As filed with the Securities and Exchange Commission on September 7, 2001.
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________
WACHOVIA CORPORATION
(Exact name of registrant as specified in its charter)
North Carolina 56-0898180
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One First Union Center
Charlotte, North Carolina 28288-0013
(Address of principal executive offices) (Zip Code)
__________
Wachovia Corporation (formerly named First Union Corporation)
2001 Stock Incentive Plan
(Full title of the plan)
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Ross E. Jeffries, Jr., Esq.
Senior Vice President and Assistant General Counsel
Wachovia Corporation
One First Union Center
Charlotte, North Carolina 28288-0630
(Name and address of agent for service)
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(704) 374-6611
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Title of Proposed maximum Proposed maximum Amount of
securities to Amount to be offering price aggregate registration
be registered registered per share (1) offering price (1) fee (1)(2)
------------- ---------- ------------- ----------------- ----------
Common Stock, $3.33 1/3 18,000,000 shs. $34.75 $625,500,000 $165,132
par value (and associated
stock purchase rights)
________________________________________________________________________________
(1) Pursuant to Rule 457(c) and (h)(1) of the Securities Act of 1933 (the
"Securities Act"), the registration fee is being computed based upon $34.75, the
average of the high and low prices reported on the New York Stock Exchange
Composite Transactions tape on September 5, 2001.
(2) The $165,132 registration fee is to be paid by debiting Wachovia
Corporation's (formerly known as First Union Corporation) account (CIK number
0000036995) for such amount.
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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this Registration
Statement:
(1) the Annual Report of Wachovia Corporation (formerly named First Union
Corporation, "New Wachovia") on Form 10-K for the year ended December
31, 2000;
(2) New Wachovia's Quarterly Reports on Form 10-Q for the periods ended
March 31, 2001 (as amended on Form 10-Q/A) and June 30, 2001;
(3) New Wachovia's Current Reports on Form 8-K dated January 18, 2001,
April 16, 2001 (as amended June 25, 2001), May 3, 2001, May 15, 2001
(as amended June 25, 2001), July 12, 2001, July 20, 2001, July 23,
2001, August 30, 2001, and September 6, 2001; and
(4) all other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the fiscal year referred to in (1) above.
In addition, all documents subsequently filed by New Wachovia pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock issuable under the Wachovia
Corporation (formerly named First Union Corporation) 2001 Stock Incentive Plan
(the "Plan") have been passed upon for New Wachovia by Ross E. Jeffries, Jr.,
Esq., Senior Vice President and Assistant General Counsel of New Wachovia. Mr.
Jeffries owns shares of Common Stock and holds options to purchase additional
shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
Sections 55-8-50 through 55-8-58 of the North Carolina Business Corporation
Act contain specific provisions relating to indemnification of directors and
officers of North Carolina corporations. In general, the statute provides that
(i) a corporation must indemnify a director or officer who is wholly successful
in his defense of a proceeding to which he or she is a party because of his or
her status as such, unless limited by the articles of incorporation, and (ii) a
corporation may indemnify a director or officer if he or she is not wholly
successful in such defense, if it is determined as provided in the statute that
the director or officer meets a certain standard of conduct.
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However, when a director or officer is liable to the corporation, the
corporation may not indemnify him or her. The statute also permits a director or
officer of a corporation who is a party to a proceeding to apply to the courts
for indemnification, unless the articles of incorporation provide otherwise, and
the court may order indemnification under certain circumstances set forth in the
statute. The statute further provides that a corporation may in its articles of
incorporation or by-laws or by contract or resolution provide indemnification in
addition to that provided by the statute, subject to certain conditions set
forth in the statute.
New Wachovia's by-laws provide for the indemnification of New Wachovia's
directors and executive officers by New Wachovia against liabilities arising out
of his or her status as such, excluding any liability relating to activities
which were at the time taken known or believed by such persons to be clearly in
conflict with the best interests of New Wachovia.
New Wachovia's articles of incorporation provide for the elimination of the
personal liability of each director of New Wachovia to the fullest extent
permitted by the provisions of the North Carolina Business Corporation Act, as
the same may from time to time be in effect.
New Wachovia maintains directors and officers liability insurance, subject
to certain deductible amounts. In general, the policy insures (i) New
Wachovia's directors and officers against loss by reason of any of their
wrongful acts, and/or (ii) New Wachovia against loss arising from claims against
the directors and officers by reason of their wrongful acts, all subject to the
terms and conditions contained in the policy.
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Item 8. Exhibits.
Exhibit No. Description
----------- -----------
3.1 -Amended and Restated Articles of Incorporation of New Wachovia
(incorporated by reference to Exhibit (3) to New Wachovia's 1998
Third Quarter Report on Form 10-Q and to Exhibit 3.5 to New
Wachovia's Registration Statement on Form S-4 (No. 333-59616)).
3.2 -Bylaws of New Wachovia, as amended (incorporated by reference to
Exhibit (3)(b) to New Wachovia's 1995 Annual Report on Form 10-K
and to Exhibit 3.6 to New Wachovia's Registration Statement on
Form S-4 (No. 333-59616)).
4.1 -New Wachovia's Shareholder Protection Rights Agreement
(incorporated by reference to Exhibit (4) to New Wachovia's
Current Report on Form 8-K dated December 20, 2000).
4.2 - All instruments defining the rights of holders of long-term
debt of New Wachovia and its subsidiaries. (Not filed pursuant to
(4)(iii) of Item 601(b) of Regulation S-K; to be furnished upon
request of the Commission.)
5.1 -Opinion of Ross E. Jeffries, Jr., Esq.
23.1 -Consent of KPMG LLP.
23.2 -Consent of Ernst & Young LLP.
23.3 -Consent of Ross E. Jeffries, Jr., Esq. (Included in Exhibit
5.1.)
24.1 -Power of Attorney.
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Item 9. Undertakings.
(a) Rule 415 offering.
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 (as amended, the "Securities
Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
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(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) Filings incorporating subsequent Exchange Act documents by reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Request for acceleration of effective date of filing of registration
statement on Form S-8.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than 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 and will be governed by the final
adjudication of such issue.
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SIGNATURES
The Registrant. 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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Charlotte, State of North Carolina, on September 7,
2001.
WACHOVIA CORPORATION
By: /s/ Ross E. Jeffries, Jr.
--------------------------
Ross E. Jeffries, Jr.
Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
/s/ L. M. Baker, Jr. Chairman and Director
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L. M. Baker, Jr.
G. Kennedy Thompson * President, Chief Executive Officer
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G. Kennedy Thompson and Director
Robert P. Kelly * Executive Vice President
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Robert P. Kelly and Chief Financial Officer
/s/ David M. Julian Senior Vice President and
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David M. Julian Corporate Controller
(Principal Accounting Officer)
______________________________ Director
F. Duane Ackerman
______________________________ Director
James S. Balloun
Erskine B. Bowles * Director
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Erskine B. Bowles
Robert J. Brown * Director
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Robert J. Brown
______________________________ Director
Peter C. Browning
______________________________ Director
John T. Casteen, III
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William H. Goodwin, Jr. * Director
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William H. Goodwin, Jr.
______________________________ Director
Robert A. Ingram
Radford D. Lovett* Director
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Radford D. Lovett
Mackey J. McDonald* Director
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Mackey J. McDonald
Joseph Neubauer * Director
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Joseph Neubauer
______________________________ Director
Lloyd U. Noland, III
Ruth G. Shaw * Director
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Ruth G. Shaw
Lanty L. Smith * Director
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Lanty L. Smith
______________________________ Director
John C. Whitaker, Jr.
______________________________ Director
Dona Davis Young
*By Ross E. Jeffries, Jr., Attorney-in-Fact
/s/ Ross E. Jeffries, Jr.
-------------------------
Ross E. Jeffries, Jr.
Date: September 7, 2001
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EXHIBIT INDEX
Exhibit No. Description
----------- -----------
3.1 -Amended and Restated Articles of Incorporation of New Wachovia
(incorporated by reference to Exhibit (3) to New Wachovia's 1998
Third Quarter Report on Form 10-Q and to Exhibit 3.5 to New
Wachovia's Registration Statement on Form S-4 (No. 333-59616)).
3.2 -Bylaws of New Wachovia, as amended (incorporated by reference to
Exhibit (3)(b) to New Wachovia's 1995 Annual Report on Form 10-K
and to Exhibit 3.6 to New Wachovia's Registration Statement on
Form S-4 (No. 333-59616)).
4.1 -New Wachovia's Shareholder Protection Rights Agreement
(incorporated by reference to Exhibit (4) to New Wachovia's
Current Report on Form 8-K dated December 20, 2000).
4.2 - All instruments defining the rights of holders of long-term
debt of New Wachovia and its subsidiaries. (Not filed pursuant to
(4)(iii) of Item 601(b) of Regulation S-K; to be furnished upon
request of the Commission.)
5.1 -Opinion of Ross E. Jeffries, Jr., Esq.
23.1 -Consent of KPMG LLP.
23.2 -Consent of Ernst & Young LLP.
23.3 -Consent of Ross E. Jeffries, Jr., Esq. (Included in Exhibit
5.1.)
24.1 -Power of Attorney.
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