securities may be sold directly by the Corporation to the public or through
agents designated from time to time, through underwriting syndicates led by one
or more managing underwriters or through one or more underwriters acting alone.
The specific aggregate principal amount, maturity, rate and time of payment
of interest, if any, purchase price, any terms for redemption or other special
terms relating to the Securities in respect of which this Prospectus is being
delivered ("Offered Securities") are set forth in the accompanying Prospectus
Supplement (the "Prospectus Supplement"), together with the terms of offering of
the Offered Securities.
The Securities will be unsecured and will be subordinate to Senior
Indebtedness of the Corporation and, under certain circumstances, to Additional
Senior Obligations of the Corporation, each as defined herein. Payment of
principal of the Securities may be accelerated only in the case of the
bankruptcy of the Corporation. There is no right of acceleration in the case of
a default in the payment of the principal of, or any premium or interest on, the
Securities or in the performance of any covenant or agreement of the
Corporation.
The Securities of a series may be issued in definitive registered form
without coupons ("Registered Securities") or in the form of one or more
book-entry securities in registered form ("Book-Entry Securities").
If any agent of the Corporation, or any underwriter, is involved in the
sale of the Securities offered hereby, the name of such agent or underwriter and
any applicable commissions or discounts are set forth in, or may be calculated
from, the Prospectus Supplement, and the net proceeds to the Corporation from
such sale will be the purchase price of such Securities less such commissions or
discounts and the other attributable issuance and distribution expenses. See
"Plan of Distribution" for possible indemnification arrangements for agents or
underwriters.
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THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF OFFERED SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT. THE SECURITIES WILL BE UNSECURED
OBLIGATIONS OF THE CORPORATION, WILL NOT BE SAVINGS ACCOUNTS, DEPOSITS OR OTHER
OBLIGATIONS OF ANY BANK OR NONBANK SUBSIDIARY OF THE CORPORATION AND WILL NOT BE
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR
ANY OTHER GOVERNMENT AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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The date of this Prospectus is , 1996.
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AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and in accordance therewith
files reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities of
the Commission, at Room 1024, 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549, and at the Commission's Regional Offices in New York
(13th Floor, 7 World Trade Center, New York, New York 10048) and Chicago (Suite
1400, 500 West Madison Street, Chicago, Illinois 60661-2511), and copies of such
material can be obtained from the Public Reference Section of the Commission,
450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, at prescribed
rates. In addition, such material can be inspected at the offices of the New
York Stock Exchange, 20 Broad Street, New York, New York 10005. This Prospectus
does not contain all the information set forth in the Registration Statement on
Form S-3 of which this Prospectus is a part and the exhibits thereto which the
Corporation has filed with the Commission under the Securities Act of 1933 (the
"Securities Act") and to which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation hereby incorporates by reference in this Prospectus the
following reports filed with the Commission pursuant to Section 13 of the
Exchange Act: (a) the Corporation's Annual Report on Form 10-K for the year
ended December 31, 1995; and (b) the Corporation's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1996.
All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Securities offered hereby shall be
deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
THE CORPORATION WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, UPON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A
COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED BY REFERENCE
IN SUCH DOCUMENTS). WRITTEN REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO
WACHOVIA CORPORATION, 100 NORTH MAIN STREET, WINSTON-SALEM, NORTH CAROLINA
27101, ATTENTION: GENERAL COUNSEL. TELEPHONE REQUESTS MAY BE DIRECTED TO (910)
770-5000.
WACHOVIA CORPORATION
Wachovia Corporation (the "Corporation") is a bank holding company
organized in 1985 under the laws of the State of North Carolina. The Corporation
is the 20th largest bank holding company in the United States, based on total
assets at March 31, 1996. At March 31, 1996, the Corporation had consolidated
assets of $45.4 billion, consolidated loans net of unearned income of $29.9
billion, consolidated deposits of $25.9 billion and consolidated shareholders'
equity of $3.7 billion. The Corporation's principal assets consist of all the
outstanding common stock of Wachovia Bank of North Carolina, N.A., Wachovia Bank
of Georgia, N.A. and Wachovia Bank of South Carolina, N.A., national banking
associations organized under the laws of the United States.
Wachovia Bank of North Carolina, N.A. provides personal, commercial, trust
and institutional banking services through 219 full-service banking offices in
95 North Carolina cities and communities and one corporate and private banking
office in Norfolk, Virginia. In addition, it has a foreign branch in Grand
Cayman and an Edge Act subsidiary, Wachovia International Banking Corporation,
with branch offices in
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New York City, Charlotte, North Carolina, Columbia, South Carolina and Atlanta,
Georgia. At March 31, 1996, Wachovia Bank of North Carolina, N.A. had total
assets of $26.3 billion and total deposits of $12.1 billion.
Wachovia Bank of Georgia, N.A. provides a full range of banking services
through its network of 123 offices in 47 cities and communities in Georgia, and
a foreign branch in Grand Cayman. At March 31, 1996, Wachovia Bank of Georgia,
N.A. had total assets of $17.5 billion and total deposits of $9.0 billion.
Wachovia Bank of South Carolina provides full service banking through 144
offices in 64 South Carolina cities and communities and a foreign branch in the
Cayman Islands. At March 31, 1996, Wachovia Bank of South Carolina, N.A. had
total assets of $7.4 billion and total deposits of $5.4 billion.
The Corporation also has bank-related subsidiaries engaged in mortgage
banking, credit card services, discount brokerage, savings and loan activities
and credit-related insurance.
The Corporation has dual executive offices located at 100 North Main
Street, Winston-Salem, North Carolina 27101 and 191 Peachtree Street, N.E.,
Atlanta, Georgia 30303, and its telephone numbers are (910) 770-5000 and (404)
332-5000, respectively.
CERTAIN REGULATORY CONSIDERATIONS
GENERAL
As a bank holding company, the Corporation is subject to the regulation and
supervision of the Federal Reserve Board. The Corporation's subsidiary banks
(the "Subsidiary Banks"), as national banking associations, are subject to
supervision and examination by the Office of the Comptroller of the Currency
(the "Comptroller") and the Federal Deposit Insurance Corporation (the "FDIC").
In addition, as a savings and loan holding company, the Corporation is
registered with the Office of Thrift Supervision ("OTS") and is subject to OTS
regulations, supervision and reporting requirements. The Corporation's
subsidiary savings bank, Atlantic Savings Bank, F.S.B. ("Atlantic"), also is
subject to supervision and examination by OTS. The Subsidiary Banks and Atlantic
are also subject to various requirements and restrictions, including
requirements to maintain reserves against deposits, restrictions on the types
and amounts of loans that may be granted and the interest that may be charged
thereon, and limitations on the types of investments that may be made and the
types of services that may be offered. Various consumer laws and regulations
also affect the operations of the Subsidiary Banks and Atlantic. In addition to
the impact of regulation, commercial banks and savings banks are affected
significantly by the actions of the Federal Reserve Board as it attempts to
control the money supply and credit availability in order to influence the
economy.
The federal banking agencies have broad enforcement powers over depository
institutions, including the power to terminate deposit insurance, to impose
substantial fines and other civil and criminal penalties, and to appoint a
conservator or receiver if any of a number of conditions are met. The federal
banking agencies also have broad enforcement powers over bank holding companies,
including the power to impose substantial fines and other civil and criminal
penalties.
Almost every aspect of the operations and financial condition of the
Subsidiary Banks is subject to extensive regulation and supervision and to
various requirements and restrictions under federal and state law, including
requirements governing capital adequacy, liquidity, earnings, dividends,
reserves against deposits, management practices, branching, loans, investments
and the provision of services. The activities and operations of the Corporation
also are subject to extensive federal supervision and regulation which, among
other things, limit non-banking activities, impose minimum capital requirements
and require approval to acquire 5% of any class of voting shares or
substantially all of the assets of a bank or other company. In addition to the
impact of regulation, banks and bank holding companies may be significantly
affected by legislation, which can change banking statutes in substantial and
unpredictable ways, and by the actions of the Federal Reserve Board as it
attempts to control the money supply and credit availability in order to
influence the economy.
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PAYMENT OF DIVIDENDS AND OTHER RESTRICTIONS
The Corporation is a legal entity separate and distinct from its
subsidiaries, including the Subsidiary Banks and Atlantic. There are various
legal and regulatory limitations on the extent to which the Corporation's
subsidiaries, including its bank subsidiaries and its savings and loan
subsidiary, can finance or otherwise supply funds to the Corporation.
The principal source of the Corporation's cash revenues is dividends from
its subsidiaries and there are certain legal restrictions under federal and
state law on the payment of dividends by such subsidiaries. The prior approval
of the Comptroller is required if the total of all dividends declared by any
national banking association in any calendar year exceeds the bank's net profits
(as defined) for that year combined with its retained net profits for the
preceding two calendar years, less any required transfers to surplus or a fund
for the retirement of any preferred stock. In addition, a dividend may not be
paid in excess of a bank's "undivided profits then on hand," after deduction
therefrom of losses in excess of the "allowance for loan and lease losses," as
such terms are defined in the applicable regulations. The relevant regulatory
agencies also have authority to prohibit a bank holding company, which would
include Wachovia Corporation, or a national banking association from engaging in
what, in the opinion of such regulatory body, constitutes an unsafe or unsound
practice in conducting its business. The payment of dividends could, depending
upon the financial condition of the subsidiary, be deemed to constitute such an
unsafe or unsound practice. Under applicable law, as a savings bank, Atlantic
must give the OTS 30 days prior notice of any proposed payment of dividends.
Retained earnings of the Corporation's banking subsidiaries available for
payment of cash dividends under all applicable regulations without obtaining
governmental approval were approximately $532 million as of December 31, 1995.
In addition, the Subsidiary Banks and their subsidiaries are subject to
limitations under Section 23A of the Federal Reserve Act with respect to
extensions of credit to, investments in, and certain other transactions with,
the Corporation and its other subsidiaries. Furthermore, loans and extensions of
credit are also subject to various collateral requirements.
CAPITAL ADEQUACY
The federal bank regulatory agencies have adopted minimum risk-based and
leverage capital guidelines for United States banking organizations. The minimum
required risk-based capital ratio of qualifying total capital to risk-weighted
assets (including certain off-balance-sheet items, such as standby letters of
credit) is 8%, of which 4% must consist of Tier 1 capital. As of March 31, 1996,
the Corporation's total risk-based capital ratio was 13.55%, including 9.39% of
Tier 1 capital. The minimum required leverage capital ratio (Tier 1 capital to
average total assets) is 3% for banking organizations that meet certain
specified criteria, including that they have the highest regulatory rating. A
higher leverage ratio may apply under certain circumstances. As of March 31,
1996, the Corporation's leverage capital ratio was 8.22%.
Failure to meet capital guidelines can subject a banking organization to a
variety of enforcement remedies, including additional substantial restrictions
on its operations and activities, termination of deposit insurance by the FDIC,
and under certain conditions the appointment of a receiver or conservator.
Federal banking statutes establish five capital categories for depository
institutions ("well capitalized," "adequately capitalized," "undercapitalized,"
"significantly undercapitalized" and "critically undercapitalized"), and impose
significant restrictions on the operations of an institution that is not at
least adequately capitalized. Under certain circumstances, an institution may be
downgraded to a category lower than that warranted by its capital levels, and
subjected to the supervisory restrictions applicable to institutions in the
lower capital category. A depository institution is generally prohibited from
making capital distributions (including paying dividends) or paying management
fees to a holding company if the institution would thereafter be
undercapitalized. Adequately capitalized institutions may accept brokered
deposits only with a waiver from the FDIC, while undercapitalized institutions
may not accept, renew, or roll over brokered deposits.
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An undercapitalized depository institution is also subject to restrictions
in a number of areas, including asset growth, acquisitions, branching, new lines
of business, and borrowing from the Federal Reserve System. In addition, an
undercapitalized depository institution is required to submit a capital
restoration plan. A depository institution's holding company must guarantee the
capital plan up to an amount equal to the lesser of 5% of the depository
institution's assets at the time it becomes undercapitalized or the amount
needed to restore the capital of the institution to the levels required for the
institution to be classified as adequately capitalized at the time the
institution fails to comply with the plan and any such guarantee would be
entitled to a priority of payment in bankruptcy. A depository institution is
treated as if it is significantly undercapitalized if it fails to submit a
capital plan that is based on realistic assumptions and is likely to succeed in
restoring the depository institution's capital.
Significantly undercapitalized depository institutions may be subject to a
number of additional significant requirements and restrictions, including
requirements to sell sufficient voting stock to become adequately capitalized,
to replace or improve management, to reduce total assets, to cease acceptance of
correspondent bank deposits, to restrict senior executive compensation and to
limit transactions with affiliates. Critically undercapitalized depository
institutions are further subject to restrictions on paying principal or interest
on subordinated debt, making investments, expanding, acquiring or selling
assets, extending credit for highly-leveraged transactions, paying excessive
compensation, amending their charters or bylaws and making any material changes
in accounting methods. In general, a receiver or conservator must be appointed
for a depository institution within 90 days after the institution is deemed to
be critically undercapitalized.
SUPPORT OF SUBSIDIARY BANKS
Under Federal Reserve Board policy, the Corporation is expected to act as a
source of financial strength to, and to commit resources to support, each of the
Subsidiary Banks. This support may be required at times when, absent such
Federal Reserve Board policy, the Corporation may not be inclined to provide it.
In the event of a bank holding company's bankruptcy, any commitment by the bank
holding company to a federal bank regulatory agency to maintain the capital of a
subsidiary bank will be assumed by the bankruptcy trustee and entitled to a
priority of payment.
A depository institution insured by the FDIC can be held liable for any
loss incurred by, or reasonably expected to be incurred by, the FDIC in
connection with the default of a commonly controlled FDIC-insured depository
institution or any assistance provided by the FDIC to any commonly controlled
FDIC-insured depository institution "in danger of default". "Default" is defined
generally as the appointment of a conservator or receiver and "in danger of
default" is defined generally as the existence of certain conditions indicating
that a default is likely to occur in the absence of regulatory assistance.
Liability for the losses of commonly-controlled depository institutions can lead
to the failure of some or all depository institutions in a holding company
structure, if the remaining institutions are unable to pay the liability
assessed by the FDIC. Any obligation or liability owed by a subsidiary bank to
its parent company is subordinate to the subsidiary bank's cross-guarantee
liability for losses of commonly-controlled depository institutions.
FDIC INSURANCE ASSESSMENTS
The Subsidiary Banks are subject to FDIC deposit insurance assessments. The
FDIC has authority to raise or lower assessment rates on insured deposits in
order to achieve certain designated reserve ratios in the Bank Insurance Fund
("BIF") and the Savings Association Insurance Fund ("SAIF") and to impose
special additional assessments. The FDIC applies a risk-based assessment system
that places each financial institution into one of nine risk categories, based
on capital levels and supervisory criteria and an evaluation of the bank's risk
to the BIF or SAIF, as applicable. The current FDIC premium schedule for the
SAIF ranges from 0.23% to 0.31% of deposits. The current FDIC premium schedule
for the BIF (effective January 1, 1996) ranges from 0% (subject to a $2,000
minimum) to 0.27%.
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CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following unaudited table presents the consolidated ratio of earnings
to fixed charges of the Corporation. The consolidated ratio of earnings to fixed
charges has been computed by dividing net income plus all applicable income
taxes plus fixed charges by fixed charges. Fixed charges represent all interest
expense (ratios are presented both excluding and including interest on
deposits), and the portion of net rental expense which is deemed to be
equivalent to interest on long-term debt. Interest expense (other than on
deposits) includes interest on long-term debt, federal funds purchased and
securities sold under agreements to repurchase, mortgages, commercial paper and
other funds borrowed.
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THREE MONTHS YEAR ENDED DECEMBER 31,
ENDED --------------------------------
MARCH 31, 1996 1995 1994 1993 1992 1991
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Including interest on deposits..................... 1.53 1.54 1.72 1.81 1.61 1.19
Excluding interest on deposits..................... 2.12 2.13 2.48 3.32 3.57 1.71
</TABLE>
USE OF PROCEEDS
The net proceeds from the sale of the Securities will be used for general
corporate purposes, principally to fund investments in, or extensions of credit
to, the Corporation's banking and nonbanking subsidiaries. The Corporation also
may use such proceeds to allow its subsidiaries to repay borrowings incurred by
such subsidiaries. Except as otherwise described in the Prospectus Supplement,
specific allocations of the proceeds to such purposes will not have been made at
the date of the Prospectus Supplement, although management of the Corporation
will have determined that funds should be borrowed at that time in anticipation
of future funding or capital requirements of its subsidiaries. The precise
amount and timing of such investments in and extensions of credit to the
subsidiaries will depend upon their funding requirements and the availability of
other funds to the Corporation and its subsidiaries. In addition to the
foregoing, the Corporation may also use a portion of the net proceeds to fund
possible acquisitions if suitable opportunities develop in the future. Based
upon the anticipated future financing requirements of the Corporation and its
subsidiaries, the Corporation expects that it will, from time to time, engage in
additional financings of a character and in amounts to be determined.
DESCRIPTION OF SECURITIES
GENERAL
The following sets forth certain general terms and provisions of the
Securities offered hereby. The particular terms of the Securities offered by any
Prospectus Supplement will be described in the Prospectus Supplement relating to
such Offered Securities (the "Applicable Prospectus Supplement").
The Securities are to be issued under an Indenture dated as of March 1,
1993 (the "Indenture"), between the Corporation and Mellon Bank, N.A., as
trustee (the "Trustee"). A copy of the Indenture is an exhibit to the
Registration Statement of which this Prospectus is a part. The following
summaries of certain provisions of the Securities and the Indenture do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the Indenture, including the definitions
therein of certain terms. Wherever particular Sections, Articles or defined
terms of the Indenture are referred to, it is intended that such Sections,
Articles or defined terms shall be incorporated herein by reference. Article and
Section references used herein are references to the Indenture. Capitalized
terms not otherwise defined in this Prospectus shall have the meanings given to
them in the Indenture.
The Securities will be unsecured and will be subordinated and junior to all
Senior Indebtedness and, in certain circumstances relating to the dissolution,
winding-up, liquidation or reorganization of the Corporation, to all Additional
Senior Obligations (as defined below under "Subordination of Securities"). The
Indenture does not contain covenants prohibiting the Corporation from disposing
of voting stock of its subsidiaries, including the stock of any of its banking
subsidiaries. Events of default as to which payment of the principal of
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the Securities may be accelerated are limited to events relating to the
bankruptcy of the Corporation. See "Subordination of Securities" and "Events of
Default; Limited Rights of Acceleration."
The Indenture does not limit the amount of Securities that may be issued
thereunder and provides that Securities may be issued thereunder from time to
time in one or more series. (Section 301) The Securities will be unsecured
subordinated obligations of the Corporation. Neither the Indenture nor the
Securities will limit or otherwise restrict the amount of other indebtedness
which may be incurred or the other securities which may be issued by the
Corporation or any of its subsidiaries. In addition, the Indenture and the
Securities will not contain any provision that would require the Corporation to
repurchase or redeem or otherwise modify the terms of the Securities upon a
change in control or other events involving the Corporation that may adversely
affect the credit quality of the Corporation.
Because the Corporation is a holding company, its rights and the rights of
its creditors, including the holders of the Securities, to participate in the
assets of any subsidiary upon the liquidation or reorganization of such a
subsidiary will be subject to the prior claims of such subsidiaries' creditors
(including, in the case of a subsidiary bank, its depositors) except to the
extent that the Corporation may itself be a creditor with recognized claims
against the subsidiary. Claims on subsidiaries of the Corporation by creditors
other than the Corporation include claims with respect to long-term debt and
substantial obligations with respect to deposit liabilities, federal funds
purchased, securities sold under repurchase agreements and other short-term
borrowings. See "Wachovia Corporation."
Unless otherwise indicated in the Applicable Prospectus Supplement,
principal of and premium, if any, and interest on the Securities will be payable
at the office or agency of the Trustee maintained for such purpose in
Philadelphia, Pennsylvania and at any other office or agency maintained by the
Corporation for such purpose, except that, at the option of the Corporation,
interest may be paid by mailing a check to the address of the person entitled
thereto as it appears on the Security Register. The transfer of Securities
(other than Book-Entry Securities) will be registrable for each series of
Securities at the corporate trust office of the Trustee in Philadelphia,
Pennsylvania. (Sections 301, 305 and 1002) Interest on the Securities will be
payable to the person in whose name the Securities are registered at the close
of business on the Regular Record Date designated for an Interest Payment Date.
(Section 307) The Securities will be issued only in fully registered form
without coupons and, unless otherwise indicated in the Applicable Prospectus
Supplement, in denominations of $1,000 or integral multiples thereof. (Section
302) No service charge will be required for any registration of transfer or
exchange of the Securities, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith other than certain exchanges not involving any transfer. (Section 305)
The Applicable Prospectus Supplement will describe the following terms of
the Offered Securities: (a) the title of the Offered Securities; (b) any limit
on the aggregate principal amount of the Offered Securities; (c) the date or
dates on which the Offered Securities will mature; (d) the rate or rates (which
may be fixed or variable) per annum at which the Offered Securities will bear
interest, if any, and the date or dates from which such interest, if any, will
accrue and the dates on which such interest, if any, on the Offered Securities
will be payable and the Regular Record Dates for such Interest Payment Dates;
(e) the place or places, if any, in addition to Philadelphia, Pennsylvania,
where the principal of and premium, if any, and interest on the Offered
Securities will be payable; (f) the period or periods within which, the price or
prices at which and the terms and conditions upon which the Offered Securities
may be redeemed, in whole or in part, at the option of the Corporation; (g) the
obligation, if any, of the Corporation to redeem or purchase the Offered
Securities pursuant to any sinking fund or analogous provisions or at the option
of a Holder thereof and the period or periods within which, the price or prices
at which and the terms and conditions upon which Offered Securities shall be
redeemed or purchased, in whole or in part, pursuant to such obligation; (h) if
other than denominations of $1,000 and any integral multiple thereof, the
denominations in which the Offered Securities will be issuable; (i) the currency
or currencies of payment of principal of and premium, if any, and interest on
the Offered Securities if other than the currency of the United States of
America; (j) any index used to determine the amount of payment of principal of,
premium, if any, or interest on the Offered Securities; (k) if other than the
principal amount thereof, the portion of the principal amount of the Offered
Securities which will be payable upon the declaration of acceleration of the
Maturity thereof, (l) the law
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which will govern the terms of the Securities, if other than the law of
Pennsylvania; (m) information with respect to book-entry procedures, if any; and
(n) any other terms of the Offered Securities. (Section 301)
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 applicable to
any such Original Issue Discount Securities will be described in the Applicable
Prospectus Supplement. "Original Issue Discount Security" means any security
which provides for an amount less than the principal amount thereof to be due
and payable upon the declaration of acceleration of the Maturity thereof upon
the occurrence of an Event of Default and the continuation thereof. (Section
101)
BOOK-ENTRY SECURITIES
The Securities of a series may be issued in the form of one or more
Book-Entry Securities that will be deposited with a Depositary or its nominee
identified in the Applicable Prospectus Supplement. (Section 301) In such a
case, one or more Book-Entry Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of Outstanding Securities of the series to be represented by such Book-Entry
Security or Securities. Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, a Book-Entry Security may not be
transferred except as a whole by the Depositary for such Book-Entry Security to
a nominee of such Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee to
a successor of the Depositary or a nominee of such successor. (Section 305)
The specific terms of the depositary arrangement with respect to any
portion of a series of Securities to be represented by a Book-Entry Security
will be described in the Applicable Prospectus Supplement. The Corporation
anticipates that the following provisions will apply to all depositary
arrangements.
Upon the issuance of a Book-Entry Security, the Depositary for such
Book-Entry Security or its nominee will credit, on its book-entry registration
and transfer system, the respective principal amounts of the Securities
represented by such Book-Entry Security to the accounts of persons that have
accounts with such Depositary ("participants"). Such accounts shall be
designated by the underwriters or agents with respect to such Securities or by
the Corporation if such Securities are offered and sold directly by the
Corporation. Participants include securities brokers and dealers, banks and
trust companies, clearing corporations and certain other organizations. Access
to the Depositary's system is also 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 ("indirect
participants"). Persons who are not participants may beneficially own Book-Entry
Securities held by the Depositary only through participants or indirect
participants.
Ownership of beneficial interests in any Book-Entry Security will be shown
on, and the transfer of that ownership will be effected only through, records
maintained by the Depositary or its nominee (with respect to interests of
participants) for such Book-Entry Security and on the records of participants
(with respect to interests of indirect participants). The laws of some states
require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such laws, as well as the limits on participation
in the Depositary's book-entry system, may impair the ability to transfer
beneficial interests in a Book-Entry Security.
So long as the Depositary or its nominee is the registered owner of a
Book-Entry Security, such Depositary or such nominee will be considered the sole
owner or holder of the Securities represented by such Book-Entry Security for
all purposes under the Indenture. Except as provided below, owners of beneficial
interests in Securities represented by Book-Entry Securities will not be
entitled to have Securities of the series represented by such Book-Entry
Security registered in their names, will not receive or be entitled to receive
physical delivery of such Securities in definitive form, and will not be
considered the owners or holders thereof under the Indenture.
Payments of principal of and any premium and interest on Securities
registered in the name of the Depositary or its nominee will be made to the
Depositary or its nominee, as the case may be, as the registered owner of the
Book-Entry Security representing such Securities. The Corporation expects that
the Depositary
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for a series of Securities or its nominee, upon receipt of any payment of
principal, premium or interest, will credit immediately participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of the Book-Entry Security for such Securities, as shown
on the records of such Depositary or its nominee. The Corporation also expects
that payments by participants and indirect participants to owners of beneficial
interests in such Book-Entry Security held through such persons will be governed
by standing instructions and customary practices, as is now the case with
securities registered in "street name", and will be the responsibility of such
participants and indirect participants. Neither the Corporation, the Trustee,
any Authenticating Agent, any Paying Agent nor the Security Registrar for such
Securities will have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership
interests in the Book-Entry Security for such Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests. (Section 311)
If the Depositary for Securities of a series notifies the Corporation that
it is unwilling or unable to continue as Depositary or if at any time the
Depositary ceases to be a clearing agency registered under the Exchange Act, the
Corporation has agreed to appoint a successor depositary. If such a successor is
not appointed by the Corporation with 90 days, the Corporation will issue
Securities of such series in definitive registered form in exchange for the
Book-Entry Security representing such series of Securities. In addition, the
Corporation may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Book-Entry Securities
shall no longer be represented by such Book-Entry Security or Securities and, in
such event, will issue Securities of such series in definitive registered form
in exchange for such Book-Entry Security or Securities representing such series
of Securities. Further, if the Corporation so specifies with respect to the
Securities of a series, or if an Event of Default, or an event which with
notice, lapse of time or both would be an Event of Default with respect to the
Securities of such series has occurred and is continuing, an owner of a
beneficial interest in a Book-Entry Security representing Securities of such
series may receive Securities of such series in definitive registered form. In
any such instance, an owner of a beneficial interest in a Book-Entry Security
will be entitled to physical delivery in definitive registered form of
Securities of the series represented by such Book-Entry Security equal in
principal amount to such beneficial interest and to have such Securities
registered in its name. (Section 305) Securities so issued in definitive form
will be issued in denominations of $1,000 and integral multiples thereof and
will be issued in registered form only, without coupons.
SUBORDINATION OF SECURITIES
The obligations of the Corporation to make any payment on account of the
principal of and premium, if any, and interest on the Securities will be
subordinate and junior in right of payment to all Senior Indebtedness of the
Corporation and, in certain circumstances relating to the dissolution,
winding-up, liquidation of or reorganization of the Corporation, to all
Additional Senior Obligations. (Article Thirteen)
"Senior Indebtedness" is defined in the Indenture to mean (a) all
indebtedness of the Corporation for money borrowed, whether now outstanding or
subsequently created, assumed or incurred, other than (i) the Securities, (ii)
the 7% Subordinated Notes due 1999 of the Corporation in the aggregate principal
amount of $300 million (the "7% Subordinated Notes"), (iii) any obligation
Ranking on a Parity with the Securities (which includes the 6 3/8% Subordinated
Notes due 2003 of the Corporation in the aggregate principal amount of $250
million and the 6 3/8% Subordinated Notes due 2009 of the Corporation in the
aggregate principal amount of $250 million (collectively, the "6 3/8%
Subordinated Notes"), the 6.80% Subordinated Notes due 2005 of the Corporation
in the aggregate principal amount of $250 million (the "6.80% Subordinated
Notes") and the 6.605% Subordinated Notes due October 1, 2025 of the Corporation
in the aggregate principal amount of $250 million, the holders of which may
elect to have all or a portion thereof redeemed on October 1, 2005 (the "6.605%
Subordinated Notes")), or (iv) any obligation Ranking Junior to the Securities
and (b) any deferrals, renewals or extensions of any such Senior Indebtedness.
The term "indebtedness of the Corporation for money borrowed" shall mean any
obligation of, or any obligation guaranteed by, the Corporation for repayment of
borrowed money, whether or not evidenced by bonds, debentures, notes or other
written instruments, and any deferred obligations for payment of the purchase
price of property or assets acquired other than in the ordinary course of
business. "Additional Senior Obligations" is defined in the Indenture to
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mean all indebtedness of the Corporation, whether now outstanding or
subsequently created, assumed or incurred, for claims in respect of derivative
products such as interest and foreign exchange rate contracts, commodity
contracts and similar arrangements; provided, however, that Additional Senior
Obligations do not include (a) any claims in respect of Senior Indebtedness, or
(b) any obligations (i) Ranking Junior to the Securities, or (ii) Ranking on a
Parity with the Securities. For purposes of this definition, "claim" shall have
the meaning assigned thereto in Section 101(4) of the United States Bankruptcy
Code of 1978. Section 101 of the Indenture does not limit or prohibit the
incurrence of Senior Indebtedness or Additional Senior Obligations.
The term "Ranking Junior to the Securities" is defined in the Indenture to
mean any obligation of the Corporation which (a) ranks junior to and not equally
with or prior to the Securities in right of payment upon the happening of any
insolvency, receivership, conservatorship, reorganization, readjustment of debt,
marshalling of assets and liabilities or similar proceedings or any liquidation
or winding-up of or relating to the Corporation as a whole, whether voluntary or
involuntary, and (b) is specifically designated as ranking junior to the
Securities by express provisions in the instrument creating or evidencing such
obligation.
The term "Ranking on a Parity with the Securities" is defined in the
Indenture to mean any obligation of the Corporation which (a) ranks equally with
and not prior to the Securities in right of payment upon the happening of any
insolvency, receivership, conservatorship, reorganization, readjustment of debt,
marshalling of assets and liabilities or similar proceedings or any liquidation
or winding-up of or relating to the Corporation as a whole, whether voluntary or
involuntary, and (b) is specifically designated as ranking on a parity with the
Securities by express provision in the instrument creating or evidencing such
obligation. (Section 101)
The Securities will be subordinate in right of payment to all Senior
Indebtedness, as provided in the Indenture. No payment on account of the
principal of and premium, if any, or interest in respect of the Securities may
be made if there shall have occurred and be continuing a default in payment with
respect to Senior Indebtedness or an event of default with respect to any Senior
Indebtedness resulting in the acceleration of the maturity thereof. Upon any
payment or distribution of assets to creditors upon any insolvency,
receivership, conservatorship, reorganization, readjustment of debt, marshalling
of assets and liabilities or similar proceedings or any liquidation or
winding-up of or relating to the Corporation as a whole, whether voluntary or
involuntary, (a) the holders of all Senior Indebtedness will first be entitled
to receive payment in full before the Holders of the Securities will be entitled
to receive any payment in respect of the principal of and premium, if any, or
interest on the Securities, and (b) if after giving effect to the operation of
clause (a) above, (i) any amount of cash, property or securities remains
available for payment or distribution in respect of the Securities ("Excess
Proceeds"), and (ii) creditors in respect of Additional Senior Obligations have
not received payment in full of amounts due or to become due thereon or payment
of such amounts has not been duly provided for, then such Excess Proceeds shall
first be applied to pay or provide for the payment in full of all such
Additional Senior Obligations before any payment may be made on the Securities.
If the Holders of Securities receive payment and are aware at the time of
receiving payment that all Senior Indebtedness and Additional Senior Obligations
have not been paid in full, then such payment shall be held in trust for the
benefit of the holders of Senior Indebtedness and/or Additional Senior
Obligations, as the case maybe. (Section 1301) By reason of such subordination,
in the event of insolvency, Holders of the Securities may recover less, ratably,
than holders of Senior Indebtedness and holders of Additional Senior
Obligations.
Neither the Securities (and the 6 3/8% Subordinated Notes, the 6.80%
Subordinated Notes and the 6.605% Subordinated Notes, which Rank on a Parity
with the Securities) nor the 7% Subordinated Notes are by their term subordinate
or senior to the other. However, the 7% Subordinated Notes by their terms are
subordinated to Senior Indebtedness and Additional Senior Obligations and to all
other obligations of the Corporation to its creditors (subject to certain
exceptions specified in the indenture pursuant to which the 7% Subordinated
Notes are outstanding). As a result of the differences between the subordination
provisions applicable to the Securities and the 6 3/8% Subordinated Notes, the
6.80% Subordinated Notes and the 6.605% Subordinated Notes, and those applicable
to the 7% Subordinated Notes, in the event of any insolvency, receivership,
conservatorship, reorganization, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or any liquidation or winding up of or
relating to the Corporation, the holders of the Securities and the
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6 3/8% Subordinated Notes, the 6.80% Subordinated Notes and the 6.605%
Subordinated Notes, may receive more, ratably, than the holders of the 7%
Subordinated Notes.
EVENTS OF DEFAULT; LIMITED RIGHTS OF ACCELERATION
The Indenture (with respect to any series of Securities) defines an "Event
of Default" as any one of the following events (whatever the reason and whether
it be occasioned by the subordination provisions or be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body): (a) failure to pay any interest on any Security of that
series when due and payable, continued for 30 days, whether or not such payment
is prohibited by the subordination provisions of the Indenture; (b) failure to
pay principal of or any premium on any Security of that series when due; (c)
failure to deposit any sinking fund payment, when due, in respect of any
Security of that series, whether or not such payment is prohibited by the
subordination provisions of the Indenture; (d) failure to perform any other
covenants or warranties of the Corporation in the Indenture (other than a
covenant included in the Indenture solely for the benefit of a series of
Securities thereunder other than that series) continued for 60 days after
written notice as provided in the Indenture; (e) the entry of a decree or order
for relief in respect of the Corporation by a court having jurisdiction in the
premises in an involuntary case under Federal or state bankruptcy laws and the
continuance of any such decree or order unstayed and in effect for a period of
60 consecutive days; (f) the commencement by the Corporation of a voluntary case
under Federal or state bankruptcy laws or the consent by the Corporation to the
entry of a decree or order for relief in an involuntary case under any such law;
and (g) any other Event of Default provided with respect to Securities of that
series. (Section 501)
Unless specifically stated in the Applicable Prospectus Supplement for a
particular series of Securities, the payment of the principal of the Securities
may be accelerated only upon the occurrence of an Event of Default described in
clause (e) or clause (f) of the preceding paragraph (a "Bankruptcy Event of
Default") and there is no right of acceleration of the payment of principal of
the Securities of such series upon a default in the payment of principal,
premium, if any, or interest, if any, or in the performance of any covenant or
agreement in the Securities or Indenture. In the event of a default in the
payment of principal, premium, if any, or interest, if any, or the performance
of any covenant or agreement in the Securities or Indenture, the Trustee,
subject to certain limitations and conditions, may institute judicial
proceedings to enforce payment of such principal, premium, if any, or interest,
if any, or to obtain the performance of such covenant or agreement or any other
proper remedy. (Section 503) Under certain circumstances, the Trustee may
withhold notice to the Holders of the Securities in a default if the Trustee in
good faith determines that the withholding of such notice is in the best
interest of such Holders, and the Trustee shall withhold such notice for certain
defaults for a period of 30 days. (Section 602)
If a Bankruptcy Event of Default with respect to the Securities of any
series at the time Outstanding occurs and is continuing, either the Trustee or
the Holders of at least 25 percent in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms thereof) of all
the Securities of that series to be due and payable immediately. At any time
after a declaration of acceleration with respect to Securities of any series has
been made, but before a judgment or decree based on acceleration has been
obtained, the Holders of a majority in aggregate principal amount of Outstanding
Securities of that series may, under certain circumstances, rescind and annul
such acceleration. (Section 502)
Reference is made to the Prospectus Supplement relating to any series of
Offered Securities that are Original Issue Discount Securities for the
particular provisions relating to acceleration of the Stated Maturity of a
portion of the principal amount of such series of Original Issue Discount
Securities upon the occurrence of an Event of Default and the continuation
thereof.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the
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Trustee reasonable security or indemnity. (Section 603) Subject to such
provisions for the indemnification of the Trustee and to certain other
conditions, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of that series. (Section 512)
No Holder of any series of Securities will have any right to institute any
proceeding with respect to the Indenture, or for the appointment of a receiver
or trustee or for any remedy thereunder, unless such Holder shall have
previously given to the Trustee under the Indenture written notice of a
continuing Event of Default and unless the Holders of at least 25 percent in
aggregate principal amount of the Outstanding Securities of that series shall
have made written request, and offered reasonable indemnity, to such Trustee to
institute such proceeding as trustee, and such Trustee shall not have received
from the Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series a direction inconsistent with such request and shall
have failed to institute such proceeding within 60 days. (Section 507) However,
such limitations do not apply to a suit instituted by a Holder of a Security for
enforcement of payment of the principal of and premium, if any, or interest on
such Security on or after the respective due dates expressed in such Security.
(Section 508)
The Corporation is required to furnish to the Trustee annually a statement
as to the performance by the Corporation of certain of its obligations under the
Indenture and as to any default in such performance. (Section 1005)
MODIFICATION AND WAIVER
Modification and amendment of the Indenture may be made by the Corporation
and the Trustee under the Indenture with the consent of the Holders of not less
than a 66 2/3% in aggregate principal amount of the Outstanding Securities of
each series issued under the Indenture and affected by the modification or
amendment; provided, however, that no such modification or amendment may,
without the consent of the Holders of each Outstanding Security of the series
affected thereby (a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security of such series; (b)
reduce the principal amount of or premium, if any, or interest on, any Security
of any series (including in the case of an Original Issue Discount Security the
amount payable upon acceleration of the maturity thereof); (c) change the place
or currency of payment of principal of or the premium, if any, or interest on
any Security of such series; (d) impair the right to institute suit for the
enforcement of any payment on any Security of such series on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date); (e) modify the subordination provision in a manner adverse to the Holders
of the Securities of such series; or (f) reduce the percentage in principal
amount of Outstanding Securities of any series, the consent of whose Holders is
required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults. (Section 902)
The Holders of at least a 66 2/3% in aggregate principal amount of the
Outstanding Securities of any series may, on behalf of all Holders of that
series of Securities, waive compliance by the Corporation with certain
restrictive provisions of the Indenture. (Section 1006) The Holders of a
majority in aggregate principal amount of the Outstanding Securities of any
series may, on behalf of all Holders of that series of Securities, waive any
past default under the Indenture, except a default in the payment of principal,
premium, if any, or interest and in respect of certain covenants. (Section 513)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Corporation may not consolidate with or merge into any other
corporation or sell, convey, exchange, transfer or lease its properties and
assets substantially as an entirety to any Person, unless (a) any successor or
purchaser is a corporation organized under the laws of any domestic
jurisdiction; (b) any such successor or purchaser expressly assumes the
Corporation's obligations on such Securities and under the Indenture; (c)
immediately after giving effect to such transaction, no Event of Default, and no
event which, after notice
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or lapse of time or both, would become an Event of Default, shall have occurred
and be continuing; and (d) certain other conditions are met. (Section 801)
ASSUMPTION BY SUBSIDIARY
A Subsidiary may assume the Corporation's obligations under the Indenture
(including the Corporation's obligation to pay principal of and premium, if any,
and interest on the Securities, but excluding the Corporation's obligation to
comply with certain covenants) provided that (a) such Subsidiary expressly
assumes the Corporation's obligations under the Indenture; (b) the Corporation
guarantees such Subsidiary's obligations; (c) such Subsidiary agrees to
indemnify each Holder against certain taxes and expenses relating to, or
incurred directly in connection with, such assumption; (d) immediately after
giving effect to the assumption, no Event of Default, and no event which, after
notice or lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing; (e) certain Opinions of Counsel and Officers'
Certificates are delivered to the Trustee; and (f) certain other obligations are
met. (Section 803)
THE TRUSTEE
Mellon Bank, N.A. is the Trustee under the Indenture. Mellon Bank, N.A.
maintains a deposit account and conducts other banking transactions with the
Corporation and its subsidiaries in the ordinary course of business, serves as
trustee under the indenture pursuant to which the 7% Subordinated Notes are
outstanding and serves as trustee with respect to the 6 3/8% Subordinated Notes,
the 6.80% Subordinated Notes and the 6.605% Subordinated Notes, which are
outstanding pursuant to the Indenture. The Indenture provides for the
indemnification of the Trustee by the Corporation under certain circumstances.
PLAN OF DISTRIBUTION
The Corporation may offer and sell Securities to or through underwriters,
acting as principals for their own accounts or as agents, and also may offer and
sell Securities directly to other purchasers. Any underwriters or agents in
connection with Offered Securities will be named in the related Prospectus
Supplement and any underwriting compensation paid to such underwriters or agents
will be set forth therein. Such underwriters may include a single firm or may be
a group of underwriters represented by such firm. Unless otherwise indicated in
the Prospectus Supplement, any underwriters will be required to purchase all of
the Offered Securities if any are purchased.
The distribution of Securities may be effected from time to time 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.
In connection with the sale of Securities, underwriters may receive
compensation from the Corporation and from purchasers of Securities for whom
they may act as agents, in the form of discounts, concessions or commissions.
Underwriters, dealers and agents that participate in the distribution of
Securities may be deemed to be underwriters and any discounts or commissions
received by them and any profit on the resale of Securities by them may be
deemed to be underwriting discounts and commissions under the Securities Act.
Under agreements which may be entered into with the Corporation,
underwriters, dealers and agents who participate in the distribution of the
Offered Securities may be entitled to indemnification by the Corporation against
certain liabilities, including liabilities under the Securities Act, or
contribution with respect to payments which the underwriters, dealers or agents
may be required to make in respect thereof. Underwriters, dealers and agents may
be customers of, engage in transactions with, or perform services for the
Corporation and its subsidiaries in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Corporation will
authorize dealers or other persons acting as the Corporation's agents to solicit
offers by certain institutions to purchase Offered Securities from the
Corporation pursuant to delayed delivery contracts ("Contracts") providing for
payment and delivery on a future date or dates stated in the Prospectus
Supplement. Each Contract will be for an amount not less than, and the aggregate
amount of Offered Securities sold pursuant to Contracts shall not be less than
nor more
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than, the respective amounts stated in the Prospectus Supplement. Institutions
with which Contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved by
the Corporation. The obligations of any purchaser under any Contract will not be
subject to any conditions except that (a) the purchase of the Offered Securities
shall not at the time of delivery be prohibited under the laws of any
jurisdiction to which such purchaser is subject, and (b) if the Offered
Securities are also being sold to underwriters, the Corporation will have sold
to such underwriters the Offered Securities not sold for delayed delivery. The
dealers and such other persons acting as agents of the Corporation will not have
any responsibility in respect of the validity or performance of Contracts.
EXPERTS
The consolidated financial statements of Wachovia Corporation and
subsidiaries at December 31, 1995 and 1994, and for each of the three years in
the period ended December 31, 1995, incorporated by reference in this Prospectus
and Registration Statement have been audited by Ernst & Young LLP, independent
auditors, as set forth in its report thereon and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
LEGAL MATTERS
The validity of the Offered Securities will be passed upon for the
Corporation by Kenneth W. McAllister, General Counsel of the Corporation, and
for any underwriters or agents by King & Spalding, Atlanta, Georgia. As to
matters of Pennsylvania law, Mr. McAllister and King & Spalding will rely on the
opinion of Drinker Biddle & Reath, Philadelphia, Pennsylvania. From time to
time, King & Spalding has provided and may in the future provide legal services
to the Corporation and its subsidiaries.
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE CORPORATION SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Available Information.................. 2
Incorporation of Certain Documents by
Reference............................ 2
Wachovia Corporation................... 2
Certain Regulatory Considerations...... 3
Consolidated Ratio of Earnings to Fixed
Charges.............................. 6
Use of Proceeds........................ 6
Description of Securities.............. 6
Plan of Distribution................... 13
Experts................................ 14
Legal Matters.......................... 14
</TABLE>
WACHOVIA CORPORATION
SUBORDINATED
DEBT SECURITIES
--------------------
PROSPECTUS
--------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses in connection with the issuance and distribution of the
Securities being registered, other than underwriting compensation, are as
follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee....................... $100,000
Blue Sky fees and expenses................................................ 10,000
Attorney's fees and expenses.............................................. 20,000
Accounting services....................................................... 15,000
Printing and engraving.................................................... 30,000
Fees of indenture trustee................................................. 32,000
Rating agency fees........................................................ 40,000
Miscellaneous............................................................. 7,500
--------
Total..................................................................... $254,500
========
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
As permitted by the North Carolina Business Corporation Act (the "NCBCA"),
the Corporation's Articles of Incorporation provide that no director of the
Corporation will be held personally liable for monetary damages for such
director's breach of duty as a director. This limitation of liability does not
relieve directors from liability for (i) acts or omissions that the director at
the time of such breach knew or believed were clearly in conflict with the best
interests of the Corporation, (ii) any liability under Section 55-8-33 of the
NCBCA for unlawful distributions or other acts for which the director is
personally liable to the Corporation, (iii) any transaction from which the
director is adjudged to have derived an improper personal benefit, or (iv) acts
or omissions occurring prior to the date the provision in the Articles of
Incorporation became effective.
Pursuant to the North Carolina Business Corporation Act (the "NCBCA"),
Sections 55-8-50, et seq., as amended, a director may be indemnified against
liability and litigation expense, including reasonable attorneys' fees, arising
out of his status as such or his activities in such capacity, provided, however,
that such person (i) conducted himself in good faith; (ii) reasonably believed
(x) in the case of conduct in his official capacity with the Corporation, that
his conduct was in its best interests, and (y) in all other cases that his
conduct was at least not opposed to its best interests; and (iii) in the case of
any criminal proceeding, had no reason to believe his conduct was unlawful.
Mandatory indemnification is available under the NCBCA for a director who
is wholly successful, on the merits or otherwise, in the defense of any
proceeding to which he was a party because he is or was a director of the
Corporation, against reasonable expenses incurred by him in connection with the
proceeding.
A corporation may not indemnify under the NCBCA in connection with any
proceeding by or in the right of a corporation in which the director was
adjudged liable to the corporation, or with any other proceeding charging
improper personal benefit to him, whether or not in connection with his official
capacity, in which he was adjudged liable on the basis that personal benefit was
improperly received by him. Where a proceeding is by or in the right of a
corporation, indemnification of a director is limited to reasonable expenses if
the proceeding is concluded without a final adjudication on the issue of
liability.
The NCBCA provides for an advance for expenses incurred by a director in
defending a proceeding. The expenses may be paid by a corporation in advance of
the final disposition of such proceeding as authorized by the board of directors
in specific cases or as authorized or required under any provision in the
articles of incorporation or bylaws or by any applicable resolution or contract
upon receipt of an undertaking by or on behalf of the director to repay such
amount unless it shall ultimately be determined that he is entitled to be
indemnified by the corporation against such expenses.
II-1
<PAGE> 18
ITEM 16. EXHIBITS.
<TABLE>
<S> <C> <C>
(1) -- Form of Underwriting Agreement.
(3)(a) -- Amended and Restated Articles of Incorporation of the Corporation,
incorporated by reference to Exhibit 3.1 to the Corporation's Annual Report
on Form 10-K for the fiscal year ended December 31, 1993.
(3)(b) -- Bylaws of the Corporation, incorporated by reference to Exhibit 3.2 to the
Corporation's Annual Report on Form 10-K for the fiscal year ended December
31, 1993.
(4) -- Indenture dated as of March 1, 1993 between the Corporation and CoreStates
Bank, National Association, as Trustee, incorporated by reference to Exhibit
4(a) to the Corporation's Registration Statement on Form S-3 (Registration
No. 33-59206).
(5) -- Opinion of Kenneth W. McAllister, General Counsel of the Corporation, as to
the legality of the securities being registered.
(12) -- Statement setting forth computation of ratios of earnings to fixed charges.
(23)(a) -- Consent of Ernst & Young LLP.
(23)(b) -- Consent of Kenneth W. McAllister, General Counsel of the Corporation
(included in Exhibit 5).
(24)(a) -- Powers of Attorney of Directors and Officers of the Corporation.
(24)(b) -- Copy of the Corporation's resolutions authorizing its officers to sign the
registration statement on behalf of the Corporation by power of attorney.
(25) -- Statement of eligibility of the Trustee on Form T-1.
</TABLE>
II-2
<PAGE> 19
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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (i) and (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 provided
to the Securities and Exchange 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of the Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of the Registration Statement as of the time it was declared effective.
(2) For purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
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.
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange
II-3
<PAGE> 20
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant 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 whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-4
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
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 Winston-Salem, State of North Carolina, on June 19,
1996.
WACHOVIA CORPORATION
By: /s/ L. M. BAKER, JR.
------------------------------------
L. M. Baker, Jr.
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on behalf
of the registrant and in the capacities indicated, on June 19, 1996.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
- --------------------------------------------- ------------------------------
<C> <S> <C>
/s/ L. M. BAKER, JR. President, Chief Executive
- --------------------------------------------- Officer and Director
L. M. Baker, Jr. (Principal Executive
Officer)
/s/ JOHN G. MEDLIN, JR.* Chairman and Director
- ---------------------------------------------
John G. Medlin, Jr.
/s/ RUFUS C. BARKLEY, JR.* Director
- ---------------------------------------------
Rufus C. Barkley, Jr.
/s/ CRANDALL C. BOWLES* Director
- ---------------------------------------------
Crandall C. Bowles
/s/ JOHN L. CLENDENIN* Director
- ---------------------------------------------
John L. Clendenin
/s/ LAWRENCE M. GRESSETTE, JR.* Director
- ---------------------------------------------
Lawrence M. Gressette, Jr.
/s/ THOMAS K. HEARN, JR.* Director
- ---------------------------------------------
Thomas K. Hearn, Jr.
/s/ W. HAYNE HIPP* Director
- ---------------------------------------------
W. Hayne Hipp
/s/ ROBERT M. HOLDER, JR.* Director
- ---------------------------------------------
Robert M. Holder, Jr.
/s/ DONALD R. HUGHES* Director
- ---------------------------------------------
Donald R. Hughes
/s/ JAMES W. JOHNSTON* Director
- ---------------------------------------------
James W. Johnston
/s/ WYNDHAM ROBERTSON* Director
- ---------------------------------------------
Wyndham Robertson
</TABLE>
II-5
<PAGE> 22
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
- --------------------------------------------- ------------------------------
<C> <S> <C>
/s/ HERMAN J. RUSSELL* Director
- ---------------------------------------------
Herman J. Russell
/s/ SHERWOOD H. SMITH, JR.* Director
- ---------------------------------------------
Sherwood H. Smith, Jr.
/s/ CHARLES McKENZIE TAYLOR* Director
- ---------------------------------------------
Charles McKenzie Taylor
/s/ JOHN C. WHITAKER, JR.* Director
- ---------------------------------------------
John C. Whitaker, Jr.
/s/ ROBERT S. McCOY, JR. Executive Vice President and
- --------------------------------------------- Chief Financial Officer
Robert S. McCoy, Jr. (Principal Financial and
Accounting Officer)
/s/ DONALD K. TRUSLOW Comptroller (Principal
- --------------------------------------------- Accounting Officer)
Donald K. Truslow
*By: /s/ ALICE WASHINGTON GROGAN
- ---------------------------------------------
Alice Washington Grogan
Attorney-in-Fact
</TABLE>
II-6
<PAGE> 23
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NO. PAGE NO.
- --------- -----------
<S> <C> <C> <C>
(1) -- Form of Underwriting Agreement....................................
(3)(a) -- Amended and Restated Articles of Incorporation of the Corporation,
incorporated by reference to Exhibit 3.1 to the Corporation's
Annual Report on Form 10-K for the fiscal year ended December 31,
1993..............................................................
(3)(b) -- Bylaws of the Corporation, incorporated by reference to Exhibit
3.2 to the Corporation's Annual Report on Form 10-K for the fiscal
year ended December 31, 1993......................................
(4) -- Indenture dated as of March 1, 1993 between the Corporation and
CoreStates Bank, National Association, as Trustee, incorporated by
reference to Exhibit 4(a) to the Corporation's Registration
Statement on Form S-3 (Registration No. 33-59206).................
(5) -- Opinion of Kenneth W. McAllister, General Counsel of the
Corporation, as to the legality of the securities being
registered........................................................
(12) -- Statement setting forth computation of the ratio of earnings to
fixed
charges...........................................................
(23)(a) -- Consent of Ernst & Young LLP......................................
(23)(b) -- Consent of Kenneth W. McAllister, General Counsel of the
Corporation (included in Exhibit 5)...............................
(24)(a) -- Powers of Attorney of Directors and Officers of the Corporation...
(24)(b) -- Copy of the Corporation's resolutions authorizing its officers to
sign the registration statement on behalf of the Corporation by
power of attorney.................................................
(25) -- Statement of eligibility of the Trustee on Form T-1...............
</TABLE>
<PAGE> 1
EXHIBIT 1
WACHOVIA CORPORATION
---------------------
UNDERWRITING AGREEMENT
New York, New York
To the Representatives named in Schedule I hereto of the
Underwriters named in Schedule II hereto
Dear Sirs:
Wachovia Corporation, a North Carolina corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under an Indenture dated as
of March 1, 1993 (the "Indenture"), between the Company and CoreStates Bank,
National Association, as trustee (the "Trustee"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives", as used herein, shall each
be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable and, if
the offering of the Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (the file number of which is set forth in Schedule I hereto)
on such Form, including a basic prospectus, for registration under the
Act of the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, and may have used a Preliminary
Final Prospectus, each of which has previously been furnished to you.
Such registration statement, as so amended, has become effective. The
offering of the Securities is a Delayed Offering and, although the Basic
Prospectus may not include all the information with respect to the
Securities and the offering thereof required by the Act and the rules
thereunder to be included in the Final Prospectus, the Basic Prospectus
includes all such information required by the Act and the rules
thereunder to be included therein as of the Effective Date. The Company
will next file with the Commission pursuant to Rules 415 and 424(b)(2)
or (5) a final supplement to the form of prospectus included in such
registration statement relating to the Securities and the offering
thereof. As filed, such final prospectus supplement shall include all
required information with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or made
therein.
(ii) The Company meets the requirements for the use of Form S-3
under the Act and has filed with the Commission a registration statement
(the file number of which is set forth in Schedule I hereto) on such
Form, including a basic prospectus, for registration under the Act of
the offering and sale of the Securities. The Company may have filed one
or more amendments thereto, including a
<PAGE> 2
Preliminary Final Prospectus, each of which has previously been
furnished to you. The Company will next file with the Commission either
(x) a final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b)(1) or (4), or (y) prior to the
effectiveness of such registration statement, an amendment to such
registration statement, including the form of final prospectus
supplement. In the case of clause (x), the Company has included in such
Registration Statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in the Final Prospectus with respect
to the Securities and the offering thereof. As filed, such final
prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with all
other such required information, with respect to the Securities and the
offering thereof and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive respects
in the form furnished to you prior to the Execution Time, or, to the
extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained
in the Basic Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be included
or made therein.
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Securities Exchange Act of 1934
(the "Exchange Act") and the respective rules thereunder; on the Effective
Date, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date, the Indenture
did or will comply in all material respects with the requirements of the
Trust Indenture Act of 1939 (the "Trust Indenture Act") and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of the
Registration Statement which constitutes or shall constitute the Statement
of Eligibility and Qualification ("Form T-1") under the Trust Indenture Act
of the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or becomes effective and each date after the date
hereof on which a document incorporated by reference in the Registration
Statement is filed. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the prospectus referred to in paragraph (a) above
contained in the Registration Statement at the Effective Date including, in
the case of a Non-Delayed Offering, any Preliminary Final Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus.
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus or, if, in the case of a
Non-Delayed Offering, no filing pursuant to Rule 424(b) is required, shall
mean the form of final prospectus relating to the Securities, including the
Basic Prospectus, included in the Registration Statement at the Effective
Date. "Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including incorporated documents,
exhibits and financial statements, as amended at the Execution Time (or, if
not effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto becomes
effective prior to the
2
<PAGE> 3
Closing Date (as hereinafter defined), shall also mean such registration
statement as so amended. Such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by Rule
430A. "Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to
such rules or regulation under the Act. "Rule 430A Information" means
information with respect to the Securities and the offering thereof
permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by
reference. A "Non-Delayed Offering" shall mean an offering of securities
which is intended to commence promptly after the effective date of a
registration statement, with the result that, pursuant to Rules 415 and
430A, all information (other than Rule 430A Information) with respect to
the securities so offered must be included in such registration statement
at the effective date thereof. A "Delayed Offering" shall mean an offering
of securities pursuant to Rule 415 which does not commence promptly after
the effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to the
securities so offered. Whether the offering of the Securities is a
Non-Delayed Offering or a Delayed Offering shall be set forth in Schedule I
hereto.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of Securities pursuant to delayed delivery arrangements,
the respective principal amounts of Securities to be purchased by the
Underwriters shall be as set forth in Schedule II hereto less the respective
amounts of Contract Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and Securities to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called "Contract Securities".
(b) If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility in
respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the principal
amount of Securities set forth opposite the name of such Underwriter bears to
the aggregate principal amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction
3
<PAGE> 4
shall be otherwise than in such proportion and so advise the Company in writing;
provided, however, that the total principal amount of Securities to be purchased
by all Underwriters shall be the aggregate principal amount set forth in
Schedule II hereto less the aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made on the date and at the time specified in Schedule I
hereto (or such later date not later than five business days after such
specified date as the Representatives shall designate), which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing Date"). Delivery of
the Underwriters' Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by certified or official bank check or checks
drawn on or by a New York Clearing House bank and payable in next day funds.
Delivery of the Underwriters' Securities shall be made at such location as the
Representatives shall reasonably designate at least one business day in advance
of the Closing Date and payment for the Securities shall be made at the office
specified in Schedule I hereto. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance of
the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than 1:00 p.m. on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the
Representatives (i) when the Registration Statement, if not effective at
the Execution Time, and any amendment thereto, shall have become effective,
(ii) when the Final Prospectus, and any supplement thereto, shall have been
filed with the Commission pursuant to Rule 424(b), (iii) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv) of
any request by the Commission for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (vi) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) prepare and file with the Commission, subject to
the second sentence of paragraph (a) of this Section 4, an
4
<PAGE> 5
amendment or supplement which will correct such statement or omission or
effect such compliance and (ii) supply any supplemental Prospectus to you
in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of any
Preliminary Final Prospectus and the Final Prospectus and any supplement
thereto as the Representatives may reasonably request. The Company will pay
the expenses of printing or other production of all documents relating to
the offering.
(e) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as required
for the distribution of the Securities and will arrange for the
determination of the legality of the Securities for purchase by
institutional investors.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer, sell or
contract to sell, or announce the offering of, any debt securities covered
by the Registration Statement or any other registration statement filed
under the Act.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 p.m. New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 p.m. New
York City time on such date or (ii) 12:00 noon on the business day
following the day on which the public offering price was determined, if
such determination occurred after 3:00 p.m. New York City time on such
date; if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
supplement, shall have been filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Kenneth W. McAllister, General Counsel for the Company, or of
other counsel for the Company satisfactory to the Representatives, dated
the Closing Date, to the effect that:
(i) the Company and each of South Carolina National Corporation,
Wachovia Bank of North Carolina, N.A., Wachovia Bank of Georgia, N.A.
and Wachovia Bank of South Carolina, N.A., (individually a "Subsidiary"
and collectively the "Subsidiaries") has been duly incorporated or
organized and is validly existing as a corporation or banking
association in good standing under the laws of the jurisdiction in which
it is chartered or organized, with full corporate power and authority to
own its properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification wherein it owns or leases material
properties or conducts material business; and the Company is duly
registered as a bank holding company under the Bank Holding Company Act
of 1956, as amended;
(ii) all outstanding shares of capital stock of each Subsidiary
have been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the
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<PAGE> 6
Final Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
wholly-owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry, any
other security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the Securities conform to the description
thereof contained in the Final Prospectus; and, if the Securities are to
be listed on any securities exchange or automated quotation system,
authorization therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the Company has
filed a preliminary listing application and all required supporting
documents with respect to the Securities with such securities exchange
and such counsel has no reason to believe that the Securities will not
be authorized for listing, subject to official notice of issuance and
evidence of satisfactory distribution;
(iv) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from time
to time in effect and, as to rights of acceleration and the enforcement
or remedies to general principles of equity); and the Securities have
been duly authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to this Agreement, in the case of the
Underwriters' Securities, or by the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of any Contract Securities, will
constitute legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from time
to time in effect and, as to rights of acceleration and the enforcement
of remedies to general principles of equity);
(v) to the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any
of its subsidiaries, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Final Prospectus, or to be filed as an exhibit, which is not described
or filed as required; and the statements included or incorporated in the
Final Prospectus describing any legal proceedings or material contracts
or agreements relating to the Company fairly summarize such matters in
all material respects;
(vi) the Registration Statement has become effective under the Act;
any required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration Statement
has been issued, no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Final Prospectus
(other than the financial statements and other financial and statistical
information contained therein and the Statement of Eligibility and
Qualification of the Trustee as to which such counsel need express no
opinion) comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder; and such counsel has no reason to believe that at the
Effective Date the Registration Statement contained any untrue statement
of a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus includes any untrue statement of
a material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
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(viii) any Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding
agreements of the Company enforceable in accordance with their terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or other
laws relating to or affecting the enforcement of creditors' rights
generally from time to time in effect and, as to rights of acceleration
and the enforcement of remedies to general principles of equity);
(ix) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Company of the transactions contemplated herein or in any Delayed
Delivery Contracts, except such as have been obtained under the Act and
such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained;
(x) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof or of any Delayed Delivery Contracts
will conflict with, result in a breach or violation of, or constitute a
default under any law or the articles of incorporation or by-laws of the
Company or the terms of any indenture, contract or other agreement or
instrument known to such counsel and to which the Company or any of its
subsidiaries is a party or bound and which is material to the Company,
or any order or regulation known to such counsel to be applicable to the
Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries; and
(xi) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of North Carolina or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory to counsel for
the Underwriters and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible public officials. References to the
Final Prospectus in this paragraph (b) include any supplements thereto at
the Closing Date.
(c) The Representatives shall have received from King & Spalding,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President of the Company and the principal financial or accounting officer
of the Company, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and this Agreement
and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
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<PAGE> 8
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the condition (financial or
other), earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(e) At the Closing Date, Ernst & Young LLP shall have furnished to the
Representatives a letter or letters (which may refer to letters previously
delivered to one or more of the Representatives), dated as of the Closing
Date, in form and substance satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and regulations
thereunder and that they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information in accordance with, and as described in, Statement of
Accounting Standards No. 71 for the latest unaudited financial statements
in or incorporated in the Registration Statement or the Final Prospectus
and stating in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules and any pro forma financial statement of the Company
and its subsidiaries included or incorporated in the Registration
Statement and the Final Prospectus and reported on by them comply in
form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review in accordance with standards established by the American
Institute of Certified Public Accountants under Statement of Accounting
Standards No. 71 of the unaudited interim financial information of the
Company and its subsidiaries; carrying out certain specified procedures
(but not an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of significance
with respect to the comments set forth in such letter; a reading of the
minutes of the meetings of the stockholders, the board of directors and
the executive, finance, audit, pension and compensation committees of
the board of directors of the Company and of certain of the
Subsidiaries; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and
its subsidiaries as to transactions and events subsequent to the date of
the most recent audited financial statements in or incorporated in the
Final Prospectus, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included or incorporated
in the Registration Statement and the Final Prospectus do not comply
in form in all material respects with applicable accounting
requirements and with the published rules and regulations of the
Commission with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated in the Registration Statement and
the Final Prospectus; or
(2) with respect to the period subsequent to the date of the
most recent financial statements (other than any capsule
information), audited or unaudited, in or incorporated in the
Registration Statement and the Final Prospectus, there were any
changes, at a specified date not more than five business days prior
to the date of the letter, in the long-term debt (including capital
lease obligations) of the Company and its subsidiaries or capital
stock of the Company (other than issuances of capital stock upon
exercise of options and stock appreciation plans which were
outstanding on the date of the latest consolidated balance sheet
included or incorporated in the Registration Statement and the Final
Prospectus) or decreases in the shareholders' equity of the Company
as compared with the amounts shown on the most recent consolidated
balance sheet included or incorporated in the Registration Statement
and the Final
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<PAGE> 9
Prospectus, or for the period from the date of the most recent
financial statements included or incorporated in the Registration
Statement and the Final Prospectus to such specified date there were
any decreases, as compared with the corresponding period in the
preceding year, in net interest income, net interest income after
provision for loan losses or in income before income taxes, or in the
total or per-share amount of net income of the Company and its
subsidiaries, except in all instances for changes or decreases set
forth in such letter, in which case the letter shall be accompanied
by an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives; or
(3) the information included in the Registration Statement and
Prospectus in response to Regulation S-K, Item 301 (Selected
Financial Data), Item 302 (Supplementary Financial Information), Item
402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to
Fixed Charges) is not in conformity with the applicable disclosure
requirements of Regulation S-K; or
(4) the amounts included in any unaudited "capsule" information
included or incorporated in the Registration Statement and the Final
Prospectus do not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not determined on a
basis substantially consistent with that of the corresponding amounts
in the audited financial statements included or incorporated in the
Registration Statement and the Final Prospectus; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's
Annual Report on Form 10-K, incorporated in the Registration Statement
and the Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's Quarterly Reports
on Form 10-Q, incorporated in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the Execution
Time, Ernst & Young LLP shall have furnished to the Representatives a
letter or letters, dated as of the Execution Time, in form and substance
satisfactory to the Representatives, to the effect set forth above.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 5 or
(ii) any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive of
any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the ratings of any of the Company's debt securities by Moody's
Investors Service, Inc. or Standard & Poor's Corporation.
(h) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
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(i) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 5 hereof is not satisfied, because of
any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the preparation thereof,
and (ii) such indemnity with respect to the Basic Prospectus or any Preliminary
Final Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Securities which are the subject
thereof if such person did not receive a copy of the Final Prospectus (or the
Final Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Securities to such
person in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the Basic Prospectus or
any Preliminary Final Prospectus was corrected in the Final Prospectus (or the
Final Prospectus as supplemented). This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements set forth in the
last paragraph of the cover page, under the heading "Underwriting" or "Plan of
Distribution" and, if Schedule I hereto provides for sales of Securities
pursuant to
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delayed delivery arrangements, in the last sentence under the heading "Delayed
Delivery Arrangements" in any Preliminary Final Prospectus or the Final
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm that such
statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to appoint counsel satisfactory to such
indemnified party to represent the indemnified party in such action; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to appoint counsel to defend such action
and approval by the indemnified party of such counsel, the indemnifying party
will not be liable to such indemnified party under this Section 7 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
Representatives in the case of paragraph (a) of this Section 7, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). An indemnifying party shall not be
liable for any settlement of any action or claim effected without its consent.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
Section 7 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company on grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company and one
or more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount bears to the sum of such discount and the purchase
price of the Securities specified in Schedule I hereto and the Company is
responsible for the balance; provided, however, that (y) in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount applicable to the Securities purchased by
such Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clause (z) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties
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shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in the Company's Common Stock shall have been suspended by the Commission or the
New York Stock Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal, Georgia, North Carolina, South Carolina or New York State
authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representatives, impracticable to market the Securities.
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections 6
and 7 hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 301 North Main Street, Winston Salem, North Carolina 27150,
attention of Kenneth W. McAllister.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York without reference to
principles of conflicts of laws.
12
<PAGE> 13
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and the several Underwriters.
Very truly yours,
WACHOVIA CORPORATION
By:
-----------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
[Name of Representatives]
By:
By:
-----------------------------------
Name:
Title:
For themselves and as
Representatives of the other
several Underwriters, if any,
named in Schedule II hereto.
13
<PAGE> 14
SCHEDULE I
Underwriting Agreement dated
Registration Statement No. 33-
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Closing Date:
Time:
Location:
Type of Offering:
Payment of Funds:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Modification of items to be covered by the letter from
Ernst & Young LLP delivered pursuant to Section 5(e)
at the Execution Time:
S-1
<PAGE> 15
SCHEDULE II
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
OF SECURITIES TO
UNDERWRITERS BE PURCHASED
- ----------------------------------------------------------------------------- ----------------
<S> <C>
----------------
Total..............................................................
=============
</TABLE>
S-2
<PAGE> 16
SCHEDULE III
DELAYED DELIVERY CONTRACT
[Date]
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Wachovia Corporation (the
"Company"), and the Company agrees to sell to the undersigned, on
, 19 , (the "Delivery Date"), $ principal amount of the
Company's (the "Securities") offered by the Company's
Prospectus dated , 19 , and related Prospectus Supplement dated
, 19 , receipt of a copy of which is hereby acknowledged, at a
purchase price of % of the principal amount thereof, plus [accrued interest]
[amortization of original issue discount], if any, thereon from ,
19 , to the date of payment and delivery, and on the further terms and
conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be made
on or before 11:00 a.m., New York City time, on the Delivery Date to or upon the
order of the Company in New York Clearing House (next day) funds, at your office
or at such other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Prospectus and Prospectus Supplement mentioned
above. Promptly after completion of such sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
S-3
<PAGE> 17
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
--------------------------------------
(Name of Purchaser)
By:
-----------------------------------
(Signature and Title of Officer)
--------------------------------------
(Address)
Accepted:
Wachovia Corporation
By:
-----------------------------------
(Authorized Signature)
S-4
<PAGE> 1
EXHIBIT 5
WACHOVIA
(LOGO)
- --------------------------------------------------------------------------------
KENNETH W. MCALLISTER
Executive Vice President
and General Counsel
Wachovia Corporation
100 North Main Street
Winston-Salem, NC 27101
June 19, 1996
Wachovia Corporation
100 North Main Street
Winston-Salem, North Carolina 27101
and
191 Peachtree Street, N. E.
Atlanta, Georgia 30303
Re: Registration of $1,000,000,000 of Subordinated Debt Securities
Gentlemen:
I am General Counsel to Wachovia Corporation, a North Carolina
corporation ("Wachovia"), and I have acted in such capacity in connection with
the registration under the Securities Act of 1933 (the "Act"), and the rules
and regulations of the Securities and Exchange Commission (the "Commission")
thereunder, of $1,000,000,000 aggregate principal amount (which term shall mean,
in the case of debt securities issued at an original issue discount within the
meaning of Section 1273 of the Internal Revenue Code of 1986, the price at
which such debt securities are first offered to the public) of Subordinated
Debt Securities of Wachovia (the "Subordinated Debt Securities"), to be issued
pursuant to the Indenture, dated as of March 1, 1993, between Wachovia and
Mellon Bank, N.A., as Trustee (the "Indenture").
In so acting, I have examined and relied upon the accuracy of
original, certified, conformed or photographic copies of such records,
agreements, certificates and other documents as I have deemed necessary or
appropriate to enable me to render the opinions set forth below. In all such
examinations, I have assumed the genuineness of signatures on original
documents and the conformity to such original documents of all copies submitted
to me as certified, conformed or photographic copies and, as to certificates of
public officials, I have assumed the same to have been properly given and to be
accurate.
Based upon the foregoing, I am of the opinion that:
(i) Wachovia has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of North
Carolina;
(ii) The execution and delivery of the Indenture by Wachovia has
been validly authorized and the Indenture constitutes the valid
<PAGE> 2
October 4, 1994
Page 2
and binding obligation of Wachovia in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from time to
time in effect and, as to rights of acceleration and the enforcement of
remedies to general principals of equity); and
(iii) The Subordinated Debt Securities, when duly authorized by
Wachovia, executed on behalf of Wachovia, authenticated by the Trustee under
the Indenture and sold by Wachovia, will be validly issued, will constitute
valid and binding obligations of Wachovia in accordance with their terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and, as to rights of acceleration
and the enforcement of remedies to general principals of equity) and will be
entitled to the benefits of the Indenture in accordance with their terms and
the terms of the Indenture subject as aforesaid.
I consent to the filing of this opinion as an exhibit to Wachovia's
Registration Statement on Form S-3 and to the reference to me under the caption
"Legal Matters" in the Prospectus that forms a part thereof.
Very truly yours,
Kenneth W. McAllister
<PAGE> 1
EXHIBIT 12
WACHOVIA CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Three Months
Ended Year Ended December 31,
March 31, --------------------------------------------------------------------
1996 1995 1994 1993 1992 1991
------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
(A) EXCLUDING INTEREST ON DEPOSITS
Earnings:
Income before income taxes $219,139 $ 868,868 $ 761,482 $ 687,540 $ 596,203 $ 280,918
Less capitalized interest 0 (1,530) (362) 0 0 0
Fixed charges 194,937 768,982 512,717 296,396 232,226 396,793
-------- ---------- ---------- ---------- ---------- ----------
Earnings as adjusted $414,076 $1,636,320 $1,273,837 $ 983,936 $ 828,429 $ 677,711
======== ========== ========== ========== ========== ==========
Fixed charges:
Interest on purchased and other
short term borrowed funds $110,390 $ 467,007 $ 272,572 $ 173,847 $ 190,988 $ 369,202
Interest on long-term debt 81,087 288,646 226,584 107,585 25,153 13,049
Portion of rents representative of the
interest factor (1/3) of rental expense 3,460 13,329 13,561 14,964 16,085 14,542
-------- ---------- ---------- ---------- ---------- ----------
Fixed charges $194,937 $ 768,982 $ 512,717 $ 296,396 $ 232,226 $ 396,793
======== ========== ========== ========== ========== ==========
Ratio of earnings to fixed charges 2.12X 2.13X 2.48X 3.32X 3.57X 1.71X
(B) INCLUDING INTEREST ON DEPOSITS:
Adjusted earnings from (A) above $414,076 $1,636,320 $1,273,837 $ 983,936 $ 828,429 $ 677,711
Add interest on deposits 221,851 823,454 539,232 557,580 750,887 1,085,598
-------- ---------- ---------- ---------- ---------- ----------
Earnings as adjusted $635,927 $2,459,774 $1,813,069 $1,541,516 $1,579,316 $1,763,309
======== ========== ========== ========== ========== ==========
Fixed charges:
Fixed charges from (A) above $194,937 $ 768,982 $ 512,717 $ 296,396 $ 232,226 $ 396,793
Interest on deposits 221,851 823,454 539,232 557,580 750,887 1,085,598
-------- ---------- ---------- ---------- ---------- ----------
Adjusted fixed charges $416,788 $1,592,436 $1,051,949 $ 853,976 $ 983,113 $1,482,391
======== ========== ========== ========== ========== ==========
Adjusted earnings to adjusted fixed
charges 1.53X 1.54X 1.72X 1.81X 1.61X 1.19X
</TABLE>
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Wachovia
Corporation for the registration of $1 billion of subordinated debt securities
and to the incorporation by reference therein of our report dated January 11,
1996 with respect to the consolidated financial statements of Wachovia
Corporation incorporated by reference in its Annual Report (Form 10-K) for the
year ended December 31, 1995, filed with the Securities and Exchange
Commission.
Ernst & Young LLP
------------------------
Ernst & Young LLP
Winston-Salem, North Carolina
June 19,1996
<PAGE> 1
EXHIBIT 24(a)
WACHOVIA CORPORATION
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
We, the undersigned directors of Wachovia Corporation, and each of us,
do hereby make, constitute and appoint Kenneth W. McAllister and Alice
Washington Grogan, and each of them (either of whom may act without the consent
or joinder of the other), our attorneys-in-fact and agents with full power of
substitution for us and in our name, place and stead, in any and all
capacities, to file a Registration Statement on Form S-3 or other applicable
form, relating to an offering of $1,000,000,000 of the Corporation's
subordinated debt securities, with the Securities and Exchange Commission, and
to sign any and all amendments (including post-effective amendments) to the
Registration Statement, and to file the same, with any exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact, and each of them
individually, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact or either of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, we the undersigned have executed this Power of
Attorney this 27th day of October, 1995.
<TABLE>
<S> <C>
/s/ L. M. Baker, Jr. /s/ Rufus C. Barkley, Jr.
- --------------------------------- ----------------------------------
L. M. Baker, Jr. Rufus C. Barkley, Jr.
/s/ Crandall C. Bowles /s/ John L. Clendenin
- --------------------------------- ----------------------------------
Crandall C. Bowles John L. Clendenin
/s/ Lawrence M. Gressette, Jr. /s/ Thomas K. Hearn, Jr.
- --------------------------------- ----------------------------------
Lawrence M. Gressette, Jr. Thomas K. Hearn, Jr.
/s/ W. Hayne Hipp /s/ Robert M. Holder, Jr.
- --------------------------------- ----------------------------------
W. Hayne Hipp Robert M. Holder, Jr.
/s/ Donald R. Hughes /s/ John G. Medlin, Jr.
- --------------------------------- ----------------------------------
Donald R. Hughes John G. Medlin, Jr.
/s/ James W. Johnston /s/ Herman J. Russell
- --------------------------------- ----------------------------------
James W. Johnston Herman J. Russell
/s/ Wyndham Robertson /s/ Charles McKenzie Taylor
- --------------------------------- ----------------------------------
Wyndham Robertson Charles McKenzie Taylor
/s/ Sherwood H. Smith, Jr.
- ---------------------------------
Sherwood H. Smith, Jr.
</TABLE>
<PAGE> 2
WACHOVIA CORPORATION
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned director of Wachovia Corporation, do hereby make,
constitute and appoint Kenneth W. McAllister and Alice Washington Grogan, and
each of them (either of whom may act without the consent or joinder of the
other), my attorneys-in-fact and agents with full power of substitution for
me and in my name, place and stead, in any and all capacities, to file a
Registration Statement on Form S-3 or other applicable form, relating to
an offering of $1,000,000,000 of the Corporation's subordinated debt
securities, with the Securities and Exchange Commission, and to sign any and
all amendments (including post-effective amendments) to the Registration
Statement, and to file the same, with any exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact, and each of them individually, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in the premises, as fully to all intents and purposes as I
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or either of them, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of Attorney this 19th day of
June, 1996.
/s/ John C. Whitaker, Jr.
-------------------------
John C. Whitaker, Jr.
<PAGE> 1
EXHIBIT 24(b)
RESOLUTION OF THE BOARD OF DIRECTORS OF
WACHOVIA CORPORATION
October 27, 1995
FURTHER RESOLVED, that each officer and director who may be required to
execute any Registration Statement relating to the Securities or any amendment
thereof (whether on behalf of the Company or as an officer or director thereof)
is hereby authorized to constitute and appoint Kenneth W. McAllister and Alice
Washington Grogan, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to any such Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the SEC, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully and to
all intents and purposes as he might or could do in person, thereby ratifying
and confirming all that said attorneys-in-fact and agents, or their substitute
or substitutes, may lawfully do or cause to be done by virtue thereof.
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM T-1
---------------------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS
TRUSTEE
---------------------
Check if an application to determine eligibility of
a Trustee pursuant to Section 305(b)(2) /X/
MELLON BANK, N.A.
(Name of Trustee)
<TABLE>
<S> <C>
25-0659306 U.S.
(I.R.S. Employer Identification No.) (Jurisdiction of incorporation)
</TABLE>
One Mellon Bank Center
Pittsburgh, PA 15258-0001
(Address of Principal Executive Office)
CATHY WIEDECKE
OFFICER
MELLON BANK, N.A.
701 MARKET STREET
PHILADELPHIA, PENNSYLVANIA 19106
(215) 553-1764
(Name, Address and Telephone Number of Agent for Service)
---------------------
WACHOVIA CORPORATION
(Name of Obligor)
NORTH CAROLINA
(State or Other Jurisdiction of Incorporation or Organization)
56-1473727
(I.R.S. Employer Identification No.)
100 NORTH MAIN STREET, WINSTON-SALEM, NORTH CAROLINA, 27101
(Address of Principal Executive Offices)
SUBORDINATED DEBT SECURITIES IN SERIES
(Title of Indenture Securities)
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE --
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
<TABLE>
<S> <C>
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of Cleveland Cleveland, Ohio
Federal Deposit Insurance Corporation Washington, D.C.
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
The obligor is not an affiliate of the trustee.
ITEMS 3-15 ARE NOT APPLICABLE SINCE THE OBLIGOR IS NOT IN DEFAULT ON SECURITIES
ISSUED UNDER INDENTURES UNDER WHICH THE APPLICANT IS TRUSTEE.
16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT
OF ELIGIBILITY.
<TABLE>
<S> <C> <C>
Exhibit 1 -- Copy of articles of association of the trustee as now in effect, filed as
Exhibit 1 to trustee's statement of eligibility and qualification,
Registration No. 33-46990, and incorporated herein by reference.
Exhibit 2 -- Copy of certificate of the authority of the trustee to commence business,
copy of certificate of consolidation with the Union Trust Company of
Pittsburgh and copy of certificate approving merger of Mellon National Bank
and Trust Company into Mellon Bank, N.A. filed as Exhibit T1A(b) to trustee's
statement of eligibility and qualification, Registration No. 33-13020, and
incorporated herein by reference.
Exhibit 3 -- Copy of certificate as to authority of the trustee to exercise corporate
trust powers, filed as Exhibit T1A(c) to trustee's statement of eligibility
and qualification, Registration No. 33-13020, and incorporated herein by
reference.
Exhibit 4 -- Copy of existing by-laws of the trustee, filed as Exhibit 4 to trustee's
statement of eligibility and qualification, Registration No. 33-46990, and
incorporated herein by reference.
Exhibit 5 -- Copy of each indenture referred to in Item 4, if the obligor is in default.
Not Applicable.
Exhibit 6 -- Consent of the trustee required by Section 321(b) of the Act, filed as
Exhibit T1D to trustee's statement of eligibility and qualification,
Registration No. 33-13020, and incorporated herein by reference.
Exhibit 7 -- Copy of the latest report of condition of the trustee transmitted
electronically pursuant to law or the requirements of its supervising or
examining authority.
</TABLE>
1
<PAGE> 3
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE
TRUSTEE, MELLON BANK, N.A., A NATIONAL BANKING ASSOCIATION ORGANIZED AND
EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, HAS DULY CAUSED THIS
STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF PHILADELPHIA, AND COMMONWEALTH OF
PENNSYLVANIA, ON THE 19TH DAY OF JUNE, 1996.
MELLON BANK, N.A.
TRUSTEE
By: /s/ MARY M. McCRACKEN
------------------------------------
Mary M. McCracken
Vice President
2
<PAGE> 4
EXHIBIT 7
REPORT OF CONDITION
CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF
MELLON BANK, N.A.
FOR MARCH 31, 1996
IN THE COMMONWEALTH OF PENNSYLVANIA, AT THE CLOSE OF BUSINESS ON MARCH 31,
1996; TRANSMITTED ELECTRONICALLY IN RESPONSE TO CALL MADE BY COMPTROLLER OF THE
CURRENCY, UNDER TITLE 12, UNITED STATES CODE, SECTION 161.
CHARTER NO. 6301 NORTHEASTERN DISTRICT
STATEMENT OF RESOURCES AND LIABILITIES
(IN THOUSANDS)
<TABLE>
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin...................................... $ 2,551,023
Interest-bearing balances............................................................... 1,238,899
Securities:
Held-to-maturity securities............................................................. 2,439,004
Available-for-sale securities........................................................... 3,099,006
Federal funds sold and securities purchased under agreements to resell in domestic offices
of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds sold...................................................................... 702,797
Securities purchased under agreements to resell......................................... 30,000
Loans and lease financing receivables:
Loans and leases, net of unearned income................................................ $22,883,119
LESS: Allowance for loan and lease losses............................................... 307,557
Loans and leases, net of unearned income, allowance, and reserve........................ 22,575,562
Assets held in trading accounts........................................................... 267,077
Premises and fixed assets (including capitalized leases).................................. 471,772
Other real estate owned................................................................... 61,625
Customers' liability to this bank on acceptances outstanding.............................. 245,337
Intangible assets......................................................................... 1,092,534
Other assets.............................................................................. 1,476,962
-----------
TOTAL ASSETS...................................................................... 36,251,598
-----------
LIABILITIES
Deposits:
In domestic offices..................................................................... 22,173,508
Noninterest-bearing................................................................... 6,940,994
Interest-bearing...................................................................... 15,232,514
In foreign offices, Edge and Agreement subsidiaries, and IBFs........................... 3,670,489
Noninterest-bearing................................................................... 21,548
Interest-bearing...................................................................... 3,648,941
Federal funds purchased and securities sold under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds purchased................................................................. 2,113,635
Securities sold under agreements to repurchase.......................................... 1,256,071
Demand notes issued to the U.S. Treasury.................................................. 319,803
Trading liabilities....................................................................... 247,310
Other borrowed money:
With remaining maturity of one year or less............................................. 1,560,260
With remaining maturity of more than one year........................................... 164,882
Mortgage indebtedness and obligations under capitalized leases............................ 2,898
Bank's liability on acceptances executed and outstanding.................................. 245,337
Subordinated notes and debentures......................................................... 698,251
Other liabilities......................................................................... 802,115
-----------
Total liabilities................................................................. 33,245,559
EQUITY CAPITAL
Common stock.............................................................................. 167,285
Surplus (exclude all surplus related to preferred stock).................................. 831,676
Undivided profits and capital reserves.................................................... 2,028,643
Net unrealized holding gains (losses) on available-for-sale securities.................... (23,949)
Cumulative foreign currency translation adjustments....................................... (6,616)
-----------
TOTAL EQUITY CAPITAL.............................................................. 2,997,039
-----------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK AND EQUITY CAPITAL................ 36,251,598
==========
</TABLE>
3
<PAGE> 5
I, Michael K. Hughey, Senior Vice President and Corporate Controller of the
above-named bank, do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
MICHAEL K. HUGHEY
MAY 6, 1996
We, the undersigned directors, attest to the correctness of this Statement
of Resources and Liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
FRANK V. CAHOUET
W. KEITH SMITH
CHARLES A. CORRY
4
