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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NATIONSBANK CORPORATION
(Exact name of registrant as specified in its charter)
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NORTH CAROLINA
(State or other jurisdiction of incorporation or 56-0906609
organization) (I.R.S. Employer Identification No.)
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NATIONSBANK CORPORATE CENTER, CHARLOTTE, NORTH CAROLINA 28255 (704) 386-5000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
PAUL J. POLKING
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
NATIONSBANK CORPORATION
NATIONSBANK CORPORATE CENTER
CHARLOTTE, NORTH CAROLINA 28255
(704) 386-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
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BOYD C. CAMPBELL, JR. JAMES R. TANENBAUM
SMITH HELMS MULLISS & MOORE, L.L.P. STROOCK & STROOCK & LAVAN
227 NORTH TRYON STREET SEVEN HANOVER SQUARE
CHARLOTTE, NORTH CAROLINA 28202 NEW YORK, NEW YORK 10004
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APPROXIMATE DATE OF COMMENCEMENT OF THE 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, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, please check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
[CAPTION]
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TITLE OF EACH PROPOSED MAXIMUM PROPOSED MAXIMUM
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE
TO BE REGISTERED REGISTERED (1) PER UNIT (2) OFFERING PRICE (1)(2)
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Debt Securities (3) (3)
Preferred Stock
Depositary Shares (3) (3)
Common Stock (3)(4) (3)
Total $3,000,000,000 100% $3,000,000,000
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TITLE OF EACH
CLASS OF SECURITIES AMOUNT OF
TO BE REGISTERED REGISTRATION FEE
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Debt Securities N/A
Preferred Stock
Depositary Shares N/A
Common Stock N/A
Total $1,034,483
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(1) In no event will the aggregate initial offering price of the Debt
Securities, Preferred Stock, Depositary Shares and Common Stock issued under
this registration statement exceed $3,000,000,000, or the U.S. dollar
equivalent thereof in one or more foreign currencies or currency units. If
any Debt Securities are issued at an original issue discount, then
additional Debt Securities may be issued so long as the aggregate original
principal amount of all such Debt Securities, together with the original
principal amount of all other securities registered and offered hereunder,
does not exceed such amount.
(2) Estimated solely for purposes of computing the registration fee. The
proposed maximum offering price per unit will be determined from time to
time by the Registrant in connection with the issuance by the Registrant of
the securities registered hereunder.
(3) In addition to any Debt Securities, Preferred Stock, Depositary Shares or
Common Stock that may be issued directly under this registration statement,
there are being registered hereunder an indeterminate amount of Debt
Securities, and an indeterminate number of shares of Preferred Stock,
Depositary Shares or Common Stock, as may be issued upon conversion of Debt
Securities, Preferred Stock or Depositary Shares, as the case may be. No
separate consideration will be received for any Debt Securities, Preferred
Stock, Depositary Shares or Common Stock so issued upon such conversion.
(4) The aggregate amount of Common Stock registered hereunder is limited to that
which is permissible under Rule 415(a)(4) of the Securities Act of 1933, as
amended.
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, AS AMENDED, 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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EXPLANATORY NOTE
This Registration Statement contains two forms of Prospectus: one to be used
in connection with the offering and sale of Debt Securities, including any
Preferred Stock, Depositary Shares and Common Stock into which the Debt
Securities may be convertible, and one to be used in connection with the
offering and sale of Preferred Stock, Depositary Shares and Common Stock,
including any such shares into which the Preferred Stock or Depositary Shares
may be convertible. Each offering made under this Registration Statement will be
made pursuant to one of these Prospectuses, with the specific terms of the
securities offered thereby being set forth in an accompanying Prospectus
Supplement.
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SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED , 1995
[DEBT]
PROSPECTUS
NATIONSBANK(Register Mark)
Debt Securities
NationsBank Corporation ("NationsBank" or the "Corporation") may offer from
time to time its unsecured debt securities, which may be either senior (the
"Senior Debt Securities") or subordinated (the "Subordinated Debt Securities"
and, together with the Senior Debt Securities, the "Debt Securities").
NationsBank may sell up to $3,000,000,000 in aggregate initial offering price of
Debt Securities (or the U.S. dollar equivalent thereof if any of the Debt
Securities are denominated in a foreign currency or currency unit), which may be
offered, separately or together, in one or more series, in amounts, at prices
and on terms to be determined at the time of sale and set forth in an
accompanying supplement to this Prospectus (a "Prospectus Supplement"). Pursuant
to the terms of the Registration Statement of which this Prospectus constitutes
a part, NationsBank may also offer and sell shares of its preferred stock (the
"Preferred Stock"), which may be represented by depositary shares (the
"Depositary Shares"), and shares of its common stock (the "Common Stock"). Any
such Preferred Stock, Depositary Shares or Common Stock will be offered and
issued pursuant to the terms of a separate Prospectus contained in such
Registration Statement. The aggregate amount of Debt Securities that may be
offered and sold pursuant hereto is subject to reduction as the result of the
sale of any Preferred Stock, Depositary Shares or Common Stock pursuant to such
separate Prospectus.
The Senior Debt Securities will rank equally with all other unsubordinated
and unsecured indebtedness of the Corporation. The Subordinated Debt Securities
will be subordinate in right of payment to all existing and future Senior
Indebtedness (as defined herein) of the Corporation.
The Debt Securities may be denominated in U.S. dollars or in another
currency or currency unit (such as the European Currency Unit), and the
principal of (and premium, if any, on) or interest on the Debt Securities may be
payable in U.S. dollars or such foreign currency or currency unit. The specific
terms of each series of Debt Securities offered pursuant to this Prospectus,
including the specific designation, aggregate principal amount, currency or
currency unit in which the principal and any premium or interest may be payable,
authorized denominations, maturity, any premium, any interest rate (which may be
fixed or variable), any interest payment dates, any optional or mandatory
redemption terms, any sinking fund provisions, any subordination terms, any
terms for conversion, the form of such series, any securities exchange on which
such Debt Securities may be listed, and any other terms of such series of Debt
Securities will be set forth in the Prospectus Supplement relating to such
series.
The Debt Securities may be sold (i) through underwriting syndicates
represented by managing underwriters, or by underwriters without a syndicate,
with such underwriters to be designated at the time of sale; (ii) through agents
designated from time to time; or (iii) directly by the Corporation. The names of
any underwriters or agents of NationsBank involved in the sale of the Debt
Securities, the public offering price or purchase price and any commissions or
discounts will be set forth in the applicable Prospectus Supplement or a pricing
supplement thereto. The net proceeds to the Corporation from such sale also will
be set forth in such Prospectus Supplement.
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
THESE SECURITIES ARE NOT SAVINGS ACCOUNTS OR BANK DEPOSITS, ARE NOT
OBLIGATIONS OF OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF
NATIONSBANK, AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION (THE "FDIC") OR ANY OTHER GOVERNMENT AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, THE COMMISSIONER OF INSURANCE OF THE STATE OF NORTH
CAROLINA (THE "COMMISSIONER") OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION, THE COMMISSIONER OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1995.
(A Redherring appears on the left-hand side of this page, rotated 90
degrees. Text is as follows:)
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 State.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, previously filed by the Corporation with the
Securities and Exchange Commission (the "Commission") pursuant to Section 13 of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), are
incorporated herein by reference:
(a) The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1994;
(b) The Corporation's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1995 and June 30, 1995;
(c) The Corporation's Current Reports on Form 8-K filed January 26,
1995, February 21, 1995, March 2, 1995 (two reports on this date), March
21, 1995 (amended by Form 8-K/A Amendment No. 1 filed March 21, 1995),
March 27, 1995, April 24, 1995, April 25, 1995, May 16, 1995, July 10,
1995, July 24, 1995, August 31, 1995 and September 20, 1995.
(d) The description of the Corporation's Common Stock contained in its
registration statement filed pursuant to Section 12 of the 1934 Act, and
any amendment or report filed for the purpose of updating such description,
including the Corporation's Current Report on Form 8-K filed on September
21, 1994.
All reports and any definitive proxy or information statements filed by the
Corporation with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the 1934 Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Debt Securities offered hereby shall be
deemed to be incorporated by reference in 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, ON 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 JOHN
E. MACK, SENIOR VICE PRESIDENT AND TREASURER, NATIONSBANK CORPORATION,
NATIONSBANK CORPORATE CENTER, CORPORATE TREASURY DIVISION, CHARLOTTE, NORTH
CAROLINA 28255. TELEPHONE REQUESTS MAY BE DIRECTED TO (704) 386-5972.
AVAILABLE INFORMATION
NationsBank is subject to the informational requirements of the 1934 Act
and, in accordance therewith, files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the following public reference
facilities maintained by the Commission: 450 Fifth Street, N.W., Washington,
D.C. 20549; 7 World Trade Center, Suite 1300, New York, New York 10048; and the
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material may also be obtained by mail from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, upon payment of prescribed rates. In addition, reports,
proxy statements and other information concerning NationsBank may be inspected
at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005 and at the offices of The Pacific Stock Exchange Incorporated,
301 Pine Street, San Francisco, California 94104.
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NATIONSBANK CORPORATION
GENERAL
NationsBank is a bank holding company established as a North Carolina
corporation in 1968 and is registered under the Bank Holding Company Act of
1956, as amended (the "BHCA"), with its principal assets being the stock of its
subsidiaries. Through its national banking association subsidiaries (the
"Banks") and its various non-banking subsidiaries, NationsBank provides
banking and banking-related services, primarily throughout the Southeast and
Mid-Atlantic states and Texas. The principal executive offices of NationsBank
are located at NationsBank Corporate Center in Charlotte, North Carolina
28255. Its telephone number is (704) 386-5000.
OPERATIONS
NationsBank provides a diversified range of banking and certain non-banking
financial services and products through its various subsidiaries. NationsBank
manages its activities through three major business units: the General Bank, the
Global Finance unit and the Financial Services unit.
The General Bank provides comprehensive services in the commercial and
retail banking fields, including trust and private banking operations, the
origination and servicing of home mortgage loans, the issuance and servicing of
credit cards (through a Delaware subsidiary) and certain insurance services. The
General Bank also offers full service brokerage services and discount brokerage
services for its customers through subsidiaries of NationsBank. As of June 30,
1995, the General Bank had banking operations in the following jurisdictions
(listed in declining order of total assets, with the approximate number of
banking offices in parentheses): North Carolina and South Carolina (413); Texas
(280); Maryland, Virginia and the District of Columbia (499); Florida (375);
Georgia (188); and Tennessee and Kentucky (100). NationsBank also has a banking
subsidiary in Delaware that issues and services credit cards. The
General Bank also provides fully automated, 24-hour cash dispensing and
depositing services throughout the states in which it is located through
approximately 2,200 automated teller machines.
The Global Finance unit provides to domestic and international customers
comprehensive corporate banking and investment banking services, including loan
syndication, treasury management and leasing; underwriting, trading or
distributing a wide range of securities (including bank-eligible securities and,
to a limited extent, bank-ineligible securities as authorized by the Federal
Reserve Board under Section 20 of the Glass-Steagall Act); and options, futures,
forwards and swaps on certain interest rate and commodity products, and spot and
forward foreign exchange contracts. The Global Finance unit provides its
services through various domestic offices as well as offices located in London,
Frankfurt, Singapore, Mexico City, Grand Cayman, Nassau, Tokyo, Osaka, Paris and
Hong Kong. In addition to those offices, the Global Finance unit has loan
production offices located in New York City, Chicago, Los Angeles, Denver and
Birmingham.
The Financial Services unit consists of NationsCredit Corporation,
primarily a consumer finance subsidiary, and Greyrock Capital Group Inc.
(formerly named Nations Financial Capital Corporation), primarily a commercial
finance subsidiary. NationsCredit Corporation, which has approximately 300
offices located in 32 states, provides consumer and retail loan programs and
also offers inventory financing to manufacturers, importers and distributors.
Greyrock Capital Group Inc., which has approximately 79 offices located in 24
states, engages in commercial equipment leasing and makes commercial loans for
debt restructuring, merger and acquisition, real estate financing, equipment
acquisition and working capital purposes; it also acquires consumer loans
secured by automobiles and real estate.
As part of its operations, NationsBank regularly evaluates the potential
acquisition of, and holds discussions with, various financial institutions and
other businesses of a type eligible for bank holding company investment. In
addition, NationsBank regularly analyzes the values of, and submits bids for,
the acquisition of customer-based funds and other liabilities and assets of such
financial institutions and other businesses. As a general rule, NationsBank
publicly announces such material acquisitions when a definitive agreement has
been reached.
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SUPERVISION AND REGULATION
GENERAL. As a registered bank holding company, NationsBank is subject to
the supervision of, and to regular inspection by, the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board"). The Banks are organized as
national banking associations, which are subject to regulation, supervision and
examination by the Office of the Comptroller of the Currency (the
"Comptroller"). The Banks are also subject to regulation by the Federal Deposit
Insurance Corporation (the "FDIC") and other federal regulatory agencies. In
addition to banking laws, regulations and regulatory agencies, NationsBank and
its subsidiaries and affiliates are subject to various other laws and
regulations and supervision and examination by other regulatory agencies, all of
which directly or indirectly affect the Corporation's operations, management and
ability to make distributions. The following discussion summarizes certain
aspects of those laws and regulations that affect NationsBank.
The activities of NationsBank, and those of companies which it controls or
in which it holds more than 5% of the voting stock, are limited to banking or
managing or controlling banks or furnishing services to or performing services
for its subsidiaries, or any other activity which the Federal Reserve Board
determines to be so closely related to banking or managing or controlling banks
as to be a proper incident thereto. In making such determinations, the Federal
Reserve Board is required to consider whether the performance of such activities
by a bank holding company or its subsidiaries can reasonably be expected to
produce benefits to the public such as greater convenience, increased
competition or gains in efficiency that outweigh possible adverse effects, such
as undue concentration of resources, decreased or unfair competition, conflicts
of interest or unsound banking practices. Generally, bank holding companies,
such as NationsBank, are required to obtain prior approval of the Federal
Reserve Board to engage in any new activity not previously approved by the
Federal Reserve Board or to acquire more than 5% of any class of voting stock of
any company.
Bank holding companies are also required to obtain the prior approval of
the Federal Reserve Board before acquiring more than 5% of any class of voting
stock of any bank which is not already majority-owned by the bank holding
company. Pursuant to the Riegle-Neal Interstate Banking and Branching Efficiency
Act of 1994 (the "Interstate Banking and Branching Act"), a bank holding company
will be able to acquire banks in states other than its home state beginning
September 29, 1995.
The Interstate Banking and Branching Act also authorizes banks to merge
across state lines, therefore creating interstate branches, beginning June 1,
1997. Under such legislation, each state has the opportunity to "opt out" of
this provision, thereby prohibiting interstate branching in such states, or to
"opt in" at an earlier time, thereby allowing interstate branching within that
state prior to June 1, 1997. Furthermore, pursuant to such act, a bank is now
able to open new branches in a state in which it does not already have banking
operations, if the laws of such state permit such DE NOVO branching. Of those
states in which the Banks are located, Maryland, North Carolina and Virginia
have enacted legislation to "opt in," thereby permitting interstate branching
prior to June 1, 1997, and Texas has adopted legislation to "opt out" of the
interstate branching provisions (which Texas law currently expires on September
2, 1999).
As previously described, NationsBank regularly evaluates merger and
acquisition opportunities, and it anticipates that it will continue to evaluate
such opportunities in light of the new legislation.
Proposals to change the laws and regulations governing the banking industry
are frequently introduced in Congress, in the state legislatures and before the
various bank regulatory agencies. In 1995, several bills have been introduced in
Congress that would have the effect of broadening the securities underwriting
powers of bank holding companies and possibly permitting bank holding companies
to engage in nonfinancial activities. The likelihood and timing of any such
proposals or bills being enacted and the impact they might have on NationsBank
and its subsidiaries cannot be determined at this time.
CAPITAL AND OPERATIONAL REQUIREMENTS. The Federal Reserve Board, the
Comptroller and the FDIC have issued substantially similar risk-based and
leverage capital guidelines applicable to United States banking organizations.
In addition, those regulatory agencies may from time to time require that a
banking organization maintain capital above the minimum levels, whether because
of its financial condition or actual or anticipated growth.
The Federal Reserve Board risk-based guidelines define a two-tier capital
framework. Tier 1 capital consists of common and qualifying preferred
shareholders' equity, less certain intangibles and other adjustments.
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Tier 2 capital consists of subordinated and other qualifying debt, and the
allowance for credit losses up to 1.25% of risk-weighted assets. The sum of Tier
1 and Tier 2 capital less investments in unconsolidated subsidiaries represents
qualifying total capital, at least 50% of which must consist of Tier 1 capital.
Risk-based capital ratios are calculated by dividing Tier 1 and total capital by
risk-weighted assets. Assets and off-balance sheet exposures are assigned to one
of four categories of risk-weights, based primarily on relative credit risk. The
minimum Tier 1 capital ratio is 4% and the minimum total capital ratio is 8%.
The Corporation's Tier 1 and total risk-based capital ratios under these
guidelines at June 30, 1995 were 7.03% and 10.90%, respectively.
The leverage ratio is determined by dividing Tier 1 capital by adjusted
average total assets. Although the stated minimum ratio is 3%, most banking
organizations are required to maintain ratios of at least 100 to 200 basis
points above 3%. The Corporation's leverage ratio at June 30, 1995 was 5.65%.
Management believes that NationsBank meets its leverage ratio requirement.
The Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA"), among other things, identifies five capital categories for insured
depository institutions (well capitalized, adequately capitalized,
undercapitalized, significantly undercapitalized and critically
undercapitalized) and requires the respective Federal regulatory agencies to
implement systems for "prompt corrective action" for insured depository
institutions that do not meet minimum capital requirements within such
categories. FDICIA imposes progressively more restrictive constraints on
operations, management and capital distributions, depending on the category in
which an institution is classified. Failure to meet the capital guidelines could
also subject a banking institution to capital raising requirements. An
"undercapitalized" bank must develop a capital restoration plan and its parent
holding company must guarantee that bank's compliance with the plan. The
liability of the parent holding company under any such guarantee is limited to
the lesser of 5% of the bank's assets at the time it became "undercapitalized"
or the amount needed to comply with the plan. Furthermore, in the event of the
bankruptcy of the parent holding company, such guarantee would take priority
over the parent's general unsecured creditors. In addition, FDICIA requires the
various regulatory agencies to prescribe certain non-capital standards for
safety and soundness relating generally to operations and management, asset
quality and executive compensation and permits regulatory action against a
financial institution that does not meet such standards.
The various regulatory agencies have adopted substantially similar
regulations that define the five capital categories identified by FDICIA, using
the total risk-based capital, Tier 1 risk-based capital and leverage capital
ratios as the relevant capital measures. Such regulations establish various
degrees of corrective action to be taken when an institution is considered
undercapitalized. Under the regulations, a "well capitalized" institution must
have a Tier 1 capital ratio of at least 6%, a total capital ratio of at least
10% and a leverage ratio of at least 5% and not be subject to a capital
directive order. An "adequately capitalized" institution must have a Tier 1
capital ratio of at least 4%, a total capital ratio of at least 8% and a
leverage ratio of at least 4%, or 3% in some cases. Under these guidelines, each
of the Banks is considered adequately or well capitalized.
Banking agencies have recently adopted final regulations which mandate that
regulators take into consideration concentrations of credit risk and risks from
non-traditional activities, as well as an institution's ability to manage those
risks, when determining the adequacy of an institution's capital. This
evaluation will be made as a part of the institution's regular safety and
soundness examination. Banking agencies also have recently adopted final
regulations requiring regulators to consider interest rate risk (when the
interest rate sensitivity of an institution's assets does not match the
sensitivity of its liabilities or its off-balance-sheet position) in the
evaluation of a bank's capital adequacy. Concurrently, banking agencies have
proposed a methodology for evaluating interest rate risk. After gaining
experience with the proposed measurement process, those banking agencies intend
to propose further regulations to establish an explicit risk-based capital
charge for interest rate risk.
DISTRIBUTIONS. The Corporation's funds for cash distributions to its
shareholders are derived from a variety of sources, including cash and temporary
investments. The primary source of such funds, however, is dividends received
from its banking subsidiaries. The amount of dividends that each Bank may
declare in a calendar year without approval of the Comptroller is the Bank's net
profits for that year, as defined by statute, combined with its net retained
profits, as defined, for the preceding two years. In addition, from time to time
NationsBank applies for, and may receive, permission from the Comptroller for
one or more of the Banks to declare special dividends. In 1995, the Banks can
initiate dividend payments without prior regulatory approval
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of up to $1.0 billion plus an additional amount equal to their net profits for
1995 up to the date of any such dividend declaration.
In addition to the foregoing, the ability of NationsBank and the Banks to
pay dividends may be affected by the various minimum capital requirements and
the capital and non-capital standards established under FDICIA as described
above. Furthermore, the Comptroller may prohibit the payment of a dividend by a
national bank if it determines that such payment would constitute an unsafe or
unsound practice. The right of NationsBank, its shareholders and its creditors
to participate in any distribution of the assets or earnings of its subsidiaries
is further subject to the prior claims of creditors of the respective
subsidiaries.
SOURCE OF STRENGTH. According to Federal Reserve Board policy, bank holding
companies are expected to act as a source of financial strength to each
subsidiary bank and to commit resources to support each such subsidiary. This
support may be required at times when a bank holding company may not be able to
provide such support. In the event of a loss suffered or anticipated by the
FDIC -- either as a result of default of a banking or thrift subsidiary of
NationsBank or related to FDIC assistance provided to a subsidiary in danger of
default -- the other banking subsidiaries of NationsBank may be assessed for the
FDIC's loss, subject to certain exceptions.
USE OF PROCEEDS
The net proceeds from the sale of the Debt Securities will be used for
general corporate purposes, including the Corporation's working capital needs,
the funding of investments in, or extensions of credit to, its banking and
nonbanking subsidiaries, possible acquisitions of other financial institutions
or their assets or liabilities, possible acquisitions of or investments in other
businesses of a type eligible for bank holding companies and possible reduction
of outstanding indebtedness or repurchase of outstanding equity securities of
the Corporation. Pending such use, the Corporation may temporarily invest the
net proceeds in investment grade securities. The Corporation may, from time to
time, engage in additional capital financings of a character and in amounts to
be determined by the Corporation in light of its needs at such time or times and
in light of prevailing market conditions. If the Corporation elects at the time
of issuance of Debt Securities to make different or more specific use of
proceeds other than that set forth herein, such use will be described in the
applicable Prospectus Supplement.
RATIOS OF EARNINGS TO FIXED CHARGES
The following are the Corporation's consolidated ratios of earnings to
fixed charges for the six months ended June 30, 1995 and for each of the years
in the five-year period ended December 31, 1994:
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SIX MONTHS
ENDED YEAR ENDED
JUNE 30, DECEMBER 31,
1995 1994 1993 1992 1991 1990
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Ratio of Earnings to Fixed Charges:
Excluding interest on deposits......................................... 1.6 1.9 2.3 2.4 1.1 1.3
Including interest on deposits......................................... 1.4 1.5 1.5 1.4 1.0 1.1
</TABLE>
For purposes of computing the consolidated ratios, earnings represent net
income of the Corporation plus applicable income taxes and fixed charges, less
capitalized interest and the equity in undistributed earnings of unconsolidated
subsidiaries and associated companies. Fixed charges represent interest expense
(exclusive of interest on deposits in one case and inclusive of such interest in
the other), capitalized interest, amortization of debt discount and appropriate
issuance costs and one-third (the amount deemed to represent an appropriate
interest factor) of net rent expense under all lease commitments.
PLAN OF DISTRIBUTION
The Corporation may offer and sell the Debt Securities in one or more of
the following ways: (i) through underwriters or dealers; (ii) through agents; or
(iii) directly by the Corporation to one or more purchasers. Such underwriters,
dealers or agents may be affiliates of NationsBank. The Prospectus Supplement
with respect to a particular offering of a series of Debt Securities will set
forth the terms of the offering of such Debt
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Securities, including the name or names of any underwriters or agents with whom
NationsBank has entered into arrangements with respect to the sale of such Debt
Securities, the public offering or purchase price of such Debt Securities and
the proceeds to the Corporation from such sales, and any underwriting discounts,
agency fees or commissions and other items constituting underwriters'
compensation, the initial public offering price, any discounts or concessions to
be allowed or reallowed or paid to dealers and the securities exchange, if any,
on which such Debt Securities may be listed.
If underwriters are used in the offer and sale of Debt Securities, the Debt
Securities will be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The Debt Securities may be offered to the public either
through underwriting syndicates represented by managing underwriters, or by
underwriters without a syndicate, all of which underwriters in either case will
be designated in the applicable Prospectus Supplement. Unless otherwise set
forth in the applicable Prospectus Supplement, under the terms of the
underwriting agreement, the obligations of the underwriters to purchase Debt
Securities will be subject to certain conditions precedent and the underwriters
will be obligated to purchase all the Debt Securities if any are purchased. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Debt Securities may be offered and sold directly by the Corporation or
through agents designated by the Corporation from time to time. Any agent
involved in the offer or sale of the Debt Securities with respect to which this
Prospectus is delivered will be named in, and any commissions payable by the
Corporation to such agent will be set forth in or calculable from, the
applicable Prospectus Supplement or a pricing supplement thereto. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be acting
on a best-efforts basis for the period of its appointment.
If so indicated in the applicable Prospectus Supplement, the Corporation
may authorize underwriters, dealers or agents to solicit offers by certain
institutions to purchase Debt Securities from the Corporation at the public
offering price set forth in such Prospectus Supplement pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") providing for payment and
delivery on the date or dates stated in the Prospectus Supplement. Each Delayed
Delivery Contract will be for an amount of Debt Securities not less than and,
unless the Corporation otherwise agrees, the aggregate amount of Debt Securities
sold pursuant to Delayed Delivery Contracts shall be not more than the
respective minimum and maximum amounts stated in the Prospectus Supplement.
Institutions with which Delayed Delivery Contracts, when authorized, may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions, but shall in
all cases be subject to the approval of the Corporation in its sole discretion.
The obligations of the purchaser under any Delayed Delivery Contract to pay for
and take delivery of Debt Securities will not be subject to any conditions
except that (i) the purchase of Debt Securities by such institution shall not at
the time of delivery be prohibited under the laws of the jurisdiction to which
such institution is subject; and (ii) any related sale of Debt Securities to
underwriters shall have occurred. A commission set forth in the Prospectus
Supplement will be paid to underwriters soliciting purchases of Debt Securities
pursuant to Delayed Delivery Contracts accepted by the Corporation. The
underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts.
Any series of Debt Securities offered and sold pursuant to this Prospectus
and the applicable Prospectus Supplement will be new issues of securities with
no established trading market. Any underwriters to whom Debt Securities are sold
by the Corporation for public offering and sale may make a market in such Debt
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Debt Securities.
Any underwriter, dealer or agent participating in the distribution of any
Debt Securities may be deemed to be an underwriter, as that term is defined in
the Securities Act of 1933, as amended (the "1933 Act"), of the Debt Securities
so offered and sold, and any discounts or commissions received by them from
NationsBank and any profit realized by them on the sale or resale of the Debt
Securities may be deemed to be underwriting discounts and commissions under the
1933 Act.
Under agreements entered into with the Corporation, underwriters, dealers
and agents may be entitled to indemnification by the Corporation against certain
civil liabilities, including liabilities under the 1933 Act, or to
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contribution with respect to payments which the underwriters or agents may be
required to make in respect thereof.
The participation of an affiliate or subsidiary of NationsBank in the offer
and sale of the Debt Securities will comply with the requirements of Schedule E
to the By-laws of the National Association of Securities Dealers, Inc. (the
"NASD") regarding the participation in a distribution of securities by an
affiliate. No NASD member participating in offers and sales of the Debt
Securities will execute a transaction in the Debt Securities in a discretionary
account without the prior written specific approval of the member's customer.
This Prospectus and related Prospectus Supplements also may be used by
direct or indirect wholly owned subsidiaries of NationsBank in connection with
offers and sales related to secondary market transactions in the Debt
Securities. Such subsidiaries may act as principal or agent in such
transactions. Any such sales will be made at prices related to prevailing market
prices at the time of sale.
Underwriters, dealers and agents also may be customers of, engage in
transactions with, or perform other services for the Corporation in the ordinary
course of business.
DESCRIPTION OF DEBT SECURITIES
THE FOLLOWING DESCRIPTION OF THE TERMS OF THE DEBT SECURITIES SETS FORTH
CERTAIN GENERAL TERMS AND PROVISIONS OF THE DEBT SECURITIES TO WHICH ANY
PROSPECTUS SUPPLEMENT MAY RELATE. THE PARTICULAR TERMS OF THE DEBT SECURITIES
OFFERED BY ANY PROSPECTUS SUPPLEMENT AND THE EXTENT, IF ANY, TO WHICH SUCH
GENERAL PROVISIONS MAY APPLY TO THE DEBT SECURITIES SO OFFERED WILL BE DESCRIBED
IN THE PROSPECTUS SUPPLEMENT RELATING TO SUCH DEBT SECURITIES.
Any Senior Debt Securities offered hereby are to be issued under an
Indenture dated as of January 1, 1995 (such Indenture, as it may be amended from
time to time, the "Senior Indenture") between the Corporation and BankAmerica
National Trust Company, Trustee (the "Senior Trustee"). Any Subordinated Debt
Securities offered hereby are to be issued under an Indenture dated as of
January 1, 1995 (such Indenture, as it may be amended from time to time, the
"Subordinated Indenture") between the Corporation and The Bank of New York,
Trustee (the "Subordinated Trustee" and, together with the Senior Trustee, the
"Trustees"). A copy of the Senior Indenture and the Subordinated Indenture
(each, an "Indenture" and together, the "Indentures") is incorporated by
reference in the Registration Statement of which this Prospectus forms a part.
The following summaries of certain provisions of the Indentures do not
purport to be complete and are subject to and qualified in their entirety by
reference to the provisions of the applicable Indentures. Whenever particular
sections or defined terms of the Indentures are referred to, it is intended that
such sections or defined items shall be incorporated herein by reference. Unless
otherwise indicated, capitalized terms shall have the meanings ascribed to them
in the Indentures.
GENERAL
The respective Indentures provide that there is no limitation on the amount
of debt securities that may be issued thereunder from time to time. The amount
of Debt Securities that may be offered and sold pursuant to this Prospectus,
however, is limited to the aggregate initial offering price of the securities
registered under the Registration Statement of which this Prospectus forms a
part, subject to reduction as the result of the sale by the Corporation of other
securities under the Registration Statement.
The Debt Securities will be direct, unsecured obligations of the
Corporation. The Senior Debt Securities of each series will rank equally with
all unsecured senior debt of the Corporation. The Subordinated Debt Securities
of each series will be subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness (as hereinafter defined) of the
Corporation. See "DESCRIPTION OF DEBT SECURITIES -- Subordination."
The Debt Securities will be issued in fully registered form without
coupons. Unless otherwise set forth in the applicable Prospectus Supplement, the
Debt Securities denominated in U.S. dollars will be issued in denominations of
$1,000 or an integral multiple thereof.
The Debt Securities may be denominated in U.S. dollars or in another
currency or currency unit. If any of the Debt Securities are denominated in a
foreign currency or currency unit, or if principal of (or premium, if
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any) or any interest on any of the Debt Securities is payable in any foreign
currency or currency unit, the authorized denominations, restrictions, tax
consequences, specific terms and other information with respect to such issue of
Debt Securities and such foreign currency or currency unit will be set forth in
the Prospectus Supplement relating thereto.
The Debt Securities may be issued in one or more series with the same or
various maturities. Certain Debt Securities may be issued which provide for an
amount less than the principal amount thereof to be due and payable in the event
of an acceleration of the maturity thereof (each an "Original Issue Discount
Security"). Original Issue Discount Securities may bear no interest or may bear
interest at a rate which at the time of issuance is below market rates and will
be sold at a discount (which may be substantial) below their stated principal
amount. Certain Debt Securities may be deemed to be issued with original issue
discount for United States Federal income tax purposes. The Prospectus
Supplement with respect to any series of Debt Securities issued with such
original issue discount will contain a discussion of Federal income tax
considerations with respect thereto.
The particular terms of each series of Debt Securities to be offered and
sold will be described in the Prospectus Supplement relating to such Debt
Securities, including: (1) the designation of the particular series; (2) the
aggregate principal amount of such series which may be authenticated and
delivered under the applicable Indenture; (3) the person to whom any interest on
any Debt Security of the series shall be payable, if other than the person in
whose name that Debt Security (or one or more predecessor Debt Securities) is
registered at the close of business on the regular record date for such
interest; (4) the date or dates on which the principal of the Debt Securities of
such series is payable; (5) the rate or rates, and if applicable the method used
to determine the rate, at which the Debt Securities of such series shall bear
interest, if any, the date or dates from which such interest shall accrue, the
date or dates on which such interest shall be payable and the record date or
dates for the interest payable on any Debt Securities on any interest payment
date; (6) the place or places at which, subject to the provisions of the
applicable Indenture, the principal of (and premium, if any, on) and any
interest on Debt Securities of such series shall be payable, any Debt Securities
of the series may be surrendered for registration of transfer, and notices and
demands to or upon the Corporation in respect of the Debt Securities of the
series and the Indenture may be served; (7) the obligation, if any, of the
Corporation to redeem or purchase Debt Securities of such series, at the option
of the Corporation or at the option of a holder thereof, pursuant to any sinking
fund or other redemption provisions and the period or periods within which, the
price or prices at which and the terms and conditions upon which Debt Securities
of the series may be so redeemed or purchased, in whole or in part; (8) if other
than denominations of $1,000 and any integral multiple thereof, the
denominations in which any Debt Securities of such series shall be issuable; (9)
if other than the principal amount thereof, the portion of the principal amount
of Debt Securities of such series which shall be payable upon declaration of
acceleration of the maturity thereof; (10) the currency, currencies or currency
units, in which payment of the principal of (and premium, if any, on) and any
interest on any Debt Securities of the series shall be payable if other than the
currency of the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for purposes
of the applicable Indenture; (11) if the principal of (and premium, if any, on)
or any interest on the Debt Securities of the series are to be payable, at the
election of the Corporation or a holder thereof, in one or more currencies or
currency units, other than that or those in which the Debt Securities are stated
to be payable, the currency or currencies in which payment of the principal of
(and premium, if any, on) and any interest on Debt Securities of such series as
to which such election is made shall be payable, and the periods within which
and the terms and conditions upon which such election is to be made; (12) if the
amount of payments of principal of (and premium, if any, on) or any interest on
the Debt Securities of the series may be determined with reference to an index,
the manner in which such amounts shall be determined; (13) whether the Debt
Securities will be issued in book-entry only form; (14) the identification or
method of selection of any interest rate calculation agents, exchange rate
calculation agents or other agents with respect to Debt Securities of such
series; (15) if either or both of Section 14.02 (defeasance) or Section 14.03
(covenant defeasance) of the applicable Indenture do not apply to the Debt
Securities of the series; (16) any provisions relating to the extension of
maturity of, or the renewal of, Debt Securities of such series, or the
conversion of Debt Securities of such series into other securities of the
Corporation; and (17) any other terms of the Debt Securities of such series
(which terms shall not be inconsistent with the provisions of the applicable
Indenture).
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The ability of NationsBank to make payments of principal of and premium, if
any, and interest on the Debt Securities may be affected by the ability of the
Banks to pay dividends. The ability of the Banks, as well as of the Corporation,
to pay dividends in the future currently is, and could be further, influenced by
bank regulatory requirements and capital guidelines. See "SUPERVISION AND
REGULATION."
Neither the Senior Indenture nor the Subordinated Indenture contains
provisions that would provide protection to holders of Debt Securities against a
decline in credit quality resulting from takeovers, recapitalizations, the
incurrence of additional indebtedness or similar restructurings by the
Corporation. If credit quality declines as a result of such an event, or
otherwise, the ratings of any Debt Securities then outstanding may be withdrawn
or downgraded.
EXCHANGE, REGISTRATION AND TRANSFER
At the option of the holder, subject to the terms of the applicable
Indenture, Debt Securities of any series (other than Debt Securities issued in
book-entry form) will be exchangeable for other Debt Securities of the same
series and of an equal aggregate principal amount and tenor of any authorized
denominations.
Debt Securities may be presented for exchange as provided above, and Debt
Securities may be presented for registration of transfer (with the form of
transfer endorsed thereon duly executed), at the office of the Security
Registrar or at the office of any transfer agent of the Corporation designated
and maintained for such purpose with respect to Debt Securities of a series
pursuant to the terms of the applicable Indenture, as referred to in an
applicable Prospectus Supplement. Such transfer or exchange will be effected
upon the Security Registrar or transfer agent, as the case may be, being
satisfied with the documents of title and identity of the person making the
request. No service charge shall be made for any exchange or registration of
transfer of Debt Securities, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith.
If a Prospectus Supplement refers to any transfer agents (in addition to
the Security Registrar) designated by the Corporation with respect to any series
of Debt Securities, the Corporation may at any time rescind the designation of
any such transfer agent or approve a change in the location through which any
such transfer agent acts, except that the Corporation will be required to
maintain a transfer agent in each place of payment for such series. The
Corporation may at any time designate additional transfer agents with respect to
any series of Debt Securities.
The Corporation shall not be required to (i) issue, exchange, or register
the transfer of any Debt Security of any series to be redeemed for a period of
15 days next preceding any selection of such Debt Securities to be redeemed; or
(ii) to exchange or register the transfer of any Debt Security so selected,
called or being called for redemption, except the unredeemed portion of any Debt
Security being redeemed in part.
For a discussion of restrictions on the exchange, registration and transfer
of Book-Entry Securities, see "DESCRIPTION OF DEBT SECURITIES -- Book-Entry
Securities."
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement,
principal of (and premium, if any, on) and any interest on Debt Securities will
be payable, subject to any applicable laws and regulations, at the offices of
such paying agents as the Corporation may designate from time to time pursuant
to the applicable Indenture, except that, at the option of the Corporation,
payment of any interest may be made by check mailed to the address of the person
entitled thereto as such address shall appear in the Security Register. Unless
otherwise indicated in an applicable Prospectus Supplement, payment of interest
on a Debt Security on any interest payment date generally will be made to the
person in whose name such Debt Security is registered at the close of business
on the regular record date for such interest payment date.
The Corporation has designated the principal corporate trust offices of the
Senior Trustee and the Subordinated Trustee in the City of New York as the
places where the Senior Debt Securities and Subordinated Debt Securities,
respectively, may be presented for payment. The Corporation may at any time
designate additional paying agents or rescind the designation of any paying
agent or approve a change in the office through which any paying agent acts. Any
other paying agents designated by the Corporation for the Debt Securities of
each series will be named in an applicable Prospectus Supplement.
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BOOK-ENTRY SECURITIES
If so specified in an applicable Prospectus Supplement, all or any portion
of the Debt Securities of a series may be issued in book-entry form represented
by one or more global Debt Securities in registered form ("Book-Entry
Securities") to be deposited with, or on behalf of a depositary (a "Depositary")
identified in the Prospectus Supplement relating to such series, for credit to
the respective accounts of the beneficial owners of such Debt Securities (or to
such other accounts as they may direct). The specific terms of the depositary
arrangement with respect to any such series of Debt Securities will be described
in the Prospectus Supplement relating to such series. Unless otherwise specified
in the applicable Prospectus Supplement, the Corporation anticipates that the
following provisions will apply to all depositary arrangements with a
Depositary.
Upon the issuance of a Book-Entry Security, the Depositary will credit, on
its book-entry registration and transfer system, the respective principal
amounts of the Debt Securities represented by such Book-Entry Security to the
accounts of institutions that have accounts with such depositary or its nominee
("participants"). The accounts to be credited shall be designated by the
underwriters or agents of such Debt Securities or by the Corporation, if such
Debt Securities are offered and sold directly by the Corporation. Ownership of
beneficial interests in such Book-Entry Security will be limited to participants
or persons that may hold interests through participants. Ownership of a
beneficial interest in such a 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 participants' interests) for such
Book-Entry Security or by participants or persons that hold through
participants. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to acquire or transfer beneficial
interests in a Book-Entry Security.
So long as the Depositary for a Book-Entry Security, or its nominee, is the
registered owner of such Book-Entry Security, such depositary or such nominee,
as the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Book-Entry Security for all purposes under the
Indenture governing such Debt Securities. Except as set forth below, owners of
beneficial interests in such Book-Entry Security will not be entitled to have
Debt 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
Debt Securities of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture. Accordingly, each person owning a
beneficial interest in a Book-Entry Security must rely on the procedures of the
Depositary and, if such person is not a participant, on the procedures of the
participant and, if applicable, the indirect participant, through which such
person owns its interest, to exercise any rights of a holder under the
Indenture.
Payment of principal of (and premium, if any) and any interest on Debt
Securities registered in the name of or held by a Depositary or its nominee will
be made to the Depositary or its nominee, as the case may be, as the registered
owner or the holder of the Book-Entry Security representing such Debt
Securities. None of the Corporation, the Trustee, any paying agent, any
authenticating agent or the Security Registrar for such Debt 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 a Book-Entry
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Corporation expects that the Depositary for Debt Securities of a
series, upon receipt of any payment of principal of (and premium, if any) and
any interest on the Debt Securities represented by such Book-Entry Security,
will credit immediately participants' accounts with payments in amounts
proportionate to their respective holdings in principal amount of beneficial
interest in such Book-Entry Security as shown on the records of such Depositary.
The Corporation also expects that payments by participants to owners of
beneficial interests in such Book-Entry Security held through such participants
will be governed by standing instructions and customary practices, as is now the
case with securities held for the accounts of customers in bearer form or
registered in "street name." Such payments will be the responsibility of such
participants.
Unless and until it is exchanged in whole for Debt Securities in definitive
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 to
another depositary or a nominee for such other depositary. If a Depositary for
Debt Securities is at any time unwilling or unable to continue as depositary and
a successor depositary is not appointed by the Corporation within 90 days, the
Corporation will issue Debt Securities in definitive form in exchange for the
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Book-Entry Security or Book-Entry Securities representing all such Debt
Securities. In addition, the Corporation may at any time and in its sole
discretion determine not to have any Debt Securities represented by a Book-Entry
Security and, in such event, will issue such Debt Securities in definitive form
in exchange for the Book-Entry Security or Book-Entry Securities representing
all such Debt Securities. In any such instance, an owner of a beneficial
interest in a Book-Entry Security will be entitled to physical delivery in
definitive form of Debt Securities of the series represented by such Book-Entry
Security equal in principal amount to such beneficial interest and to have such
Debt Securities registered in the name of the owner of such beneficial interest.
SUBORDINATION
The Subordinated Debt Securities are subordinate and subject, to the extent
and in the manner set forth in the Subordinated Indenture, in right of payment
to the prior payment in full of all Senior Indebtedness of the Corporation.
"Senior Indebtedness" is defined by the Subordinated Indenture as any
indebtedness for money borrowed (including all indebtedness of the Corporation
for borrowed and purchased money of the Corporation, all obligations of the
Corporation arising from off-balance sheet guarantees by the Corporation and
direct credit substitutes, and obligations of the Corporation associated with
derivative products such as interest and foreign exchange rate contracts and
commodity contracts) that is outstanding on the date of execution of the
Subordinated Indenture, or is thereafter created, incurred or assumed, for the
payment of which the Corporation is at the time of determination responsible or
liable as obligor, guarantor or otherwise, and all deferrals, renewals,
extensions and refundings of any such indebtedness or obligations, other than
the Subordinated Debt Securities or any other indebtedness as to which, in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such indebtedness is subordinate in right of
payment to any other indebtedness of the Corporation.
No payment on account of principal of (and premium, if any, on) or
interest, if any, on the Subordinated Debt Securities shall be made, and no
Subordinated Debt Securities shall be purchased, either directly or indirectly,
by the Corporation or any of its subsidiaries, if any default or event of
default with respect to any Senior Indebtedness shall have occurred and be
continuing and the Corporation and the Subordinated Trustee shall have received
written notice thereof from the holders of at least 10 percent in principal
amount of any kind or category of any Senior Indebtedness (or the representative
or representatives of such holders) or the Subordinated Trustee shall have
received written notice thereof from the Corporation.
In the event that any Subordinated Debt Security is declared due and
payable before the date specified therein as the fixed date on which the
principal thereof is due and payable pursuant to the Subordinated Indenture, or
upon any payment or distribution of assets of the Corporation of any kind or
character to creditors upon any dissolution or winding up or total or partial
liquidation or reorganization of the Corporation, all principal of (and premium,
if any, on) and interest due or to become due upon all Senior Indebtedness shall
first be paid in full before the holders of the Subordinated Debt Securities
(the "Subordinated Debt Holders"), or the Subordinated Trustee, shall be
entitled to retain any assets (other than shares of stock of the Corporation as
reorganized or readjusted or securities of the Corporation or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated, at least to the same extent as the
Subordinated Debt Securities, to the payment of all Senior Indebtedness which
may at the time be outstanding, provided that the rights of the holders of the
Senior Indebtedness are not altered by such reorganization or readjustment) so
paid or distributed in respect of the Subordinated Debt Securities (for
principal or interest, if any). Upon such dissolution or winding up or
liquidation or reorganization, any payment or distribution of assets of the
Corporation of any kind or character, whether in cash, property or securities
(other than shares of stock of the Corporation as reorganized or readjusted or
securities of the Corporation or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is subordinated, at least
to the same extent as the Subordinated Debt Securities, to the payment of all
Senior Indebtedness which may at the time be outstanding, provided that the
rights of the holders of the Senior Indebtedness are not altered by such
reorganization or readjustment), to which the Subordinated Debt Holders or the
Subordinated Trustee would be entitled, except for the subordination provisions
of the Subordinated Indenture, shall be paid by the Corporation or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, or by the Subordinated Debt Holders or the
Subordinated Trustee if received by them or it, directly to the holders of the
Senior Indebtedness (pro rata to each such holder on the basis of the
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respective amounts of Senior Indebtedness held by such holder) or their
representatives, to the extent necessary to pay all Senior Indebtedness in full,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Indebtedness, before any payment or distribution is made to
the Subordinated Debt Holders or to the Subordinated Trustee.
Subject to the payment in full of all Senior Indebtedness, the Subordinated
Debt Holders shall be subrogated (equally and ratably with the holders of all
indebtedness of the Corporation which, by its express terms, ranks on a parity
with the Subordinated Debt Securities and is entitled to like rights of
subrogation) to the rights of the holders of Senior Indebtedness to receive
payments or distributions of assets of the Corporation applicable to the Senior
Indebtedness until the Subordinated Debt Securities shall be paid in full.
SALE OR ISSUANCE OF CAPITAL STOCK OF BANKS
The Senior Indenture prohibits the issuance, sale or other disposition of
capital stock, or securities convertible into or options, warrants or rights to
acquire capital stock, of any Principal Subsidiary Bank (as defined below) or of
any subsidiary which owns shares of capital stock, or securities convertible
into or options, warrants or rights to acquire capital stock, of any Principal
Subsidiary Bank, with the following exceptions: (a) sales of directors'
qualifying shares; (b) sales or other dispositions for fair market value, if,
after giving effect to such disposition and to conversion of any shares or
securities convertible into capital stock of a Principal Subsidiary Bank, the
Corporation would own directly or indirectly not less than 80% of each class of
the capital stock of such Principal Subsidiary Bank (or any successor
corporation thereto); (c) sales or other dispositions made in compliance with an
order of a court or regulatory authority of competent jurisdiction; (d) any sale
by a Principal Subsidiary Bank (or any successor corporation thereto) of
additional shares of its capital stock to its shareholders at any price, so long
as (i) prior to such sale the Corporation owns, directly or indirectly, shares
of the same class and (ii) immediately after such sale, the Corporation owns,
directly or indirectly, at least as great a percentage of each class of capital
stock of such Principal Subsidiary Bank as it owned prior to such sale of
additional shares; (e) any sale by a Principal Subsidiary Bank (or any successor
corporation thereto) of additional securities convertible into shares of its
capital stock to its shareholders at any price, so long as (i) prior to such
sale the Corporation owns, directly or indirectly, securities of the same class
and (ii) immediately after such sale the Corporation owns, directly or
indirectly, at least as great a percentage of each class of such securities
convertible into shares of capital stock of such Principal Subsidiary Bank as it
owned prior to such sale of additional securities; (f) any sale by a Principal
Subsidiary Bank (or any successor corporation thereto) of additional options,
warrants or rights to subscribe for or purchase shares of its capital stock to
its shareholders at any price, so long as (i) prior to such sale the Corporation
owns, directly or indirectly, options, warrants or rights, as the case may be,
of the same class and (ii) immediately after such sale, the Corporation owns,
directly or indirectly, at least as great a percentage of each class of such
options, warrants or rights, as the case may be, to subscribe for or purchase
shares of capital stock of such Principal Subsidiary Bank as it owned prior to
such sale of additional options, warrants or rights; or (g) any issuance of
shares of capital stock, or securities convertible into or options, warrants or
rights to subscribe for or purchase shares of capital stock, of a Principal
Subsidiary Bank or any subsidiary which owns shares of capital stock, or
securities convertible into or options, warrants or rights to acquire capital
stock, of any Principal Subsidiary Bank, to the Corporation or a wholly owned
subsidiary of the Corporation.
A Principal Subsidiary Bank is defined in the Senior Indenture as any Bank
(other than NationsBank of Delaware, National Association) with total assets
equal to more than 10% of the Corporation's total consolidated assets.
WAIVER OF COVENANTS
Under the terms of either Indenture, compliance with certain covenants or
conditions of such Indenture may be waived by the holders of a majority in
principal amount of the Debt Securities of all series to be affected thereby and
at the time outstanding under that Indenture (including, in the case of holders
of Senior Debt Securities, the covenant described above).
MODIFICATION OF THE INDENTURES
Each Indenture contains provisions permitting the Corporation and the
applicable Trustee to modify such Indenture or the rights of the holders of Debt
Securities or coupons, if any, thereunder, with the consent of the
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<PAGE>
holders of not less than 66 2/3% in aggregate principal amount of the Debt
Securities of all series at the time outstanding under that Indenture and to be
affected thereby (voting as one class), except that no such modification shall
(a) extend the fixed maturity of, reduce the principal amount or redemption
premium, if any, of, or reduce the rate of or extend the time of payment of
interest on, any Debt Security without the consent of the holder of each
security so affected, or (b) reduce the aforesaid percentage of Debt Securities,
the consent of holders of which is required for any such modification, without
the consent of the holders of all Debt Securities then outstanding under that
Indenture. Each Indenture also provides that the Corporation and the respective
Trustee may, from time to time, execute supplemental indentures in certain
limited circumstances without the consent of any holders of outstanding Debt
Securities.
Each Indenture provides that in determining whether the holders of the
requisite principal amount of the Debt Securities outstanding have given any
request, demand, authorization, direction, notice, consent or waiver thereunder,
(i) the principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding shall be the amount of the principal thereof that would
be due and payable upon an event of default, and (ii) the principal amount of a
Debt Security denominated in a foreign currency or currency unit shall be the
U.S. dollar equivalent, determined on the date of original issuance of such Debt
Security.
MEETINGS AND ACTION BY SECURITYHOLDERS
Each Indenture contains provisions for convening meetings of the holders of
Debt Securities for certain purposes. A meeting may be called at any time by the
Trustee in its discretion and shall be called by the Trustee upon request by the
Corporation or the holders of at least 10% in aggregate principal amount of the
Debt Securities outstanding of such series, in any case upon notice given in
accordance with "Notices" below. Any resolution passed or decision taken at any
meeting of holders of Debt Securities of any series duly held in accordance with
the applicable Indenture, or such other action taken in accordance with the
terms of the applicable Indenture, will be binding on all holders of Debt
Securities of that series and the related coupons.
DEFAULTS AND RIGHTS OF ACCELERATION
An Event of Default is defined in the Subordinated Indenture generally as
bankruptcy of the Corporation under Federal bankruptcy laws. An Event of Default
is defined in the Senior Indenture generally as (i) the Corporation's failure to
pay principal (or premium, if any) when due on any securities of a series, (ii)
the Corporation's failure to pay interest on any securities of a series, within
30 days after the same becomes due, (iii) the Corporation's breach of any of its
other covenants contained in the Senior Debt Securities or the Senior Indenture,
which breach is not cured within 90 days after written notice by the Senior
Trustee or by the holders of at least 25% in principal amount of the Senior Debt
Securities then outstanding under the Senior Indenture and affected thereby, and
(iv) certain events involving the bankruptcy, insolvency or liquidation of the
Corporation.
Each Indenture provides that if an Event of Default under the respective
Indenture occurs and is continuing, either the respective Trustee or the holders
of 25% in principal amount, or, if any such Debt Securities are Original Issue
Discount Debt Securities, such lesser amounts as may be described in an
applicable Prospectus Supplement, of the Debt Securities then outstanding under
that Indenture (or, with respect to an Event of Default under the Senior
Indenture due to a default in the payment of principal (or premium, if any) or
interest or performance of any other covenant, the outstanding Debt Securities
of all series affected by such default) may declare the principal amount of all
of such Debt Securities to be due and payable immediately. Payment of principal
of the Subordinated Debt Securities may not be accelerated in the case of a
default in the payment of principal (or premium, if any) or interest or the
performance of any other covenant of the Corporation. Upon certain conditions a
declaration of an Event of Default may be annulled and past defaults may be
waived by the holders of a majority in principal amount of the Debt Securities
then outstanding (or of such series affected, as the case may be).
COLLECTION OF INDEBTEDNESS, ETC.
Each Indenture also provides that in the event of a failure by the
Corporation to make payment of principal of or interest on the Debt Securities
(and, in the case of payment of interest, such failure to pay shall have
continued for 30 days), the Corporation will, upon demand of the respective
Trustee, pay to it, for the benefit of the holders of the Debt Securities the
amount then due and payable on the Debt Securities for principal and
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<PAGE>
interest, with interest on the overdue principal and, to the extent payment of
interest shall be legally enforceable, upon overdue installments of interest at
the rate borne by the Debt Securities. Each Indenture further provides that if
the Corporation fails to pay such amount forthwith upon such demand, the
respective Trustee may, among other things, institute a judicial proceeding for
the collection thereof. However, each Indenture provides that notwithstanding
any other provision of the Indenture, the holder of any Debt Security shall have
the right to institute suit for the enforcement of any payment of principal of
and interest on such Debt Security on the respective stated maturities expressed
in such Debt Security and that such right shall not be impaired without the
consent of such holder.
The holders of a majority in principal amount of the Debt Securities then
outstanding under an Indenture shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
under that Indenture, provided that the holders shall have offered to the
Trustee reasonable indemnity against expenses and liabilities. Each Indenture
requires the annual filing by the Corporation with the respective Trustee of a
certificate as to the absence of default and as to compliance with the terms of
that Indenture.
NOTICES
Except as otherwise provided in the applicable indenture, notices to
holders of Debt Securities will be given by first-class mail to the addresses of
such holders as they appear in the Security Register.
CONCERNING THE TRUSTEES
The Corporation and the Banks have from time to time maintained deposit
accounts and conducted other banking transactions with The Bank of New York and
BankAmerica National Trust Company and their affiliated entities in the ordinary
course of business. Each of the Trustees also serves as trustee for certain
series of the Corporation's outstanding indebtedness under other indentures.
LEGAL OPINIONS
The legality of the Debt Securities will be passed upon for the Corporation
by Smith Helms Mulliss & Moore, L.L.P., Charlotte, North Carolina, and for the
underwriters or agents by Stroock & Stroock & Lavan, New York, New York. As of
the date of this Prospectus, certain members of Smith Helms Mulliss & Moore,
L.L.P. beneficially own approximately 50,000 shares of the Corporation's Common
Stock.
EXPERTS
The consolidated financial statements of the Corporation incorporated in
this Prospectus by reference to the Corporation's Annual Report on Form 10-K for
the year ended December 31, 1994, have been so incorporated in reliance on the
report of Price Waterhouse LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
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<PAGE>
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERING MADE HEREBY 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 CIRCUMSTANCES, 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.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PROSPECTUS PAGE
<S> <C>
Incorporation of Certain Documents by
Reference................................... 2
Available Information......................... 2
NationsBank Corporation....................... 3
Use of Proceeds............................... 6
Ratios of Earnings to Fixed Charges........... 6
Plan of Distribution.......................... 6
Description of Debt Securities................ 8
Legal Opinions................................ 15
Experts....................................... 15
</TABLE>
$3,000,000,000
NATIONSBANK(Register Mark)
DEBT SECURITIES
PROSPECTUS
, 1995
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED , 1995
[EQUITY]
PROSPECTUS
NATIONSBANK(Register mark)
Preferred Stock
Common Stock
NationsBank Corporation ("NationsBank" or the "Corporation") may offer from
time to time shares of its preferred stock (the "Preferred Stock"), which may be
represented by depositary shares (the "Depositary Shares"), and shares of its
common stock (the "Common Stock" and, together with the Preferred Stock and the
Depositary Shares, the "Securities"). NationsBank may sell up to $3,000,000,000
in aggregate initial offering price of the Securities, which may be offered,
separately or together, in one or more series, in amounts, at prices and on
terms to be determined at the time of sale and set forth in one or more
supplements to this Prospectus (a "Prospectus Supplement"). Pursuant to the
terms of the Registration Statement of which this Prospectus constitutes a part,
NationsBank may also offer and sell its unsecured debt securities, which may be
either senior or subordinated (the "Debt Securities"). Any such Debt Securities
will be offered and issued pursuant to the terms of a separate Prospectus
contained in such Registration Statement. The aggregate amount of Securities
that may be offered and sold pursuant hereto is subject to reduction as the
result of the sale of any Debt Securities pursuant to such separate Prospectus.
The applicable Prospectus Supplement will set forth the specific terms of
Securities offered pursuant to this Prospectus, including: (a) in the case of
any series of Preferred Stock, the specific designation, the aggregate number of
shares offered, the dividend rate or method of calculation, the dividend period
and dividend payment dates, whether such dividends will be cumulative or
noncumulative, the liquidation preference, voting rights, if any, any terms for
redemption at the option of the holder or NationsBank, any applicable conversion
provisions in the event that such series is convertible at the option of the
holder or NationsBank into shares of Common Stock, and any other terms of the
offering or the series, and (b) in the case of Common Stock, the aggregate
number of shares offered.
The Securities may be sold (i) through underwriting syndicates represented
by managing underwriters, or by underwriters without a syndicate, with such
underwriters to be designated at the time of sale; (ii) through agents
designated from time to time; or (iii) directly by the Corporation. The names of
any underwriters or agents of NationsBank involved in the sale of the
Securities, and any applicable commissions or discounts, will be set forth in
the applicable Prospectus Supplement, in addition to any other terms of the
offering of such Securities. The net proceeds to the Corporation from such sale
also will be set forth in such Prospectus Supplement.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
THESE SECURITIES ARE NOT SAVINGS ACCOUNTS OR BANK DEPOSITS, ARE NOT
OBLIGATIONS OF OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE
OF NATIONSBANK, AND ARE NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION (THE "FDIC") OR
ANY OTHER GOVERNMENT AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, THE COMMISSIONER OF INSURANCE OF THE STATE OF NORTH
CAROLINA (THE "COMMISSIONER") OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION, THE COMMISSIONER OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1995.
(A Redherring appears on the left-hand side of this page, rotated 90
degrees. Text is as follows:)
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 State.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, previously filed by the Corporation with the
Securities and Exchange Commission (the "Commission") pursuant to Section 13 of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), are
incorporated herein by reference:
(a) The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1994;
(b) The Corporation's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1995 and June 30, 1995;
(c) The Corporation's Current Reports on Form 8-K filed January 26,
1995, February 21, 1995, March 2, 1995 (two reports on this date), March
21, 1995 (amended by Form 8-K/A Amendment No. 1 filed March 21, 1995),
March 27, 1995, April 24, 1995, April 25, 1995, May 16, 1995, July 10,
1995, July 24, 1995, August 31, 1995 and September 20, 1995.
(d) The description of the Corporation's Common Stock contained in its
registration statement filed pursuant to Section 12 of the 1934 Act, and
any amendment or report filed for the purpose of updating such description,
including the Corporation's Current Report on Form 8-K filed on September
21, 1994.
All reports and any definitive proxy or information statements filed by the
Corporation with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the 1934 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 in 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, ON 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 JOHN
E. MACK, SENIOR VICE PRESIDENT AND TREASURER, NATIONSBANK CORPORATION,
NATIONSBANK CORPORATE CENTER, CORPORATE TREASURY DIVISION, CHARLOTTE, NORTH
CAROLINA 28255. TELEPHONE REQUESTS MAY BE DIRECTED TO (704) 386-5972.
AVAILABLE INFORMATION
NationsBank is subject to the informational requirements of the 1934 Act
and, in accordance therewith, files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the following public reference
facilities maintained by the Commission: 450 Fifth Street, N.W., Washington,
D.C. 20549; 7 World Trade Center, Suite 1300, New York, New York 10048; and the
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material may also be obtained by mail from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, upon payment of prescribed rates. In addition, reports,
proxy statements and other information concerning NationsBank may be inspected
at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005 and at the offices of The Pacific Stock Exchange Incorporated,
301 Pine Street, San Francisco, California 94104.
2
<PAGE>
NATIONSBANK CORPORATION
GENERAL
NationsBank is a bank holding company established as a North Carolina
corporation in 1968 and is registered under the Bank Holding Company Act of
1956, as amended, (the "BHCA"), with its principal assets being the stock of its
subsidiaries. Through its national banking association subsidiaries (the
"Bank") and its various non-banking subsidiaries, NationsBank provides banking
and banking-related services, primarily throughout the Southeast and
Mid-Atlantic states and Texas. The principal executive offices of NationsBank
are located at NationsBank Corporate Center in Charlotte, North Carolina
28255. Its telephone number is (704) 386-5000.
OPERATIONS
NationsBank provides a diversified range of banking and certain non-banking
financial services and products through its various subsidiaries. NationsBank
manages its activities through three major business units: the General Bank, the
Global Finance unit and the Financial Services unit.
The General Bank provides comprehensive service in the commercial and
retail banking fields, including trust and private banking operations, the
origination and servicing of home mortgage loans, the issuance and servicing of
credit cards (through a Delaware subsidiary) and certain insurance services. The
General Bank also offers full service brokerage services and discount brokerage
services for its customers through subsidiaries of NationsBank. As of June 30,
1995, the General Bank had banking operations in the following jurisdictions
(listed in declining order of total assets, with the approximate number of
banking offices in parentheses): North Carolina and South Carolina (413); Texas
(280); Maryland, Virginia and the District of Columbia (499); Florida (375);
Georgia (188); and Tennessee and Kentucky (100). NationsBank also has a banking
subsidiary in Delaware that issues and services credit cards. The
General Bank also provides fully automated, 24-hour cash dispensing and
depositing services throughout the states in which it is located through
approximately 2,200 automated teller machines.
The Global Finance unit provides to domestic and international customers
comprehensive corporate banking and investment banking services, including loan
syndication, treasury management and leasing; underwriting, trading or
distributing a wide range of securities (including bank-eligible securities and,
to a limited extent, bank-ineligible securities as authorized by the Federal
Reserve Board under Section 20 of the Glass-Steagall Act); and options, futures,
forwards and swaps on certain interest rate and commodity products, and spot and
forward foreign exchange contracts. The Global Finance unit provides its
services through various domestic offices as well as offices located in London,
Frankfurt, Singapore, Mexico City, Grand Cayman, Nassau, Tokyo, Osaka, Paris and
Hong Kong. In addition to those offices, the Global Finance unit has loan
production offices located in New York City, Chicago, Los Angeles, Denver and
Birmingham.
The Financial Services unit consists of NationsCredit Corporation,
primarily a consumer finance subsidiary, and Greyrock Capital Group Inc.
(formerly named Nations Financial Capital Corporation), primarily a commercial
finance subsidiary. NationsCredit Corporation, which has approximately 300
offices located in 32 states, provides consumer and retail loan programs and
also offers inventory financing to manufacturers, importers and distributors.
Greyrock Capital Group Inc., which has approximately 79 offices located in 24
states, engages in commercial equipment leasing and makes commercial loans for
debt restructuring, merger and acquisition, real estate financing, equipment
acquisition and working capital purposes; it also acquires consumer loans
secured by automobiles and real estate.
As part of its operations, NationsBank regularly evaluates the potential
acquisition of, and holds discussions with, various financial institutions and
other businesses of a type eligible for bank holding company investment. In
addition, NationsBank regularly analyzes the values of, and submits bids for,
the acquisition of customer-based funds and other liabilities and assets of such
financial institutions and other businesses. As a general rule, NationsBank
publicly announces such material acquisitions when a definitive agreement has
been reached.
3
<PAGE>
SUPERVISION AND REGULATION
GENERAL. As a registered bank holding company, NationsBank is subject to
the supervision of, and to regular inspection by, the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board"). The Banks are organized as
national banking associations, which are subject to regulation, supervision and
examination by the Office of the Comptroller of the Currency (the
"Comptroller"). The Banks are also subject to regulation by the Federal Deposit
Insurance Corporation (the "FDIC") and other federal regulatory agencies. In
addition to banking laws, regulations and regulatory agencies, NationsBank and
its subsidiaries and affiliates are subject to various other laws and
regulations and supervision and examination by other regulatory agencies, all of
which directly or indirectly affect the Corporation's operations, management and
ability to make distributions. The following discussion summarizes certain
aspects of those laws and regulations that affect NationsBank.
The activities of NationsBank, and those of companies which it controls or
in which it holds more than 5% of the voting stock, are limited to banking or
managing or controlling banks or furnishing services to or performing services
for its subsidiaries, or any other activity which the Federal Reserve Board
determines to be so closely related to banking or managing or controlling banks
as to be a proper incident thereto. In making such determinations, the Federal
Reserve Board is required to consider whether the performance of such activities
by a bank holding company or its subsidiaries can reasonably be expected to
produce benefits to the public such as greater convenience, increased
competition or gains in efficiency that outweigh possible adverse effects, such
as undue concentration of resources, decreased or unfair competition, conflicts
of interest or unsound banking practices. Generally, bank holding companies,
such as NationsBank, are required to obtain prior approval of the Federal
Reserve Board to engage in any new activity not previously approved by the
Federal Reserve Board or to acquire more than 5% of any class of voting stock of
any company.
Bank holding companies are also required to obtain the prior approval of
the Federal Reserve Board before acquiring more than 5% of any class of voting
stock of any bank which is not already majority-owned by the bank holding
company. Pursuant to the Riegle-Neal Interstate Banking and Branching Efficiency
Act of 1994 (the "Interstate Banking and Branching Act"), a bank holding company
will be able to acquire banks in states other than its home state beginning
September 29, 1995.
The Interstate Banking and Branching Act also authorizes banks to merge
across state lines, therefore creating interstate branches, beginning June 1,
1997. Under such legislation, each state has the opportunity to "opt out" of
this provision, thereby prohibiting interstate branching in such states, or to
"opt in" at an earlier time, thereby allowing interstate branching within that
state prior to June 1, 1997. Furthermore, pursuant to such act, a bank is now
able to open new branches in a state in which it does not already have banking
operations, if the laws of such state permit such DE NOVO branching. Of those
states in which the Banks are located, Maryland, North Carolina and Virginia
have enacted legislation to "opt in," thereby permitting interstate branching
prior to June 1, 1997, and Texas has adopted legislation to "opt out" of the
interstate branching provisions (which Texas law currently expires on September
2, 1999).
As previously described, NationsBank regularly evaluates merger and
acquisition opportunities, and it anticipates that it will continue to evaluate
such opportunities in light of the new legislation.
Proposals to change the laws and regulations governing the banking industry
are frequently introduced in Congress, in the state legislatures and before the
various bank regulatory agencies. In 1995, several bills have been introduced in
Congress that would have the effect of broadening the securities underwriting
powers of bank holding companies and possibly permitting bank holding companies
to engage in nonfinancial activities. The likelihood and timing of any such
proposals or bills being enacted and the impact they might have on NationsBank
and its subsidiaries cannot be determined at this time.
CAPITAL AND OPERATIONAL REQUIREMENTS. The Federal Reserve Board, the
Comptroller and the FDIC have issued substantially similar risk-based and
leverage capital guidelines applicable to United States banking organizations.
In addition, those regulatory agencies may from time to time require that a
banking organization maintain capital above the minimum levels, whether because
of its financial condition or actual or anticipated growth.
The Federal Reserve Board risk-based guidelines define a two-tier capital
framework. Tier 1 capital consists of common and qualifying preferred
shareholders' equity, less certain intangibles and other adjustments.
4
<PAGE>
Tier 2 capital consists of subordinated and other qualifying debt, and the
allowance for credit losses up to 1.25% of risk-weighted assets. The sum of Tier
1 and Tier 2 capital less investments in unconsolidated subsidiaries represents
qualifying total capital, at least 50% of which must consist of Tier 1 capital.
Risk-based capital ratios are calculated by dividing Tier 1 and total capital by
risk-weighted assets. Assets and off-balance sheet exposures are assigned to one
of four categories of risk-weights, based primarily on relative credit risk. The
minimum Tier 1 capital ratio is 4% and the minimum total capital ratio is 8%.
The Corporation's Tier 1 and total risk-based capital ratios under these
guidelines at June 30, 1995 were 7.03% and 10.90%, respectively.
The leverage ratio is determined by dividing Tier 1 capital by adjusted
average total assets. Although the stated minimum ratio is 3%, most banking
organizations are required to maintain ratios of at least 100 to 200 basis
points above 3%. The Corporation's leverage ratio at June 30, 1995 was 5.65%.
Management believes that NationsBank meets its leverage ratio requirement.
The Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA"), among other things, identifies five capital categories for insured
depository institutions (well capitalized, adequately capitalized,
undercapitalized, significantly undercapitalized and critically
undercapitalized) and requires the respective Federal regulatory agencies to
implement systems for "prompt corrective action" for insured depository
institutions that do not meet minimum capital requirements within such
categories. FDICIA imposes progressively more restrictive constraints on
operations, management and capital distributions, depending on the category in
which an institution is classified. Failure to meet the capital guidelines could
also subject a banking institution to capital raising requirements. An
"undercapitalized" bank must develop a capital restoration plan and its parent
holding company must guarantee that bank's compliance with the plan. The
liability of the parent holding company under any such guarantee is limited to
the lesser of 5% of the bank's assets at the time it became "undercapitalized"
or the amount needed to comply with the plan. Furthermore, in the event of the
bankruptcy of the parent holding company, such guarantee would take priority
over the parent's general unsecured creditors. In addition, FDICIA requires the
various regulatory agencies to prescribe certain non-capital standards for
safety and soundness relating generally to operations and management, asset
quality and executive compensation and permits regulatory action against a
financial institution that does not meet such standards.
The various regulatory agencies have adopted substantially similar
regulations that define the five capital categories identified by FDICIA, using
the total risk-based capital, Tier 1 risk-based capital and leverage capital
ratios as the relevant capital measures. Such regulations establish various
degrees of corrective action to be taken when an institution is considered
undercapitalized. Under the regulations, a "well capitalized" institution must
have a Tier 1 capital ratio of at least 6%, a total capital ratio of at least
10% and a leverage ratio of at least 5% and not be subject to a capital
directive order. An "adequately capitalized" institution must have a Tier 1
capital ratio of at least 4%, a total capital ratio of at least 8% and a
leverage ratio of at least 4%, or 3% in some cases. Under these guidelines, each
of the Banks is considered adequately or well capitalized.
Banking agencies have recently adopted final regulations which mandate that
regulators take into consideration concentrations of credit risk and risks from
non-traditional activities, as well as an institution's ability to manage those
risks, when determining the adequacy of an institution's capital. This
evaluation will be made as a part of the institution's regular safety and
soundness examination. Banking agencies also have recently adopted final
regulations requiring regulators to consider interest rate risk (when the
interest rate sensitivity of an institution's assets does not match the
sensitivity of its liabilities or its off-balance-sheet position) in the
evaluation of a bank's capital adequacy. Concurrently, banking agencies have
proposed a methodology for evaluating interest rate risk. After gaining
experience with the proposed measurement process, those banking agencies intend
to propose further regulations to establish an explicit risk-based capital
charge for interest rate risk.
DISTRIBUTIONS. The Corporation's funds for cash distributions to its
shareholders are derived from a variety of sources, including cash and temporary
investments. The primary source of such funds, however, is dividends received
from its banking subsidiaries. The amount of dividends that each Bank may
declare in a calendar year without approval of the Comptroller is the Bank's net
profits for that year, as defined by statute, combined with its net retained
profits, as defined, for the preceding two years. In addition, from time to time
NationsBank applies for, and may receive, permission from the Comptroller for
one or more of the Banks to declare special dividends. In 1995, the Banks can
initiate dividend payments without prior regulatory approval
5
<PAGE>
of up to $1.0 billion plus an additional amount equal to their net profits for
1995 up to the date of any such dividend declaration.
In addition to the foregoing, the ability of NationsBank and the Banks to
pay dividends may be affected by the various minimum capital requirements and
the capital and non-capital standards established under FDICIA as described
above. Furthermore, the Comptroller may prohibit the payment of a dividend by a
national bank if it determines that such payment would constitute an unsafe or
unsound practice. The right of NationsBank, its shareholders and its creditors
to participate in any distribution of the assets or earnings of its subsidiaries
is further subject to the prior claims of creditors of the respective
subsidiaries.
SOURCE OF STRENGTH. According to Federal Reserve Board policy, bank holding
companies are expected to act as a source of financial strength to each
subsidiary bank and to commit resources to support each such subsidiary. This
support may be required at times when a bank holding company may not be able to
provide such support. In the event of a loss suffered or anticipated by the
FDIC -- either as a result of default of a banking or thrift subsidiary of
NationsBank or related to FDIC assistance provided to a subsidiary in danger of
default -- the other banking subsidiaries of NationsBank may be assessed for the
FDIC's loss, subject to certain exceptions.
USE OF PROCEEDS
The net proceeds from the sale of the Securities will be used for general
corporate purposes, including the Corporation's working capital needs, the
funding of investments in, or extensions of credit to, its banking and
nonbanking subsidiaries, possible acquisitions of other financial institutions
or their assets or liabilities, possible acquisitions of or investments in other
businesses of a type eligible for bank holding companies and possible reduction
of outstanding indebtedness or repurchase of outstanding equity securities of
the Corporation. Pending such use, the Corporation may temporarily invest the
net proceeds in investment grade securities. The Corporation may, from time to
time, engage in additional capital financings of a character and in amounts to
be determined by the Corporation in light of its needs at such time or times and
in light of prevailing market conditions. If the Corporation elects at the time
of issuance of Securities to make different or more specific use of proceeds
other than that set forth herein, such use will be described in the applicable
Prospectus Supplement.
RATIOS OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following are the consolidated ratios of earnings to combined fixed
charges and preferred stock dividend requirements for the six months ended June
30, 1995 and for each of the years in the five-year period ended December 31,
1994:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED YEAR ENDED
JUNE 30, DECEMBER 31,
1995 1994 1993 1992 1991 1990
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends:
Excluding interest on deposits......................................... 1.6 1.8 2.3 2.3 1.1 1.3
Including interest on deposits......................................... 1.4 1.5 1.5 1.4 1.0 1.1
</TABLE>
For purposes of computing the consolidated ratios, earnings represent net
income of the Corporation plus applicable income taxes and fixed charges, less
capitalized interest and the equity in undistributed earnings of unconsolidated
subsidiaries and associated companies. Fixed charges represent interest expense
(exclusive of interest on deposits in one case and inclusive of such interest in
the other), capitalized interest, amortization of debt discount and appropriate
issuance costs and one-third (the amount deemed to represent an appropriate
interest factor) of net rent expense under all lease commitments. Preferred
stock dividend requirements represent dividend requirements on the outstanding
preferred stock adjusted to reflect the pre-tax earnings that would be required
to cover such dividend requirements.
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PLAN OF DISTRIBUTION
The Corporation may offer and sell the Securities in one or more of the
following ways: (i) through underwriters or dealers; (ii) through agents; or
(iii) directly by the Corporation to one or more purchasers. Such underwriters,
dealers or agents may be affiliates of NationsBank. The Prospectus Supplement
with respect to a particular offering of any Securities will set forth the terms
of the offering of such Securities, including the name or names of any
underwriters or agents with whom NationsBank has entered into arrangements with
respect to the sale of such Securities, the public offering or purchase price of
such Securities and the proceeds to the Corporation from such sales, and any
underwriting discounts, agency fees or commissions and other items constituting
underwriters' compensation, the initial public offering price, any discounts or
concessions to be allowed or reallowed or paid to dealers and the securities
exchange, if any, on which such Securities may be listed.
If underwriters are used in the offer and sale of Securities, the
Securities will be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The Securities may be offered to the public either through
underwriting syndicates represented by managing underwriters, or by underwriters
without a syndicate, all of which underwriters in either case will be designated
in the applicable Prospectus Supplement. Unless otherwise set forth in the
applicable Prospectus Supplement, under the terms of the underwriting agreement,
the obligations of the underwriters to purchase Securities will be subject to
certain conditions precedent and the underwriters will be obligated to purchase
all the Securities if any are purchased. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
Securities may be offered and sold directly by the Corporation or through
agents designated by the Corporation from time to time. Any agent involved in
the offer or sale of the Securities with respect to which this Prospectus is
delivered will be named in, and any commissions payable by the Corporation to
such agent will be set forth in or calculable from, the applicable Prospectus
Supplement. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best-efforts basis for the period of its appointment.
If so indicated in the applicable Prospectus Supplement, the Corporation
may authorize underwriters, dealers or agents to solicit offers by certain
institutions to purchase Securities from the Corporation at the public offering
price set forth in such Prospectus Supplement pursuant to delayed delivery
contracts ("Delayed Delivery Contracts") providing for payment and delivery on
the date or dates stated in the Prospectus Supplement. Each Delayed Delivery
Contract will be for an amount of Securities not less than and, unless the
Corporation otherwise agrees, the aggregate amount of Securities sold pursuant
to Delayed Delivery Contracts shall be not more than the respective minimum and
maximum amounts stated in the Prospectus Supplement. Institutions with which
Delayed Delivery Contracts, when authorized, may be made include commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions, but shall in all cases be subject to
the approval of the Corporation in its sole discretion. The obligations of the
purchaser under any Delayed Delivery Contract to pay for and take delivery of
Securities will not be subject to any conditions except that (i) the purchase of
Securities by such institution shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which such institution is subject; and
(ii) any related sale of Securities to underwriters shall have occurred. A
commission set forth in the Prospectus Supplement will be paid to underwriters
soliciting purchases of Securities pursuant to Delayed Delivery Contracts
accepted by the Corporation. The underwriters will not have any responsibility
in respect of the validity or performance of Delayed Delivery Contracts.
Any series of Preferred Stock offered and sold pursuant to this Prospectus
and the applicable Prospectus Supplement will be new issues of securities with
no established trading market. Any underwriters to whom such Securities are sold
by the Corporation for public offering and sale may make a market in such
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Securities.
Any underwriter, dealer or agent participating in the distribution of any
Securities may be deemed to be an underwriter, as that term is defined in the
Securities Act of 1933, as amended (the "1933 Act"), of the Securities so
offered and sold, and any discounts or commissions received by them from
NationsBank and any
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<PAGE>
profit realized by them on the sale or resale of the Securities may be deemed to
be underwriting discounts and commissions under the 1933 Act.
Under agreements entered into with the Corporation, underwriters, dealers
and agents may be entitled to indemnification by the Corporation against certain
civil liabilities, including liabilities under the 1933 Act, or to contribution
with respect to payments which the underwriters or agents may be required to
make in respect thereof.
The participation of an affiliate or subsidiary of NationsBank in the offer
and sale of the Securities will comply with the requirements of Schedule E to
the By-laws of the National Association of Securities Dealers, Inc. (the "NASD")
regarding the participation in a distribution of securities by an affiliate. No
NASD member participating in offers and sales of the Securities will execute a
transaction in the Securities in a discretionary account without the prior
written specific approval of the member's customer.
This Prospectus and related Prospectus Supplements also may be used by
direct or indirect wholly owned subsidiaries of NationsBank in connection with
offers and sales related to secondary market transactions in the Securities.
Such subsidiaries may act as principal or agent in such transactions. Any such
sales will be made at prices related to prevailing market prices at the time of
sale.
Underwriters, dealers and agents also may be customers of, engage in
transactions with, or perform other services for the Corporation in the ordinary
course of business.
DESCRIPTION OF PREFERRED STOCK
GENERAL
NationsBank has authorized 45,000,000 shares of preferred stock and may
issue such preferred stock in one or more series, each with such preferences,
limitations, designations, conversion rights, voting rights, dividend rights,
voluntary and involuntary liquidation rights and other rights as it may
determine. NationsBank has designated 3,000,000 shares of ESOP Convertible
Preferred Stock, Series C (the "ESOP Preferred Stock"), of which 2,553,552
shares were issued and outstanding as of June 30, 1995.
The ability of NationsBank to pay dividends with respect to its preferred
stock or other capital stock may be affected by the ability of the Banks to pay
dividends. The ability of the Banks, as well as of the Corporation, to pay
dividends in the future currently is, and could be further, influenced by bank
regulatory requirements and capital guidelines. See "SUPERVISION AND
REGULATION."
THE PREFERRED STOCK
GENERAL. The Preferred Stock shall have the general dividend, voting and
liquidation preference rights set forth below unless otherwise provided in the
Prospectus Supplement relating to a particular series of Preferred Stock offered
thereby. Reference is made to the applicable Prospectus Supplement for specific
terms, including, where applicable: (i) the title and stated value of such
Preferred Stock; (ii) the aggregate number of shares of Preferred Stock so
offered; (iii) the price at which such Preferred Stock will be issued; (iv) the
dividend rates or method of calculation, the dividend period and the dates on
which dividends shall be payable; (v) whether any such dividends will be
cumulative or noncumulative, and if cumulative, the date from which dividends
shall commence to cumulate; (vi) the dates on which the Preferred Stock will be
subject to redemption at the option of the Corporation, if applicable, and any
related redemption terms; (vii) any mandatory redemption or sinking fund
provisions; (viii) any rights on the part of the holder to convert the Preferred
Stock into shares of Common Stock; and (ix) any additional voting, liquidation,
preemptive and other rights, preferences, privileges, limitations and
restrictions. The description of certain provisions of the Preferred Stock set
forth below and in the applicable Prospectus Supplement does not purport to be
complete and is subject to and qualified in its entirety by reference to the
Articles of Amendment to the Articles of Incorporation of the Corporation
relating to the particular series of Preferred Stock, which will be filed with
the Commission at or prior to the time of sale of such Preferred Stock.
NationsBank may, at its option, elect to offer Depositary Shares evidenced
by depositary receipts (the "Depositary Receipts"), each representing a
fractional interest (to be specified in the Prospectus Supplement
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<PAGE>
relating to the particular series of Preferred Stock) in a share of a particular
series of the Preferred Stock issued and deposited with a Depositary (as defined
below). See "DESCRIPTION OF DEPOSITARY SHARES" below.
As to the payment of dividends and the distribution of assets on
liquidation, dissolution and winding up of the Corporation, the Preferred Stock
ranks senior to the Common Stock. The dividend and liquidation preference rights
of the Preferred Stock relative to the ESOP Preferred Stock or any future series
of preferred stock of the Corporation shall be set forth in the Prospectus
Supplement relating to the particular series of Preferred Stock offered thereby.
When issued in accordance with the terms of the Prospectus and the
applicable Prospectus Supplement, the Preferred Stock will be validly issued,
fully paid and nonassessable.
DIVIDENDS. When and as declared by the Board of Directors of the
Corporation, holders of the Preferred Stock will be entitled to receive
quarterly cash dividends at such rates and on such dates as will be set forth in
the applicable Prospectus Supplement. All dividends shall be paid out of funds
of NationsBank legally available for such purpose. Except as otherwise set forth
in the applicable Prospectus Supplement, no dividends shall be paid on other
shares of the Corporation, nor shall any shares of other capital stock of the
Corporation be redeemed, repurchased or otherwise acquired for any consideration
(or any moneys be paid into a sinking fund for the redemption of shares of such
stock) by the Corporation, if dividends on any series of Preferred Stock are in
arrears.
VOTING. Except as required by applicable law or as otherwise set forth in
the applicable Prospectus Supplement, the holders of Preferred Stock shall have
no voting rights with regard to matters submitted to a general vote of the
shareholders of the Corporation.
LIQUIDATION PREFERENCE. In the event of any liquidation, dissolution or
winding up of the Corporation, either voluntary or involuntary, the holders of
any series of Preferred Stock shall be entitled to receive, by reason of their
ownership thereof, after distributions to holders of any series or class of
capital stock of the Corporation as may be set forth in the applicable
Prospectus Supplement, an amount equal to the appropriate stated or liquidation
value of the shares of such series (as set forth in the applicable Prospectus
Supplement), plus an amount equal to accrued and unpaid dividends, if any,
through the date of such payment. If upon the occurrence of such event, the
assets and funds to be thus distributed among the holders of such Preferred
Stock shall be insufficient to permit the payment to such holders of the full
amount due, then the holders of such Preferred Stock shall share ratably in any
distribution of assets of the Corporation in proportion to the respective
amounts which otherwise would be payable with respect to the shares held by them
upon such distribution if all amounts payable on or with respect to such shares
were paid in full.
THE FOLLOWING SUMMARY OF THE ESOP PREFERRED STOCK IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO THE DESCRIPTION OF SUCH SERIES OF PREFERRED STOCK
CONTAINED IN THE CORPORATION'S RESTATED ARTICLES OF INCORPORATION, AS AMENDED,
ATTACHED AS EXHIBIT 3(I) TO THE CORPORATION'S QUARTERLY REPORT ON FORM 10-Q FOR
THE QUARTER ENDED JUNE 30, 1994, INCORPORATED HEREIN BY REFERENCE.
ESOP PREFERRED STOCK
The ESOP Preferred Stock was first issued in the transaction by which
NationsBank was formed from the merger of NCNB Corporation and C&S/Sovran
Corporation in 1991 upon the conversion of shares of ESOP Convertible Preferred
Stock, Series C of C&S/Sovran Corporation. All shares are held by the trustee
under the NationsBank Corporation Retirement Savings Plan (the "ESOP").
Shares of ESOP Preferred Stock have no preemptive or preferential rights to
purchase or subscribe for shares of NationsBank capital stock of any class and
are not subject to any sinking fund or other obligation of NationsBank to
repurchase or retire the series, except as discussed below.
Each share of ESOP Preferred Stock is entitled to an annual dividend,
subject to certain adjustments, of $3.30 per share, payable semiannually. Unpaid
dividends accumulate as of the date on which they first became payable, without
interest. So long as any shares of ESOP Preferred Stock are outstanding, no
dividend may be declared, paid or set apart for payment on any other series of
stock ranking on a parity with the ESOP Preferred Stock as to dividends, unless
like dividends have been declared and paid, or set apart for payment, on the
ESOP Preferred Stock for all dividend payment periods ending on or before the
dividend payment date for such
9
<PAGE>
parity stock, ratably in proportion to their respective amounts of accumulated
and unpaid dividends. NationsBank generally may not declare, pay or set apart
for payment any dividends (except for, among other things, dividends payable
solely in shares of stock ranking junior to the ESOP Preferred Stock as to
dividends or upon liquidation) on, make any other distribution on, or make
payment on account of the purchase, redemption or other retirement of, any other
class or series of NationsBank capital stock ranking junior to the ESOP
Preferred Stock as to dividends or upon liquidation, until full cumulative
dividends on the ESOP Preferred Stock have been declared and paid or set apart
for payment when due.
The holder of the ESOP Preferred Stock is entitled to vote on all matters
submitted to a vote of the holders of Common Stock and votes together with the
holders of Common Stock as one class. Except as otherwise required by applicable
law, the holder of the ESOP Preferred Stock has no special voting rights. To the
extent that the holder of such shares is entitled to vote, each share is
entitled to the number of votes equal to the number of shares of Common Stock
into which such share of ESOP Preferred Stock could be converted on the record
date for determining the shareholders entitled to vote, rounded to the nearest
whole vote.
Shares of the ESOP Preferred Stock initially are convertible into Common
Stock at a conversion rate equal to 0.84 shares of Common Stock per share of
ESOP Preferred Stock and a conversion price of $42.50 per 0.84 shares of Common
Stock, subject to certain customary anti-dilution adjustments.
In the event of any voluntary or involuntary dissolution, liquidation or
winding-up of NationsBank, the holder of the ESOP Preferred Stock will be
entitled to receive out of the assets of NationsBank available for distribution
to shareholders, subject to the rights of the holders of any Preferred Stock
ranking senior to or on a parity with the ESOP Preferred Stock as to
distributions upon liquidation, dissolution or winding-up but before any amount
will be paid or distributed among the holders of Common Stock or any other
shares ranking junior to the ESOP Preferred Stock as to such distributions,
liquidating distributions of $42.50 per share plus all accrued and unpaid
dividends thereon to the date fixed for distribution. If, upon any voluntary or
involuntary dissolution, liquidation or winding-up of NationsBank, the amounts
payable with respect to the ESOP Preferred Stock and any other stock ranking on
a parity therewith as to any such distribution are not paid in full, the holder
of the ESOP Preferred Stock and such other stock will share ratably in any
distribution of assets in proportion to the full respective preferential amounts
to which they are entitled. After payment of the full amount of the liquidating
distribution to which it is entitled, the holder of the ESOP Preferred Stock
will not be entitled to any further distribution of assets by NationsBank.
Neither a merger or consolidation of NationsBank with or into any other
corporation, nor a merger or consolidation of any other corporation with or into
NationsBank nor a sale, transfer or lease of all or any portion of NationsBank's
assets, will be deemed to be a dissolution, liquidation or winding-up of
NationsBank.
The ESOP Preferred Stock is redeemable, in whole or in part, at the option
of NationsBank, at any time. The redemption price for the shares of the ESOP
Preferred Stock will depend upon the time of redemption. Specifically, the
redemption price for the 12-month period beginning July 1, 1995, is $43.82 per
share; on each succeeding July 1, the redemption price will be reduced by $.33
per share, except that on and after July 1, 1999, the redemption price will be
$42.50 per share, and the redemption price may be paid in cash or shares of
Common Stock. In each case, the redemption price also must include all accrued
and unpaid dividends to the date of redemption. To the extent that the ESOP
Preferred Stock is treated as Tier 1 capital for bank regulatory purposes, the
approval of the Federal Reserve Board may be required for redemption of the ESOP
Preferred Stock.
NationsBank is required to redeem shares of the ESOP Preferred Stock at the
option of the holder of such shares to the extent necessary either to provide
for distributions required to be made under the ESOP or to make payments of
principal, interest or premium due and payable on any indebtedness incurred by
the holder of the shares. The redemption price in such case will be the greater
of $42.50 per share plus accrued and unpaid dividends to the date of redemption
or the fair market value of the aggregate number of shares of Common Stock into
which a share of ESOP Preferred Stock then is convertible.
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<PAGE>
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
NationsBank may, at its option, elect to offer fractional interests in the
Preferred Stock, rather than whole shares of such securities. In the event such
option is exercised, NationsBank will provide for the issuance by a Depositary
to the public of receipts of Depositary Shares, each of which will represent a
fractional interest in a share of a particular series of the Preferred Stock, as
set forth in the Prospectus Supplement for such series of Preferred Stock.
Certain general terms and provisions of the Deposit Agreement (as described
below), Depositary Shares and the Depositary Receipts to which a Prospectus
Supplement may relate are set forth below. The particular terms of the Preferred
Stock offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Depositary Shares will be described in the
applicable Prospectus Supplement. The descriptions below and in any Prospectus
Supplement do not purport to be complete and are subject to and qualified in
their entirety by reference to the Deposit Agreement and the Depositary
Receipts, the forms of which are incorporated by reference in the Registration
Statement of which this Prospectus is a part and the definitive forms of which
will be filed with the Commission at the time of sale of such Depositary Shares.
The shares of any series of the Preferred Stock underlying the Depositary
Shares will be deposited under a separate Deposit Agreement (the "Deposit
Agreement") between NationsBank and a bank or trust company selected by
NationsBank having its principal office in the United States and having a
combined capital and surplus of at least $5,000,000 (the "Depositary"). The
applicable Prospectus Supplement will set forth the name and address of the
Depositary. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fractional
interest in a share of Preferred Stock underlying such Depositary Share, to all
the rights and preferences of the Preferred Stock underlying such Depositary
Share (including dividend, voting, redemption, conversion and liquidation
rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement. Depositary Receipts will be distributed to
those persons purchasing the fractional shares of the related series of
Preferred Stock in accordance with the terms of the offering as described in the
applicable Prospectus Supplement.
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of NationsBank, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at the Corporation's expense.
Upon the surrender of Depositary Receipts at the office of the Depositary
(unless the Depositary Shares have been previously called for redemption) and
upon payment by the holder of the charges provided in the Deposit Agreement and
subject to the terms thereof, a holder of Depositary Shares is entitled to have
the Depositary deliver to such holder the number of whole shares of the
Preferred Stock underlying the Depositary Shares evidenced by the surrendered
Depositary Receipts; PROVIDED, HOWEVER, that holder of such shares of such
Preferred Stock will not thereafter be entitled to receive Depositary Shares
therefor. If the Depositary Receipts delivered by the holder evidence a number
of Depositary Shares in excess of the number of Depositary Shares representing
the number of whole shares of the related series of Preferred Stock to be
withdrawn, the Depositary will deliver to such holder at the same time a new
Depositary Receipt evidencing such excess number of Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion to the
number of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributed shall be added to and treated as
part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
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In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
NationsBank, sell such property and distribute the net proceeds from such sale
to such holders.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Stock held by the Depositary. The Depositary
shall mail notice of redemption not less than 30 and not more than 45 days prior
to the date fixed for redemption to the record holders of the Depositary Shares
to be so redeemed at their respective addresses appearing in the Depositary's
books. The redemption price per Depositary Share will be equal to the applicable
fraction of the redemption price per share payable with respect to such series
of the Preferred Stock. Whenever NationsBank redeems Preferred Stock held by the
Depositary, the Depositary will redeem as of the same redemption date the number
of Depositary Shares relating to the Preferred Stock so redeemed. If less than
all the Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed will be selected by lot or pro rata as may be determined by the
Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holder of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which the
holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock held by the Depositary are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Shares relating to such Preferred Stock. Each record holder of such
Depositary Shares on the record date (which will be the same date as the record
date for the Preferred Stock) will be entitled to instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of Preferred Stock
underlying such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the amount of Preferred Stock underlying such
Depositary Shares in accordance with such instructions, and NationsBank will
agree to take all action which may be deemed necessary by the Depositary in
order to enable the Depositary to do so. The Depositary will abstain from voting
Preferred Stock to the extent it does not receive specific instructions from the
holders of Depositary Shares relating to such Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between NationsBank and the Depositary. However, any amendment which materially
and adversely alters the rights of the existing holders of Depositary Shares
will not be effective unless such amendment has been approved by the record
holders of at least a majority in interest of the Depositary Shares then
outstanding. A Deposit Agreement may be terminated by NationsBank or the
Depositary only if (i) all outstanding Depositary Shares relating thereto have
been redeemed or (ii) there has been a final distribution in respect of the
Preferred Stock underlying such Depositary Shares in connection with any
liquidation, dissolution or winding up of NationsBank.
CHARGES OF DEPOSITARY
NationsBank will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. NationsBank
will pay charges of the Depositary in connection with the initial deposit of the
Preferred Stock and any redemption of the Preferred Stock. Holders of Depositary
Shares will pay other transfer and other taxes and governmental charges and such
other charges as are expressly provided in the Deposit Agreement to be for their
accounts.
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MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications from NationsBank which are delivered to the Depositary and
which NationsBank is required to furnish to the holders of the Preferred Stock.
Neither the Depositary nor NationsBank will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of NationsBank and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and neither entity will be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares or
Preferred Stock unless satisfactory indemnity is furnished. Each entity may rely
upon written advice of counsel or accountants, or information provided by
persons presenting Preferred Stock for deposit, holders of Depositary Shares or
other persons believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to NationsBank notice
of its election to do so, and NationsBank may at any time remove the Depositary,
any such resignation or removal to take effect only upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be a bank or trust company having its principal office in the
United States and having a combined capital and surplus of at least $5,000,000.
DESCRIPTION OF COMMON STOCK
THE FOLLOWING SUMMARY OF THE COMMON STOCK IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO THE DESCRIPTION OF THE COMMON STOCK CONTAINED IN THE CORPORATION'S
CURRENT REPORT ON FORM 8-K FILED SEPTEMBER 21, 1994, INCORPORATED HEREIN BY
REFERENCE.
GENERAL
NationsBank is authorized to issue 800,000,000 shares of its Common Stock,
of which 269,812,113 shares were outstanding as of June 30, 1995. The Common
Stock is traded on the New York Stock Exchange, Inc. and on The Pacific Stock
Exchange Incorporated under the symbol "NB"; certain shares of Common Stock are
also listed and traded on the Tokyo Stock Exchange. As of June 30, 1995, 13.7
million shares were reserved for issuance in connection with various employee
benefit plans of NationsBank and the conversion of the ESOP Preferred Stock; of
2.8 million shares were reserved for issuance under the Corporation's Dividend
Reinvestment and Stock Purchase Plan; and up to 4.5 million shares were reserved
for issuance in connection with a pending merger between NationsBank and
Intercontinental Bank. After taking into account the shares reserved as
described above, the number of authorized shares of the Common Stock available
for other corporate purposes as of June 30, 1995 was approximately 509 million.
VOTING AND OTHER RIGHTS
The holders of the Common Stock are entitled to one vote per share, and, in
general, a majority of votes cast with respect to a matter is sufficient to take
action upon routine matters. Directors are elected by a plurality of the votes
cast, and each shareholder entitled to vote in such election shall be entitled
to vote each share of stock for as many persons as there are directors to be
elected. In elections for directors, such shareholders do not have the right to
cumulate their votes, so long as the Corporation has a class of shares
registered under Section 12 of the 1934 Act (unless action is taken to provide
otherwise by charter amendment, which action management does not currently
intend to propose). In general, (i) amendments to the Corporation's Restated
Articles of Incorporation must be approved by each voting group entitled to vote
separately thereon by a majority of the votes cast by that voting group, unless
the amendment creates dissenters' rights for a particular voting group, in which
case such amendment must be approved by a majority of the votes entitled to be
cast by such voting group; (ii) a merger or share exchange required to be
approved by shareholders must be approved by each voting group entitled to vote
separately thereon by a majority of the votes entitled to be cast by that voting
group; and (iii) the dissolution of the Corporation, or the sale of all or
substantially all of the property of
13
<PAGE>
the Corporation other than in the usual and regular course of business, must be
approved by a majority of all votes entitled to be cast thereon.
In the event of liquidation, holders of the Common Stock would be entitled
to receive pro rata any assets legally available for distribution to
shareholders with respect to shares held by them, subject to any prior rights of
any preferred stock then outstanding. See "DESCRIPTION OF PREFERRED STOCK"
above.
The Common Stock does not have any preemptive rights, redemption
privileges, sinking fund privileges, or conversion rights. All the outstanding
shares of the Common Stock are, and upon proper conversion of any Preferred
Stock all of the shares of Common Stock into which such shares are converted
will be, validly issued, fully paid and nonassessable.
Chemical Mellon Shareholder Services acts as transfer agent and registrar
for the Common Stock.
DISTRIBUTIONS
The holders of the Common Stock are entitled to receive such dividends or
distributions as the Board of Directors of the Corporation may declare out of
funds legally available for such payments. The payment of distributions by
NationsBank is subject to the restrictions of North Carolina law applicable to
the declaration of distributions by a business corporation. A corporation
generally may not authorize and make distributions if, after giving effect
thereto, it would be unable to meet its debts as they become due in the usual
course of business or if the corporation's total assets would be less than the
sum of its total liabilities plus the amount that would be needed, if it were to
be dissolved at the time of distribution, to satisfy claims upon dissolution of
shareholders who have preferential rights superior to the rights of the holders
of its common stock. In addition, the payment of distributions to shareholders
is subject to any prior rights of outstanding preferred stock, including the
ESOP Preferred Stock and any other Preferred Stock when and if issued from time
to time. See "DESCRIPTION OF PREFERRED STOCK." Share dividends, if any are
declared, may be paid from NationsBank's authorized but unissued shares.
The ability of NationsBank to pay dividends is affected by the ability of
the Banks to pay dividends. The ability of the Banks, as well as of the
Corporation, to pay dividends in the future currently is, and could be further,
influenced by bank regulatory requirements and capital guidelines. See
"SUPERVISION AND REGULATION."
LEGAL OPINIONS
The legality of the Securities will be passed upon for the Corporation by
Smith Helms Mulliss & Moore, L.L.P., Charlotte, North Carolina, and for the
underwriters or agents by Stroock & Stroock & Lavan, New York, New York. As of
the date of this Prospectus, certain members of Smith Helms Mulliss & Moore,
L.L.P., beneficially own approximately 50,000 shares of the Corporation's Common
Stock.
EXPERTS
The consolidated financial statements of the Corporation incorporated in
this Prospectus by reference to the Corporation's Annual Report on Form 10-K for
the year ended December 31, 1994, have been so incorporated in reliance on the
report of Price Waterhouse LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
14
<PAGE>
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFERING MADE HEREBY 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 CIRCUMSTANCES, 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.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
PROSPECTUS
Incorporation of Certain Documents by
Reference................................... 2
Available Information......................... 2
NationsBank Corporation....................... 3
Use of Proceeds............................... 6
Ratios of Earnings to Combined Fixed Charges
and Preferred Stock Dividends............... 6
Plan of Distribution.......................... 7
Description of Preferred Stock................ 8
Description of Depositary Shares.............. 11
Description of Common Stock................... 13
Legal Opinions................................ 14
Experts....................................... 14
</TABLE>
$3,000,000,000
NATIONSBANK(Register Mark)
PREFERRED STOCK
COMMON STOCK
PROSPECTUS
, 1995
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses, other than underwriting or broker-dealer fees,
discounts and commissions, in connection with the offering are as follows:
<TABLE>
<S> <C>
Securities Act Registration Fee..................... $1,034,483
Printing and Engraving Expenses..................... 150,000
Legal Fees and Expenses............................. 350,000
Accounting Fees and Expenses........................ 150,000
Blue Sky Fees and Expenses.......................... 40,000
Indenture Trustee Expenses.......................... 175,000
Rating Agency Fees and Expenses..................... 600,000
Listing Fees........................................ 50,000
Miscellaneous....................................... 25,517
$2,575,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
There are no provisions in the Registrant's Restated Articles of
Incorporation, and no contracts between the Registrant and its directors and
officers, relating to indemnification. The Registrant's Restated Articles of
Incorporation prevent the recovery by the Registrant of monetary damages against
its directors. However, in accordance with the provisions of the North Carolina
Business Corporation Act (the "Act"), the Registrant's Amended and Restated
Bylaws provide that, in addition to the indemnification of directors and
officers otherwise provided by the Act, the Registrant shall, under certain
circumstances, indemnify its directors, executive officers and certain other
designated officers against any and all liability and litigation expense,
including reasonable attorneys' fees, arising out of their status or activities
as directors and officers, except for liability or litigation expense incurred
on account of activities that were at the time known or reasonably should have
been known by such director or officer to be clearly in conflict with the best
interests of the Registrant. Pursuant to such bylaw and as authorized by
statute, the Registrant maintains insurance on behalf of its directors and
officers against liability asserted against such persons in such capacity
whether or not such directors or officers have the right to indemnification
pursuant to the bylaw or otherwise.
In addition to the above-described provisions, Sections 55-8-50 through
55-8-58 of the Act contain provisions prescribing the extent to which directors
and officers shall or may be indemnified. Section 55-8-51 of the Act permits a
corporation, with certain exceptions, to indemnify a current or former director
against liability if (i) he conducted himself in good faith, (ii) he reasonably
believed (x) that his conduct in his official capacity with the corporation was
in its best interests and (y) in all other cases his conduct was at least not
opposed to the corporation's best interests, and (iii) in the case of any
criminal proceeding, he had no reasonable cause to believe his conduct was
unlawful. A corporation may not indemnify a current or former director in
connection with a proceeding by or in the right of the corporation in which the
director was adjudged liable to the corporation or in connection with a
proceeding charging improper personal benefit to him in which he was adjudged
liable on such basis. The above standard of conduct is determined by the Board
of Directors or a committee thereof or special legal counsel or the shareholders
as prescribed in Section 55-8-55.
Sections 55-8-52 and 55-8-56 of the Act require a corporation to indemnify
a director or officer in the defense of any proceeding to which he was a party
because of his capacity as a director or officer against reasonable expenses
when he is wholly successful in his defense, unless the articles of
incorporation provide otherwise. Upon application, the court may order
indemnification of the director or officer if he is adjudged fairly and
reasonably so entitled under Section 55-8-54. Section 55-8-56 allows a
corporation to indemnify and advance expenses to an officer, employee or agent
who is not a director to the same extent as a director or as otherwise set forth
in the Corporation's articles of incorporation or bylaws or by resolution of the
Board of Directors.
In addition, Section 55-8-57 permits a corporation to provide for
indemnification of directors, officers, employees or agents, in its articles of
incorporation or bylaws or by contract or resolution, against liability in
various proceedings and to purchase and maintain insurance policies on behalf of
these individuals.
THE FOREGOING IS ONLY A GENERAL SUMMARY OF CERTAIN ASPECTS OF NORTH
CAROLINA LAW DEALING WITH INDEMNIFICATION OF DIRECTORS AND OFFICERS AND DOES NOT
PURPORT TO BE COMPLETE. IT IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE
RELEVANT STATUTES
II-1
<PAGE>
WHICH CONTAIN DETAILED SPECIFIC PROVISIONS REGARDING THE CIRCUMSTANCES UNDER
WHICH AND THE PERSON FOR WHOSE BENEFIT INDEMNIFICATION SHALL OR MAY BE MADE AND
ACCORDINGLY ARE INCORPORATED HEREIN BY REFERENCE.
In addition, certain sections of each of the forms of Underwriting or
Distribution Agreements filed as Exhibits hereto provide for indemnification of
the Registrant and its directors and officers by the underwriters or agents
against certain liabilities, including certain liabilities under the 1933 Act.
From time to time similar provisions have been contained in other agreements
relating to other securities of the Registrant.
ITEM 16. LIST OF EXHIBITS.
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement for Debt Securities
1.2 Form of Underwriting Agreement for Preferred Stock
1.3 Form of Underwriting Agreement for Common Stock
1.4 Form of Distribution Agreement for Medium-Term Notes
4.1 Indenture dated as of January 1, 1995 between NationsBank Corporation and BankAmerica National
Trust Company, as trustee, incorporated herein by reference to exhibit 4.1 of the Registrant's
Registration Statement on Form S-3 (Registration No. 33-57533)
4.2 Form of Senior Registered Note
4.3 Form of Senior Medium-Term Note (Fixed Rate)
4.4 Form of Senior Medium-Term Note (Floating Rate)
4.5 Indenture dated as of January 1, 1995 between NationsBank Corporation and The Bank of New York,
as trustee, incorporated herein by reference to Exhibit 4.5 of the Registrant's Registration
Statement on Form S-3 (Registration No. 33-57533.)
4.6 Form of Subordinated Registered Note
4.7 Form of Subordinated Medium-Term Note (Fixed Rate)
4.8 Form of Subordinated Medium-Term Note (Floating Rate)
4.9 Form of Certificate for Preferred Stock, incorporated herein by reference to Exhibit 4.6 of the
Registrant's Registration Statement on Form S-3 (Registration No. 33-54784)
4.10 Form of Deposit Agreement, incorporated herein by reference to Exhibit 4.4 of the Registrant's
Registration Statement on Form S-3 (Registration No. 33-54784)
4.11 Form of Depositary Receipt, incorporated herein by reference to Exhibit 4.5 of the Registrant's
Registration Statement on Form S-3 (Registration No. 33-54784)
5.1 Opinion of Smith Helms Mulliss & Moore, L.L.P. regarding legality of securities being
registered
12.1 Calculation of Ratios of Earnings to Fixed Charges, incorporated herein by reference to Exhibit
12(a) to the Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1995, (File No. 1-6523)
12.2 Calculation of Ratios of Earnings to Combined Fixed Charges and Preferred Stock Dividends,
incorporated herein by reference to Exhibit 12(b) to the Registrant's Quarterly Report on Form
10-Q for the quarter ended June 30, 1995, (File No. 1-6523)
23.1 Consent of Smith Helms Mulliss & Moore, L.L.P. (included in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
24.1 Power of Attorney
24.2 Certified Resolutions
25.1 Statement of Eligibility of Senior Trustee on Form T-1
25.2 Statement of Eligibility of Subordinated Trustee on Form T-1
99.1 Provisions of the North Carolina Business Corporation Act, as amended, relating to indemni-
fication of directors and officers
</TABLE>
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<PAGE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the 1933 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 volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement.
(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 (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the 1934 Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the 1933 Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 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.
Insofar as indemnification for liabilities arising under the 1933 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 Commission such indemnification is against
public policy as expressed in the 1933 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 1933 Act
and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes (1) to use its best efforts to
distribute prior to the opening of bids, to prospective bidders, underwriters,
and dealers, a reasonable number of copies of a prospectus which at that time
meets the requirements of Section 10(a) of the 1933 Act, and relating to the
securities offered at competitive bidding, as contained in the Registration
Statement, together with any supplements thereto, and (2) to file an amendment
to the Registration Statement reflecting the results of bidding, the terms of
the reoffering and related matters to the extent required by the applicable
form, not later than the first use, authorized by the Registrant after the
opening of bids, of a prospectus relating to the securities offered at
competitive bidding, unless no further public offering of such Securities by the
Registrant and no reoffering of such securities by the purchasers is proposed to
be made.
The undersigned Registrant hereby undertakes that, (1) for purposes of
determining any liability under the 1933 Act, the information omitted from the
form of prospectus filed as a part of this Registration Statement in reliance
upon Rule 430A and contained in a form of prospectus filed pursuant to Rules
424(b)(1), 424(b)(4) or 497(h) under the 1933 Act shall be deemed to be a part
of this Registration Statement at the time it was declared effective, and (2)
for the purpose of determining any liability under the 1933 Act, each
post-effective amendment, if any, that contains a form of prospectus shall be
deemed to be
II-3
<PAGE>
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.
The undersigned Registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act of 1939, as amended (the "Act"),
in accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-4
<PAGE>
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 Charlotte, North Carolina, on September 29, 1995.
NATIONSBANK CORPORATION
(REGISTRANT)
By: HUGH L. MCCOLL, JR.*
HUGH L. MCCOLL, JR.
CHAIRMAN AND
CHIEF EXECUTIVE OFFICER
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 dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
HUGH L. MCCOLL, JR.* Chairman, Chief Executive Officer September 29, 1995
(HUGH L. MCCOLL, JR.) and Director (Principal
Executive Officer)
JAMES H. HANCE, JR.* Chief Financial Officer September 29, 1995
(JAMES H. HANCE, JR.) (Principal Financial Officer)
MARC D. OKEN* Executive Vice President September 29, 1995
(MARC D. OKEN) and Chief Accounting Officer
(Principal Accounting
Officer)
RONALD W. ALLEN* Director September 29, 1995
(RONALD W. ALLEN)
WILLIAM M. BARNHARDT* Director September 29, 1995
(WILLIAM M. BARNHARDT)
THOMAS E. CAPPS* Director September 29, 1995
(THOMAS E. CAPPS)
CHARLES W. COKER* Director September 29, 1995
(CHARLES W. COKER)
THOMAS G. COUSINS* Director September 29, 1995
(THOMAS G. COUSINS)
ALAN T. DICKSON* Director September 29, 1995
(ALAN T. DICKSON)
W. FRANK DOWD, JR.* Director September 29, 1995
(W. FRANK DOWD, JR.)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
A. L. ELLIS* Director September 29, 1995
(A. L. ELLIS)
PAUL FULTON* Director September 29, 1995
(PAUL FULTON)
L. L. GELLERSTEDT, JR.* Director September 29, 1995
(L. L. GELLERSTEDT, JR.)
TIMOTHY L. GUZZLE* Director September 29, 1995
(TIMOTHY L. GUZZLE)
W. W. JOHNSON* Director September 29, 1995
(W. W. JOHNSON)
BUCK MICKEL* Director September 29, 1995
(BUCK MICKEL)
JOHN J. MURPHY* Director September 29, 1995
(JOHN J. MURPHY)
JOHN C. SLANE* Director September 29, 1995
(JOHN C. SLANE)
JOHN W. SNOW* Director September 29, 1995
(JOHN W. SNOW)
MEREDITH R. SPANGLER* Director September 29, 1995
(MEREDITH R. SPANGLER)
ROBERT H. SPILMAN* Director September 29, 1995
(ROBERT H. SPILMAN)
Director
(RONALD TOWNSEND)
JACKIE M. WARD* Director September 29, 1995
(JACKIE M. WARD)
*By: /s/ CHARLES M. BERGER
CHARLES M. BERGER, ATTORNEY-IN-FACT
</TABLE>
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NO.
<C> <S> <C>
1.1 Form of Underwriting Agreement for Debt Securities
1.2 Form of Underwriting Agreement for Preferred Stock
1.3 Form of Underwriting Agreement for Common Stock
1.4 Form of Distribution Agreement for Medium-Term Notes
4.1 Indenture dated as of January 1, 1995 between NationsBank Corporation
and BankAmerica National Trust Company, as trustee, incorporated herein
by reference to Exhibit 4.1 of the Registrant's Registration Statement
on Form S-3 (Registration No. 33-57533)
4.2 Form of Senior Registered Note
4.3 Form of Senior Medium-Term Note (Fixed Rate)
4.4 Form of Senior Medium-Term Note (Floating Rate)
4.5 Indenture dated as of January 1, 1995 between NationsBank Corporation
and The Bank of New York, as trustee, incorporated herein by reference
to Exhibit 4.5 of the Registrant's Registration Statement on Form S-3
(Registration No. 33-57533)
4.6 Form of Subordinated Registered Note
4.7 Form of Subordinated Medium-Term Note (Fixed Rate)
4.8 Form of Subordinated Medium-Term Note (Floating Rate)
4.9 Form of Certificate for Preferred Stock, incorporated herein by
reference to Exhibit 4.6 of the Registrant's Registration Statement on
Form S-3 (Registration No. 33-54784)
4.10 Form of Deposit Agreement, incorporated herein by reference to Exhibit
4.4 of the Registrant's Registration Statement on Form S-3 (Registration
No. 33-54784)
4.11 Form of Depositary Receipt, incorporated herein by reference to Exhibit
4.5 of the Registrant's Registration Statement on Form S-3 (Registration
No. 33-54784)
5.1 Opinion of Smith Helms Mulliss & Moore, L.L.P. regarding legality of
securities being registered
12.1 Calculation of Ratios of Earnings to Fixed Charges, incorporated herein
by reference to Exhibit 12(a) to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1995 (File No. 1-6523)
12.2 Calculation of Ratios of Earnings to Combined Fixed Charges and
Preferred Stock Dividends, incorporated herein by reference to Exhibit
12(b) to the Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995 (File No. 1-6523)
23.1 Consent of Smith Helms Mulliss & Moore, L.L.P. (included in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
24.1 Power of Attorney
24.2 Certified Resolutions
25.1 Statement of Eligibility of Senior Trustee on Form T-1
25.2 Statement of Eligibility of Subordinated Trustee on Form T-1
99.1 Provisions of the North Carolina Business Corporation Act, as amended,
relating to indemnification of directors and officers
</TABLE>
<PAGE>
[Debt Securities]
NATIONSBANK CORPORATION
UNDERWRITING AGREEMENT
New York, New York
____________, 199_
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
NationsBank 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 securities identified in Schedule I
hereto (the "Securities"), to be issued under an indenture
(the "Indenture") dated as of ____________ between the
Company and ____________, 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,
each shall be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each
Underwriter that:
(a) The Company meets the requirements for 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
on such Form (the file number of which is set forth in
Schedule I hereto), which has become effective, for the
registration under the Act of the Securities. Such
registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule
415(a)(1) under the Act and complies in all other
material respects with said Rule. The Company proposes
to file with the Commission pursuant to Rule 424 or
Rule 434 under the Act a supplement to the form of
prospectus included in such registration statement
relating to the Securities and the plan of distribution
thereof and has previously advised you of all further
information (financial and other) with respect to the
Company to be set forth therein. Such registration
<PAGE>
statement, including the exhibits thereto, as amended
at the date of this Agreement, is hereinafter called
the "Registration Statement"; such prospectus in the
form in which it appears in the Registration Statement
is hereinafter called the "Basic Prospectus"; and such
supplemented form of prospectus, in the form in which
it shall be filed with the Commission pursuant to Rule
424 or Rule 434 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final
Prospectus." Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to
Rule 424 hereinafter is called the "Preliminary Final
Prospectus." 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 Securities Exchange Act of 1934
(the "Exchange Act") on or before the date of this
Agreement, 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, and the 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 date of this
Agreement, or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final
Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) As of the date hereof, when the Final
Prospectus is first filed pursuant to Rule 424 or Rule
434 under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of
any document incorporated by reference in the
Registration Statement), when any supplement to the
Final Prospectus is filed with the Commission and at
the Closing Date (as hereinafter defined), (i) the
Registration Statement as amended as of any such time,
and the Final Prospectus, as amended or supplemented as
of any such time, and the Indenture will comply in all
material respects with the applicable requirements of
the Act, the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the Exchange Act and the respective
rules thereunder, (ii) the Registration Statement, as
amended as of any such time, 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, and (iii) the Final Prospectus, as amended
or supplemented as of any such time, will not contain
any untrue statement of a material fact or omit to
state any material fact required to
-2-
<PAGE>
be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the
Company makes no representations or warranties as to
(A) that part of the Registration Statement which shall
constitute the Statement of Eligibility and
Qualification of the Trustee (Form T-1) under the Trust
Indenture Act of the Trustee or (B) the information
contained in or omitted from the Registration Statement
or the Final Prospectus or any amendment thereof or
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 use in connection with
the preparation of the Registration Statement and the
Final Prospectus.
2. Purchase and Sale. 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 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."
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
make 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
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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 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, 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
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 in the manner set forth in Schedule I hereto.
Unless otherwise agreed, certificates for the Underwriters'
Securities shall be in the form set forth in Schedule I
hereto, and such certificates shall be deposited with the
Paying Agent, Security Registrar and Transfer Agent as
custodian for The Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) 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) 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 to be filed with the
Commission pursuant to Rule 424 or Rule 434 via the
Electronic Data Gathering, Analysis and Retrieval
System. The Company will advise the Representatives
promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424 or Rule 434, (ii)
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when any amendment to the Registration Statement relating to
the Securities shall have become effective, (iii) of any
request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the
Final Prospectus or for any additional information, (iv) 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 (v) 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 amended or supplemented would
include any untrue statement of a material fact or omit
to state any material fact necessary to make the
statements therein in light of the circumstances under
which they were made not misleading, or if it shall be
necessary to amend or supplement the Final Prospectus
to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such
statement or omission or an amendment which will effect
such compliance.
(c) The Company will make generally available to
its security holders and to the Representatives as soon
as practicable, but not later than 60 days after the
close of the period covered thereby, an earnings
statement (in form complying with the provisions of
Rule 158 of the regulations under the Act) covering a
twelve month period beginning not later than the first
day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the
Registration Statement.
(d) The Company will furnish to the
Representatives and counsel for the Underwriters,
without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto
which shall become effective on or prior to the Closing
Date 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 amendments thereof and
supplements thereto as the Representatives may
reasonably request. The Company will pay the expenses
of printing all documents relating to the offering.
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(e) The Company will arrange for the
qualification of the Securities for sale under the laws
of such jurisdictions as the Representatives may
reasonably 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; provided, however, that the
Company shall not be required to qualify to do business
in any jurisdiction where it is not now so qualified or
to take any action which would subject it to general or
unlimited service of process of any jurisdiction where
it is not now so subject.
(f) Until the business day following the Closing
Date, the Company will not, without the consent of the
Representatives, offer or sell, or announce the
offering of, any securities covered by the Registration
Statement or by 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 date hereof, as of the date of
the effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date (including the filing of any
document incorporated by reference therein) and as of 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) No stop order suspending the effectiveness of
the Registration Statement, as amended from time to time,
shall have been issued and no proceedings for that purpose
shall have been instituted or threatened; and the Final
Prospectus shall have been filed or mailed for filing with the
Commission within the time period prescribed by the
Commission.
(b) The Company shall have furnished to the
Representatives the opinion of Smith Helms Mulliss &
Moore, L.L.P., counsel for the Company, dated the Closing
Date, to the effect of paragraphs (i), (iv) and (vi) through
(xii) below, and the opinion of Paul J. Polking, General
Counsel to the Company, dated the Closing Date, to the effect
of paragraphs (ii), (iii) and (v) below:
(i) the Company is a duly organized and
validly existing corporation in good standing under the
laws of the State of North Carolina, has the corporate
power and authority to own its properties and conduct its
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business as described in the Final Prospectus, and is
duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended; NationsBank,
National Association, NationsBank, National Association
(Carolinas), NationsBank of Florida, National
Association, NationsBank of Georgia, National
Association, and NationsBank of Texas, National
Association, (or the successors to such entities)
(collectively, the "Subsidiaries") are national banking
associations formed under the laws of the United States
and authorized thereunder to transact business;
(ii) except for those jurisdictions
specifically enumerated in such opinion, neither
the Company nor any of the Subsidiaries is
required to be qualified or licensed to do
business as a foreign corporation in any
jurisdiction;
(iii) all the outstanding shares of capital
stock of each Subsidiary have been duly and
validly authorized and issued and are fully paid
and (except as provided in 12 U.S.C. (Section Mark) 55, as
amended) nonassessable, and, except as otherwise
set forth in the Final Prospectus, all outstanding
shares of capital stock of the Subsidiaries
(except directors' qualifying shares) are owned,
directly or indirectly, by the Company 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;
(iv) the Securities conform in all material
respects to the description thereof contained in
the Final Prospectus;
(v) if the Securities are to be listed on the
New York Stock Exchange, 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 the New York Stock 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;
(vi) 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
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<PAGE>
in accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other
similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies, and
further subject to 12 U.S.C. 1818(b)(6)(D) and similar
bank regulatory powers and to the application of
principles of public policy); 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, fraudulent conveyance or other similar laws
affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the
right to specific enforcement of remedies, and further
subject to 12 U.S.C. 1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles of
public policy);
(vii) 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;
(viii) the Registration Statement has become
effective under the Act; to the best knowledge of
such counsel no stop order suspending the
effectiveness of the Registration Statement has
been issued and no proceedings for that purpose
have been instituted or threatened; the
Registration Statement, the Final Prospectus and
each amendment thereof or supplement thereto
(other than the financial statements and other
financial and statistical information contained
therein or incorporated by reference therein, as
to which such counsel need express no opinion)
comply as to form in all material respects with
the applicable requirements
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<PAGE>
of the Act and the Exchange Act and the respective rules
thereunder; and such counsel has no reason to believe
that the Registration Statement or any amendment thereof
at the time it became effective 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, as amended or supplemented, contains
any untrue statement of a material fact or omits to state
a material fact necessary to make the statements therein,
in light of the circumstances under which they were made,
not misleading;
(ix) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company and constitute 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, fraudulent conveyance or other similar
laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles
that may limit the right to specific enforcement
of remedies, and except insofar as the
enforceability of the indemnity and contribution
provisions contained in this Agreement may be
limited by federal and state securities laws, and
further subject to 12 U.S.C. 1818(b)(6)(D) and
similar bank regulatory powers and to the
application of principles of public policy);
(x) no consent, approval, authorization or
order of any court or governmental agency or body
is required for the consummation 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;
(xi) 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 of, or constitute a default under the
articles of incorporation or by-laws of the
Company or, to the best knowledge of such counsel,
the terms of any indenture or other agreement or
instrument known to such counsel and to which the
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<PAGE>
Company or any of its subsidiaries is a party or bound,
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 affiliates; and
(xii) to the best knowledge and information
of such counsel, each holder of securities of the Company
having rights to the registration of such securities
under the Registration Statement has waived such rights
or such rights have expired by reason of lapse of time
following notification of the Company's intention to file
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 officers of the Company and
its subsidiaries and public officials.
(c) The Representatives shall have received from
Stroock & Stroock & Lavan, 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 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 and Chief Executive Officer or a
Senior Vice President 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 and
this Agreement and that to the best of their knowledge:
(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
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<PAGE>
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, as
amended, has been issued and no proceedings for
that purpose have been instituted or threatened;
and
(iii) since the date of the most recent
financial statements included in the Final
Prospectus, 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.
(e) At the Closing Date, Price Waterhouse 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
the response, if any, to Item 10 of the Registration
Statement is correct insofar as it relates to them and
stating in effect that:
(i) They are independent accountants within
the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations
thereunder.
(ii) In their opinion, the consolidated
financial statements of the Company and its
subsidiaries audited by them and included or
incorporated by reference in the Registration Statement
and Prospectus comply as to form in all material
respects with the applicable accounting requirements of
the Act and the regulations thereunder with respect to
registration statements on Form S-3 and the Exchange
Act and the regulations thereunder.
(iii) On the basis of procedures (but not an
audit in accordance with generally accepted auditing
standards) consisting of:
(a) Reading the minutes of the meetings of
the shareholders, the board of directors, executive
committee and audit committee of the Company and the
boards of directors and executive committees of its
subsidiaries as set forth in the minute books through a
specified date not more than five business days prior to
the date of delivery of such letter;
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<PAGE>
(b) Performing the procedures specified by
the American Institute of Certified Public Accountants
for a review of interim financial information as
described in SAS No. 71, Interim Financial Information,
on the unaudited condensed consolidated interim financial
statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus and reading the
unaudited interim financial data, if any, for the period
from the date of the latest balance sheet included or
incorporated by reference in the Registration Statement
and Prospectus to the date of the latest available
interim financial data; and
(c) Making inquiries of certain officials of
the Company who have responsibility for financial and
accounting matters regarding the specific items for which
representations are requested below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1) the unaudited condensed consolidated
interim financial statements, included or incorporated by
reference in the Registration Statement and Prospectus,
do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange
Act and the published rules and regulations thereunder;
(2) any material modifications should be
made to the unaudited condensed consolidated interim
financial statements, included or incorporated by
reference in the Registration Statement and Prospectus,
for them to be in conformity with generally accepted
accounting principles;
(3) (i) at the date of the latest available
interim financial data and at the specified date not more
than five business days prior to the date of the delivery
of such letter, there was any change in the capital stock
or the long-term debt (other than scheduled repayments of
such debt) or any decreases in shareholders' equity of
the Company and the subsidiaries on a consolidated basis
as compared with the amounts shown in the latest balance
sheet included or incorporated by reference in the
Registration Statement and the Prospectus or (ii) for the
period from the date of the latest available financial
data to a specified date not more than five business days
prior to the delivery of such letter, there was any
change in the capital stock or the long-term debt (other
than scheduled repayments of such debt) or any decreases in
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shareholders' equity of the Company
and the subsidiaries on a consolidated basis, except in
all instances for changes or decreases which the
Registration Statement and Prospectus discloses have
occurred or may occur, or Price Waterhouse shall state
any specific changes or decreases.
(iv) The letter shall also state that Price
Waterhouse LLP has carried out certain other specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are
included or incorporated by reference in the Registration
Statement and Prospectus and which are specified by the
Representatives and agreed to by Price Waterhouse LLP, and has
found such amounts, percentages and financial information to
be in agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries identified
in such letter.
In addition, at the time this Agreement is
executed, Price Waterhouse LLP shall have furnished to
the Representatives a letter or letters, dated the date
of this Agreement, in form and substance satisfactory
to the Representatives, to the effect set forth in this
paragraph (e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of
which information is given in the Registration Statement and
the Final Prospectus, 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 earnings, 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 and the Final Prospectus.
(g) 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.
(h) 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
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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 their counsel, this
Agreement and all obligations of the Underwriters hereunder may be
canceled 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 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 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 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
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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 amended or 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 amended or 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 and under the heading "Underwriting" or
"Plan of Distribution" 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 participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if
the defendants in any such action include both the indemnified
party and the indemnifying party and
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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 assert such legal defenses and
to otherwise participate in the defense of 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
assume the defense of such action and approval by the indemnified
party of 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 connection with the
assertion of legal defenses 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 subparagraph (a), representing the indemnified parties
under subparagraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel 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).
(d) 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 the 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
-16-
<PAGE>
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 (y) 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 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 bear 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 the 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
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<PAGE>
notice given to the Company prior to delivery of and payment for
the Securities, if prior to such time (i) 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, Florida, Georgia, Maryland, New York, North Carolina,
South Carolina, Texas or Virginia 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 Section 6 and 7 hereof and this
Section 10 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, with a copy to: Stroock & Stroock & Lavan, Seven
Hanover Square, New York, New York 10004-2696, Attn: James
R. Tanenbaum; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at NationsBank
Corporate Center, Charlotte, North Carolina 28255, attention
of the Secretary, with a copy to each of: NationsBank
Corporation, NationsBank Corporate Center, Legal Department,
NC 1007-20-1, Charlotte, North Carolina 28255, Attn: Paul J.
Polking, General Counsel; and Smith Helms Mulliss & Moore,
L.L.P., 227 North Tryon Street, Charlotte, North Carolina
28202, Attn: Boyd C. Campbell, Jr.
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 internal laws of the State
of New York, without giving effect to principles of conflict of
laws.
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<PAGE>
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 among the Company
and the several Underwriters.
Very truly yours,
NATIONSBANK CORPORATION
By:_________________________
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By:
By:__________________________
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
-19-
<PAGE>
SCHEDULE I
Underwriting Agreement dated ___________, 199_
Registration Statement No. 33-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include type of funds and accrued
interest or amortization, if applicable): ______%; in
federal (same day) funds or wire transfer to an account
previously designated to the Representatives by the
Company or, if agreed to by the Representatives and the
Company, by certified or official bank check or checks.
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: ____________, New York
City time, Office of Stroock & Stroock & Lavan
Listing:
Delayed Delivery Arrangements:
Additional items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 5(e) at the
time this Agreement is executed:
<PAGE>
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
-2-
<PAGE>
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The
undersigned hereby agrees to purchase from NationsBank
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 Final Prospectus dated , 19 ,
receipt of a copy of which is hereby acknowledged, at a
purchase price of % of the principal amount thereof, plus
accrued interest, 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. 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
-3-
<PAGE>
Underwriting Agreement referred to in the Final Prospectus
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 the 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.
This
agreement shall be governed by and construed in accordance
with the internal laws of the State of New York, without giving
effect to principles of conflict of laws.
Very truly yours,
_____________________________
(Name of Purchaser)
BY:____________________________
(Signature and Title of Officer)
________________________________
(Address)
Accepted:
NATIONSBANK CORPORATION
By:____________________________
(Authorized Signature)
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<PAGE>
[Preferred Stock]
NATIONSBANK CORPORATION
UNDERWRITING AGREEMENT
New York, New York
____________, 199_
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
NationsBank 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"),
__________ shares (the "Initial Shares") of the Company's
preferred stock (the "Preferred Stock"). The Company also
grants to the Underwriters, severally and not jointly, the
option described in Section 2(b) to purchase up to _____
additional shares (the "Option Shares") of Preferred Stock
to cover over-allotments. The Company may elect to offer
fractional interests in shares of Preferred Stock, in which
event the Company will provide for the issuance by a
Depositary of receipts evidencing depositary shares that
will represent such fractional interests ("Depositary
Shares"). The shares of Preferred Stock involved in any
such offering are hereinafter referred to as the
"Securities" and, where appropriate herein, reference to the
Securities include the Depositary Shares. Such Securities
are to be sold to each Underwriter, acting severally and not
jointly, in such amounts as are listed in Schedule II
opposite the name of each Underwriter. The Securities are
more fully described in the Final Prospectus, referred to
below. 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, each shall be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each
Underwriter that:
(a) The Company meets the requirements for 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
on such Form (the
<PAGE>
file number of which is set forth in Schedule I hereto), which
has become effective, for the registration under the Act of
the Securities. Such registration statement, as amended at
the date of this Agreement, meets the requirements set forth
in Rule 415(a)(1) under the Act and complies in all other
material respects with said Rule. The Company proposes to
file with the Commission pursuant to Rule 424 or Rule 434
under the Act a supplement to the form of prospectus included
in such registration statement relating to the Securities and
the plan of distribution thereof and has previously advised
you of all further information (financial and other) with
respect to the Company to be set forth therein. Such
registration statement, including the exhibits thereto, as
amended at the date of this Agreement, is hereinafter called
the "Registration Statement"; such prospectus in the form in
which it appears in the Registration Statement is hereinafter
called the "Basic Prospectus"; and such supplemented form of
prospectus, in the form in which it shall be filed with the
Commission pursuant to Rule 424 or Rule 434 (including the
Basic Prospectus as so supplemented) is hereinafter called the
"Final Prospectus." Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule
424 hereinafter is called the "Preliminary Final Prospectus."
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 Securities Exchange
Act of 1934 (the "Exchange Act") on or before the date of this
Agreement, 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, and the 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 date of this Agreement, or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) As of the date hereof, when the Final
Prospectus is first filed pursuant to Rule 424 or Rule
434 under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of
any document incorporated by reference in the
Registration Statement), when any supplement to the
Final Prospectus is filed with the Commission and at
the Closing Date (as hereinafter defined), (i) the
Registration Statement as amended as of
-2-
<PAGE>
any such time, and the Final Prospectus, as amended or
supplemented as of any such time, will comply in all material
respects with the applicable requirements of the Act, and the
Exchange Act and the respective rules thereunder, (ii) the
Registration Statement, as amended as of any such time, 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, and (iii) the Final Prospectus, as amended or
supplemented as of any such time, 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, in light of the circumstances
under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration
Statement or the Final Prospectus or any amendment thereof or
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 use in connection with the preparation of the
Registration Statement and the Final Prospectus.
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 the respective
number of 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 amounts of
Securities to be purchased by the Underwriters shall be 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."
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 purchase price
set forth on Schedule I hereto, of the Securities for which
Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with institutional investors, including
commercial and savings banks,
-3-
<PAGE>
insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will make
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
amount of Securities set forth in Schedule I hereto and the
aggregate amount of Contract Securities may not exceed the maximum
aggregate 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 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 amount of Contract Securities as
the amount of Securities set forth opposite the name of such
Underwriter bears to the aggregate amount set forth in Schedule II
hereto, except to the extent that you determine that such reduction
shall be otherwise than in such proportion and so advise the
Company in writing; provided, however, that the total amount of
Securities to be purchased by all Underwriters shall be the
aggregate amount set forth in Schedule II hereto, less the
aggregate amount of Contract Securities.
(b) In addition, on the basis of the representations
and warranties contained herein, and subject to the terms
and conditions set forth herein, the Company grants an
option to the Underwriters, severally and not jointly, to
purchase up to an additional _______ Option Shares at the
same price per share determined as provided above for the
Initial Shares. The option hereby granted will expire 30
days after the date of the Pricing Agreement, and may be
exercised, in whole or in part (but not more than once),
only for the purpose of covering over-allotments upon notice
by the Representatives to the Company setting forth the
number of Option Shares as to which the several Underwriters
are exercising the option, and the time and date of payment
and delivery thereof. Such time and date of Delivery (the
"Date of Delivery") shall be determined by the
Representatives but shall not be later than seven full
business days after the exercise of such option and not in
any event prior to the Closing Date (as defined below). If
the option is exercised as to all or any portion of the
Option Shares, the Option Shares as to which the option is
exercised shall be purchased by the Underwriters severally
and not jointly, in proportion to, as nearly as practicable,
their respective Initial Shares underwriting obligations as
set forth on Schedule II.
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, which date and
time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9
hereof (such date and time of delivery and payment for the
Securities being herein called the
-4-
<PAGE>
"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 in the
manner set forth in Schedule I hereto. Unless otherwise agreed,
certificates for the Underwriters' Securities shall be in the form
set forth in Schedule I hereto, and such certificates shall be
deposited with the Paying Agent, Security Registrar and Transfer
Agent as custodian for The Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC.
In addition, in the event that any or all of the Option
Shares are purchased by the Underwriters, delivery and
payment for the Option Shares shall be made at the office
specified for delivery of the Initial Shares in the Pricing
Agreement, or at such other place as the Company and the
Representatives shall determine, on the Date of Delivery as
specified in the notice from the Representatives to the
Company. Delivery of the Option Shares shall be made to the
Representatives against payment by the Underwriters through
the Representatives of the purchase price thereof to or upon
the order of the Company in the manner set forth in Schedule
I hereto. Unless otherwise agreed, certificates for the
Option Shares shall be in the form set forth in Schedule I
hereto, and such certificates 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 Date of Delivery.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) 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) 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 to be filed with the
Commission pursuant to Rule 424 or Rule 434 via the
Electronic Data Gathering, Analysis and Retrieval
System. The Company will advise the Representatives
promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424 or Rule
434, (ii) when any amendment to the Registration
Statement relating to the Securities shall have become
effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or
amendment of or supplement to the Final Prospectus or
for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the
effectiveness of the Registration Statement or the
-5-
<PAGE>
institution or threatening of any proceeding for that
purpose and (v) 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 amended or supplemented would
include any untrue statement of a material fact or omit
to state any material fact necessary to make the
statements therein in light of the circumstances under
which they were made not misleading, or if it shall be
necessary to amend or supplement the Final Prospectus
to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such
statement or omission or an amendment which will effect
such compliance.
(c) The Company will make generally available to
its security holders and to the Representatives as soon
as practicable, but not later than 60 days after the
close of the period covered thereby, an earnings
statement (in form complying with the provisions of
Rule 158 of the regulations under the Act) covering a
twelve month period beginning not later than the first
day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the
Registration Statement.
(d) The Company will furnish to the
Representatives and counsel for the Underwriters,
without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto
which shall become effective on or prior to the Closing
Date 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 amendments thereof and
supplements thereto as the Representatives may
reasonably request. The Company will pay the expenses
of printing 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
reasonably 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
-6-
<PAGE>
purchase by institutional investors; provided, however, that
the Company shall not be required to qualify to do business in
any jurisdiction where it is not now so qualified or to take
any action which would subject it to general or unlimited
service of process of any jurisdiction where it is not now so
subject.
(f) Until the business day following the Closing
Date, the Company will not, without the consent of the
Representatives, offer or sell, or announce the
offering of, any securities covered by the Registration
Statement or by 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 date hereof, as of the
date of the effectiveness of any amendment to the
Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by
reference therein) and as of 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) No stop order suspending the effectiveness of
the Registration Statement, as amended from time to
time, shall have been issued and no proceedings for
that purpose shall have been instituted or threatened;
and the Final Prospectus shall have been filed or
mailed for filing with the Commission within the time
period prescribed by the Commission.
(b) The Company shall have furnished to the
Representatives the opinion of Smith Helms Mulliss &
Moore, L.L.P., counsel for the Company, dated the
Closing Date, to the effect of paragraphs (i), (iv) and
(vi) through (xii) below, and the opinion of Paul J.
Polking, General Counsel to the Company, dated the
Closing Date, to the effect of paragraphs (ii), (iii)
and (v) below:
(i) the Company is a duly organized and
validly existing corporation in good standing
under the laws of the State of North Carolina, has
the corporate power and authority to own its
properties and conduct its business as described
in the Final Prospectus, and is duly registered as
a bank holding company under the Bank Holding
Company Act of 1956, as amended; NationsBank,
National Association, NationsBank, National
Association (Carolinas), NationsBank of Florida,
National Association, NationsBank of Georgia,
-7-
<PAGE>
National Association, and NationsBank of Texas,
National Association, (or the successors to such
entities) (collectively, the "Subsidiaries") are
national banking associations formed under the
laws of the United States and authorized
thereunder to transact business;
(ii) except for those jurisdictions
specifically enumerated in such opinion, neither
the Company nor any of the Subsidiaries is
required to be qualified or licensed to do
business as a foreign corporation in any
jurisdiction;
(iii) all the outstanding shares of capital
stock of each Subsidiary have been duly and
validly authorized and issued and are fully paid
and (except as provided in 12 U.S.C. (Section Mark) 55,
amended) nonassessable, and, except as otherwise
as set forth in the Final Prospectus, all outstanding
shares of capital stock of the Subsidiaries
(except directors' qualifying shares) are owned,
directly or indirectly, by the Company 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;
(iv) the Securities conform in all material
respects to the description thereof contained in
the Final Prospectus;
(v) if the Securities are to be listed on the
New York Stock Exchange, 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 the New York Stock 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;
(vi) 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
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<PAGE>
Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
(vii) the Registration Statement has become
effective under the Act; to the best knowledge of
such counsel no stop order suspending the
effectiveness of the Registration Statement has
been issued and no proceedings for that purpose
have been instituted or threatened; the
Registration Statement, the Final Prospectus and
each amendment thereof or supplement thereto
(other than the financial statements and other
financial and statistical information contained
therein or incorporated by reference therein, 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 the
Registration Statement or any amendment thereof at
the time it became effective 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, as
amended or supplemented, contains any untrue
statement of a material fact or omits to state a
material fact necessary to make the statements
therein, in light of the circumstances under which
they were made, not misleading;
(viii) this Agreement and any Delayed
Delivery Contracts have been duly authorized,
executed and delivered by the Company and
constitute 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, fraudulent conveyance or
other similar laws affecting the rights of
creditors now or hereafter in effect, and to
equitable principles that may limit the right to
specific enforcement of remedies, and except
insofar as the enforceability of the indemnity and
contribution provisions contained in this
Agreement may be limited by federal and state
securities laws, and further subject to 12 U.S.C.
1818(b)(6)(D) and similar bank regulatory powers
and to the application of principles of public
policy);
(ix) no consent, approval, authorization or
order of any court or governmental agency or body
is required for the consummation of the
transactions contemplated herein or in any Delayed
Delivery Contracts, except such as have been
obtained under the Act and such as
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<PAGE>
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 of, or constitute a default under the
articles of incorporation or by-laws of the
Company or, to the best knowledge of such counsel,
the terms of any indenture or other agreement or
instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or
bound, 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 affiliates; and
(xi) to the best knowledge and information of
such counsel, each holder of securities of the
Company having rights to the registration of such
securities under the Registration Statement has
waived such rights or such rights have expired by
reason of lapse of time following notification of
the Company's intention to file the Registration
Statement.
(xii) to Securities have been duly authorized
and, when paid for as contemplated herein, will be
duly issued, fully paid and nonassessable.
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 officers of the
Company and its subsidiaries and public officials.
(c) The Representatives shall have received from
Stroock & Stroock & Lavan, 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 and other related matters as the
Representatives may reasonably require, and the Company
-10-
<PAGE>
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 and Chief Executive Officer
or a Senior Vice President 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 and this Agreement and
that to the best of their knowledge:
(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, as
amended, has been issued and no proceedings for
that purpose have been instituted or threatened;
and
(iii) since the date of the most recent
financial statements included in the Final
Prospectus, 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.
(e) At the Closing Date, Price Waterhouse 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
the response, if any, to Item 10 of the Registration
Statement is correct insofar as it relates to them and
stating in effect that:
(i) They are independent accountants within
the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations
thereunder.
(ii) In their opinion, the consolidated
financial statements of the Company and its
subsidiaries audited by them and included or
incorporated by reference in the
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<PAGE>
Registration Statement and Prospectus comply as to form in all
material respects with the applicable accounting requirements
of the Act and the regulations thereunder with respect to
registration statements on Form S-3 and the Exchange Act and
the regulations thereunder.
(iii) On the basis of procedures (but not an
audit in accordance with generally accepted auditing
standards) consisting of:
(a) Reading the minutes of the meetings of
the shareholders, the board of directors,
executive committee and audit committee of the
Company and the boards of directors and executive
committees of its subsidiaries as set forth in the
minute books through a specified date not more
than five business days prior to the date of
delivery of such letter;
(b) Performing the procedures specified by
the American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed
consolidated interim financial statements of the
Company and its consolidated subsidiaries included
or incorporated by reference in the Registration
Statement and Prospectus and reading the unaudited
interim financial data, if any, for the period
from the date of the latest balance sheet included
or incorporated by reference in the Registration
Statement and Prospectus to the date of the latest
available interim financial data; and
(c) Making inquiries of certain officials of
the Company who have responsibility for financial
and accounting matters regarding the specific
items for which representations are requested
below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1) the unaudited condensed consolidated
interim financial statements, included or
incorporated by reference in the Registration
Statement and Prospectus, do not comply as to form
in all material respects with the applicable
accounting requirements of the Exchange Act and
the published rules and regulations thereunder;
(2) any material modifications should be
made to the unaudited condensed consolidated
interim financial statements, included or
incorporated by reference in the Registration
Statement and Prospectus, for them to
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<PAGE>
be in conformity with generally accepted accounting
principles;
(3) (i) at the date of the latest available
interim financial data and at the specified date
not more than five business days prior to the date
of the delivery of such letter, there was any
change in the capital stock or the long-term debt
(other than scheduled repayments of such debt) or
any decreases in shareholders' equity of the
Company and the subsidiaries on a consolidated
basis as compared with the amounts shown in the
latest balance sheet included or incorporated by
reference in the Registration Statement and the
Prospectus or (ii) for the period from the date of
the latest available financial data to a specified
date not more than five business days prior to the
delivery of such letter, there was any change in
the capital stock or the long-term debt (other
than scheduled repayments of such debt) or any
decreases in shareholders' equity of the Company
and the subsidiaries on a consolidated basis,
except in all instances for changes or decreases
which the Registration Statement and Prospectus
discloses have occurred or may occur, or Price
Waterhouse shall state any specific changes or
decreases.
(iv) The letter shall also state that Price
Waterhouse LLP has carried out certain other specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information
which are included or incorporated by reference in the
Registration Statement and Prospectus and which are
specified by the Representatives and agreed to by Price
Waterhouse LLP, and has found such amounts, percentages
and financial information to be in agreement with the
relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
In addition, at the time this Agreement is
executed, Price Waterhouse LLP shall have furnished to
the Representatives a letter or letters, dated the date
of this Agreement, in form and substance satisfactory
to the Representatives, to the effect set forth in this
paragraph (e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of
which information is given in the Registration
Statement and the Final Prospectus, 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
earnings, business or properties of the
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<PAGE>
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 and the Final Prospectus.
(g) 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.
(h) 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 their counsel, this Agreement and all obligations of the
Underwriters hereunder may be canceled 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. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations
under this Agreement, including (i) the printing and filing
of the Registration Statement as originally filed and of
each amendment thereto, (ii) the copying of this Agreement
and the Pricing Agreement, (iii) the preparation, issuance
and delivery of the certificates for the Securities to the
Underwriters, including capital duties, stamp duties and
stock transfer taxes, if any, payable upon issuance of any
of the Securities, the sale of the Securities to the
Underwriters and the fees and expenses of the transfer agent
for the Securities (iv) the fees and disbursements of the
Company's counsel and accountants, (v) the qualification of
the Securities under state securities laws in accordance
with the provisions of Section 4(e), including filing fees
and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with
the preparation of the Blue Sky Survey, (vi) the printing
and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each
amendment thereto, of the preliminary prospectuses, and of
the Prospectuses and any amendments or supplements thereto,
(vii) the printing and delivery to the Underwriters of
copies of the Blue Sky Survey,
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<PAGE>
and (viii) the fee of the National Association of Securities
Dealers, Inc. and, if applicable, the New York Stock Exchange.
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 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. Conditions to Purchase of Option Shares. In the
event the Underwriters exercise the option granted in
Section 2(b) hereof to purchase all or any portion of the
Option Shares and the Date of Delivery determined by the
Representatives pursuant to Section 2 is later than the
Closing Date, the obligations of the several Underwriters to
purchase and pay for the Option Shares that they shall have
respectively agreed to purchase hereunder are subject to the
accuracy of the representations and warranties of the
Company contained herein, to the performance by the Company
of its obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of
the Registration Statement, as amended from time to
time, shall have been issued and no proceedings for
that purpose shall have been instituted or threatened;
and any required filing of the Final Prospectus
pursuant to Rule 424(b) or Rule 434 under the Act shall
have been made within the proper time period.
(b) At the Date of Delivery, the Representatives
shall have received, each dated the Date of Delivery
and relating to the Option Shares:
(i) the favorable opinion of Smith Helms
Mulliss & Moore, L.L.P., counsel for the Company,
in form and substance satisfactory to counsel for
the Underwriters, to the same effect as the
opinion required by Section 5(b);
(ii) the favorable opinion of Paul Polking,
Esq., General Counsel to the Company, in form and
substance satisfactory to counsel for the
Underwriters, to the same effect as the opinion
required by Section 5(b);
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<PAGE>
(iii) the favorable opinion of Stroock &
Stroock & Lavan, counsel for the Underwriters, to
the same effect as the opinion required by Section
5(c);
(iv) a certificate, of the Chairman of the
Board and Chief Executive Officer or Senior Vice
President of the Company and of the principal
financial or accounting officer of the Company
with respect to the matters set forth in Section
5(d);
(v) a letter from Price Waterhouse, in form
and substance satisfactory to the Underwriters,
substantially the same in scope and substance as
the letter furnished to the Underwriters pursuant
to Section 5(e) except that the "specified date"
in the letter furnished pursuant to this Section
7(b)(v) shall be a date not more than five days
prior to the Date of Delivery; and
(vi) Subsequent to the respective dates as
of which information is given in the Registration
Statement and the Final Prospectus, there shall
not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph
(b)(v) of this Section 7 or (ii) any change, or
any development involving a prospective change, in
or affecting the earnings, 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 and the
Final Prospectus.
(vii) such other information, certificates
and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 7
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 their counsel, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time
prior to, the Date of Delivery by the Representatives.
Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
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<PAGE>
8. 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 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 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
amended or 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 amended or 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
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<PAGE>
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 and
under the heading "Underwriting" or "Plan of Distribution" 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 8 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 8, 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 8. 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 participate therein,
and, to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume
the defense thereof, with counsel satisfactory to such
indemnified party; 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 assert such
legal defenses and to otherwise participate in the defense
of 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 assume the
defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 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
connection with the assertion of legal defenses 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 subparagraph (a), representing the indemnified
parties under subparagraph (a) who are parties to such
action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after
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<PAGE>
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).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 8 is due in accordance with
its terms but is for any reason held by a court to be
unavailable from the Company on the 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 8, 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 (y) 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 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).
9. 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
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<PAGE>
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 bear 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 9, 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 the 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.
10. 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 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, Florida, Georgia, Maryland, New York, North
Carolina, South Carolina, Texas or Virginia 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.
11. 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 8
hereof, and will survive delivery of and payment for the
Securities. The provisions of Section 6 and 8 hereof and
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<PAGE>
this Section 11 shall survive the termination or
cancellation of this Agreement.
12. 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, with a copy to: Stroock & Stroock & Lavan, Seven
Hanover Square, New York, New York 10004-2696, Attn: James
R. Tanenbaum; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at NationsBank
Corporate Center, Charlotte, North Carolina 28255, attention
of the Secretary, with a copy to each of: NationsBank
Corporation, NationsBank Corporate Center, Legal Department,
NC 1007-20-01, Charlotte, North Carolina 28255, Attn: Paul
J. Polking, General Counsel; and Smith Helms Mulliss &
Moore, L.L.P., 227 North Tryon Street, Charlotte, North
Carolina 28202, Attn: Boyd C. Campbell, Jr.
13. 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 8 hereof, and no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed
by and construed in accordance with the internal laws of the
State of New York, without giving effect to principles of
conflict of laws.
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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 among
the Company and the several Underwriters.
Very truly yours,
NATIONSBANK CORPORATION
By:_________________________
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: [Name of Representatives]
By:__________________________
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
-22-
<PAGE>
SCHEDULE I
Underwriting Agreement dated ___________, 199_
Registration Statement No. 33-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Purchase price (include type of funds, if applicable):
____________ in federal (same day) funds or wire
transfer to an account previously designated to the
Representatives by the Company, or if agreed to by the
Representatives and the Company, by certified or
official bank check or checks.
Other provisions:
Closing Date, Time and Location: ____________________
Delayed Delivery Arrangements:
Fee: ___________________
Minimum amount of each contract: ________________
Maximum aggregate amount of all contracts:
________________
Additional items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 5(e) at the
time this Agreement is executed:
_____________________________
<PAGE>
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
-2-
<PAGE>
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The
undersigned hereby agrees to purchase from NationsBank
Corporation (the "Company"), and the Company agrees to sell
to the undersigned, on , 19 , (the "Delivery
Date"), shares of the Company's Preferred
Stock (the "Securities") offered by the Company's Final
Prospectus dated , 19 , receipt of a copy of
which is hereby acknowledged, at a purchase price of % of
the principal amount thereof, plus accrued interest, 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. 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 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 amount of
the Securities as is to be sold to them pursuant to the
Underwriting
-3-
<PAGE>
Agreement referred to in the Final Prospectus 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 the 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.
This
agreement shall be governed by and construed in accordance
with the internal laws of the State of New York, without
giving effect to principles of conflict of laws.
Very truly yours,
_____________________________
(Name of Purchaser)
BY:____________________________
(Signature and Title of Officer)
________________________________
(Address)
Accepted:
NATIONSBANK CORPORATION
By:____________________________
(Authorized Signature)
-4-
<PAGE>
[Common Stock]
NATIONSBANK CORPORATION
UNDERWRITING AGREEMENT
New York, New York
____________, 199_
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
NationsBank Corporation, a North Carolina corporation
(the "Company"), proposes to issue and sell to the
underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives
(the "Representatives"), __________ shares (the "Initial
Shares") of the Company's common stock (the "Common Stock").
Such Initial Shares are to be sold to each Underwriter,
acting severally and not jointly, in such amounts as are
listed in Schedule II opposite the name of each Underwriter.
The Company also grants to the Underwriters, severally and
not jointly, the option described in Section 2(c) to
purchase up to _____ additional shares (the "Option Shares";
together with the Initial Shares, the "Shares") of Common
Stock to cover over-allotments. The Common Stock is more
fully described in the Final Prospectus, referred to below.
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,
each shall 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 of the date hereof and as of the date of the
Pricing Agreement (such latter date being hereinafter
referred to as the "Representation Date") that:
(a) The Company meets the requirements for 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
on such Form (the file number of which is set forth in
Schedule I hereto), which has become effective, for the
registration under the Act of the Shares. Such
registration statement, as amended
<PAGE>
at the date of this Agreement, meets the requirements set
forth in Rule 415(a)(1) under the Act and complies in all
other material respects with said Rule. The Company proposes
to file with the Commission pursuant to Rule 424 or Rule 434
under the Act a supplement to the form of prospectus included
in such registration statement relating to the Shares and the
plan of distribution thereof and has previously advised you of
all further information (financial and other) with respect to
the Company to be set forth therein. Such registration
statement, including the exhibits thereto, as amended at the
date of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus in the form in which
it appears in the Registration Statement is hereinafter called
the "Basic Prospectus"; and such supplemented form of
prospectus, in the form in which it shall be filed with the
Commission pursuant to Rule 424 or Rule 434 (including the
Basic Prospectus as so supplemented) is hereinafter called the
"Final Prospectus." Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule
424 hereinafter is called the "Preliminary Final Prospectus."
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 Securities Exchange
Act of 1934 (the "Exchange Act") on or before the date of this
Agreement, 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, and the 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 date of this Agreement, or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) As of the date hereof, when the Final
Prospectus is first filed pursuant to Rule 424 or Rule
434 under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of
any document incorporated by reference in the
Registration Statement), when any supplement to the
Final Prospectus is filed with the Commission and at
the Closing Date (as hereinafter defined), (i) the
Registration Statement as amended as of any such time,
and the Final Prospectus, as amended or supplemented as
of any such time, will comply in all material respects
with the applicable requirements of the
-2-
<PAGE>
Act, and the Exchange Act and the respective rules thereunder,
(ii) the Registration Statement, as amended as of any such
time, 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, and (iii) the Final Prospectus, as amended or
supplemented as of any such time, 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, in light of the circumstances
under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration
Statement or the Final Prospectus or any amendment thereof or
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 use in connection with the preparation of the
Registration Statement and the Final Prospectus.
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 the respective
number of Initial Shares set forth opposite such
Underwriter's name in Schedule II hereto, except that, if
Schedule I hereto provides for the sale of Initial Shares
pursuant to delayed delivery arrangements, the respective
amounts of Initial Shares to be purchased by the
Underwriters shall be set forth in Schedule II hereto, less
the respective amounts of Contract Securities determined as
provided below. Shares to be purchased by the Underwriters
are herein sometimes called the "Underwriters' Securities"
and Shares to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called
"Contract Securities."
If so provided in Schedule I hereto, the Underwriters
are authorized to solicit offers to purchase Initial Shares
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
purchase price set forth on Schedule I hereto, of the
Initial Shares 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 make
-3-
<PAGE>
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
amount of Initial Shares set forth in Schedule I hereto and the
aggregate amount of Contract Securities may not exceed the maximum
aggregate 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 amount of Initial
Shares 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 amount of Contract Securities as the amount
of Initial Shares set forth opposite the name of such Underwriter
bears to the aggregate amount set forth in Schedule II hereto,
except to the extent that you determine that such reduction shall
be otherwise than in such proportion and so advise the Company in
writing; provided, however, that the total amount of Initial Shares
to be purchased by all Underwriters shall be the aggregate amount
set forth in Schedule II hereto, less the aggregate amount of
Contract Securities.
(b) The initial public offering price and the purchase
price of the Initial Shares shall be set forth in a separate
written instrument (the "Pricing Agreement") signed by the
Representatives and the Company, the form of which is
attached hereto as Schedule IV. From and after the
execution and delivery of the Pricing Agreement, this
Agreement shall be deemed to include the Pricing Agreement.
The purchase price per share to be paid by the several
Underwriters for the Initial Shares shall be an amount equal
to the initial public offering price, less an amount per
share to be determined by agreement among the
Representatives and the Company.
(c) In addition, on the basis of the representations
and warranties contained herein, and subject to the terms
and conditions set forth herein, the Company grants an
option to the Underwriters, severally and not jointly, to
purchase up to an additional _______ Option Shares at the
same price per share determined as provided above for the
Initial Shares. The option hereby granted will expire 30
days after the date of the Pricing Agreement, and may be
exercised, in whole or in part (but not more than once),
only for the purpose of covering over-allotments upon notice
by the Representatives to the Company setting forth the
number of Option Shares as to which the several Underwriters
are exercising the option, and the time and date of payment
and delivery thereof. Such time and date of Delivery (the
"Date of Delivery") shall be determined by the
Representatives but shall not be later than seven full
business days after the exercise of such option and not in
any event prior to the Closing Date (as defined below). If
the option is exercised as to all or any portion of the
Option Shares, the Option Shares as to which the
-4-
<PAGE>
option is exercised shall be purchased by the Underwriters
severally and not jointly, in proportion to, as nearly as
practicable, their respective Initial Shares underwriting
obligations as set forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for
the Initial Shares shall be made on the date and at the time
specified in the Pricing Agreement, which date and time may
be postponed by agreement between the Representatives and
the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Initial Shares
being herein called the "Closing Date"). Delivery of the
Initial Shares 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 in the manner
set forth in Schedule I hereto. Unless otherwise agreed,
certificates for the Initial Shares shall be in the form set
forth in Schedule I hereto, and such certificates shall be
deposited with the Paying Agent, Security Registrar and
Transfer Agent as custodian for The Depository Trust Company
("DTC") and registered in the name of Cede & Co., as nominee
for DTC.
In addition, in the event that any or all of the Option
Shares are purchased by the Underwriters, delivery and
payment for the Option Shares shall be made at the office
specified for delivery of the Initial Shares in the Pricing
Agreement, or at such other place as the Company and the
Representatives shall determine, on the Date of Delivery as
specified in the notice from the Representatives to the
Company. Delivery of the Option Shares shall be made to the
Representatives against payment by the Underwriters through
the Representatives of the purchase price thereof to or upon
the order of the Company in the manner set forth in Schedule
I hereto. Certificates for the Option Shares shall be in
the form set forth in Schedule I hereto, and such
certificates 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 Date of
Delivery.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of
the Shares, the Company will not file any amendment of
the Registration Statement or supplement (including the
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 to be filed with the Commission
pursuant to Rule 424 or Rule 434 via the Electronic
Data Gathering, Analysis and Retrieval
-5-
<PAGE>
System. The Company will advise the Representatives promptly
(i) when the Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 or Rule 434, (ii) when any
amendment to the Registration Statement relating to the Shares
shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or
amendment of or supplement to the Final Prospectus or for any
additional information, (iv) 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 (v) of the receipt by the
Company of any notification with respect to the suspension of
the qualification of the Shares 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 Shares is required to be delivered under the Act,
any event occurs as a result of which the Final
Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit
to state any material fact necessary to make the
statements therein in light of the circumstances under
which they were made not misleading, or if it shall be
necessary to amend or supplement the Final Prospectus
to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such
statement or omission or an amendment which will effect
such compliance.
(c) The Company will make generally available to
its security holders and to the Representatives as soon
as practicable, but not later than 60 days after the
close of the period covered thereby, an earnings
statement (in form complying with the provisions of
Rule 158 of the regulations under the Act) covering a
twelve month period beginning not later than the first
day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the
Registration Statement.
(d) The Company will furnish to the
Representatives and counsel for the Underwriters,
without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto
which shall become effective on or prior to the Closing
Date 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 amendments thereof and
-6-
<PAGE>
supplements thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company will arrange for the
qualification of the Shares for sale under the laws of
such jurisdictions as the Representatives may
reasonably designate, will maintain such qualifications
in effect so long as required for the distribution of
the Shares and will arrange for the determination of
the legality of the Shares for purchase by
institutional investors; provided, however, that the
Company shall not be required to qualify to do business
in any jurisdiction where it is not now so qualified or
to take any action which would subject it to general or
unlimited service of process of any jurisdiction where
it is not now so subject.
(f) Until the business day following the Closing
Date, the Company will not, without the consent of the
Representatives, offer or sell, or announce the
offering of, any securities covered by the Registration
Statement or by 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 date hereof, as of the
date of the effectiveness of any amendment to the
Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by
reference therein) and as of 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) No stop order suspending the effectiveness of
the Registration Statement, as amended from time to
time, shall have been issued and no proceedings for
that purpose shall have been instituted or threatened;
and the Final Prospectus shall have been filed or
mailed for filing with the Commission within the time
period prescribed by the Commission.
(b) The Company shall have furnished to the
Representatives the opinion of Smith Helms Mulliss &
Moore, L.L.P., counsel for the Company, dated the
Closing Date, to the effect of paragraphs (i), (iv) and
(vi) through (xii) below, and the opinion of Paul J.
Polking, General Counsel to the Company, dated the
Closing Date, to the effect of paragraphs (ii), (iii)
and (v) below:
-7-
<PAGE>
(i) the Company is a duly organized and
validly existing corporation in good standing
under the laws of the State of North Carolina, has
the corporate power and authority to own its
properties and conduct its business as described
in the Final Prospectus, and is duly registered as
a bank holding company under the Bank Holding
Company Act of 1956, as amended; NationsBank,
National Association, NationsBank, National
Association (Carolinas), NationsBank of Florida,
National Association, NationsBank of Georgia,
National Association, and NationsBank of Texas,
National Association, (or the successors to such
entities) (collectively, the "Subsidiaries") are
national banking associations formed under the
laws of the United States and authorized
thereunder to transact business;
(ii) except for those jurisdictions
specifically enumerated in such opinion, neither
the Company nor any of the Subsidiaries is
required to be qualified or licensed to do
business as a foreign corporation in any
jurisdiction;
(iii) all the outstanding shares of capital
stock of each Subsidiary have been duly and
validly authorized and issued and are fully paid
and (except as provided in 12 U.S.C. (Section Mark) 55,
as amended) nonassessable, and, except as otherwise
set forth in the Final Prospectus, all outstanding
shares of capital stock of the Subsidiaries
(except directors' qualifying shares) are owned,
directly or indirectly, by the Company 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;
(iv) the Shares conform in all material
respects to the description thereof contained in
the Final Prospectus;
(v) if the Shares are to be listed on the New
York Stock Exchange, 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 Initial Shares with the New
York Stock Exchange and such counsel has no reason
to believe that the Initial Shares will not be
authorized for listing, subject to official notice
of issuance and evidence of satisfactory
distribution;
-8-
<PAGE>
(vi) 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;
(vii) the Registration Statement has become
effective under the Act; to the best knowledge of
such counsel no stop order suspending the
effectiveness of the Registration Statement has
been issued and no proceedings for that purpose
have been instituted or threatened; the
Registration Statement, the Final Prospectus and
each amendment thereof or supplement thereto
(other than the financial statements and other
financial and statistical information contained
therein or incorporated by reference therein, 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 the
Registration Statement or any amendment thereof at
the time it became effective 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, as
amended or supplemented, contains any untrue
statement of a material fact or omits to state a
material fact necessary to make the statements
therein, in light of the circumstances under which
they were made, not misleading;
(viii) this Agreement, the Pricing Agreement
and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company
and each 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, fraudulent
conveyance or other similar laws affecting the
rights of creditors now or hereafter in effect,
and to equitable principles that may limit the
right to specific enforcement of remedies, and
except insofar as the enforceability of the
indemnity and contribution provisions contained in
this Agreement may be limited by federal and state
securities laws, and
-9-
<PAGE>
further subject to 12 U.S.C. 1818(b)(6)(D) and similar
bank regulatory powers and to the application of
principles of public policy);
(ix) no consent, approval, authorization or
order of any court or governmental agency or body
is required for the consummation 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 Shares by the Underwriters and such other
approvals (specified in such opinion) as have been
obtained;
(x) neither the issue and sale of the Shares,
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 of, or constitute a default under the
articles of incorporation or by-laws of the
Company or, to the best knowledge of such counsel,
the terms of any indenture or other agreement or
instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or
bound, 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 affiliates; and
(xi) to the best knowledge and information of
such counsel, each holder of securities of the
Company having rights to the registration of such
securities under the Registration Statement has
waived such rights or such rights have expired by
reason of lapse of time following notification of
the Company's intention to file the Registration
Statement.
(xii) to Initial Shares, any Option Shares as
to which the option granted in Section 2 has been
exercised and the Date of Delivery determined by
the Representatives to be the same as the Closing
Date, have been duly authorized and, when paid for
as contemplated herein, will be duly issued, fully
paid and nonassessable.
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
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<PAGE>
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 officers of the Company and
its subsidiaries and public officials.
(c) The Representatives shall have received from
Stroock & Stroock & Lavan, counsel for the
Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of
the Initial Shares, the Indenture, any Delayed Delivery
Contracts, the Registration Statement, the Final
Prospectus 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 and Chief Executive Officer
or a Senior Vice President 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 and this Agreement and
that to the best of their knowledge:
(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, as
amended, has been issued and no proceedings for
that purpose have been instituted or threatened;
and
(iii) since the date of the most recent
financial statements included in the Final
Prospectus, 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.
(e) At the Closing Date, Price Waterhouse LLP
shall have furnished to the Representatives a letter or
letters (which may refer to letters previously
delivered to one or
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<PAGE>
more of the Representatives), dated as of the Closing Date, in
form and substance satisfactory to the Representatives,
confirming that the response, if any, to Item 10 of the
Registration Statement is correct insofar as it relates to
them and stating in effect that:
(i) They are independent accountants within
the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations
thereunder.
(ii) In their opinion, the consolidated
financial statements of the Company and its
subsidiaries audited by them and included or
incorporated by reference in the Registration Statement
and Prospectus comply as to form in all material
respects with the applicable accounting requirements of
the Act and the regulations thereunder with respect to
registration statements on Form S-3 and the Exchange
Act and the regulations thereunder.
(iii) On the basis of procedures (but not an
audit in accordance with generally accepted auditing
standards) consisting of:
(a) Reading the minutes of the meetings of
the shareholders, the board of directors,
executive committee and audit committee of the
Company and the boards of directors and executive
committees of its subsidiaries as set forth in the
minute books through a specified date not more
than five business days prior to the date of
delivery of such letter;
(b) Performing the procedures specified by
the American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed
consolidated interim financial statements of the
Company and its consolidated subsidiaries included
or incorporated by reference in the Registration
Statement and Prospectus and reading the unaudited
interim financial data, if any, for the period
from the date of the latest balance sheet included
or incorporated by reference in the Registration
Statement and Prospectus to the date of the latest
available interim financial data; and
(c) Making inquiries of certain officials of
the Company who have responsibility for financial
and accounting matters regarding the specific
items for which representations are requested
below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
-12-
<PAGE>
(1) the unaudited condensed consolidated
interim financial statements, included or
incorporated by reference in the Registration
Statement and Prospectus, do not comply as to form
in all material respects with the applicable
accounting requirements of the Exchange Act and
the published rules and regulations thereunder;
(2) any material modifications should be
made to the unaudited condensed consolidated
interim financial statements, included or
incorporated by reference in the Registration
Statement and Prospectus, for them to be in
conformity with generally accepted accounting
principles;
(3) (i) at the date of the latest available
interim financial data and at the specified date
not more than five business days prior to the date
of the delivery of such letter, there was any
change in the capital stock or the long-term debt
(other than scheduled repayments of such debt) or
any decreases in shareholders' equity of the
Company and the subsidiaries on a consolidated
basis as compared with the amounts shown in the
latest balance sheet included or incorporated by
reference in the Registration Statement and the
Prospectus or (ii) for the period from the date of
the latest available financial data to a specified
date not more than five business days prior to the
delivery of such letter, there was any change in
the capital stock or the long-term debt (other
than scheduled repayments of such debt) or any
decreases in shareholders' equity of the Company
and the subsidiaries on a consolidated basis,
except in all instances for changes or decreases
which the Registration Statement and Prospectus
discloses have occurred or may occur, or Price
Waterhouse shall state any specific changes or
decreases.
(iv) The letter shall also state that Price
Waterhouse LLP has carried out certain other specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information
which are included or incorporated by reference in the
Registration Statement and Prospectus and which are
specified by the Representatives and agreed to by Price
Waterhouse LLP, and has found such amounts, percentages
and financial information to be in agreement with the
relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
In addition, at the time this Agreement is
executed, Price Waterhouse LLP shall have furnished to
the Representatives a letter or letters, dated the date
of this
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<PAGE>
Agreement, in form and substance satisfactory to the
Representatives, to the effect set forth in this paragraph (e)
and in Schedule I hereto.
(f) Subsequent to the respective dates as of
which information is given in the Registration
Statement and the Final Prospectus, 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
earnings, 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 Shares as contemplated
by the Registration Statement and the Final Prospectus.
(g) 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.
(h) 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 their counsel, this Agreement and all obligations of the
Underwriters hereunder may be canceled 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. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations
under this Agreement, including (i) the printing and filing
of the Registration Statement as originally filed and of
each amendment thereto, (ii) the copying of this Agreement
and the Pricing Agreement, (iii) the preparation, issuance
and delivery of the certificates for the Shares to the
Underwriters, including capital duties, stamp duties and
stock transfer taxes, if any, payable upon issuance of any
of the Shares, the sale of the Shares to the Underwriters
and the fees and expenses of the transfer agent for the
Shares (iv) the fees and disbursements of the Company's
counsel and accountants, (v) the qualification of
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<PAGE>
the Shares under state securities laws in accordance with the
provisions of Section 4(e), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of
the Blue Sky Survey, (vi) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally
filed and of each amendment thereto, of the preliminary
prospectuses, and of the Prospectuses and any amendments or
supplements thereto, (vii) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey, and (viii) the fee
of the National Association of Securities Dealers, Inc. and, if
applicable, the New York Stock Exchange.
If the sale of the Shares provided for herein is not
consummated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied
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 Shares.
7. Conditions to Purchase of Option Shares. In the
event the Underwriters exercise the option granted in
Section 2(c) hereof to purchase all or any portion of the
Option Shares and the Date of Delivery determined by the
Representatives pursuant to Section 2 is later than the
Closing Date, the obligations of the several Underwriters to
purchase and pay for the Option Shares that they shall have
respectively agreed to purchase hereunder are subject to the
accuracy of the representations and warranties of the
Company contained herein, to the performance by the Company
of its obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of
the Registration Statement, as amended from time to
time, shall have been issued and no proceedings for
that purpose shall have been instituted or threatened;
and any required filing of the Final Prospectus
pursuant to Rule 424(b) or Rule 434 under the Act shall
have been made within the proper time period.
(b) At the Date of Delivery, the Representatives
shall have received, each dated the Date of Delivery
and relating to the Option Shares:
(i) the favorable opinion of Smith Helms
Mulliss & Moore, L.L.P., counsel for the Company,
in form and substance satisfactory to counsel for
the Underwriters,
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<PAGE>
to the same effect as the opinion required by Section
5(b);
(ii) the favorable opinion of Paul Polking,
Esq., General Counsel to the Company, in form and
substance satisfactory to counsel for the
Underwriters, to the same effect as the opinion
required by Section 5(b);
(iii) the favorable opinion of Stroock &
Stroock & Lavan, counsel for the Underwriters, to
the same effect as the opinion required by Section
5(c);
(iv) a certificate, of the Chairman of the
Board and Chief Executive Officer or Senior Vice
President of the Company and of the principal
financial or accounting officer of the Company
with respect to the matters set forth in Section
5(d);
(v) a letter from Price Waterhouse, in form
and substance satisfactory to the Underwriters,
substantially the same in scope and substance as
the letter furnished to the Underwriters pursuant
to Section 5(e) except that the "specified date"
in the letter furnished pursuant to this Section
7(b)(iv) shall be a date not more than five days
prior to the Date of Delivery; and
(vi) Subsequent to the respective dates as
of which information is given in the Registration
Statement and the Final Prospectus, there shall
not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph
(b)(iv) of this Section 7 or (ii) any change, or
any development involving a prospective change, in
or affecting the earnings, 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 Shares as
contemplated by the Registration Statement and the
Final Prospectus.
(vii) such other information, certificates
and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 7
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 their counsel, this
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<PAGE>
Agreement and all obligations of the Underwriters hereunder may be
canceled at, or at any time prior to, the Date of Delivery by the
Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in
writing.
8. 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 Shares 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 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 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 Shares which are
the subject thereof if such person did not receive a copy of
the Final Prospectus (or the Final Prospectus as amended or
supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of
such Shares 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 amended or
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
-17-
<PAGE>
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 and under the heading "Underwriting" or
"Plan of Distribution" 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 8 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 8, 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 8. 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 participate therein,
and, to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume
the defense thereof, with counsel satisfactory to such
indemnified party; 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 assert such
legal defenses and to otherwise participate in the defense
of 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 assume the
defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 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
connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party
shall not
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<PAGE>
be liable for the expenses of more than one separate counsel,
approved by the Representatives in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel 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).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 8 is due in accordance with
its terms but is for any reason held by a court to be
unavailable from the Company on the 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 8, 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 (y) 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 shall not
relieve the party or parties from whom contribution may be
sought from any
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<PAGE>
other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Shares 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 Shares set forth
opposite their names in Schedule II hereto bear to the
aggregate amount of Shares set forth opposite the names of
all the remaining Underwriters) the Shares which the
defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the
aggregate amount of Shares which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed
10% of the aggregate amount of Shares 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 Shares, and if such nondefaulting
Underwriters do not purchase all the Shares, 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 9, 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 the
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.
10. 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 Shares, if prior to such
time (i) 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, Florida, Georgia, Maryland, New York, North
Carolina, South Carolina, Texas or Virginia 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 Shares.
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties,
indemnities and other statements of the Company or its
officers and of the
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<PAGE>
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 8 hereof, and will survive delivery of and payment for the
Shares. The provisions of Section 7 and 8 hereof and this Section
11 shall survive the termination or cancellation of this Agreement.
12. 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, with a copy to: Stroock & Stroock & Lavan, Seven
Hanover Square, New York, New York 10004-2696, Attn: James
R. Tanenbaum; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at NationsBank
Corporate Center, Charlotte, North Carolina 28255, attention
of the Secretary, with a copy to each of: NationsBank
Corporation, NationsBank Corporate Center, Legal Department,
NC 1007-20-01, Charlotte, North Carolina 28255, Attn: Paul
J. Polking, General Counsel; and Smith Helms Mulliss &
Moore, L.L.P., 227 North Tryon Street, Charlotte, North
Carolina 28202, Attn: Boyd C. Campbell, Jr.
13. 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 8 hereof, and no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed
by and construed in accordance with the internal laws of the
State of New York, without giving effect to principles of
conflict of laws.
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<PAGE>
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 among
the Company and the several Underwriters.
Very truly yours,
NATIONSBANK CORPORATION
By:_________________________
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: [Name of Representatives]
By:__________________________
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
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<PAGE>
SCHEDULE I
Underwriting Agreement dated ___________, 199_
Registration Statement No. 33-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Purchase price (include type of funds, if applicable):
____________ in federal (same day) funds or wire
transfer to an account previously designated to the
Representatives by the Company, or if agreed to by the
Representatives and the Company, by certified or
official bank check or checks.
Other provisions:
Closing Date, Time and Location: ____________________
Delayed Delivery Arrangements:
Fee: ___________________
Minimum amount of each contract: ________________
Maximum aggregate amount of all contracts:
________________
Additional items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 5(e) at the
time this Agreement is executed:
_____________________________
<PAGE>
SCHEDULE II
Principal Amount of
Initial Shares to
Underwriters be Purchased
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<PAGE>
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The
undersigned hereby agrees to purchase from NationsBank
Corporation (the "Company"), and the Company agrees to sell
to the undersigned, on , 19 , (the "Delivery
Date"), shares of the Company's Common
Stock (the "Shares") offered by the Company's Final
Prospectus dated , 19 , receipt of a copy of
which is hereby acknowledged, at a purchase price of % of
the principal amount thereof, plus accrued interest, 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 Shares to be purchased by the undersigned shall be made
on or before 11:00 A.M. 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 Shares 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 Shares will
be registered in the name of the undersigned and issued in a
denomination equal to the aggregate amount of Shares to be
purchased by the undersigned on the Delivery Date.
The
obligation of the undersigned to take delivery of and make
payment for Shares on the Delivery Date, and the obligation
of the Company to sell and deliver Shares 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 Shares 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 amount of the Shares
as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Final Prospectus mentioned
above. Promptly after completion of
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<PAGE>
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 Shares, and the obligation of the Company to cause the
Shares to be sold and delivered, shall not be affected by the
failure of any purchaser to take delivery of and make payment for
the Shares 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 the 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.
This
agreement shall be governed by and construed in accordance
with the internal laws of the State of New York, without
giving effect to principles of conflict of laws.
Very truly yours,
_____________________________
(Name of Purchaser)
BY:____________________________
(Signature and Title of Officer)
________________________________
(Address)
Accepted:
NATIONSBANK CORPORATION
By:____________________________
(Authorized Signature)
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<PAGE>
SCHEDULE IV
_________ Shares
NATIONSBANK CORPORATION
(a North Carolina corporation)
Common Stock
PRICING AGREEMENT
__________ __, 199_
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Purchase Agreement,
dated _____________ __, 199_ (the "Underwriting Agreement"),
relating to the purchase by the several Underwriters named
in Schedule I thereto, for whom you are acting as
representatives (the "Representatives"), of the above shares
of Common Stock (the "Initial Shares"), of NationsBank
Corporation (the "Company").
We confirm that the Closing Time (as defined
in Section 2 of the Purchase Agreement) shall be at 9:30
A.M., New York City time, on __________ __, 199_ at the
offices of Stroock & Stroock & Lavan, Seven Hanover Square,
New York, New York 10004.
Pursuant to Section 2 of the Underwriting
Agreement, the Company agrees with each Underwriter as
follows:
1. The initial public offering price per
share for the Initial Shares, determined as provided in said
Section 2, shall be $__.__.
2. The purchase price per share for the
Initial Shares to be paid by the several Underwriters shall
be $__.__, being an amount equal to the initial public
offering price set forth above less $_.__ per share.
-1-
<PAGE>
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to
the Company a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with
its terms.
Very truly yours,
NATIONSBANK CORPORATION
By:_____________________
CONFIRMED AND ACCEPTED:
as of the date first above written:
By:
By:________________________________
For themselves and as Representatives of the other
Underwriters named in Schedule A hereto.
<PAGE>
SCHEDULE A
-3-
<PAGE>
NATIONSBANK CORPORATION
Medium-Term Notes
Due 9 Months or more from Date of Issue
MASTER UNITED STATES DISTRIBUTION AGREEMENT
_______________, 199__
To the Agents listed on
Exhibit A hereto and to
each additional person
that shall become an Agent
as provided in Section 12
of this Agreement.
Dear Sirs:
NationsBank Corporation, a North Carolina corporation
(the "Corporation"), confirms its agreement with each of you
(individually, as "Agent" and collectively, the "Agents") with
respect to the issue and sale by the Corporation of its Senior
Medium-Term Notes, Series __ (the "Senior Notes") and its
Subordinated Medium-Term Notes, Series __ (the "Subordinated
Notes," and together with the Senior Notes, the "Notes"). The
Senior Notes are to be issued pursuant to an Indenture dated as of
January 1, 1995 between the Corporation and BankAmerica National
Trust Company (the "Senior Trustee"), as trustee (the "Senior
Indenture"). The Subordinated Notes are to be issued pursuant to
an Indenture dated as of January 1, 1995 between the Corporation
and The Bank of New York (the "Subordinated Trustee"), as trustee
(the "Subordinated Indenture). The Senior Trustee and the
Subordinated Trustee are collectively referred to herein as the
"Trustees," and the Senior Indenture and the Subordinated Indenture
are collectively referred to herein as the "Indentures."
This Agreement provides both for the sale of Notes (i)
by the Corporation directly to purchasers using Agents to solicit
purchasers in their capacity as agents of the Corporation and (ii)
by the Corporation to one or more of the Agents as principal for
resale to purchasers.
The Corporation has filed with the Securities and
Exchange Commission (the "SEC") a registration statement on Form
S-3 (No. __________) for the registration of debt securities (both
senior and subordinated), preferred shares and common shares under
the Securities Act of 1933, as amended (the "1933 Act"), and the
offering thereof from time to time in accordance with Rule 415 of
the rules and regulations of the SEC under the 1933 Act (the "1933
Act Regulations"). Such registration statement has been declared
effective by the SEC, and the Trustees have been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such
registration statement (and any further registration statements
which may be filed by the Corporation for the purpose of
registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit)
<PAGE>
and the prospectus constituting a part thereof, and any prospectus
supplements relating to the Notes, including all documents
incorporated therein by reference, as from time to time amended or
supplemented by the filing of documents pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), or the 1933 Act
or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus," respectively, except that if any
revised prospectus shall be provided to the Agents by the
Corporation for use in connection with the offering of the Notes
which is not required to be filed by the Corporation pursuant to
Rule 424(b) of the 1933 Act Regulations, the term "Prospectus"
shall refer to such revised prospectus from and after the time it
is first provided to the Agent for such use.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions
stated herein including the reservation by the Corporation of the
right to sell Notes directly on its own behalf as set forth in
Section 3(c) hereof, the Corporation hereby appoints the Agents
named herein or appointed hereunder as agents in connection with
the sale of the Notes. The Agents are authorized to engage the
services of any other broker or dealer in connection with the offer
or sale of the Notes purchased by an Agent as principal for resale
to others, but are not authorized to appoint sub-agents in
connection with the sale of Notes through an Agent as agent.
(b) Sale of Notes. The Corporation shall not sell or
approve the solicitation of purchases of Notes in excess of the
amount which shall be authorized by the Corporation from time to
time or in excess of the principal amount of Notes registered
pursuant to the Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the
aggregate principal amount of Notes sold, or otherwise monitoring
the availability of Notes for sale under the Registration
Statement.
(c) Purchases as Principal. The Agents shall not have
any obligation to purchase Notes from the Corporation as principal,
but an Agent and the Corporation may agree from time to time that
such Agent shall purchase Notes as principal. Any such purchases
of Notes by an Agent as principal shall be made in accordance with
Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon by an
Agent and the Corporation, the Agent, acting solely as agent for
the Corporation and not as principal, will solicit purchases of the
Notes. All Notes sold through an Agent as agent will be sold at
100% of their principal amount unless otherwise agreed to by the
Corporation and such Agent. Such Agent will communicate to the
Corporation, orally, each offer to purchase Notes solicited by such
Agent on an agency basis, other than those offers rejected by the
Agent. The Agent shall have the right, in its discretion
reasonably exercised, to reject any proposed purchase of Notes by
2
<PAGE>
persons solicited by the Agent, as a whole or in part, and any such
rejection shall not be deemed a breach of the Agent's agreement
contained herein. The Corporation may accept or reject any
proposed purchase of the Notes, in whole or in part, and any such
rejection shall not be deemed a breach of the Corporation's
agreement herein. The Agent shall make reasonable efforts to
assist the Corporation in obtaining performance by each purchaser
whose offer to purchase Notes has been solicited by such Agent and
accepted by the Corporation. The Agent shall not have any
liability to the Corporation in the event any such agency purchase
is not consummated for any reason other than the negligence of the
Agent. If the Corporation shall default on its
obligation to deliver Notes to a purchaser whose offer it
has accepted, the Corporation shall (i) hold the Agent for
such purchase harmless against any loss, claim or damage
arising from or as a result of such default by the
Corporation and (ii) notwithstanding such default, pay to
such Agent any commission to which it would be entitled in
connection with such sale.
The Corporation reserves the right, in its sole
discretion, to suspend solicitation of purchases of the Notes
through the Agents, as agent, commencing at any time for any period
of time or permanently. Upon receipt of instructions from the
Corporation, the Agents will forthwith suspend solicitation of
purchases from the Corporation until such time as the Corporation
has advised the Agents that such solicitation may be resumed.
For those offers to purchase Notes accepted by the
Corporation, the Agent shall be paid a commission. Unless
otherwise agreed between the Corporation and the Agent, such
commission shall be an amount equal to the applicable percentage of
the principal amount of each Note sold by the Corporation as a
result of a solicitation made by such Agent as set forth in Exhibit
C hereto.
(e) Reliance. The Corporation and the Agents agree
that any Notes the placement of which an Agent arranges shall be
placed by such Agent in reliance on the representations,
warranties, covenants and agreements of the Corporation contained
herein and on the terms and conditions and in the manner provided
herein.
SECTION 2. Representations and Warranties.
(a) The Corporation represents and warrants to the
Agents as of the date hereof, as of the date of each acceptance by
the Corporation of an offer for the purchase of Notes (whether
through an Agent as agent or to an Agent as principal), as of the
date of each delivery of Notes (whether through an Agent as agent
or to an Agent as principal) (the date of each such delivery to an
Agent as principal being hereafter referred to as a "Settlement
Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented or there is filed with
the SEC any document incorporated by reference into the Prospectus
(other than
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<PAGE>
any Current Report on Form 8-K relating exclusively to
the issuance of debt securities under the Registration Statement)
(each of the times referenced above being referred to herein as a
"Representation Date") as follows:
(i) The Corporation meets the requirements for
use of Form S-3 under the 1933 Act and has filed with the SEC
the Registration Statement, which has become effective. Such
Registration Statement meets the requirements of Rule
415(a)(1) under the 1933 Act and complies in all other
material respects with said Rule.
(ii) As of the date hereof, when the Prospectus as
supplemented with respect to the Notes is first filed pursuant
to Rule 424 under the 1933 Act, when any amendment to the
Registration Statement becomes effective (including the filing
of any document incorporated by reference in the Registration
Statement) and as of the applicable Representation Date, (a)
the Registration Statement, as amended or supplemented as of
any such time, the Prospectus, when filed, and the applicable
Indenture will comply in all material respects with the
applicable requirements of the 1933 Act, the 1939 Act and the
1934 Act and the respective rules thereunder, (b) the
Registration Statement, as amended as of any such time, 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, and (c) the Prospectus, as amended or supplemented
as of any such time, 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, in light of the circumstances under which they were
made, not misleading; provided, however, that the Corporation
makes no representations or warranties as to (x) that part of
the Registration Statement which shall constitute the
Statement of Eligibility and Qualification of the Trustee
(Form T-1) under the 1939 Act of either of the Trustees or (y)
the information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with
information furnished in writing to the Corporation by or on
behalf of any Agent specifically for use in connection with
the preparation of the Registration Statement and the
Prospectus.
(iii) The Corporation has complied and will comply
with all the provisions of Florida H.B. 1771, codified as
Section 517.075 of the Florida Statutes, 1987, as amended, and
all regulations promulgated thereunder relating to issuers
doing business in Cuba; provided, however, that in the event
that such Section 517.075 shall be repealed, or amended such
that issuers shall no longer be required to disclose in
prospectuses information regarding business activities in Cuba
<PAGE>
or that a broker, dealer or agent shall no longer be required
to obtain a statement from issuers regarding such compliance,
then this representation and agreement shall be of no further
force and effect.
(b) Additional Certifications. Any certificate signed
by any director or officer of the Corporation and delivered to an
Agent or to counsel for such Agent in connection with an offering
of Notes or the sale of Notes to an Agent as principal shall be
deemed a representation and warranty by the Corporation to such
Agent as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Etc.
(a) Purchases as Principal. In the event that an
Agent and the Corporation shall expressly so agree, Notes shall be
purchased by such Agent as principal. Each purchase of Notes,
unless otherwise agreed, shall be at a discount equivalent to the
applicable commissions set forth in Exhibit C hereto. Such
purchases shall be made in accordance with terms agreed upon by the
Agent and the Corporation (which shall be agreed upon orally, with
written confirmation prepared by the Agent and delivered to the
Corporation within two business days of such oral agreement). In
the absence of a separate written agreement, the Agent's commitment
to purchase Notes as principal shall be deemed to have been made on
the basis of the representations, warranties and covenants of the
Corporation herein contained and shall be subject to the terms and
conditions in the manner set forth herein, including Section 11(b)
hereof. An Agent may engage the services of any other broker or
dealer in connection with the resale of the Notes purchased as
principal and may reallow any portion of the discount received in
connection with such purchases from the Corporation to such brokers
and dealers.
(b) Corporation Sales to Unsolicited Purchasers.
Notwithstanding any provision herein to the contrary, the
Corporation reserves the right to (i) sell Notes, at any time,
directly on its own behalf to any unsolicited purchaser, whether
directly to such purchaser or through the agent of such purchaser,
and (ii) accept offers to purchase Notes through additional agents
on substantially the same terms and conditions as would apply to
the Agents hereunder. Upon the sale of any Notes to an unsolicited
purchaser, no Agent named herein shall be entitled to any
commission pursuant to this Agreement.
(c) Administrative Procedures. The purchase price,
interest rate, maturity date and other terms of the Notes (as
applicable) specified in Exhibit B hereto shall be agreed upon by
the Corporation and the applicable Agent and set forth in a pricing
supplement to the Prospectus to be prepared following each
acceptance by the Corporation of an offer for the purchase of
Notes. Administrative procedures with respect to the sale of Notes
5
<PAGE>
shall be agreed upon from time to time by the Agents and the
Corporation (the "Procedures"). Initial Administrative Procedures
dated __________, 199_ shall remain in effect until changed by the
Agents and the Corporation. The Agents and the Corporation agree
to perform the respective duties and obligations specifically
provided to be performed by them in the Procedures.
SECTION 4. Covenants of the Corporation.
The Corporation covenants with the Agents as follows:
(a) Notice of Certain Events. The Corporation will
notify the Agents immediately (i) of the effectiveness of any
amendment to the Registration Statement, (ii) of the transmittal to
the SEC for filing of any supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act which will be
incorporated by reference in the Prospectus, (iii) of the receipt
of any comments from the SEC with respect to the Registration
Statement or the Prospectus (other than with respect to a document
filed with the SEC pursuant to the 1934 Act which will be
incorporated by reference in the Registration Statement and the
Prospectus), (iv) of any request by the SEC for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for additional information relating thereto (other
than such a request with respect to a document filed with the SEC
pursuant to the 1934 Act which will be incorporated by reference in
the Registration Statement and the Prospectus), and (v) of the
issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings
for that purpose. The Corporation will make every reasonable
effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Notice of Certain Proposed Filings. The
Corporation will give the Agents notice of its intention to file or
prepare any additional registration statement with respect to the
registration of additional Notes or any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus (other than an amendment or supplement providing solely
for a change in the interest rates or maturity dates of Notes or
similar changes or an amendment or supplement effected by the
filing of a document with the SEC pursuant to the 1934 Act) and,
upon request, will furnish the Agents with copies of any such
registration statement or amendment or supplement proposed to be
filed or prepared a reasonable time in advance of such proposed
filing or preparation, as the case may be, and will not file any
such registration statement or amendment or supplement in a form to
which the Agents or their counsel shall reasonably object.
(c) Copies of the Registration Statement and the
Prospectus and 1934 Act Filings. The Corporation will deliver to
the Agents as many signed and conformed copies of the Registration
Statement (as originally filed) and of each amendment thereto
(including
6
<PAGE>
exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the
Agents may reasonably request. The Corporation will furnish to the
Agents as many copies of the Prospectus (as amended or
supplemented) as the Agents shall reasonably request so long as the
Agents are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes under the
Act. The Corporation will furnish to the Agents copies of any
Annual Report on Form 10-K, Quarterly Report on Form 10-Q or
Current Report on Form 8-K filed by the Corporation with the
Commission pursuant to the 1934 Act as soon as practicable after
the filing thereof.
(d) Preparation of Pricing Supplements. The
Corporation will prepare, with respect to any Notes to be sold
through or to an Agent pursuant to this Agreement, a Pricing
Supplement with respect to such Notes in a form previously approved
by the Agents and will file such Pricing Supplement with the SEC
pursuant to Rule 424(b) under the 1933 Act not later than the close
of business on the second business day after the date on which such
Pricing Supplement is first used.
(e) Revisions of Prospectus -- Material Changes.
Except as otherwise provided in subsection (k) of this Section, if
at any time during the term of this Agreement any event shall occur
or condition exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Agents or counsel for the
Corporation, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, immediate
notice shall be given, and confirmed in writing, to the Agents to
cease the solicitation of offers to purchase the Notes in the
Agents' capacity as agent and to cease sales of any Notes any Agent
may then own as principal, and the Corporation will promptly
prepare and file with the SEC such amendment or supplement, whether
by filing documents pursuant to the 1934 Act, the 1933 Act or
otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement and Prospectus
comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial
Information. Except as otherwise provided in subsection (k) of
this Section, on or prior to the date on which there shall be
released to the general public interim financial statement
information related to the Corporation with respect to each of the
first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the
Corporation shall furnish such
7
<PAGE>
information to the Agents, confirmed in writing, and thereafter
shall cause the Prospectus to be amended or supplemented to include
or incorporate by reference financial information with respect
thereto, as well as such other information and explanations as
shall be necessary for an understanding thereof, as may be required
by the 1933 Act or the 1934 Act or otherwise.
(g) Prospectus Revisions -- Audited Financial
Information. Except as otherwise provided in subsection (k) of
this Section, on or prior to the date on which there shall be
released to the general public financial information included in or
derived from the audited financial statements of the Corporation
for the preceding fiscal year, the Corporation shall furnish such
information to the Agents and thereafter shall cause the
Registration Statement and the Prospectus to be amended to include
or incorporate by reference such audited financial statements and
the report or reports, and consent or consents to such inclusion or
incorporation by reference, of the independent accountants with
respect thereto, as well as such other information and explanations
as shall be necessary for an understanding of such financial
statements, as may be required by the 1933 Act or the 1934 Act or
otherwise.
(h) Earnings Statements. The Corporation will make
generally available to its security holders as soon as practicable,
but not later than 90 days after the close of the period covered
thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 1933 Act) covering each
twelve-month period beginning, in each case, not later than the
first day of the Corporation's fiscal quarter next following the
"effective date" (as defined in such Rule 158) of the Registration
Statement with respect to each sale of Notes.
(i) Blue Sky Qualifications. The Corporation will
endeavor, in cooperation with the Agents, to qualify the Notes for
offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Agents
may designate and will maintain such qualifications in effect for
as long as may be required for the distribution of the Notes;
provided, however, that the Corporation shall not be obligated to
file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so
qualified. The Corporation will file such statements and reports
as may be required by the laws of each jurisdiction in which the
Notes have been qualified as above provided. The Corporation will
promptly advise the Agents of the receipt by the Corporation of any
notification with respect to the suspension of the qualification of
the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(j) 1934 Act Filings. The Corporation, during the
period when the Prospectus is required to be delivered under the
1933 Act,
8
<PAGE>
will file promptly all documents required to be filed with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(k) Suspension of Certain Obligations. The
Corporation shall not be required to comply with the provisions of
subsections (e), (f) or (g) of this Section during any period from
the time (i) the Agents shall have suspended solicitation of
purchases of the Notes in their capacity as agent pursuant to a
request from the Corporation and (ii) the Agents shall not then
hold any Notes as principal purchased from the Corporation, to the
time the Corporation shall determine that solicitation of purchases
of the Notes should be resumed or shall subsequently agree for the
Agents to purchase Notes as principal.
SECTION 5. Conditions of Obligations.
The obligations of an Agent to solicit offers to
purchase the Notes as agent of the Corporation, the obligations of
any purchasers of the Notes sold through any Agent as agent and any
obligation of an Agent to purchase Notes as principal or otherwise
will be subject to the accuracy of the representations and
warranties on the part of the Corporation herein and to the
accuracy of the statements of the Corporation's officers made in
any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Corporation of all its covenants
and agreements herein contained and to the following additional
conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents
shall have received the following legal opinions, dated as of the
date hereof and in form and substance satisfactory to the Agents:
(1) Opinion of Corporation Counsel. The opinion
of Smith Helms Mulliss & Moore, L.L.P., counsel to the
Corporation, to the effect of paragraphs (i) and (iv) through
(x) below, and the opinion of Paul J. Polking, Executive Vice
President and General Counsel to the Corporation, to the
effect of paragraphs (ii) and (iii) below:
(i) The Corporation is a duly organized and
validly existing corporation in good standing under the
laws of the State of North Carolina, has the corporate
power and authority to own its properties and conduct its
business as described in the Prospectus and is duly
registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended; each of
NationsBank of Florida, National Association, NationsBank
of Georgia, National Association, NationsBank, National
Association (Carolinas), NationsBank of Texas, National
Association, and NationsBank, National Association (or
the successors to such entities) (collectively, the
"Subsidiaries"), is a national banking association formed
under the laws of
9
<PAGE>
the United States and authorized thereunder to transact
business.
(ii) Except for those jurisdictions
specifically enumerated in such opinion, to the best of
such counsel's knowledge, neither the Corporation nor any
of the Subsidiaries is required to be qualified or
licensed to do business as a foreign corporation in any
jurisdiction.
(iii) All the outstanding shares of capital
stock of each Subsidiary have been duly and validly
authorized and issued and are fully paid and (except as
provided in 12 U.S.C. (Section Mark) 55, as amended)
nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of the
Subsidiaries (except directors' qualifying shares) are owned,
directly or indirectly, by the Corporation 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.
(iv) This Agreement has been duly authorized,
executed and delivered by the Corporation and constitutes
a legal, valid and binding agreement of the Corporation,
enforceable against the Corporation in accordance with
its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the
right to specific enforcement of remedies, and except
insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may
be limited by federal and state securities laws, and
further subject to 12 U.S.C. (Section Mark) 1818(b)(6)(D)
and similar bank regulatory powers and to the application of
principles of public policy underlying all such laws).
(v) Each of the Indentures has been duly
authorized, executed and delivered, has been duly
qualified under the 1939 Act, as applicable, and
constitutes a legal, valid and binding instrument
enforceable against the Corporation in accordance with
its terms, and the Notes have been duly authorized and,
when the terms of the Notes have been established and
when the Notes have been completed, executed,
authenticated and delivered in accordance with the
provisions of the applicable Indenture, the applicable
Board Resolutions and this Agreement against payment of
the consideration therefor, will constitute legal, valid
and binding obligations of the Corporation entitled to
the benefits of such Indenture, subject (with respect to
each of the Indentures and the Notes) as to enforcement
10
<PAGE>
of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other
similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that may
limit the right to specific enforcement of remedies, and
further subject to 12 U.S.C. (Section Mark) 1818(b)(6)(D) and
similar bank regulatory powers and to the application of
principles of public policy underlying all such laws.
(vi) The forms of Notes attached to the
Secretary's Certificate delivered to the Agents conform
in all material respects to the description thereof
contained in the Prospectus, as supplemented or amended.
(vii) The Registration Statement has become
effective under the 1933 Act; to the best knowledge of
such counsel no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Prospectus
and each amendment thereof or supplement thereto (other
than the financial statements and other financial and
statistical information contained therein or incorporated
by reference therein, as to which such counsel need
express no opinion) comply as to form in all material
respects with the applicable requirements of the 1933 Act
and the 1934 Act and the respective rules thereunder.
(viii) To the best knowledge of such counsel,
except as disclosed in the Registration Statement or the
Prospectus, there is no pending or threatened action,
suit or proceeding before or by any court or governmental
agency, authority or body or any arbitrator involving the
Corporation or any of the Subsidiaries, of a character
required to be disclosed in the Registration Statement,
which is not adequately disclosed in the Prospectus, and
there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or the Prospectus, or to be filed as an
exhibit, which is not described or filed as required.
(ix) To the best knowledge of such counsel,
neither the issuance and sale of the Notes, the
consummation of any other of the transactions
contemplated by this Agreement nor the fulfillment of the
terms thereof will conflict with, result in a breach of,
or constitute a default under the Restated Articles of
Incorporation or the Amended and Restated Bylaws of the
Corporation or, to the best of such counsel's knowledge,
the terms of any material indenture or other agreement or
instrument known to such counsel and to which the
Corporation or any of the Subsidiaries is a party or
bound, or any order or regulation known to such counsel
to be applicable to the
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<PAGE>
Corporation or any of the Subsidiaries of any court,
regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Corporation or
any of the Subsidiaries.
(x) To the best knowledge of such counsel,
no authorization, order, approval or consent of, or
filing with, any court or governmental authority or
agency is necessary or required in connection with the
sale of the Notes hereunder, except such as have been
obtained under the 1933 Act or the 1933 Act Regulations
and such as may be required under foreign or state
securities or insurance laws in connection with the
distribution of the Notes.
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 counsel for the Agents or upon the opinion
of other counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Agents; and (B) as to
matters of fact, to the extent deemed proper, on certificates
of responsible officers of the Corporation and the
Subsidiaries and public officials.
(2) Opinion of Counsel to the Agents. The
opinion of Stroock & Stroock & Lavan, counsel to the Agents,
covering the matters referred to in subparagraph (1) under the
subheadings (iv) through (vii), inclusive, above.
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 New York or the United
States, to the extent deemed proper and specified in such
opinion, upon counsel for the Corporation or upon the opinion
of other counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Corporation; and (B)
as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Corporation and
the Subsidiaries and public officials.
(3) In giving their opinions required by
subsections (a)(1) and (a)(2) of this Section, but without
opining in connection therewith, Smith Helms Mulliss & Moore,
L.L.P. and Stroock & Stroock & Lavan shall each additionally
state that although they have not independently verified, are
not passing upon and assume no responsibility for, the
accuracy, completeness or fairness of the statements contained
in the Registration Statement, such counsel has no reason to
believe that the Registration Statement or any amendment
thereof at the time it became effective, or that the
Prospectus, as amended or supplemented, contained any untrue
statement of a
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material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
(b) Officer's Certificate. On the date hereof, the
Agents shall have received a certificate of the Chairman and Chief
Executive Officer or a Senior Vice President and the Chief
Financial or Chief Accounting Officer of the Corporation, dated as
of the date hereof, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus and this Agreement and that to the best of their
knowledge (i) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has
not been any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Corporation and its subsidiaries considered as one
enterprise, whether or not arising from transactions in the
ordinary course of business, except as set forth or contemplated in
the Prospectus, as supplemented or amended, (ii) the other
representations and warranties of the Corporation contained in
Section 2 hereof are true and correct in all material respects with
the same force and effect as though expressly made at and as of the
date of such certificate, (iii) the Corporation has performed or
complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the date
of such certificate, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened by
the SEC.
(c) Comfort Letter. On the date hereof, the Agents
shall have received a letter from Price Waterhouse LLP
("Price Waterhouse") dated as of the date hereof and in form
and substance satisfactory to the Agents, to the effect
that:
(i) They are independent public accountants with
respect to the Corporation and its subsidiaries within the
meaning of the 1933 Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial
statements of the Corporation and its subsidiaries audited by
them and included or incorporated by reference in the
Registration Statement and Prospectus comply as to form in all
material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations with respect to
registration statements on Form S-3 and the 1934 Act and the
1934 Act Regulations.
(iii) On the basis of procedures (but not an audit
in accordance with generally accepted auditing standards)
consisting of:
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(a) Reading the minutes of the meetings of
the shareholders, the board of directors, executive
committee and audit committee of the Corporation and the
boards of directors and executive committees of its
subsidiaries as set forth in the minute books through a
specified date not more than five business days prior to
the date of delivery of such letter;
(b) Performing the procedures specified by
the American Institute of Certified Public Accountants
for a review of interim financial information as
described in SAS NO. 71, Interim Financial Information,
on the unaudited condensed consolidated interim financial
statements of the Corporation and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus and reading the
unaudited interim financial data, if any, for the period
from the date of the latest balance sheet included or
incorporated by reference in the Registration Statement
and Prospectus to the date of the latest available
interim financial data; and
(c) Making inquiries of certain officials of
the Corporation who have responsibility for financial and
accounting matters regarding the specific items for which
representations are requested below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1) the unaudited condensed consolidated
interim financial statements, included or incorporated by
reference in the Registration Statement and Prospectus,
do not comply as to form in all material respects with
the applicable accounting requirements of the 1934 Act
and the published rules and regulations thereunder;
(2) any material modifications should be
made to the unaudited condensed consolidated interim
financial statements, included or incorporated by
reference in the Registration Statement and Prospectus,
for them to be in conformity with generally accepted
accounting principles;
(3) (i) at the date of the latest available
interim financial data and at the specified date
not more than five business days prior to the date
of the delivery of such letter, there was any
change in the capital stock or the long-term debt
(other than scheduled repayments of such debt) or
any decreases in shareholders' equity of the
Corporation and the subsidiaries on a consolidated
basis as compared with the amounts shown in the
latest balance sheet included or incorporated by
reference in the Registration Statement and the
Prospectus or (ii) for
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the period from the date of the latest available
financial data to a specified date not more than five
business days prior to the delivery of such letter, there
was any change in the capital stock or the long-term debt
(other than scheduled repayments of such debt) or any
decreases in shareholders' equity of the Corporation and
the subsidiaries on a consolidated basis, except in all
instances for changes or decreases which the Registration
Statement and Prospectus discloses have occurred or may
occur, or Price Waterhouse shall state any specific
changes or decreases.
(iv) The letter shall also state that Price
Waterhouse has carried out certain other specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information
which are included or incorporated by reference in the
Registration Statement and Prospectus and which are
specified by the Agents and agreed to by Price
Waterhouse, and has found such amounts, percentages and
financial information to be in agreement with the
relevant accounting, financial and other records of the
Corporation and its subsidiaries identified in such
letter.
(d) Other Documents. On the date hereof and on each
Settlement Date with respect to any purchase of Notes by an Agent
as principal, counsel to the Agents shall have been furnished with
such documents and opinions as such counsel may reasonably require
for the purpose of enabling such counsel to pass upon the issuance
and sale of Notes as herein contemplated, or in order to evidence
the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, contained
herein; and all proceedings taken by the Corporation in connection
with the issuance and sale of Notes as herein contemplated shall be
satisfactory in form and substance to such Agent and to counsel to
the Agents.
If any condition specified in this Section 5 shall not
have been fulfilled in all material respects when and as required
to be fulfilled, this Agreement may be terminated by the Agents by
notice to the Corporation at any time and any such termination
shall be without liability of any party to any other party, except
that the covenant regarding provision of an earnings statement set
forth in Section 4(h) hereof, the provisions concerning payment of
expenses under Section 9 hereof, the indemnity and contribution
agreements set forth in Section 8 hereof, the provisions concerning
the representations, warranties and agreements to survive delivery
set forth in Section 10 hereof and the provisions regarding parties
set forth under Section 15 hereof shall remain in effect.
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<PAGE>
SECTION 6. Delivery of and Payment for Notes Sold
through the Agents.
Delivery of Notes sold through an Agent as agent shall
be made by the Corporation to such Agent for the account of any
purchaser only against payment therefor in immediately available
funds. In the event that a purchaser shall fail either to accept
delivery of or to make payment for a Note on the date fixed for
settlement, the Agent shall promptly notify the Corporation and
deliver the Note to the Corporation, and, if the Agent has
theretofore paid the Corporation for such Note, the Corporation
will promptly return such funds to the Agent. If such failure
occurred for any reason other than default by the Agent in the
performance of its obligations hereunder, the Corporation will
reimburse the Agent on an equitable basis for its loss of the use
of the funds for the period such funds were credited to the
Corporation's account. Unless otherwise agreed between the
Corporation and the Agent, all Notes will be issued in book-entry
only form and will be represented by one or more fully registered
global securities.
SECTION 7. Additional Covenants of the Corporation.
The Corporation covenants and agrees with the Agents
that:
(a) Reaffirmation of Representations and Warranties.
Each acceptance by it of an offer for the purchase of Notes, and
each delivery of Notes to an Agent pursuant to a sale of Notes to
such Agent as principal, shall be deemed to be an affirmation that
the representations and warranties of the Corporation contained in
this Agreement and in any certificate theretofore delivered to such
Agent pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that
such representations and warranties will be true and correct at the
time of delivery to the purchaser or his agent, or to such Agent,
of the Note or Notes relating to such acceptance or sale, as the
case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to
the Registration Statement and Prospectus as amended and
supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time
that (i) there is filed with the SEC any Quarterly Report on Form
10-Q or Annual Report on Form 10-K that is incorporated by
reference into the Prospectus, or (ii) if required by the Agents,
the Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates or maturity dates of
Notes or similar changes, an amendment or supplement which relates
exclusively to an offering of securities other than the Notes or,
except as hereinbefore described, an amendment or supplement
resulting from the filing of any document incorporated by reference
therein), the Corporation shall furnish or cause to be furnished to
the Agents forthwith a certificate of the Chairman and Chief
Executive Officer, any Senior
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Vice President, the Chief Financial Officer, the Chief Accounting
Officer or Treasurer of the Corporation dated the date of filing
with the SEC of such supplement or document or the date of
effectiveness of such amendment, as the case may be, in form
satisfactory to the Agents to the effect that the statements
contained in the certificate referred to in Section 5(b) hereof
which was last furnished to the Agents are true and correct at the
time of such filing, amendment or supplement, as the case may be,
as though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of
such certificate, a certificate of the same tenor as the
certificate referred to in said Section 5(b), modified as necessary
to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such
certificate.
(c) Subsequent Delivery of Legal Opinions. Each time
that (i) there is filed with the SEC any Annual Report on Form
10-K, (ii) if required by the Agents, there is filed any Quarterly
Report on Form 10-Q, or (iii) if required by the Agents, the
Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates or maturity dates of the
Notes or similar changes or solely for the inclusion of additional
financial information, an amendment or supplement which relates
exclusively to an offering of securities other than the Notes or,
except as hereinbefore described, an amendment or supplement
resulting from the filing of any document incorporated by reference
therein), the Corporation shall furnish or cause to be furnished
forthwith to the Agents and to counsel to the Agents the written
opinions of Smith Helms Mulliss & Moore, L.L.P., counsel to the
Corporation, and Paul J. Polking, General Counsel to the
Corporation, or other counsel satisfactory to the Agents, dated the
date of filing with the SEC of such supplement or document or the
date of effectiveness of such amendment, as the case may be, in
form and substance satisfactory to the Agents, of the same tenor as
the opinions referred to in Section 5(a)(1) hereof, but modified,
as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of
such opinions; or, in lieu of such opinions, counsel last
furnishing such opinions to the Agents shall furnish the Agents
with a letter substantially to the effect that the Agents may rely
on such last opinion to the same extent as though it was dated the
date of such letter authorizing reliance (except that statements in
such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the
time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time
that (i) there is filed with the SEC any Annual Report on Form
10-K, (ii) if required by the Agents, there is filed with the SEC
any Quarterly Report on Form 10-Q or (iii) if required by the
Agents,
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the Registration Statement or the Prospectus shall be
amended or supplemented to include additional financial information
(other than an amendment or supplement resulting from the filing of
a Current Report on Form 8-K that is incorporated by reference
therein), the Corporation shall cause Price Waterhouse forthwith to
furnish the Agents a letter, dated the date of effectiveness of
such amendment, supplement or document filed with the SEC, as the
case may be, in form satisfactory to the Agents, of the same tenor
as the portions of the letter referred to in clauses (i) and (ii)
of Section 5(c) hereof but modified to relate to the Registration
Statement and Prospectus, as amended and supplemented to the date
of such letter, and of the same general tenor as the portions of
the letter referred to in clauses (iii) and (iv) of said Section
5(c) with such changes as may be necessary to reflect changes in
the financial statements and other information derived from the
accounting records of the Corporation; provided, however, that if
the Registration Statement or the Prospectus is amended or
supplemented solely to include financial information as of and for
a fiscal quarter, Price Waterhouse may limit the scope of such
letter to the unaudited financial statements included in such
amendment or supplement. If any other information included therein
is of an accounting, financial or statistical nature, the Agents
may request procedures be performed with respect to such other
information. If Price Waterhouse is willing to perform and report
on the requested procedures, such letter should cover such other
information. Any letter required to be provided by Price
Waterhouse hereunder shall be provided within five business days of
the filing of the Annual Report on Form 10-K or, with respect to
any letter required by the Agents pursuant to subparagraph (ii) or
(iii) hereof, the request by the Agents.
SECTION 8. Indemnification and Contribution.
(a) The Corporation agrees to indemnify and hold
harmless each Agent and each person who controls any Agent within
the meaning of either the 1933 Act or the 1934 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 1933 Act,
the 1934 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 as originally
filed or in any amendment thereof, or arise out of or are based
upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus, or any amendment or supplement
thereof, or arise out of or are based upon any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and
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<PAGE>
agrees to reimburse each such indemnified party 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 Corporation 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 Corporation by or on behalf of
any Agent specifically for use in connection with the preparation
thereof, and (ii) such indemnity with respect to the Prospectus
shall not inure to the benefit of any Agent (or any person
controlling such Agent) from whom the person asserting any such
loss, claim, damage or liability purchased the Notes which are the
subject thereof if such person did not receive a copy of the
Prospectus as amended or supplemented in connection with the sale
of such Notes excluding documents incorporated therein by reference
at or prior to the confirmation of the sale of such Notes to such
person in any case where such delivery is required by the 1933 Act
and the untrue statement or omission of a material fact contained
in the Prospectus was corrected in the Prospectus as amended or
supplemented. This indemnity agreement will be in addition to any
liability which the Corporation may otherwise have.
(b) Each Agent severally agrees to indemnify and hold
harmless the Corporation, each of its directors, each of its
officers who signs the Registration Statement and each person who
controls the Corporation within the meaning of either the 1933 Act
or the 1934 Act, to the same extent as the foregoing indemnity from
the Corporation to each Agent, but only with reference to written
information relating to such Agent furnished to the Corporation by
or on behalf of such Agent 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
Agent may otherwise have. The Corporation acknowledges that the
statements set forth in the last two paragraphs on the cover page
and under the heading "Plan of Distribution" in the Prospectus, as
supplemented or amended, constitute the only information furnished
in writing by or on behalf of the several Agents for inclusion in
the documents referred to in the foregoing indemnity, and you, as
the Agents, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party
under this Section 8 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 8, 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 8. 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 participate therein, and, to the extent
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<PAGE>
that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; 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 assert such legal defenses and to
otherwise participate in the defense of 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
assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 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 connection with the
assertion of legal defenses 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 Agent in the case of
subparagraph (a), representing the indemnified parties under
subparagraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel 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).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 8 is due in accordance with its terms
but is for any reason held by a court to be unavailable from the
Corporation on the grounds of policy or otherwise, the Corporation
and the Agents 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 Corporation and one or more of the Agents may be
subject in such proportion so that each Agent is responsible for
that portion represented by the percentage that the total
commissions and underwriting discounts received by such Agent bears
to the total sales price from the sale of Notes sold to or through
the Agents to the date of such liability, and the Corporation is
responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
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misrepresentation. For purposes of this Section 8, each person who
controls any Agent within the meaning of the 1933 Act shall have
the same rights to contribution as such Agent, and each person who
controls the Corporation within the meaning of either the 1933 Act
or the 1934 Act, each officer of the Corporation who shall have
signed the Registration Statement and each director of the
Corporation shall have the same rights to contribution as the
Corporation, subject in each case to the provisions 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 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).
SECTION 9. Payment of Expenses.
The Corporation will pay all expenses incident to the
performance of its obligations under this Agreement, including:
(a) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and any
amendments or supplements thereto;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing, issuance and delivery
of the Notes, including any fees and expenses relating to the use
of book-entry notes;
(d) The fees and disbursements of the Corporation's
accountants and counsel, of the Trustees and their counsel, and of
any registrar, transfer agent, paying agent or calculation agent;
(e) The reasonable fees and disbursements of counsel
to the Agents incurred from time to time in connection with the
transactions contemplated hereby;
(f) The qualification of the Notes under state
securities or insurance laws in accordance with the provisions of
Section 4(i) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Agents in connection therewith
and in connection with the preparation of any Blue Sky Survey and
any Legal Investment Survey;
(g) The printing and delivery to the Agent in
quantities as hereinabove stated of copies of the Registration
Statement and any amendments thereto, and of the Prospectus and any
amendments or supplements thereto, and the delivery by the Agent of the
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Prospectus and any amendments or supplements thereto in connection
with solicitations or confirmations of sales of the Notes;
(h) The preparation, printing, reproducing and
delivery to the Agents of copies of the Indentures and all
supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating
of the Notes;
(j) The fees and expenses incurred in connection with
the listing of the Notes on any securities exchange;
(k) The fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities
Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses
of the Agents incurred with the approval of the Corporation;
(m) The cost of providing any CUSIP or other
identification numbers for the Notes; and
(n) The fees and expenses of any depository and any
nominees thereof in connection with the Notes.
SECTION 10. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements
contained in this Agreement or in certificates of officers of the
Corporation submitted pursuant hereto shall remain operative and in
full force and effect, regardless of any investigation made by or
on behalf of any Agent or any controlling person of any Agent, or
by or on behalf of the Corporation, and shall survive each delivery
of and payment for any of the Notes.
SECTION 11. Termination.
(a) Termination of this Agreement. This Agreement
(excluding any agreement hereunder by an Agent to purchase Notes as
principal) may be terminated for any reason, with respect to one or
more, or all, of the Agents, at any time by either the Corporation
or one or more of the Agents upon the giving of 30 days' written
notice of such termination to the other party hereto. Any
termination by the Corporation of this Agreement with respect to
one or more, but less than all, of the Agents shall be effective
with respect to such designated Agents only, and the Agreement will
remain in force and effect with respect to any other Agents who
remain parties hereto.
(b) Termination of Agreement to Purchase Notes as
Principal. An Agent may terminate any agreement hereunder
by such Agent to purchase Notes as principal, immediately
upon notice to the
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Corporation at any time prior to the Settlement Date relating
thereto, (i) if there has been, since the date of such agreement or
since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Corporation and its
subsidiaries considered as one enterprise, or (ii) if there shall
have occurred, since the date of such agreement, any outbreak or
material escalation of hostilities or other national or
international calamity or crisis the effect of which is such as to
make it, in the judgment of such Agent, impracticable to market the
Notes or enforce contracts for the sale of the Notes, or (iii) if,
since the date of such agreement, trading in securities generally
on the New York Stock Exchange shall have been suspended or
limited, or (iv) if, since the date of such agreement, a banking
moratorium shall have been declared by either Federal or New York
authorities.
If, after the date of an agreement hereunder to
purchase Notes as principal and prior to the Settlement Date with
respect to such agreement, the rating assigned by Standard & Poor's
Ratings Group, a division of McGraw Hill, Inc. or Moody's Investors
Service, Inc. as the case may be, to any debt securities of the
Corporation shall have been lowered or if either of such rating
agencies shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any debt securities of the Corporation, then the
Corporation and the Agent mutually shall determine whether the
terms of such agreement to purchase Notes shall need to be
renegotiated and, if so, shall so negotiate in good faith the
revised terms of such agreement to purchase Notes. In the event
that the Corporation and the Agent reasonably fail to agree on any
such revised terms, then either the Corporation or the Agent may
terminate such agreement to purchase Notes.
(c) General. In the event of a termination under this
Section 11, or following the Settlement Date in connection with a
sale to or through an Agent appointed on a one-time basis, neither
party will have any liability to the other party hereto, except
that (i) the Agents shall be entitled to any commission earned in
accordance with the third paragraph of Section 3(b) hereof, (ii) if
at the time of termination (a) any Agent shall own any Notes
purchased by it as principal with the intention of reselling them
or (b) an offer to purchase any of the Notes has been accepted by
the Corporation but the time of delivery to the purchaser or his
agent of the Note or Notes relating thereto has not occurred, the
covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 4(h) hereof,
the provisions of Section 9 hereof, the indemnity and contribution
agreements set forth in Section 8 hereof, and the provisions of
Sections 10, 14 and 15 hereof shall remain in effect.
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SECTION 12. Additional Agents.
The Corporation may from time to time designate
additional agents to participate in the sale of Notes as principal
or agent hereunder. Such agency participation may be either on an
on-going basis or on a one time basis for a single transaction.
Such agents shall become a party to this Agreement and shall
thereafter be subject to the provisions hereof and entitled to the
benefits hereunder upon the execution of a counterpart hereof or
other form of acknowledgement of its appointment hereunder,
including the form of letter attached hereto as Exhibit D, and
delivery to the Corporation of addresses for notice hereunder and
under the Procedures. After the time an Agent is appointed, the
Corporation shall deliver to the Agent copies of these documents
earlier delivered to other Agents under Sections 5(a), 5(b) and
5(c) and, if such appointment is on an on- going basis, Sections
7(b), 7(c) and 7(d) hereof.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required
under the terms and provisions hereof shall be in writing, either
delivered by hand, by mail or by telex, telecopier or telegram.
Notices to the Corporation shall be delivered to it at the address
specified below and notices to any Agent shall be delivered to it
at the address set forth on Exhibit A.
If to the Corporation:
NationsBank Corporation
NationsBank Corporate Center
Charlotte, North Carolina 28255
Corp. Treas. Div. NC1-007-23-01
Attention: John E. Mack, Treasurer
Telecopy: (704) 386-0270
With a copy to:
Paul J. Polking
General Counsel
NationsBank Corporation
NationsBank Corporate Center
Legal Department, NC1007-20-01
Charlotte, North Carolina 28255
Telecopy: (704) 386-6453
Smith Helms Mulliss & Moore, L.L.P.
227 North Tryon Street
Charlotte, North Carolina 28202
Attention: Boyd C. Campbell, Jr.
Telecopy: (704) 334-8467
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or at such other address as such party may designate from
time to time by notice duly given in accordance with the
terms of this Section 13.
SECTION 14. Governing Law; Counterparts.
This Agreement and all the rights and obligations of
the parties shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and
to be performed in such State. This Agreement may be executed in
counterparts and the executed counterparts shall together
constitute a single instrument.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be
binding upon the Agents and the Corporation and their respective
successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors
referred to in Section 8 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to
be for the sole and exclusive benefit of the parties hereto and
respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of
Notes shall be deemed to be a successor by reason merely of such
purchase.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Corporation a counterpart hereof, whereupon this instrument along
with all
25
<PAGE>
counterparts will become a binding agreement between the
Agents and the Corporation in accordance with its terms.
Very truly yours,
NATIONSBANK CORPORATION
By:
Name:
Title: Senior Vice President and
Treasurer
Accepted:
NationsBanc Capital Markets, Inc.
By:
Name:
Title: Director
[Signatures By Agents To Follow]
26
<PAGE>
[Signature Page for Agents]
27
<PAGE>
EXHIBIT A
AGENTS
NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
7th Floor, NC1-007-01-01
Charlotte, North Carolina 28255-0065
Telecopy: (704) 386-9926
With a copy to:
Stroock & Stroock & Lavan
Seven Hanover Square
New York, New York 10004
Attention: James R. Tanenbaum
Telecopy: (212) 806-6006
[Names and Addresses of Additional Agents]
28
<PAGE>
EXHIBIT B
The following terms, if applicable, shall be agreed to
by an Agent and the Corporation in connection with each sale of
Notes:
Principal Amount: $__________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Base Rate:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity for Initial Interest Rate
(if different):
Index Maturity:
Index Maturity for Final Interest Payment
Period (if different):
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Original Issue Date:
Date of Maturity:
Purchase Price: _____%
Settlement Date and Time:
Additional Terms:
29
<PAGE>
EXHIBIT C
As compensation for the services of an Agent hereunder,
the Corporation shall pay it, on a discount basis, a commission for
the sale of each Note by such Agent which, unless otherwise agreed
between the Corporation and Agent, shall be equal to the principal
amount of such Note multiplied by the appropriate percentage set
forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months to less than 1 year . . . . . . . . . .125%
From 1 year to less than 18 months . . . . . . . .150
From 18 months to less than 2 years . . . . . . . .200
From 2 years to less than 3 years . . . . . . . . .250
From 3 years to less than 4 years . . . . . . . . .350
From 4 years to less than 5 years . . . . . . . . .450
From 5 years to less than 6 years . . . . . . . . .500
From 6 years to less than 7 years . . . . . . . . .550
From 7 years to less than 10 years . . . . . . . .600
From 10 years to less than 15 years . . . . . . . .625
From 15 years to less than 20 years . . . . . . . .700
From 20 years to 30 years . . . . . . . . . . . . .750
The commission for Notes with a maturity more than 30 years or sold
to one or more Agents as principal also is subject to negotiation
between the Corporation and the Agent at the time of sale.
30
EXHIBIT D
[Date]
[Name and Address of Agent]
Re: Issuance of $_________________ Medium Term
Senior/Subordinated Notes, Series __, by NationsBank
Corporation
Dear __________:
The Master United States Distribution Agreement dated
_____________, 1995 (the "Agreement"), among NationsBank
Corporation ("NationsBank") and the Agents named therein, provides
for the issue and sale by NationsBank of its Medium Term Notes,
Series ___.
Subject to and in accordance with the terms of the Agreement
and accompanying Administrative Procedures, NationsBank hereby
appoints you as Agent (as such term is defined in the Agreement) in
connection with the purchase of the notes as described in the
accompanying Pricing Supplement No. ___, dated ___________, 199__,
(the "Notes") but only for this one reverse inquiry transaction.
Your appointment is made subject to the terms and conditions
applicable to Agents under the Agreement and terminates upon
payment for the Notes or other termination of this transaction.
Accompanying this letter is a copy of the Agreement, the provisions
of which are incorporated herein by reference. Copies of the
officer's certificate, opinions of counsel, and auditors' letter
described in the Agreement are not enclosed but are available upon
your request.
This letter agreement, like the Agreement, is governed by
and construed in accordance with the laws of the State of New York.
If the above is in accordance with your understanding of our
agreement, please sign and return this letter to us by settlement
date. This action will confirm your appointment and your
acceptance and agreement to act as Agent in connection with the
issue and sale of the above described Notes under the terms and
conditions of the Agreement.
Very truly yours,
AGREED AND ACCEPTED
NATIONSBANK CORPORATION [Name of Agent]
By:____________________ By:_____________________
Name:__________________ Name:___________________
Title:_________________ Title:__________________
31
<PAGE>
[FORM OF SENIOR REGISTERED NOTE]
If the registered owner of this Note (as indicated below) is
The Depository Trust Company (the "Depository") or a nominee of
the Depository, this Note is a Global Security and the
following legend is applicable. THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR
NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE
REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water
Street, New York, New York) to the issuer or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of
The Depository Trust Company and any payment is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN
OBLIGATION OF OR GUARANTEED BY ANY BANKING OR NONBANKING
AFFILIATE OF THE CORPORATION AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
REGISTERED
NUMBER R______ $_______________
CUSIP 638585 ___
SEE REVERSE FOR CERTAIN DEFINITIONS
AND ADDITIONAL PROVISIONS
NATIONSBANK CORPORATION
______% SENIOR NOTE, DUE ____
NATIONSBANK CORPORATION, a corporation duly organized and existing
under the laws of the State of North Carolina (herein called the
"Corporation," which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to ____________________________________________________
______________________________________________________________________,
or registered assigns, the principal sum of _________________________
DOLLARS(1) on _____________________, 19___,(2) and to pay interest on
said principal sum, semi-annually (3)
1 This form provides for Notes denominated
in, and principal and interest payable in, United States
dollars. The form, as used, may be modified to
provide, alternatively, for Notes denominated in, and
principal and interest and other amounts, if any,
payable in a foreign currency or currency unit, with the
specific terms and provisions, including any
limitations on the issuance of Notes in such currency,
additional provisions regarding paying and other agents
and additional provisions regarding the calculation and
payment of such currency, set forth therein.
2 This form provides for Notes that will mature
only on a specified date. If the maturity
(continued...)
<PAGE>
in arrears on ____________________ and ___________________ of each
year, at the rate of ___% per annum(4), from the ____________ or
____________, as the case may be, next preceding the date of this
Note to which interest has been paid, unless the date hereof is a
date to which interest has been paid, in which case from the date
of this Note, or unless no interest has been paid on the Notes, in
which case from ________________________, until payment of such
principal sum has been made or duly provided for. Notwithstanding
the foregoing, if the date hereof is after a record date for the
Notes (which shall be the close of business on the [last]
[fifteenth] day of the calendar month next preceding an interest
payment date) and before the next succeeding interest payment
date, this Note shall bear interest from such interest payment
date; provided, however, that if the Corporation shall default in
the payment of interest due on such interest payment date, then
this Note shall bear interest from the next preceding interest
payment date to which interest has been paid, or, if no interest
has been paid on the Notes, from __________________. The interest
so payable, and punctually paid or duly provided for, on any
interest payment date will, as provided in such Indenture, be paid
to the person in whose name this Note (or one or more predecessor
Notes evidencing all or a portion of the same debt as this Note)
is registered at the close of business on the record date for such
interest payment date. The principal of and interest on this Note
are payable in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts, at the office or agency of the
Corporation in __________________ or such other places that the
Corporation shall designate as provided in the Indenture;
provided, however, that interest may be paid, at the option of the
Corporation, by check mailed to the person entitled thereto at his
address last appearing on the Security Register of the Corporation
relating to the Notes. Any interest not punctually paid or duly
provided for shall be payable as provided in such Indenture. (5)
2 (...continued)
of Notes of a series may be renewed at the option of the
holder, or extended at the option of the Corporation,
the form, as used, will be modified to provide for
additional terms relating to such renewal or extension, as
the case may be, including the period or periods for
which the maturity may be renewed or extended, as the case
may be, changes in the interest rate, if any, and
requirements for notice.
3 This form provides for semi-annual interest
payments. The form, as used, may be modified to
provide, alternatively, for annual, quarterly or other
periodic interest payments.
4 This form provides for interest at a fixed rate.
The form, as used, may be modified to provide,
alternatively, for interest at a variable rate or rates,
with the method of determining such rate set forth therein.
5 This form does not contemplate the offer of
Notes to United States Aliens (for United States federal
income tax purposes). If Notes are offered to United States
Aliens, the form of Note, as used, may be modified to
provide for the payment of additional amounts to such
United States Aliens or, if applicable, the redemption of
such Notes in lieu of payment of such additional amounts.
2
<PAGE>
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as
though fully set forth at this place.
Unless the certificate of authentication hereon has been executed
by or on behalf of the Trustee or an authenticating agent on behalf of
the Trustee by manual signature, this Note shall not be entitled to any
benefit under such Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to
be duly executed by manual or facsimile signature under its corporate
seal or a facsimile thereof.
NATIONSBANK CORPORATION
Attest:
By:
Secretary [Title: ]
[CORPORATE SEAL]
Dated
3
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
BANKAMERICA NATIONAL TRUST
COMPANY, as Trustee,
[By: ,
as Authenticating Agent]
By:
Authorized Signatory
4
<PAGE>
[Reverse Side of Note]
NATIONSBANK CORPORATION
______% SENIOR NOTE, DUE __________
This Note is one of a duly authorized series of Securities of the
Corporation unlimited in aggregate principal amount issued and to be
issued under an Indenture dated as of January 1, 1995 (herein called the
"Indenture") between the Corporation and BankAmerica National Trust
Company (herein called the "Trustee," which term includes any successor
Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights thereunder of the Corporation, the Trustee and the
holders of the Notes, and the terms upon which the Notes are, and are to
be, authenticated and delivered. This Note is also one of the Notes
designated as the Corporation's _____% Senior Notes, due __________
(herein called the "Notes"), limited in aggregate principal amount to
$__________. [NationsBank of Georgia, National Association] initially
has been appointed Security Registrar, Authenticating and Paying Agent
in connection with the Notes.
[Except as otherwise provided herein,] the Notes of this series are
not subject to redemption at the option of the Corporation or repayment
at the option of the holder prior to maturity.(6)
[The provisions of Article Fourteen of the Indenture do not apply
to Securities of this series.]
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the
Security Register of the Corporation relating to the Notes, upon
surrender of this Note for registration of transfer at the office or
agency of the Corporation designated by it pursuant to the Indenture,
duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Corporation and the Trustee or the Security
Registrar duly executed by, the registered holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Notes are issuable only as registered Notes without coupons in
the denominations of $______ and any integral multiple in excess
thereof. As provided in the Indenture, and subject to certain
limitations therein set forth, Notes are exchangeable for a like
aggregate principal amount of Notes of different authorized
denominations, as requested by the holder surrendering the same.
6 This form provides for Notes that are not subject
to redemption at the option of the Corporation or repayment
at the option of the holder. The form, as used, may be
modified to provide, alternatively, for redemption at the
option of the Corporation or repayment at the option of
the holder, with the terms and conditions of such
redemption or repayment, as the case may be, including
provisions regarding sinking funds, if applicable,
redemption prices and notice periods, set forth therein.
5
<PAGE>
If any interest payment data or maturity date for a Note falls on a
day that is not a Business Day, the interest payment date or maturity
date will be the following day that is a Business Day and the payment of
interest or principal will be made on such next Business Day as if it
were made on the date such payment was due and no additional interest
will accrue on the amount so payable for the period from and after such
interest payment date or maturity date.
No service charge will be made for any such registration of
transfer or exchange, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment for registration of transfer of this Note,
the Corporation, the Trustee and any agent of the Corporation or the
Trustee may treat the person in whose name this Note is registered as
the absolute owner hereof for the purpose of receiving payment as herein
provided and for all other purposes, whether or not this Note be
overdue, and neither the Corporation, the Trustee nor any such agent
shall be affected by notice to the contrary.
If an Event of Default (defined in the Indenture as (i) the
Corporation's failure to pay principal of (or premium, if any, on) any
Notes when due, or to pay interest on the Notes within 30 days after the
same becomes due, (ii) the Corporation's breach of its other covenants
contained in this Note or the Indenture, which breach is not cured
within 90 days after written notice by the Trustee or the holders of at
least 25% in outstanding principal amount of all Securities issued under
the Indenture and affected thereby, and (iii) certain events involving
the bankruptcy, insolvency or liquidation of the Corporation) shall
occur with respect to the Notes, the principal of all the Notes may be
declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations
of the Corporation and the rights of the holders of the Notes under the
Indenture at any time by the Corporation with the consent of the holders
of not less than 66-2/3% in aggregate principal amount of the Notes then
outstanding and all other Securities then outstanding issued under the
Indenture and affected by such amendment and modification. The
Indenture also contains provisions permitting the holders of a majority
in aggregate principal amount of the Notes then outstanding and all
other Securities then outstanding issued under the Indenture and
affected thereby, on behalf of the holders of all such Securities, to
waive compliance by the Corporation with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note
shall be conclusive and binding upon such holder and upon all future
holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the
Corporation, which is absolute and unconditional, to pay the principal
of and interest on this Note at the times, place and rate, and in the
coin or currency, herein prescribed.
6
<PAGE>
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, stockholder,
officer or director, as such, past, present or future, of the
Corporation or any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
The Notes of this series shall be dated the date of their
authentication.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
NOTES ISSUED AND OUTSTANDING PURSUANT TO A BOOK-ENTRY SYSTEM SHALL
BE DEEMED TO CONTAIN THE FOLLOWING PARAGRAPH: The Notes are being
issued by means of a book-entry system with no physical distribution of
certificates to be made except as provided in the Indenture. The book-
entry system maintained by The Depository Trust Company ("DTC") will
evidence ownership of the Notes, with transfers of ownership effected on
the records of DTC and its participants pursuant to rules and procedures
established by DTC and its participants. The Corporation will recognize
Cede & Co., as nominee of DTC, while the registered Owner of the Notes,
as the owner of the Notes for all purposes, including payment of
principal and interest, notices and voting. Transfer of principal and
interest to participants of DTC will be the responsibility of DTC, and
transfer of principal and interest to beneficial owners of the Notes by
participants of DTC will be the responsibility of such participants and
other nominees of such beneficial owners. So long as the book-entry
system is in effect, the selection of any Notes to be redeemed will be
determined by DTC pursuant to rules and procedures established by DTC
and its participants. The Corporation will not be responsible or liable
for such transfers of payments or for maintaining, supervising or
reviewing the records maintained by DTC, its participants or persons
acting through such participants.
__________
7
<PAGE>
The following abbreviations, when used in the inscription on the
face of the within Note, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -- _________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors
Act __________ (State)
Additional abbreviations may also be used though not in the above list.
__________
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________
(Name and Address of Assignee, including zip code, must be printed or
typewritten.)
____________________________________________________________ the within
Note, and all rights thereunder, hereby irrevocably constituting and
appointing
_____________________________________________________________ Attorney
to transfer said Note on the books of the Corporation, with full power
of substitution in the premises.
Dated: ____________
__________________________________
NOTICE: The signature to this assignment must correspond with the
name as it appears upon the face of the within Note in every particular,
without alteration or enlargement or any change whatever and must be
guaranteed.
8
<PAGE>
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "Depositary") or a nominee of the
Depositary, this Note is a Global Security and the following
legend is applicable. THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR
ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A
TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water
Street, New York, New York) to the issuer or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of
The Depository Trust Company and any payment is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.(1)
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN
OBLIGATION OF OR GUARANTEED BY ANY BANKING OR NONBANKING
AFFILIATE OF THE CORPORATION AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
REGISTERED
NUMBER FXR _________ $__________
NATIONSBANK CORPORATION
MEDIUM-TERM SENIOR NOTE, SERIES ___
(Fixed Rate) CUSIP 63858R ____
ORIGINAL ISSUE DATE:
INTEREST RATE:
STATED MATURITY DATE:
FINAL MATURITY DATE:
INITIAL REDEMPTION DATE:
INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE:
PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
ADDITIONAL TERMS:
NationsBank Corporation, a corporation duly organized
and existing under the laws of the State of North Carolina
(herein called the "Corporation," which term includes any
successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay
to ________________________________________________________
__________________________________________________________,
or registered assigns, the principal sum of
___________________ DOLLARS on the Stated Maturity Date
specified above (except to the extent redeemed or repaid
prior to the Stated Maturity Date), and to pay interest on
said principal sum, semiannually in arrears on ____________
and __________ of each year (each an "Interest Payment
Date"), at the Interest Rate per annum specified above,
until payment of such principal sum has been made or duly
provided for, commencing on the first Interest Payment Date
next succeeding the Original Issue Date specified above,
unless the Original Issue Date occurs between a Regular
Record Date, as defined below, and the next succeeding
Interest Payment Date, in which case commencing on the
Interest Payment
1
Applies only if this Note is a Global Security.
<PAGE>
Date following the next succeeding Regular Record Date, and on the
Stated Maturity Date or Final Maturity Date shown above (or any
Redemption Date as defined on the reverse hereof or any Optional
Repayment Date with respect to which any such option has been
exercised, each such Stated Maturity Date, Final Maturity Date,
Redemption Date and Optional Repayment Date being herein referred
to as a "Maturity Date" with respect to the principal payable on
such date). Interest on this Note will accrue from the Original
Issue Date specified above until the principal amount is paid and
will be computed on the basis of a 360-day year of twelve 30-day
months. Interest payments will be in the amount of interest
accrued from and including the next preceding Interest Payment Date
in respect of which interest has been paid or duly provided for or,
if no interest has been paid, from the Original Issue Date
specified above, to but excluding the Interest Payment Date or
Maturity Date, as the case may be. If the Maturity Date or an
Interest Payment Date falls on a day which is not a Business Day as
defined below, principal or interest payable with respect to such
Maturity Date or Interest Payment Date will be paid on the next
succeeding Business Day with the same force and effect as if made
on such Maturity Date or Interest Payment Date, as the case may be,
and no additional interest shall accrue for the period from and
after such Maturity Date or Interest Payment Date. The interest so
payable, and punctually paid or duly provided for, on any Interest
Payment Date will be paid to the person in whose name this Note (or
one or more predecessor Notes evidencing all or a portion of the
same debt as this Note) is registered at the close of business on
the Regular Record Date, which shall be the __________ or the
__________, whether or not a Business Day, as the case may be, next
preceding such Interest Payment Date; provided, however, that the
first payment of interest on any Note with an Original Issue Date,
as specified above, between a Regular Record Date and an Interest
Payment Date or on an Interest Payment Date will be made on the
Interest Payment Date following the next succeeding Regular Record
Date to the person in whose name this Note is registered at the
close of business on such next succeeding Regular Record Date; and
provided, further, that interest payable on the Maturity Date will
be payable to the person to whom the principal hereof shall be
payable. Any interest not punctually paid or duly provided for
shall be payable as provided in the Indenture. As used herein,
"Business Day" means any day, other than a Saturday or Sunday, on
which banks in The City of New York, Charlotte, North Carolina or
_________________ are not authorized or required by law to be
closed.
The principal of and interest on this Note are payable
in immediately available funds in such coin or currency of
the United States of America as at the time of payment is
legal tender for payment of public and private debts at the
office or agency of the Corporation designated as provided
in the Indenture; provided, however, that interest may be
paid, at the option of the Corporation, by check mailed to
the person entitled
2
<PAGE>
thereto at his address last appearing on the registry books of the
Corporation relating to the Notes. Notwithstanding the preceding
sentence, payments of principal of and interest payable on the
Maturity Date will be made by wire transfer of immediately
available funds to a designated account maintained in the United
States upon (i) receipt of written notice by the Trustee from the
holder hereof not less than one Business Day prior to the due date
of such principal and (ii) presentation of this Note to
[NationsBank of Georgia, National Association, as Paying Agent at
Corporate Trust Administration, 600 Peachtree Street, Suite 900,
Atlanta, Georgia 60608] (the "Corporate Trust Office").
Reference is made to the further provisions of this
Note set forth on the reverse hereof, which shall have the
same effect as though fully set forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee or by an Authenticating Agent
on behalf of the Trustee by manual signature, this Note
shall not be entitled to any benefit under such Indenture or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this
Instrument to be duly executed, by manual or facsimile
signature, under its corporate seal or a facsimile thereof.
NATIONSBANK CORPORATION
By:
_______________________________
[SEAL] Title: Senior Vice President
ATTEST:
By:______________________
Assistant Secretary
3
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:_____________
BankAmerica National Trust Company,
as Trustee
By: [NationsBank of Georgia,
National Association,
as Authenticating Agent]
By:__________________________
Authorized Signatory
4
<PAGE>
[Reverse of Note]
NATIONSBANK CORPORATION
MEDIUM-TERM SENIOR NOTE, SERIES ___
(Fixed Rate)
This Medium-Term Note is one of a duly authorized
series of Securities of the Corporation unlimited in
aggregate principal amount (herein called the "Notes")
issued and to be issued under an Indenture dated as of
January 1, 1995 (herein called the "Indenture"), between the
Corporation and BankAmerica National Trust Company as
Trustee (herein called the "Trustee,") to which Indenture
and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights thereunder of
the Corporation, the Trustee and the holders of the Notes,
and the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is also one of the
Notes designated as the Corporation's Senior Medium-Term
Notes, Series ___, limited in aggregate principal amount to
[$_____________]. The Notes may bear different dates, mature
at different times, bear interest at different rates and
vary in such other ways as are provided in the Indenture.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of
the holder on the Optional Repayment Date(s), if any,
indicated on the face hereof. IF NO OPTIONAL REPAYMENT
DATES ARE SET FORTH ON THE FACE HEREOF, THIS NOTE MAY NOT BE
SO REPAID AT THE OPTION OF THE HOLDER HEREOF PRIOR TO THE
STATED MATURITY DATE. On any Optional Repayment Date this
Note shall be repayable in whole or in part in increments of
$1,000 at the option of the holder hereof at a repayment
price equal to 100% of the principal amount to be repaid,
together with interest thereon payable to the date of
repayment. For this Note to be repaid in whole or in part
at the option of the holder hereof, this Note must be
received, with the form entitled "Option to Elect Repayment"
below duly completed, by the Trustee/Paying Agent at the
Corporate Trust Office, or such other address of which the
Corporation shall from time to time notify the holders of
the Notes, not more than 60 nor less than 30 days prior to
an Optional Repayment Date. Exercise of such repayment
option by the holder hereof shall be irrevocable.
This Note may be redeemed at the option of the
Corporation on any date on and after the Initial Redemption
Date, if any, specified on the face hereof (the "Redemption
Date"). IF NO INITIAL REDEMPTION DATE IS SET FORTH ON THE
FACE HEREOF, THIS NOTE MAY NOT BE REDEEMED AT THE OPTION OF
THE CORPORATION PRIOR TO THE STATED MATURITY DATE. On and
after the Initial Redemption Date, if any, this Note may be
redeemed at any time in whole or from time to time in part
in increments of $1,000 at the option of the Corporation at
the applicable Redemption Price (as defined
5
<PAGE>
below) together with interest thereon payable to the Redemption
Date, on notice given not more than 60 nor less than 30 days prior
to the Redemption Date. In the event of redemption of this Note in
part only, a new Note for the unredeemed portion hereof shall be
issued in the name of the holder hereof upon the surrender hereof.
If this Note is redeemable at the option of the
Corporation, the "Redemption Price" shall initially be the
Initial Redemption Percentage, specified on the face hereof,
of the principal amount of this Note to be redeemed and
shall decline at each anniversary of the Initial Redemption
Date by the Annual Redemption Percentage Reduction, if any,
specified on the face hereof, of the principal amount to be
redeemed until the Redemption Price is 100% of such
principal amount.
If an Event of Default (defined in the Indenture as (i)
the Corporation's failure to pay principal of (or premium,
if any, on) the Notes when due, or to pay interest on the
Notes within 30 days after the same becomes due, (ii) the
Corporation's breach of its other covenants contained in
this Note or in the Indenture, which breach is not cured
within 90 days after written notice by the Trustee or by the
holders of at least 25% in outstanding principal amount of
all Securities issued under the Indenture and affected
thereby, and (iii) certain events involving the bankruptcy,
insolvency or liquidation of the Corporation) shall occur
with respect to the Notes, the principal of all the Notes
may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification
of the rights and obligations of the Corporation and the
rights of the holders of the Notes under the Indenture at
any time by the Corporation with the consent of the holders
of not less than 66 2/3% in aggregate principal amount of
the Notes then outstanding and all other Securities then
outstanding under the Indenture and affected by such
amendment and modification. The Indenture also contains
provisions permitting the holders of a majority in aggregate
principal amount of Notes then outstanding and all other
Securities then outstanding under the Indenture and affected
thereby, on behalf of the holders of all Securities, to
waive compliance by the Corporation with certain provisions
of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or
waiver by the holder of this Note shall be conclusive and
binding upon such holder and upon all future holders of this
Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent or waiver is made
upon this Note.
No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the
6
<PAGE>
obligation of the Corporation, which is absolute and
unconditional, to pay the principal of and interest on this
Note at the time, place and rate, and in the coin or
currency, herein prescribed.
No recourse shall be had for the payment of the
principal of or the interest on this Note, or for any claim
based hereon, or otherwise in respect hereof, or based on or
in respect of the Indenture or any indenture supplemental
thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the
Corporation or any predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for issue hereof,
expressly waived and released.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note may
be registered on the registry books of the Corporation
relating to the Notes, upon surrender of this Note for
registration of transfer at the office or agency of the
Corporation designated by it pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Corporation and the
Trustee duly executed by, the holder hereof or his attorney
duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only as registered Notes without
coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture, and subject to
certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes
of different authorized denominations, as requested by the
holder surrendering the same.
No service charge will be made for any such
registration of transfer or exchange, but the Corporation
may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer
of this Note, the Corporation, the Trustee and any agent of
the Corporation or the Trustee may treat the entity in whose
name this Note is registered as the absolute owner hereof
for the purpose of receiving payment as herein provided and
for all other purposes, whether or not this Note be overdue,
and neither the Corporation, the Trustee nor any such agent
shall be affected by notice to the contrary.
7
<PAGE>
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
[NOTES ISSUED AND OUTSTANDING PURSUANT TO A BOOK-ENTRY
SYSTEM SHALL BE DEEMED TO CONTAIN THE FOLLOWING PARAGRAPH:
The Notes are being issued by means of a book-entry system
with no physical distribution of certificates to be made
except as provided in the Indenture. The book-entry system
maintained by Depository Trust Company ("DTC") will evidence
ownership of the Notes, with transfers of ownership effected
on the records of DTC and its participants pursuant to rules
and procedures established by DTC and its participants. The
Corporation will recognize Cede & Co., as nominee of DTC,
while the registered Owner of the Notes, as the owner of the
Notes for all purposes, including payment of principal and
interest, notices and voting. Transfer of principal and
interest to participants of DTC will be the responsibility
of DTC, and transfer of principal and interest to beneficial
owners of the Notes by participants of DTC will be the
responsibility of such participants and other nominees of
such beneficial owners. So long as the book-entry system is
in effect, the selection of any Notes to be redeemed will be
determined by DTC pursuant to rules and procedures
established by DTC and its participants. The Corporation
will not be responsible or liable for such transfers of
payments or for maintaining, supervising or reviewing the
records maintained by DTC, its participants or persons
acting through such participants.]
8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the
inscription on the face of the within Note shall be
construed as though they were written out in full according
to applicable laws or regulations:
TEN COM-- as tenants in common
TEN ENT-- as tenants by the entireties
JT TEN-- as joint tenants with right of
survivorship and not as tenants in
common
UNIF GIFT MIN ACT--..........Custodian...........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
Additional abbreviations may also be used though not in
the above list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE, OF ASSIGNEE]
____________________________________________________________
____________________________________________________________
____________________________________________________________
Please Insert Social Security or Other
Identifying Number of Assignee: ________________________
the within Note and all rights thereunder, hereby
irrevocably constituting and appointing
_____________________________________ Attorney to transfer
said Note on the books of the Corporation, with full power
of substitution in the premises.
Dated: ________________________ _________________________
NOTICE: The signature to this assignment must correspond
with the name as written upon the face of the within Note in
every particular, without alteration or enlargement, or any
change whatever and must be guaranteed.
9
<PAGE>
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and
instruct(s) the Corporation to repay this Note (or portion
hereof specified below) pursuant to its terms at a price
equal to the principal amount hereof together with interest
to the repayment date, to the undersigned, at
_________________________________ (Please print or typewrite
name and address of the undersigned)
For this Note to be repaid, the Trustee (or the Paying
Agent on behalf of the Trustee) must receive at
__________________, or at such other place or places of
which the Corporation shall from time to time notify the
Holder of this Note, not more than 60 nor less than 30 days
prior to an Optional Repayment Date, if any, shown on the
face of this Note, this Note with this "Option to Elect
Repayment" form duly completed.
If less than the entire principal amount of this Note
is to be repaid, specify the portion hereof (which shall be
in increments of $1,000) which the Holder elects to have
repaid and specify the denomination or denominations (which
shall be $__________ or an integral multiple of $l,000 in
excess of $__________) of the Notes to be issued to the
Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be
issued for the portion not
being repaid).
$_______________________ _________________________________
DATE: __________________ NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change
whatever.]
10
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "Depositary") or a nominee of the
Depositary, this Note is a Global Security and the following legend is
applicable. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS NOT
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF
THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to
the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of
The Depository Trust Company and any payment is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN OBLIGATION OF
OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF THE CORPORATION
AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
REGISTERED
NUMBER FLR _______ $_________
NATIONSBANK CORPORATION
MEDIUM-TERM SENIOR NOTE, SERIES ___
(Floating Rate)
CUSIP 63858R _________
ORIGINAL ISSUE DATE: BASE RATE:
STATED MATURITY DATE: (check one)
FINAL MATURITY DATE: ___CD Rate
INITIAL INTEREST RATE: ___Commercial Paper Rate
INDEX MATURITY FOR INITIAL ___LIBOR ____________
INTEREST RATE (IF DIFFERENT): ___Federal Funds Rate
INDEX MATURITY: ___Prime Rate
INDEX MATURITY FOR FINAL ___Treasury Rate
INTEREST PAYMENT PERIOD ___CMT Rate
(IF DIFFERENT): CMT Telerate Page:____
SPREAD: CMT Maturity Index:___
SPREAD MULTIPLIER: ___Eleventh District Cost
MAXIMUM INTEREST RATE: of Funds Rate
MINIMUM INTEREST RATE: ___Other:________________
INTEREST PAYMENT DATES:
INTEREST RATE RESET DATES: [ ] This Note is a Renewable
INTEREST RATE RESET PERIOD: Note.
INITIAL REDEMPTION DATE: See Attached Rider.
INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE REDUCTION:
OPTIONAL PAYMENT DATE(S):
CALCULATION AGENT: [ ] This Note is an
ADDITIONAL TERMS: Extendible Note.
See Attached Rider.
NationsBank Corporation, a corporation duly organized and
existing under the laws of the State of North Carolina (herein
called the "Corporation," which term includes any successor
corporation under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to
______________________________________________________________,
or registered assigns, the principal sum of ________________
DOLLARS on the Stated Maturity Date specified above (except to
1 Applies only if this Note is a Global Security.
<PAGE>
the extent redeemed or repaid prior to the Stated Maturity Date),
and to pay interest thereon at a rate per annum equal to the
Initial Interest Rate specified above until the Initial Interest
Reset Date specified above and thereafter at a rate determined in
accordance with the provisions on the reverse hereof, depending
upon the appropriate Base Rate and Index Maturity specified
above, until the principal hereof is paid or duly made available
for payment. The Corporation will pay interest on the Interest
Payment Dates specified above, commencing with the first Interest
Payment Date next succeeding the Original Issue Date specified
above, unless the Original Issue Date occurs between a Regular
Record Date, as defined below, and the next succeeding Interest
Payment Date, in which case commencing on the Interest Payment
Date following the next succeeding Regular Record Date, and on
the Stated Maturity Date or Final Maturity Date shown above (or
any Redemption Date as defined on the reverse hereof or any
Optional Repayment Date with respect to which any such option has
been exercised, each such Stated Maturity Date, Final Maturity
Date, Redemption Date and Optional Repayment Date being herein
referred to as a "Maturity Date" with respect to the principal
repayable on such date). Interest on this Note will accrue from
the Original Issue Date specified above until the principal
amount is paid and will be computed as hereinafter described.
Interest payable on this Note on any Interest Payment Date or the
Maturity Date will include interest accrued from and including
the next preceding Interest Payment Date in respect of which
interest has been paid or duly provided for or, if no interest
has been paid, from the Original Issue Date specified above, to
but excluding such Interest Payment Date or Maturity Date, as the
case may be; provided, however, that if the Interest Rate Reset
Period with respect to this Note is daily or weekly, interest
payable on any Interest Payment Date or the Maturity Date will
include interest accrued from but excluding the Regular Record
Date through which interest has been paid to and including the
Regular Record Date next preceding such Interest Payment Date,
except that interest payable on any such Maturity Date will
include interest accrued to, but excluding, such Maturity Date.
If any Interest Payment Date falls on a day which is not a
Business Day, as defined below, such Interest Payment Date shall
be the following day that is a Business Day, except that if the
Base Rate is LIBOR, if such next Business Day falls in the next
succeeding calendar month, such Interest Payment Date will be the
preceding day that is a Business Day; and if the Maturity Date
falls on a day which is not a Business Day, principal or interest
payable with respect to such Maturity Date will be paid on the
next succeeding Business Day with the same force and effect as if
made on such Maturity Date, and no additional interest shall
accrue for the period from and after such Maturity Date. The
interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will be paid to the person in whose
name this Note (or one or more predecessor Notes evidencing all
or a portion of the same debt as this Note) is registered at the
close of business on the date 15 calendar days prior to such
Interest Payment Date, whether or not a Business Day (the
2
<PAGE>
"Regular Record Date"); provided, however, that the first payment
of interest on any Note with an Original Issue Date, as specified
above, between a Regular Record Date and an Interest Payment Date
or on an Interest Payment Date will be made on the Interest
Payment Date following the next succeeding Regular Record Date to
the person in whose name this Note is registered at the close of
business on such next succeeding Regular Record Date; and
provided, further, that interest payable on the Maturity Date
will be payable to the person to whom the principal hereof shall
be payable. Any such interest not punctually paid or duly
provided for shall be payable as provided in the Indenture. As
used herein, "Business Day" means any day, other than a Saturday
or Sunday, (i) on which banks in The City of New York, Charlotte,
North Carolina or ______________ are not authorized or required
by law to be closed and (ii) if the Base Rate is LIBOR, is a day
on which dealings in deposits on U.S. dollars are transacted in
the London interbank market.
The principal of and interest on this Note are payable in
immediately available funds in such coin or currency of the
United States of America as at the time of payment is legal
tender for payment of public and private debts at the office or
agency of the Corporation designated as provided in the
Indenture; provided, however, that interest may be paid, at the
option of the Corporation, by check mailed to the person entitled
thereto at his address last appearing on the registry books of
the Corporation relating to the Notes. Notwithstanding the
preceding sentence, payments of principal of and interest payable
on the Maturity Date will be made by wire transfer of immediately
available funds to a designated account maintained in the United
States upon (i) receipt of written notice by the Trustee from the
holder hereof not less than one Business Day prior to the due
date of such principal and (ii) presentation of this Note to the
Issuing and Paying Agent at [NationsBank of Georgia, National
Association, as Issuing and Paying Agent, 600 Peachtree Street,
Suite 900, Atlanta, Georgia 60608] (the "Corporate Trust
Office").
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which shall have the same
effect as though fully set forth at this place.
Unless the Certificate of Authentication hereon has been
executed by the Trustee or an Authenticating Agent on behalf of
the Trustee by manual signature, this Note shall not be entitled
to any benefit under such Indenture or be valid or obligatory for
any purpose.
3
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this
Instrument to be duly executed, by manual or facsimile signature,
under its corporate seal or a facsimile thereof.
NATIONSBANK CORPORATION
By:____________________________
[SEAL] Title: Senior Vice President
ATTEST:
____________________________
Assistant Secretary
4
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated: ____________________________
BankAmerica National Trust Company,
as Trustee
By: [NationsBank of Georgia, National
Association as Authenticating
Agent]
By:__________________________
Authorized Signatory
5
<PAGE>
[Reverse of Note]
NATIONSBANK CORPORATION
MEDIUM-TERM SENIOR NOTE, SERIES ___
(Floating Rate)
This Medium-Term Note is one of a duly authorized series of
Securities of the Corporation unlimited in aggregate principal
amount (herein called the "Notes") issued and to be issued under
an Indenture dated as of January 1, 1995, (herein called the
"Indenture"), between the Corporation and BankAmerica National
Trust Company, as Trustee (herein called the "Trustee,") to which
Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights thereunder
of the Corporation, the Trustee and the holders of the Notes, and
the terms upon which the Notes are, and are to be, authenticated
and delivered. This Note is also one of the Notes designated as
the Corporation's Senior Medium-Term Notes, Series ___ (herein
called the "Notes"), limited in aggregate principal amount to
[$______________]. The Notes may bear different dates, mature at
different times, bear interest at different rates and vary in
such other ways as are provided in the Indenture.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of the
holder only if the Optional Repayment Date(s) are indicated on
the face hereof. IF NO OPTIONAL REPAYMENT DATES ARE SET FORTH ON
THE FACE HEREOF, THIS NOTE MAY NOT BE SO REPAID AT THE OPTION OF
THE HOLDER HEREOF PRIOR TO THE STATED MATURITY DATE. On any
Optional Repayment Date, this Note shall be repayable in whole or
in part in increments of $1,000 at the option of the holder
hereof at a repayment price equal to 100% of the principal amount
to be repaid, together with interest thereon payable to the date
of repayment. For this Note to be repaid in whole or in part at
the option of the holder hereof, this Note must be received, with
the form below entitled "Option to Elect Repayment" duly
completed, by the Trustee/Paying Agent at the Corporate Trust
Office, or such other address of which the Corporation shall from
time to time notify the holders of the Notes, not more than 60
nor less than 30 days prior to an Optional Repayment Date.
Exercise of such repayment option by the holder hereof shall be
irrevocable.
This Note may be redeemed at the option of the Corporation
on any date on and after the Initial Redemption Date, if any,
specified on the face hereof (the "Redemption Date"). IF NO
INITIAL REDEMPTION DATE IS SET FORTH ON THE FACE HEREOF, THIS
NOTE MAY NOT BE REDEEMED AT THE OPTION OF THE CORPORATION PRIOR
TO THE STATED MATURITY DATE. On and after the Initial Redemption
Date, if any, this Note may be redeemed at any time in whole or
from time to time in part in increments of $1,000 at the option
of the Corporation at the applicable Redemption Price (as defined
6
<PAGE>
below) together with interest thereon payable to the Redemption
Date, on notice given not more than 60 nor less than 30 days
prior to the Redemption Date. In the event of redemption of this
Note in part only, a new Note for the unredeemed portion hereof
shall be issued in the name of the Holder hereof upon the
surrender hereof.
If this Note is redeemable at the option of the Corporation,
the "Redemption Price" shall initially be the Initial Redemption
Percentage, specified on the face hereof, of the principal amount
of this Note to be redeemed and shall decline at each anniversary
of the Initial Redemption Date by the Annual Redemption
Percentage Reduction, if any, specified on the face hereof, of
the principal amount to be redeemed until the Redemption Price is
100% of such principal amount.
Accrued interest hereon shall be calculated by multiplying
the face amount hereof by an accrued interest factor. Such
accrued interest factor shall be computed by adding the interest
factor calculated for each day from and including the Original
Issue Date, or from but excluding the last date to which interest
has been paid, as the case may be, to and including the date for
which accrued interest is being calculated. The interest factor
(expressed as a decimal) for each such day shall be computed by
dividing the interest rate in effect on such day by 360 or, in
the case of Notes having the Treasury Rate as their Base Rate, by
the actual number of days in the year.
The Base Rate (as defined herein) with respect to this Note
may be (i) the CD Rate, (ii) the Commercial Paper Rate, (iii)
LIBOR, (iv) the Federal Funds Rate, (v) the Prime Rate, (vi) the
Treasury Rate, (vii) the CMT Rate, (viii) the Eleventh District
Cost of Funds Rate or (ix) such other rate as will be described
on the face hereof and a rider to this Note.
Except as described below, this Note will bear interest at
the rate determined by reference to the appropriate interest rate
basis (the "Base Rate") and Index Maturity shown on the face
hereof (i) plus or minus the Spread, if any, or (ii) multiplied
by the Spread Multiplier, if any, specified on the face hereof.
The interest rate in effect on each day shall be (a) if such day
is an Interest Reset Date, the interest rate determined as of the
Interest Determination Date (as defined below) pertaining to such
Interest Reset Date or (b) if such day is not an Interest Reset
Date, the interest rate determined as of the Interest
Determination Date pertaining to the next preceding Interest
Reset Date, provided that (i) the interest rate in effect from
the Original Issue Date to the first Interest Reset Date shall be
the Initial Interest Rate specified on the face hereof, and (ii)
the interest rate in effect for the ten calendar days immediately
prior to the Maturity Date shall be the rate in effect on the
tenth calendar day preceding such Maturity Date. If any Interest
Reset Date would otherwise be a day that is not a Business Day,
7
<PAGE>
such Interest Reset Date shall be postponed to the next day that
is a Business Day, except that if the Base Rate specified on the
face hereof is LIBOR, if such next Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day. The term "Final Interest
Payment Period" means the period from the final Interest Reset
Date to the Maturity Date.
The Interest Determination Date with respect to any Note
that has as its Base Rate the CD Rate, the Commercial Paper Rate,
the Federal Funds Rate, the Prime Rate or the CMT Rate will be
the second Business Day preceding the Interest Reset Date. The
Interest Determination Date with respect to LIBOR shall be the
second London Banking Day (as defined below) preceding the
Interest Reset Date. The Interest Determination Date with
respect to the Eleventh District Cost of Funds Rate will be the
last Business Day of the month immediately preceding such
Interest Reset Date in which the Federal Home Loan Bank of San
Francisco (the "FHLB") publishes such Index (as defined below);
and the Interest Determination Date with respect to the Treasury
Rate shall be the day of the week in which the Interest Reset
Date falls on which Treasury bills of the Index Maturity
specified on the face hereof normally would be auctioned;
provided, however, that if as a result of a legal holiday an
auction is held on the Friday of the week preceding the Interest
Reset Date, the related Interest Determination Date shall be such
preceding Friday; and provided, further, that if an auction shall
fall on any Interest Reset Date then the Interest Reset Date
shall instead be the first Business Day following such auction.
The "Calculation Date" pertaining to any Interest
Determination Date shall be the earlier of (i) the tenth calendar
day after such Interest Determination Date or, if such day is not
a Business Day, the next succeeding Business Day, or (ii) the
Business Day next preceding the applicable Interest Payment Date
or Maturity Date, as the case may be.
All percentages resulting from any calculation on the Notes
will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upward, and all
dollar amounts used in or resulting from such calculation on the
Notes will be rounded to the nearest cent (with one-half cent
being rounded upward).
Determination of CD Rate. CD Rate means, with respect to an
Interest Determination Date (a "CD Rate Interest Determination
Date"), the rate on such CD Rate Interest Determination Date for
negotiable certificates of deposit having the Index Maturity
specified on the face hereof, as such rate is published by the
Board of Governors of the Federal Reserve System (the "Federal
Reserve Board") in "Statistical Release H.15(519), Selected
Interest Rates," or any successor publication of the Federal
8
<PAGE>
Reserve Board ("H.15(519)"), under the heading "CDs (Secondary
[Market)," or, if not so published by 3:00 P.M., New York City
time, on the Calculation Date pertaining to such CD Rate Interest
Determination Date, the CD Rate will be the rate on such CD Rate
Interest Determination Date for negotiable certificates of
deposit of the Index Maturity specified on the face hereof, as
published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for U.S.
Government Securities" ("Composite Quotations") under the heading
"Certificates of Deposit." If such rate is not published in
either H.15(519) or the Composite Quotations by 3:00 P.M., New
York City time, on such Calculation Date, then the CD Rate on
such CD Rate Interest Determination Date will be calculated by
the Calculation Agent and will be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City
time, on such CD Rate Interest Determination Date, of three
leading nonbank dealers in negotiable U.S. dollar certificates of
deposit in The City of New York selected by the Calculation Agent
for negotiable certificates of deposit of major United States
money center banks of the highest credit standing (in the market
for negotiable certificates of deposit) with a remaining maturity
closest to the Index Maturity specified on the face hereof in
denominations of $5,000,000; provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not
quoting as set forth above, the CD Rate for such CD Rate Interest
Determination Date will be the CD Rate in effect on such CD Rate
Interest Determination Date.
Determination of Commercial Paper Rate. The Commercial
Paper Rate means, with respect to an Interest Determination Date
(a "Commercial Paper Rate Interest Determination Date"), the
Money Market Yield (as defined below) of the rate on such date
for commercial paper having the Index Maturity specified on the
face hereof as published in H.15(519) under the heading
"Commercial Paper." In the event such rate is not published by
3:00 P.M., New York City time, on the Calculation Date pertaining
to such Commercial Paper Rate Interest Determination Date, the
Commercial Paper Rate shall be the Money Market Yield on such
Commercial Paper Rate Interest Determination Date of the rate for
commercial paper having the Index Maturity specified on the face
hereof as published in Composite Quotations under the heading
"Commercial Paper." If such rate is not published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City
time, on such Calculation Date, the Commercial Paper Rate for
that Commercial Paper Rate Interest Determination Date shall be
calculated by the Calculation Agent and shall be the Money Market
Yield of the arithmetic mean of the offered rates as of 11:00
A.M., New York City time, on such Commercial Paper Rate Interest
Determination Date of three leading dealers of commercial paper
in The City of New York selected by the Calculation Agent for
commercial paper of the Index Maturity specified on the face
hereof placed for an industrial issuer whose bond rating is "AA",
or the equivalent, by a nationally recognized statistical rating
9
<PAGE>
agency; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as set forth
above, the Commercial Paper Rate with respect to such Commercial
Paper Rate Interest Determination Date will be the Commercial
Paper Rate then in effect on such Commercial Paper Rate Interest
Determination Date.
"Money Market Yield" shall be the yield (expressed as a
percentage rounded to the nearest one ten-thousandth of a
percent, with five one hundred-thousandths of a percent rounded
upward) calculated in accordance with the following formula:
Money Market Yield = D multiplied by 360 divided by the
difference between 360 and the product
of D multiplied by M, multiplied by 100
where "D" refers to the per annum rate for commercial paper
quoted on a bank discount basis and expressed as a decimal, and
"M" refers to the actual number of days in the interest period
for which interest is being calculated.
Determination of LIBOR. LIBOR means the rate determined by
the Calculation Agent in accordance with the following
provisions:
(i) With respect to an Interest Determination Date (a
"LIBOR Interest Determination Date"), LIBOR will be "LIBOR
Telerate" unless "LIBOR Reuters" is specified on the face of
this Note or LIBOR Telerate is not available. "LIBOR
Telerate" is the rate for deposits in the LIBOR Currency (as
defined below) having the Index Maturity specified on the
face hereof that appears on the Designated LIBOR Page (as
defined below) specified on the face hereof as of 11:00 A.M.
London time, on that LIBOR Interest Determination Date.
"LIBOR Reuters" is that rate which is the arithmetic mean of
the offered rates (unless the specified Designated LIBOR
Page by its terms provides only for a single rate, in which
case such single rate shall be used) for deposits in the
LIBOR Currency having the Index Maturity specified on the
face hereof that appear on the Designated LIBOR Page
specified on the face hereof as of 11:00 A.M. London time,
on that LIBOR Interest Determination Date, if at least two
such offered rates appear (unless, as aforesaid, only a
single rate is required) on such Designated LIBOR Page. If
LIBOR cannot be determined under this clause (i), LIBOR in
respect of the related LIBOR Interest Determination Date
will be determined as if the parties had specified the rate
described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination
Date on which LIBOR cannot be determined under clause (i)
above, the Calculation Agent will request the principal
London offices of each of four major reference banks in the
London interbank market, as selected by the Calculation
10
<PAGE>
Agent to provide the Calculation Agent with its offered
quotation for deposits in the LIBOR Currency for the period
of the Index Maturity specified on the face hereof to prime
banks in the London interbank market at approximately 11:00
A.M., London time, on such LIBOR Interest Determination Date
and in a principal amount that is representative for a
single transaction in such LIBOR Currency in such market at
such time. If at least two such quotations are provided,
LIBOR determined on such LIBOR Interest Determination Date
will be the arithmetic mean of such quotations. If fewer
than two such quotations are provided, LIBOR for such LIBOR
Interest Determination Date will be the arithmetic mean of
the rates quoted at approximately 11:00 A.M. in the
applicable Principal Financial Center (as defined below), on
such LIBOR Interest Determination Date by three major banks
in such Principal Financial Center selected by the
Calculation Agent for loans in the LIBOR Currency to leading
European banks, having the Index Maturity specified on the
face hereof and in a principal amount that is representative
for a single transaction in such LIBOR Currency in such
market at such time; provided, however, that if the banks so
selected by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR determined on such LIBOR
Interest determination Date will be LIBOR then in effect on
such LIBOR Interest Determination Date.
"LIBOR Currency" means the currency (including composite
currencies) specified on the face hereof for which LIBOR shall be
calculated. If no such currency is specified on the face hereof,
the LIBOR Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Telerate"
is specified on the face hereof, the display on the Dow Jones
Telerate Service for the purpose of displaying the London
interbank rates of major banks for the applicable LIBOR Currency,
or (b) if "LIBOR Reuters" is specified on the face hereof, the
display on the Reuters Monitor Money Rates Service for the
purpose of displaying the London interbank rates of major banks
for the applicable LIBOR Currency. If neither LIBOR Telerate nor
LIBOR Reuters is specified on the face hereof, LIBOR for the
applicable LIBOR Currency will be determined as if LIBOR Telerate
(and, if the U.S. dollar is the LIBOR Currency, LIBO Page) had
been specified.
"Principal Financial Center" shall generally be the capital
city of the country of the specified LIBOR Currency, except that
with respect to U.S. dollars, Deutsche Marks and ECUs, the
Principal Financial Center shall be The City of New York,
Frankfurt and Luxembourg, respectively.
Determination of Federal Funds Rate. The Federal Funds Rate
means, with respect to an Interest Determination Date (a "Federal
Funds Rate Interest Determination Date"), the rate on that date
11
<PAGE>
for Federal Funds as published in H.15(519) under the heading
"Federal Funds (Effective)." If H.15(519) is not so published by
3:00 P.M., New York City time, on the Calculation Date pertaining
to such Federal Funds Rate Interest Determination Date, the
Federal Funds Rate will be the rate on such Federal Funds Rate
Interest Determination Date as published in Composite Quotations
under the heading "Federal Funds/Effective Rate." If such rate
is not yet published in either H.15(519) or Composite Quotations
by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Federal Funds Rate Interest Determination
Date, the Federal Funds Rate for such Federal Funds Rate Interest
Determination Date will be calculated by the Calculation Agent
and will be the arithmetic mean of the rates for the last
transaction in overnight Federal Funds as of 9:00 A.M., New York
City time, on such Federal Funds Rate Interest Determination Date
quoted by each of three leading brokers of Federal Funds
transactions in The City of New York selected by the Calculation
Agent; provided, however, that if fewer than three such brokers
are so quoting such rates, the Federal Funds Rate with respect to
such Federal Funds Rate Interest Determination Date will be the
Federal Funds Rate then in effect on such Federal Funds Rate
Interest Determination Date.
Determination of Prime Rate. Prime Rate means, with respect
to an Interest Determination Date (a "Prime Rate Interest
Determination Date"), the rate set forth on such date in
H.15(519) under the heading "Bank Prime Loan," or if not so
published prior to 9:00 A.M. New York City time, on the
Calculation Date pertaining to such Prime Rate Interest
Determination Date, then the Prime Rate will be determined by the
Calculation Agent and will be the arithmetic mean of the rates of
interest publicly announced by each bank that appears on the
Reuters Screen NYMF Page (as defined below) as such bank's prime
rate or base lending rates as in effect for that Prime Rate
Interest Determination Date. If fewer than four such rates but
more than one such rate appear on the Reuters Screen NYMF Page
for the Prime Rate Interest Determination Date, the Prime Rate
will be determined by the Calculation Agent and will be the
arithmetic mean of the prime rates, quoted on the basis of the
actual number of days in the year divided by a 360-day year, as
of the close of business on such Prime Rate Interest
Determination Date by four major money center banks in The City
of New York as selected by the Calculation Agent. If fewer than
two such quotations are provided, the Prime Rate shall be
determined by the Calculation Agent as of the close of business
on the Prime Rate Interest Determination Date, on the basis of
the prime rates, as of the close of business on such date,
furnished in The City of New York by the appropriate number of
substitute banks or trust companies organized and doing business
under the laws of the United States, or any State thereof, having
total equity capital of at least $500 million and being subject
to supervision or examination by Federal or State authority,
selected by the Calculation Agent to provide such rate or rates;
12
<PAGE>
provided, however, that if the banks selected as aforesaid are
not quoting as mentioned in this sentence, the Prime Rate for
such Prime Rate Interest Determination Date will be the Prime
Rate then in effect on such Prime Rate Interest Determination
Date.
"Reuters Screen NYMF Page" means the display designated as
page "NYMF" on the Reuters Monitor Money Rates Service (or such
other page as may replace the NYMF page on that service for the
purpose of displaying prime rates or base lending rates of major
United States banks).
Determination of Treasury Rate. Treasury Rate means, with
respect to an Interest Determination Date (a "Treasury Rate
Interest Determination Date"), the rate for the auction held on
such Treasury Rate Interest Determination Date of direct
obligations of the United States ("Treasury Bills") having the
Index Maturity specified on the face hereof, as published in
H.15(519) under the heading "U.S. Government Securities --
Treasury Bills -- auction average (investment)." If such rate is
not published by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Treasury Rate Interest
Determination Date, the Treasury Rate will be the auction average
rate (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) on
such Treasury Rate Interest Determination Date as otherwise
announced by the United States Department of the Treasury. In
the event that the results of the auction of Treasury bills
having the Index Maturity specified on the face hereof are not
reported as provided by 3:00 P.M., New York City time, on such
Calculation Date, or if no such auction is held on such Treasury
Rate Interest Determination Date, then the Treasury Rate for such
Treasury Rate Interest Determination Date shall be a yield to
maturity (expressed as a bond equivalent, on the basis of a year
of 365 or 366 days, as applicable, and applied on a daily basis)
of the arithmetic mean of the secondary market bid rates, as of
approximately 3:30 P.M., New York City time, on such Treasury
Rate Interest Determination Date, of three leading primary United
States government securities dealers selected by the Calculation
Agent, for the issue of Treasury bills with a remaining maturity
closest to the Index Maturity specified on the face hereof;
provided, however, that if the dealers selected as aforesaid by
the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate with respect to such Treasury Rate
Interest Determination Date will be the Treasury Rate then in
effect on such Treasury Rate Interest Determination Date.
Determination of CMT Rate. CMT Rate means with respect to
an Interest Determination Date relating to a CMT Rate Note or any
Floating Rate Note for which the interest rate is determined by
reference to the CMT Rate (a "CMT Rate Interest Determination
Date"), the rate displayed on the designated CMT Telerate Page
under the caption "Treasury Constant Maturities . . . Federal
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<PAGE>
Reserve Board Release H.15 . . . Mondays approximately 3:45
p.m.," under the column for the Designated CMT Maturity Index for
(i) if the Designated CMT Telerate Page is 7055, the rate on such
CMT Rate Interest Determination Date and (ii) if the Designated
CMT Telerate Page is 7052, the week, or the month, as applicable,
ended immediately preceding the week in which the Related CMT
Rate Interest Determination Date occurs. If such rate is no
longer displayed on the relevant page, or if not displayed by
3:00 p.m., New York City time, on the related Calculation Date,
then the CMT Rate for such CMT Rate Interest Determination Date
will be such Treasury Constant Maturity Rate for the Designated
CMT Maturity Index as published in the relevant H.15(519). If
such rate is no longer published, or if not published by 3:00
p.m. New York City time, on the related Calculation Date, then
the CMT Rate for such CMT Rate Interest Determination Date will
be such Treasury Constant Maturity Rate for the Designated CMT
Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest
Determination Date with respect to such Interest Reset Date as
may then be published by either the Board of Governors of the
Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent determines to be comparable
to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519). If such
information is not provided by 3:00 p.m., New York City time, on
the related Calculation Date, then the CMT Rate for the CMT Rate
Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity, based on the arithmetic
mean of the secondary market closing offer side prices as of
approximately 3:30 p.m., New York City time, on the CMT Interest
Determination Date reported, according to their written records,
by three leading primary United States government securities
dealers (each a "Referenced Dealer") in The City of New York
selected by the Calculation Agent (from five such Referenced
Dealers selected by the Calculation Agent and eliminating the
highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality,
one of the lowest)), for the most recently issued direct, non-
callable fixed rate obligations of the United States ("Treasury
Note") with an original maturity of approximately the Designated
CMT Maturity Index and a remaining term to maturity of not less
than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Note
quotations, the CMT Rate for such CMT Rate Interest Determination
Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary
market side offer prices as of approximately 3:30 p.m. New York
City time, on the CMT Rate Interest Determination Date of three
Referenced Dealers in The City of New York (from five such
Referenced Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the even of equality,
one of the highest) and lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with original
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<PAGE>
maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity
closest to the Designated CMT Maturity Index and in an amount of
at least $100,000,000. If three or four (and not five) of such
Referenced Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offer prices
obtained and neither the highest nor lowest of such quotes will
be eliminated; provided however, that if fewer than three
Referenced Dealers selected by the Calculation Agent are quoting
as described herein, the CMT Rate will be the CMT Rate in effect
on such CMT Rate Interest Determination Date. If two Treasury
Notes with an original maturity as described in the third
preceding sentence have remaining terms to maturity equally close
to the Designated CMT Maturity Index, the quotes for the CMT Rate
Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow
Jones Telerate Service on the page designated on the face of this
Note (or any other page as may replace such page on that service
for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519)), or the purpose of displaying Treasury
Constant Maturity as reported in H.15(519). If no such page is
specified, the Designated CMT Telerate Page shall be 7052, for
the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury Securities (either 1, 2, 3, 5, 7,
10, 20 or 30 years) specified on the fact of this Note with
respect to which the CMT Rate will be calculated. If no such
maturity is specified on the face of this Note, the Designated
CMT Maturity Index shall be two years.
Determination of Eleventh District Cost of Funds Rate.
Eleventh District Cost of Funds Rate means, with respect to an
Interest Determination Date relating to an Eleventh District Cost
of Funds Rate (an "Eleventh District Cost of Funds Rate Interest
Determination Date"), the rate equal to the monthly weighted
average cost of funds for the calendar month preceding such
Eleventh District Cost of Funds Rate Interest Determination Date
as set forth under the caption "Eleventh District" on Telerate
page 7058 as of 11:00 a.m., San Francisco time, on such Eleventh
District Cost of Funds Rate Interest Determination Date. If such
rate does not appear on the Telerate page 7058 on any related
Eleventh District Cost of Funds Rate Interest Determination Date,
the Eleventh District Cost of Funds Rate for such Eleventh
District Cost of Funds Rate Interest Determination Date shall be
the monthly weighted average cost of funds paid by member
institutions of the Eleventh Federal Home Loan Bank District that
was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month preceding
the date of such announcement. If the FHLB of San Francisco
fails to announce such rate for the calendar month next preceding
such Eleventh District Cost of Funds Rate Interest Determination
15
<PAGE>
Date, then the Eleventh District Cost of Funds Rate for such
Eleventh District Cost of Funds Rate Interest Determination Date
will be the Eleventh District Cost of Funds Rate in effect on
such Eleventh District Cost of Funds Rate Interest Determination
Date. "Telerate Page 7058" means the display on the Dow Jones
Telerate Service on such page (or such other page as may replace
such page on the service for the purpose of displaying the
Eleventh District Cost of Funds Rate) for the purpose of
displaying the monthly average cost of the funds paid by member
institutions of the Eleventh Federal Home Loan Bank District.
Notwithstanding the foregoing, the interest rate hereon
shall not be greater than the Maximum Interest Rate, if any, or
less than the Minimum Interest Rate, if any, specified on the
face hereof. The Calculation Agent shall calculate the interest
rate hereon in accordance with the foregoing on or before each
Calculation Date. The interest rate on this Note will in no
event be higher than the maximum rate permitted by New York law,
as the same may be modified by United States law of general
application.
At the request of the holder hereof, the Calculation Agent
will provide to the holder hereof the interest rate hereon then
in effect and, if determined, the interest rate which will become
effective as of the next Interest Reset Date.
If an Event of Default (defined in the Indenture as (i) the
Corporation's failure to pay principal of (or premium, if any,
on) the Notes when due, or to pay interest on the Notes within 30
days after the same becomes due, (ii) the Corporation's breach of
its other covenants contained in this Note or the Indenture,
which breach is not cured within 90 days after written notice by
the Trustee or the holders of at least 25% in outstanding
principal amount of all Securities issued under the Indenture and
affected thereby, and (iii) certain events involving the
bankruptcy, insolvency or liquidation of the Corporation) shall
occur with respect to the Notes, the principal of all the Notes
may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Corporation and the rights of the
holders of the Notes under the Indenture at any time by the
Corporation with the consent of the holders of not less than 66
2/3% in aggregate principal amount of the Notes then outstanding
and all other Securities then outstanding under the Indenture and
affected by such amendment and modification. The Indenture also
contains provisions permitting the holders of a majority in
aggregate principal amount of the Notes then outstanding and all
other Securities then outstanding under the Indenture and
affected thereby, on behalf of the holders of all Securities, to
waive compliance by the Corporation with certain provisions of
16
<PAGE>
the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the holder of
this Note shall be conclusive and binding upon such holder and
upon all future holders of this Note and of any Note issued upon
the registration of transfer hereof or in exchange here for or in
lieu hereof whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the
obligation of the Corporation, which is absolute and
unconditional, to pay the principal of and interest on this Note
at the time, place and rate, and in the coin or currency, herein
prescribed.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemented thereto, against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Corporation or any predecessor or
successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for issue
hereof, expressly waived and released.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note may be
registered on the registry books of the Corporation relating to
the Notes, upon surrender of this Note for registration of
transfer at the office or agency of the Corporation designated by
it pursuant to the Indenture, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the
Corporation and the Trustee duly executed by, the holder hereof
or his attorney duly authorized in writing, and thereupon one or
more new Notes, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only as registered Notes without
coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture, and subject to certain
limitations therein set forth, Notes are exchangeable for a like
aggregate principal amount of Notes of different authorized
denominations, as requested by the holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Corporation may require payment of
a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
17
<PAGE>
Prior to due presentment for registration of transfer of
this Note, the Corporation, the Trustee and any agent of the
Corporation or the Trustee may treat the entity in whose name
this Note is registered as the absolute owner hereof for the
purpose of receiving payment as herein provided and for all other
purposes, whether or not this Note be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by
notice to the contrary.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
[NOTES ISSUED AND OUTSTANDING PURSUANT TO A BOOK-ENTRY
SYSTEM SHALL BE DEEMED TO CONTAIN THE FOLLOWING PARAGRAPH: The
Notes are being issued by means of a book-entry system with no
physical distribution of certificates to be made except as
provided in the Indenture. The book-entry system maintained by
Depository Trust Company ("DTC") will evidence ownership of the
Notes, with transfers of ownership effected on the records of DTC
and its participants pursuant to rules and procedures established
by DTC and its participants. The Corporation will recognize Cede
& Co., as nominee of DTC, while the registered Owner of the
Notes, as the owner of the Notes for all purposes, including
payment of principal and interest, notices and voting. Transfer
of principal and interest to participants of DTC will be the
responsibility of DTC, and transfer of principal and interest to
beneficial owners of the Notes by participants of DTC will be the
responsibility of such participants and other nominees of such
beneficial owners. So long as the book-entry system is in
effect, the selection of any Notes to be redeemed will be
determined by DTC pursuant to rules and procedures established by
DTC and its participants. The Corporation will not be
responsible or liable for such transfers of payments or for
maintaining, supervising or reviewing the records maintained by
DTC, its participants or persons acting through such
participants.]
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of the interim Note, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM--as tenants in common
TEN ENT-- as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT--.............Custodian..........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
Additional abbreviations may also be used though not in the
above list.
_____________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE OF ASSIGNEE]
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
Please Insert Social Security or Other
Identifying Number of Assignee: ____________________________
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing __________________________________
Attorney to transfer said Note on the books of the Corporation,
with full power of substitution in the premises.
Dated:_________________________ _________________________
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the within Note in every
particular, without alteration or enlargement, or any change
whatever and must be guaranteed.
19
<PAGE>
[OPTION TO ELECT REPAYMENT]
The undersigned hereby irrevocably request(s) and
instruct(s) the Corporation to repay this Note (or portion hereof
specified below) pursuant to its terms at a price equal to the
principal amount hereof together with interest to the repayment
date, to the undersigned, at ________________________________
_____________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee (or the Paying Agent
on behalf of the Trustee) must receive at ______________, or at
such other place or places of which the Corporation shall from
time to time notify the Holder of this Note, not more than 60 nor
less than 30 days prior to an Optional Repayment Date, if any,
shown on the face of this Note, this Note with this "Option to
Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to
be repaid, specify the portion hereof (which shall be in
increments of $1,000) which the Holder elects to have repaid and
specify the denomination or denominations (which shall be
$__________ or an integral multiple of $1,000 in excess of
$__________) of the Notes to be issued to the Holder for the
portion of this Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not
being repaid).
$___________________ ___________________________________
NOTICE: The signature on this
Option to Elect Repayment must
Date _______________ correspond with the name as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatever.]
20
<PAGE>
RENEWABLE NOTE RIDER
The Corporation and the purchaser of this Note have agreed
that this Note is a Renewable Note which initially matures on the
Stated Maturity Date shown on the face of this Note. At each
Renewal Date, the maturity of this Note will be automatically
extended to the corresponding New Maturity Date unless the holder
of this Note delivers a completed Extension Termination Notice to
the Trustee or the Paying Agent on behalf of the Trustee not less
than 15 nor more than 30 days prior to the applicable Renewal
Date. The Extension Termination Notice may specify all or a
portion of the outstanding principal amount of the Note so long
as the principal amount of the Note remaining outstanding after
repayment is an integral multiple of $1,000. Upon timely
delivery of such Extension Termination Notice, the term of the
principal amount of this Note subject to such notice will be
deemed automatically to mature on the Stated Maturity Date or the
then applicable New Maturity Date, as the case may be. The
remaining principal balance of such Note, if any, will be deemed
to automatically be extended to the corresponding New Maturity
Date but in no circumstances may such maturity be extended beyond
the Final Maturity Date. Notwithstanding any such extension, the
interest rate applicable to this Note will continue to be
calculated as set forth in this Note.
STATED MATURITY DATE:_________________________________
FINAL MATURITY DATE:__________________________________
Renewal Date (s) New Maturity Date(s)
21
<PAGE>
EXTENDIBLE NOTE RIDER
The Corporation and the purchaser of this Note have agreed
that this Note is an Extendible Note, whereby the Corporation has
the option to extend the maturity of this Note by delivery to the
Trustee (or any duly authorized Paying Agent) of an Extendible
Option Notice under the terms of this Note as supplemented by
this Extendible Note Rider.
Stated Maturity Date:
Final Maturity Date:
Extension Notice Extended
Due Date Maturity Date
The Corporation may exercise its option with respect to an
Extendible Note by delivery to the Trustee (or any duly appointed
Paying Agent) of an Extendible Option Notice at least 45 but not
more than 60 days prior to the Stated Maturity Date originally in
effect with respect to such Note or, if the Stated Maturity Date
of such Note has already been extended, the Extended Maturity
Date then in effect. After such receipt and not later than 40
days prior to the Stated Maturity Date or an Extended Maturity
Date, as the case may be (each, a "Maturity Date"), the Trustee
(or any duly appointed Paying Agent) will mail first class mail,
postage prepaid, to the holder of such Extendible Note a notice
(the "Extension Notice") relating to such extension period (the
"Extension Period") setting forth (i) the election of the
Corporation to extend the maturity of such Extendible Note, (ii)
the new Extended Maturity Date, (iii) in the case of a Fixed Rate
Note, the interest rate applicable to the Extension Period or, in
the case of a Floating Rate Note, the Spread and/or Spread
Multiplier applicable to the Extension Period, and (iv) the
provisions, if any, for redemption during the Extension Period,
including the date or dates on which, the period or periods
during which and the price or prices at which such redemption may
occur during the Extension Period. Upon the mailing by the
Trustee (or any duly appointed Paying Agent) of an Extension
Notice to the holder of an Extendible Note, the maturity of such
Note shall be extended automatically as set forth in the
Extension Notice, and, except as modified by the Extension Notice
and as described in the next paragraph, such Extendible Note will
have the same terms as prior to the mailing of such Extension
Notice.
22
<PAGE>
Notwithstanding the foregoing, not later than 20 days prior
to the Maturity Date for an Extendible Note (or, if such date is
not a Business Day, on the immediately succeeding Business Day),
the Corporation may, at its option, revoke the interest rate, in
the case of a Fixed Rate Note, or the Spread and/or Spread
Multiplier, in the case of a Floating Rate Note, provided for in
the Extension Notice and establish a higher interest rate, in the
case of a Fixed Rate Note, or a higher Spread and/or Spread
Multiplier, in the case of a Floating Rate Note, for the
Extension period by mailing or causing the Trustee (or any duly
appointed Paying Agent) to mail notice of such higher interest
rate or higher Spread and/or Spread Multiplier, as the case may
be, first class mail, postage prepaid, to the holder of such
Note. Such notice shall be irrevocable. All Extendible Notes
with respect to which the Maturity Date is extended will bear
such higher interest rate, in the case of a Fixed Rate Note, or
higher Spread and/or Spread Multiplier, in the case of a Floating
Rate Note, for the Extension Period.
If the Corporation elects to extend the maturity of an
Extendible Note, the holder of such Note will have the option to
elect repayment of such Note by the Corporation on the Maturity
Date then in effect at a price equal to the principal amount
thereof plus any accrued and unpaid interest to such date. In
order for an Extendible Note to be so repaid on the Maturity
Date, the Corporation must receive, at least 15 days but not more
than 30 days prior to the Maturity Date then in effect with
respect to the Note, (i) the Note with the form "Option to Elect
Repayment" on the reverse of the Note duly completed or (ii) a
telegram, telex, facsimile transmission or a letter from a member
of a national securities exchange, or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in
the United States setting forth the name of the holder of the
Note, the principal amount of the Note, the principal amount of
the Note to be repaid, the certificate number or a description of
the tenor and terms of the Note, a statement that the option to
elect repayment is being exercised thereby and a guarantee that
the Note to be repaid, together with the duly completed form
entitled "Option to Elect Repayment" attached to the Note, will
be received by the Trustee (or any duly appointed Paying Agent)
not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter, provided,
however, that such telegram, telex, facsimile transmission or
letter shall only be effective if such Note and duly completed
form are received by the Trustee (or any duly appointed Paying
Agent) by such fifth Business Day. Such option may be exercised
by the holder of an Extendible Note for less than the aggregate
principal amount of the Note then outstanding, provided that the
principal amount of the Note remaining outstanding after
repayment is an integral multiple of $1,000.
23
<PAGE>
[FORM OF SUBORDINATED REGISTERED NOTE]
If the registered owner of this Note (as indicated below) is
The Depository Trust Company (the "Depository") or a nominee of
the Depository, this Note is a Global Security and the
following legend is applicable. THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR
NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE
REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water
Street, New York, New York) to the issuer or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of
The Depository Trust Company and any payment is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN
OBLIGATION OF OR GUARANTEED BY ANY BANKING OR NONBANKING
AFFILIATE OF THE CORPORATION AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
REGISTERED
NUMBER R______ $_______________
CUSIP 638585 ___
SEE REVERSE FOR CERTAIN DEFINITIONS
AND ADDITIONAL PROVISIONS
NATIONSBANK CORPORATION
______% SUBORDINATED NOTE, DUE ____
NATIONSBANK CORPORATION, a corporation duly organized and existing
under the laws of the State of North Carolina (herein called the
"Corporation," which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to _____________________________________________________
________________________________________________________________________
,
or registered assigns, the principal sum of _________________________
DOLLARS(1) on _____________________, 19___,(2) and to pay interest on said
principal sum, semi-annually(3)
_____________________
1 This form provides for Notes denominated in,
and principal and interest payable in, United States dollars.
The form, as used, may be modified to provide, alternatively,
for Notes denominated in, and principal and interest and other
amounts, if any, payable in a foreign currency or currency
unit, with the specific terms and provisions, including
any limitations on the issuance of Notes in such currency,
additional provisions regarding paying and other agents and
additional provisions regarding the calculation and payment of
such currency, set forth therein.
2 This form provides for Notes that will mature
only on a specified date. If the maturity (continued...)
<PAGE>
in arrears on ____________________ and ___________________ of each
year, at the rate of ___% per annum (4), from the ____________ or
____________, as the case may be, next preceding the date of this
Note to which interest has been paid, unless the date hereof is a
date to which interest has been paid, in which case from the date
of this Note, or unless no interest has been paid on the Notes, in
which case from ________________________, until payment of such
principal sum has been made or duly provided for. Notwithstanding
the foregoing, if the date hereof is after a record date for the
Notes (which shall be the close of business on the [last]
[fifteenth] day of the calendar month next preceding an interest
payment date) and before the next succeeding interest payment
date, this Note shall bear interest from such interest payment
date; provided, however, that if the Corporation shall default in
the payment of interest due on such interest payment date, then
this Note shall bear interest from the next preceding interest
payment date to which interest has been paid, or, if no interest
has been paid on the Notes, from __________________. The interest
so payable, and punctually paid or duly provided for, on any
interest payment date will, as provided in such Indenture, be paid
to the person in whose name this Note (or one or more predecessor
Notes evidencing all or a portion of the same debt as this Note)
is registered at the close of business on the record date for such
interest payment date. The principal of and interest on this Note
are payable in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts, at the office or agency of the
Corporation in __________________ or such other places that the
Corporation shall designate as provided in the Indenture;
provided, however, that interest may be paid, at the option of the
Corporation, by check mailed to the person entitled thereto at his
address last appearing on the Security Register of the Corporation
relating to the Notes. Any interest not punctually paid or duly
provided for shall be payable as provided in such Indenture. (5)
_________________
2 (...continued)
of Notes of a series may be renewed at the option of the
holder, or extended at the option of the Corporation,
the form, as used, will be modified to provide for
additional terms relating to such renewal or extension, as
the case may be, including the period or periods for
which the maturity may be renewed or extended, as the case
may be, changes in the interest rate, if any, and
requirements for notice.
3 This form provides for semi-annual interest
payments. The form, as used, may be modified to
provide, alternatively, for annual, quarterly or other
periodic interest payments.
4 This form provides for interest at a fixed
rate. The form, as used, may be modified to provide,
alternatively, for interest at a variable rate or rates,
with the method of determining such rate set forth therein.
5 This form does not contemplate the offer of
Notes to United States Aliens (for United States federal
income tax purposes). If Notes are offered to United States
Aliens, the form of Note, as used, may be modified to
provide for the payment of additional amounts to such
United States Aliens or, if applicable, the redemption of
such Notes in lieu of payment of such additional amounts.
2
<PAGE>
Reference is made to the further provisions of this Note set forth
on the reverse hereof, which shall have the same effect as though fully
set forth at this place.
Unless the certificate of authentication hereon has been executed
by or on behalf of the Trustee or an authenticating agent on behalf of
the Trustee by manual signature, this Note shall not be entitled to any
benefit under such Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to
be duly executed by manual or facsimile signature under its corporate
seal or a facsimile thereof.
NATIONSBANK CORPORATION
Attest:
By:
Secretary [Title: ]
[CORPORATE SEAL]
Dated
3
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee,
[By: ,
as Authenticating Agent]
By: ]
Authorized Signatory
4
<PAGE>
[Reverse Side of Note]
NATIONSBANK CORPORATION
______% SUBORDINATED NOTE, DUE __________
This Note is one of a duly authorized series of Securities of the
Corporation unlimited in aggregate principal amount issued and to be
issued under an Indenture dated as of January 1, 1995 (herein called the
"Indenture") between the Corporation and The Bank of New York (herein
called the "Trustee," which term includes any successor Trustee under
the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective
rights thereunder of the Corporation, the Trustee and the holders of the
Notes, and the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is also one of the Notes
designated as the Corporation's _____% Subordinated Notes, due
__________ (herein called the "Notes"), limited in aggregate principal
amount to $__________. [NationsBank of Georgia, National Association]
initially has been appointed Security Registrar, Authenticating and
Paying Agent in connection with the Notes.
THE INDEBTEDNESS OF THE CORPORATION EVIDENCED BY THE NOTES,
INCLUDING THE PRINCIPAL THEREOF AND INTEREST THEREON, IS, TO THE EXTENT
AND IN THE MANNER SET FORTH IN THE INDENTURE, SUBORDINATE AND JUNIOR IN
RIGHT OF PAYMENT TO ITS OBLIGATIONS TO HOLDERS OF SENIOR INDEBTEDNESS,
AS DEFINED IN THE INDENTURE, AND EACH HOLDER OF THE NOTES, BY THE
ACCEPTANCE THEREOF, AGREES TO AND SHALL BE BOUND BY SUCH PROVISIONS OF
THE INDENTURE.
[Except as otherwise provided herein,] the Notes of this series are
not subject to redemption at the option of the Corporation or repayment
at the option of the holder prior to maturity.(6)
[The provisions of Article Fourteen of the Indenture do not apply
to Securities of this series.]
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the
Security Register of the Corporation relating to the Notes, upon
surrender of this Note for registration of transfer at the office or
agency of the Corporation designated by it pursuant to the Indenture,
duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Corporation and the Trustee or the Security
Registrar duly executed by, the registered holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
________________
6 This form provides for Notes that are not subject to
redemption at the option of the Corporation or repayment at the
option of the holder. The form, as used, may be modified to
provide, alternatively, for redemption at the option of the
Corporation or repayment at the option of the holder,
with the terms and conditions of such redemption or repayment,
as the case may be, including provisions regarding
sinking funds, if applicable, redemption prices and
notice periods, set forth therein.
5
<PAGE>
The Notes are issuable only as registered Notes without coupons in
the denominations of $______ and any integral multiple in excess
thereof. As provided in the Indenture, and subject to certain
limitations therein set forth, Notes are exchangeable for a like
aggregate principal amount of Notes of different authorized
denominations, as requested by the holder surrendering the same.
If any interest payment date or maturity date for a Note falls on a
day that is not a Business Day, the interest payment date or maturity
date will be the following day that is a Business Day and the payment of
interest or principal will be made on such next Business Day as if it
were made on the date such payment was due and no additional interest
will accrue on the amount so payable for the period from and after such
interest payment date or maturity date.
No service charge will be made for any such registration of
transfer or exchange, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment for registration of transfer of this Note,
the Corporation, the Trustee and any agent of the Corporation or the
Trustee may treat the person in whose name this Note is registered as
the absolute owner hereof for the purpose of receiving payment as herein
provided and for all other purposes, whether or not this Note be
overdue, and neither the Corporation, the Trustee nor any such agent
shall be affected by notice to the contrary.
If an Event of Default (defined in the Indenture as certain events
involving the bankruptcy of the Corporation) shall occur with respect to
the Notes, the principal of all the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
There is no right of acceleration provided in the Indenture in case of a
default in the payment of interest or the performance of any other
covenant by the Corporation.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations
of the Corporation and the rights of the holders of the Notes under the
Indenture at any time by the Corporation with the consent of the holders
of not less than 66-2/3% in aggregate principal amount of the Notes then
outstanding and all other Securities then outstanding issued under the
Indenture and affected by such amendment and modification. The
Indenture also contains provisions permitting the holders of a majority
in aggregate principal amount of the Notes then outstanding and all
other Securities then outstanding issued under the Indenture and
affected thereby, on behalf of the holders of all such Securities, to
waive compliance by the Corporation with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note
shall be conclusive and binding upon such holder and upon all future
holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the
Corporation, which is absolute and unconditional, to pay the
6
<PAGE>
principal of and interest on this Note at the times, place and rate,
and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, stockholder,
officer or director, as such, past, present or future, of the
Corporation or any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
The Notes of this series shall be dated the date of their
authentication.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
NOTES ISSUED AND OUTSTANDING PURSUANT TO A BOOK-ENTRY SYSTEM SHALL
BE DEEMED TO CONTAIN THE FOLLOWING PARAGRAPH: The Notes are being
issued by means of a book-entry system with no physical distribution of
certificates to be made except as provided in the Indenture. The book-
entry system maintained by The Depository Trust Company ("DTC") will
evidence ownership of the Notes, with transfers of ownership effected on
the records of DTC and its participants pursuant to rules and procedures
established by DTC and its participants. The Corporation will recognize
Cede & Co., as nominee of DTC, while the registered Owner of the Notes,
as the owner of the Notes for all purposes, including payment of
principal and interest, notices and voting. Transfer of principal and
interest to participants of DTC will be the responsibility of DTC, and
transfer of principal and interest to beneficial owners of the Notes by
participants of DTC will be the responsibility of such participants and
other nominees of such beneficial owners. So long as the book-entry
system is in effect, the selection of any Notes to be redeemed will be
determined by DTC pursuant to rules and procedures established by DTC
and its participants. The Corporation will not be responsible or liable
for such transfers of payments or for maintaining, supervising or
reviewing the records maintained by DTC, its participants or persons
acting through such participants.
__________
7
<PAGE>
The following abbreviations, when used in the inscription on the
face of the within Note, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT-- _________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors
Act __________ (State)
Additional abbreviations may also be used though not in the above list.
__________
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________________________________
(Name and Address of Assignee, including zip code, must be printed or
typewritten.)
_____________________________________________________________the within
Note, and all rights thereunder, hereby irrevocably constituting and
appointing
______________________________________________________________ Attorney
to transfer said Note on the books of the Corporation, with full power
of substitution in the premises.
Dated:_____________________
____________________________
NOTICE: The signature to this assignment must correspond with the
name as it appears upon the face of the within Note in every particular,
without alteration or enlargement or any change whatever and must be
guaranteed.
8
<PAGE>
<PAGE>
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "Depositary") or a nominee of the
Depositary, this Note is a Global Security and the following
legend is applicable. THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR
ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A
TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water
Street, New York, New York) to the issuer or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of
The Depository Trust Company and any payment is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.(1)
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN
OBLIGATION OF OR GUARANTEED BY ANY BANKING OR NONBANKING
AFFILIATE OF THE CORPORATION AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
REGISTERED
NUMBER FXR _________ $__________
NATIONSBANK CORPORATION
MEDIUM-TERM SUBORDINATED NOTE,
SERIES ___ CUSIP 63858S ____
(Fixed Rate)
ORIGINAL ISSUE DATE:
INTEREST RATE:
STATED MATURITY DATE:
FINAL MATURITY DATE:
INITIAL REDEMPTION DATE:
INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE:
PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
ADDITIONAL TERMS:
NationsBank Corporation, a corporation duly organized
and existing under the laws of the State of North Carolina
(herein called the "Corporation," which term includes any
successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay
to , or registered assigns, the principal sum of
___________________ DOLLARS on the Stated Maturity Date
specified above (except to the extent redeemed or repaid
prior to the Stated Maturity Date), and to pay interest on
said principal sum, semiannually in arrears on ____________
and __________ of each year (each an "Interest Payment
Date"), at the Interest Rate per annum specified above,
until payment of such principal sum has been made or duly
provided for, commencing on the first Interest Payment Date
next succeeding the Original Issue Date specified above,
unless the Original Issue Date occurs between a Regular
Record Date, as defined below, and the next succeeding
Interest Payment Date, in which case commencing on the
Interest Payment Date following the next succeeding Regular
Record Date, and on
1
Applies only if this Note is a Global Note.
<PAGE>
the Stated Maturity Date or Final Maturity Date shown above (or any
Redemption Date as defined on the reverse hereof or any Optional
Repayment Date with respect to which any such option has been
exercised, each such Stated Maturity Date, Final Maturity Date,
Redemption Date and Optional Repayment Date being herein referred
to as a "Maturity Date" with respect to the principal payable on
such date). Interest on this Note will accrue from the Original
Issue Date specified above until the principal amount is paid and
will be computed on the basis of a 360- day year of twelve 30-day
months. Interest payments will be in the amount of interest
accrued from and including the next preceding Interest Payment Date
in respect of which interest has been paid or duly provided for or,
if no interest has been paid, from the Original Issue Date
specified above, to but excluding the Interest Payment Date or
Maturity Date, as the case may be. If the Maturity Date or an
Interest Payment Date falls on a day which is not a Business Day as
defined below, principal or interest payable with respect to such
Maturity Date or Interest Payment Date will be paid on the next
succeeding Business Day with the same force and effect as if made
on such Maturity Date or Interest Payment Date, as the case may be,
and no additional interest shall accrue for the period from and
after such Maturity Date or Interest Payment Date. The interest so
payable, and punctually paid or duly provided for, on any Interest
Payment Date will be paid to the person in whose name this Note (or
one or more predecessor Notes evidencing all or a portion of the
same debt as this Note) is registered at the close of business on
the Regular Record Date, which shall be the __________ or the
__________, whether or not a Business Day, as the case may be, next
preceding such Interest Payment Date; provided, however, that the
first payment of interest on any Note with an Original Issue Date,
as specified above, between a Regular Record Date and an Interest
Payment Date or on an Interest Payment Date will be made on the
Interest Payment Date following the next succeeding Regular Record
Date to the person in whose name this Note is registered at the
close of business on such next succeeding Regular Record Date; and
provided, further, that interest payable on the Maturity Date will
be payable to the person to whom the principal hereof shall be
payable. Any interest not punctually paid or duly provided for
shall be payable as provided in the Indenture. As used herein,
"Business Day" means any day, other than a Saturday or Sunday, on
which banks in The City of New York, Charlotte, North Carolina or
____________________ are not authorized or required by law to be
closed.
The principal of and interest on this Note are payable
in immediately available funds in such coin or currency of
the United States of America as at the time of payment is
legal tender for payment of public and private debts at the
office or agency of the Corporation designated as provided
in the Indenture; provided, however, that interest may be
paid, at the option of the Corporation, by check mailed to
the person entitled thereto at his address last appearing on
the registry books of
2
<PAGE>
the Corporation relating to the Notes. Notwithstanding the
preceding sentence, payments of principal of and interest payable
on the Maturity Date will be made by wire transfer of immediately
available funds to a designated account maintained in the United
States upon (i) receipt of written notice by the Issuing and
Paying Agent from the holder hereof not less than one Business Day
prior to the due date of such principal and (ii) presentation of
this Note to [NationsBank of Georgia, National Association as
Issuing and Paying Agent at Corporate Trust Administration, 600
Peachtree Street, Suite 900, Atlanta, Georgia 60608] (the
"Corporate Trust Office").
Reference is made to the further provisions of this
Note set forth on the reverse hereof, which shall have the
same effect as though fully set forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee or an Authenticating Agent on
behalf of the Trustee by manual signature, this Note shall
not be entitled to any benefit under such Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this
Instrument to be duly executed, by manual or facsimile
signature, under its corporate seal or a facsimile thereof.
NATIONSBANK CORPORATION
By:
[SEAL] Title:
Senior Vice President
ATTEST:
By:
Assistant Secretary
3
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:_____________
The Bank of New York, as Trustee
By: [NationsBank of Georgia,
National Association, as
Authenticating
Agent]
By: ______________________________
Authorized Signatory
4
<PAGE>
[Reverse of Note]
NATIONSBANK CORPORATION
MEDIUM-TERM SUBORDINATED NOTE,
SERIES ___
(Fixed Rate)
This Medium-Term Note is one of a duly authorized
series of Securities of the Corporation unlimited in
aggregate principal amount (herein called the "Notes")
issued and to be issued under an Indenture dated as of
January 1, 1995 (herein called the "Indenture"), between
the Corporation and The Bank of New York, as Trustee (herein
called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a
statement of the respective rights thereunder of the
Corporation, the Trustee and the holders of the Notes, and
the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is also one of the
Notes designated as the Corporation's Subordinated Medium-
Term Notes, Series ___ (herein called the "Notes"), limited
in aggregate principal amount to [$_____________]. The
Notes may bear different dates, mature at different times,
bear interest at different rates and vary in such other ways
as are provided in the Indenture.
THE INDEBTEDNESS OF THE CORPORATION EVIDENCED BY THE
NOTES, INCLUDING THE PRINCIPAL THEREOF AND INTEREST THEREON,
IS, TO THE EXTENT AND IN THE MANNER SET FORTH IN THE
INDENTURE, SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT TO ITS
OBLIGATIONS TO HOLDERS OF SENIOR INDEBTEDNESS, AS DEFINED IN
THE INDENTURE, AND EACH HOLDER OF THE NOTES, BY THE
ACCEPTANCE HEREOF, AGREES TO AND SHALL BE BOUND BY SUCH
PROVISIONS OF THE INDENTURE.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of
the holder on the Optional Repayment Date(s), if any,
indicated on the face hereof. IF NO OPTIONAL REPAYMENT
DATES ARE SET FORTH ON THE FACE HEREOF, THIS NOTE MAY NOT BE
SO REPAID AT THE OPTION OF THE HOLDER HEREOF PRIOR TO THE
STATED MATURITY DATE. On any Optional Repayment Date this
Note shall be repayable in whole or in part in increments of
$1,000 at the option of the holder hereof at a repayment
price equal to 100% of the principal amount to be repaid,
together with interest thereon payable to the date of
repayment. For this Note to be repaid in whole or in part
at the option of the holder hereof, this Note must be
received, with the form entitled "Option to Elect Repayment"
below duly completed, by the Issuing and Paying Agent at the
Corporate Trust Office, or such other address of which the
Corporation shall from time to time notify the holders of
the Notes, not more than 60 nor less than 30 days prior to
an Optional Repayment Date. Exercise of such repayment
option by the holder hereof shall be irrevocable.
5
<PAGE>
This Note may be redeemed at the option of the
Corporation on any date on and after the Initial Redemption
Date, if any, specified on the face hereof (the "Redemption
Date"). IF NO INITIAL REDEMPTION DATE IS SET FORTH ON THE
FACE HEREOF, THIS NOTE MAY NOT BE REDEEMED AT THE OPTION OF
THE CORPORATION PRIOR TO THE STATED MATURITY DATE. On and
after the Initial Redemption Date, if any, this Note may be
redeemed at any time in whole or from time to time in part
in increments of $1,000 at the option of the Corporation at
the applicable Redemption Price (as defined below) together
with interest thereon payable to the Redemption Date, on
notice given not more than 60 nor less than 30 days prior to
the Redemption Date. In the event of redemption of this
Note in part only, a new Note for the unredeemed portion
hereof shall be issued in the name of the holder hereof upon
the surrender hereof.
If this Note is redeemable at the option of the
Corporation, the "Redemption Price" shall initially be the
Initial Redemption Percentage, specified on the face hereof,
of the principal amount of this Note to be redeemed and
shall decline at each anniversary of the Initial Redemption
Date by the Annual Redemption Percentage Reduction, if any,
specified on the face hereof, of the principal amount to be
redeemed until the Redemption Price is 100% of such
principal amount.
If an Event of Default (defined in the Indenture as
certain events involving the bankruptcy of the Corporation)
shall occur with respect to the Notes, the principal of all
the Notes may be declared due and payable in the manner and
with the effect provided in the Indenture. There is no
right of acceleration provided in the Indenture in case of a
default in the payment of interest or the performance of any
other covenant by the Corporation.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification
of the rights and obligations of the Corporation and the
rights of the holders of the Notes under the Indenture at
any time by the Corporation with the consent of the holders
of not less than 66 2/3% in aggregate principal amount of
the Notes then outstanding and all other Securities then
outstanding under the Indenture and affected by such
amendment and modification. The Indenture also contains
provisions permitting the holders of a majority in aggregate
principal amount of the Notes then outstanding and all other
Securities then outstanding under the Indenture and affected
thereby, on behalf of the holders of all such Securities, to
waive compliance by the Corporation with certain provisions
of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or
waiver by the holder of this Note shall be conclusive and
binding upon such holder and upon all future holders of this
Note and of any Note issued upon the registration of
transfer hereof or in exchange
6
<PAGE>
herefor or in lieu hereof
whether or not notation of such consent or waiver is made
upon this Note.
No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the
obligation of the Corporation, which is absolute and
unconditional, to pay the principal of and interest on this
Note at the time, place and rate, and in the coin or
currency, herein prescribed.
No recourse shall be had for the payment of the
principal of or the interest on this Note, or for any claim
based hereon, or otherwise in respect hereof, or based on or
in respect of the Indenture or any indenture supplemental
thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the
Corporation or any predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for issue hereof,
expressly waived and released.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note may
be registered on the registry books of the Corporation
relating to the Notes, upon surrender of this Note for
registration of transfer at the office or agency of the
Corporation designated by it pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Corporation and the
Trustee duly executed by, the holder hereof or his attorney
duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only as registered Notes without
coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture, and subject to
certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes
of different authorized denominations, as requested by the
holder surrendering the same.
No service charge will be made for any such
registration of transfer or exchange, but the Corporation
may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer
of this Note, the Corporation, the Issuing and Paying Agent
and any agent of the Corporation or the Issuing and Paying
Agent may treat the entity in whose name this Note is
registered as the absolute owner hereof for the purpose of
receiving payment as herein provided and for all other
purposes, whether or not this
7
<PAGE>
Note be overdue, and neither
the Corporation, the Issuing and Paying Agent nor any such
agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
[NOTES ISSUED AND OUTSTANDING PURSUANT TO A BOOK-ENTRY
SYSTEM SHALL BE DEEMED TO CONTAIN THE FOLLOWING PARAGRAPH:
The Notes are being issued by means of a book-entry system
with no physical distribution of certificates to be made
except as provided in the Indenture. The book-entry system
maintained by Depository Trust Company ("DTC") will evidence
ownership of the Notes, with transfers of ownership effected
on the records of DTC and its participants pursuant to rules
and procedures established by DTC and its participants. The
Corporation will recognize Cede & Co., as nominee of DTC,
while the registered Owner of the Notes, as the owner of the
Notes for all purposes, including payment of principal and
interest, notices and voting. Transfer of principal and
interest to participants of DTC will be the responsibility
of DTC, and transfer of principal and interest to beneficial
owners of the Notes by participants of DTC will be the
responsibility of such participants and other nominees of
such beneficial owners. So long as the book-entry system is
in effect, the selection of any Notes to be redeemed will be
determined by DTC pursuant to rules and procedures
established by DTC and its participants. The Corporation
will not be responsible or liable for such transfers of
payments or for maintaining, supervising or reviewing the
records maintained by DTC, its participants or persons
acting through such participants.]
8
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the
inscription on the face of the within Note shall be
construed as though they were written out in full according
to applicable laws or regulations:
TEN COM-- as tenants in common
TEN ENT-- as tenants by the entireties
JT TEN-- as joint tenants with right of
survivorship and not as tenants in
common
UNIF GIFT MIN ACT--..........Custodian...........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
Additional abbreviations may also be used though not in
the above list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE, OF ASSIGNEE]
----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
Please Insert Social Security or Other
Identifying Number of Assignee:
________________________
the within Note and all rights thereunder, hereby
irrevocably constituting and appointing
_____________________________________ Attorney to transfer
said Note on the books of the Corporation, with full power
of substitution in the premises.
Dated: ________________________ _________________________
NOTICE: The signature to this assignment must correspond
with the name as written upon the face of the within Note in
every particular, without alteration or enlargement, or any
change whatever and must be guaranteed.
9
<PAGE>
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and
instruct(s) the Corporation to repay this Note (or portion
hereof specified below) pursuant to its terms at a price
equal to the principal amount hereof together with interest
to the repayment date, to the undersigned, at
_________________________________ (Please print or typewrite
name and address of the undersigned)
For this Note to be repaid, the Trustee (or the Paying
Agent on behalf of the Trustee) must receive at
__________________, or at such other place or places of
which the Corporation shall from time to time notify the
Holder of this Note, not more than 60 nor less than 30 days
prior to an Optional Repayment Date, if any, shown on the
face of this Note, this Note with this "Option to Elect
Repayment" form duly completed.
If less than the entire principal amount of this Note
is to be repaid, specify the portion hereof (which shall be
in increments of $1,000) which the Holder elects to have
repaid and specify the denomination or denominations (which
shall be $__________ or an integral multiple of $l,000 in
excess of $__________) of the Notes to be issued to the
Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be
issued for the portion not
being repaid).
$_______________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as
written
Date:________________ upon the face of this Note in
every particular, without
alteration or enlargement or
any change whatever.]
10
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "Depositary") or a nominee of the
Depositary, this Note is a Global Security and the following
legend is applicable. THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR
ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A
TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water
Street, New York, New York) to the issuer or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of
The Depository Trust Company and any payment is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY 1 PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.(1)
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN
OBLIGATION OF OR GUARANTEED BY ANY BANKING OR NONBANKING
AFFILIATE OF THE CORPORATION AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
REGISTERED
NUMBER FLR _______ $_________
NATIONSBANK CORPORATION
MEDIUM-TERM SUBORDINATED NOTE,
SERIES ___
(Floating Rate)
CUSIP 63858S _________
ORIGINAL ISSUE DATE: BASE RATE:
STATED MATURITY DATE: (check one)
FINAL MATURITY DATE: ___CD Rate
INITIAL INTEREST RATE: ___Commercial
Paper Rate
INDEX MATURITY FOR INITIAL ___LIBOR
INTEREST RATE (IF DIFFERENT): ___Federal Funds
Rate
INDEX MATURITY: ___Prime Rate
INDEX MATURITY FOR FINAL ___Treasury Rate
INTEREST PAYMENT PERIOD ___CMT Rate
(IF DIFFERENT): CMT Telerate
Page:____
SPREAD: CMT Maturity
Index:___
SPREAD MULTIPLIER: ___Eleventh District Cost
MAXIMUM INTEREST RATE: of Funds Rate
MINIMUM INTEREST RATE:
___Other:
INTEREST PAYMENT DATES:
INTEREST RATE RESET DATES: This Note is
a Renewable
INTEREST RATE RESET PERIOD: Note.
INITIAL REDEMPTION DATE: See Attached Rider.
INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE REDUCTION:
OPTIONAL PAYMENT DATE(S):
CALCULATION AGENT: This Note is an
ADDITIONAL TERMS: Extendible Note.
See Attached Rider.
NationsBank Corporation, a corporation duly organized and
existing under the laws of the State of North Carolina (herein
called the "Corporation," which term includes any successor
corporation under the Indenture referred to on the reverse hereof),
for value received, hereby promises to pay to
--------------
(1) Applies only if this Note is a Global Security.
<PAGE>
____________________________________________________________
__, or registered assigns, the principal sum of
________________ DOLLARS on the Stated Maturity Date
specified above (except to the extent redeemed or repaid
prior to the Stated Maturity Date), and to pay interest
thereon at a rate per annum equal to the Initial Interest
Rate specified above until the Initial Interest Reset Date
specified above and thereafter at a rate determined in
accordance with the provisions on the reverse hereof,
depending upon the appropriate Base Rate and Index Maturity
specified above, until the principal hereof is paid or duly
made available for payment. The Corporation will pay
interest on the Interest Payment Dates specified above,
commencing with the first Interest Payment Date next
succeeding the Original Issue Date specified above, unless
the Original Issue Date occurs between a Regular Record
Date, as defined below, and the next succeeding Interest
Payment Date, in which case commencing on the Interest
Payment Date following the next succeeding Regular Record
Date, and on the Stated Maturity Date or Final Maturity Date
shown above (or any Redemption Date as defined on the
reverse hereof or any Optional Repayment Date with respect
to which any such option has been exercised, each such
Stated Maturity Date, Final Maturity Date, Redemption Date
and Optional Repayment Date being herein referred to as a
"Maturity Date" with respect to the principal repayable on
such date). Interest on this Note will accrue from the
Original Issue Date specified above until the principal
amount is paid and will be computed as hereinafter
described. Interest payable on this Note on any Interest
Payment Date or the Maturity Date will include interest
accrued from and including the next preceding Interest
Payment Date in respect of which interest has been paid or
duly provided for or, if no interest has been paid, from the
Original Issue Date specified above, to but excluding such
Interest Payment Date or Maturity Date, as the case may be;
provided, however, that if the Interest Rate Reset Period
with respect to this Note is daily or weekly, interest
payable on any Interest Payment Date or the Maturity Date
will include interest accrued from but excluding the Regular
Record Date through which interest has been paid to and
including the Regular Record Date next preceding such
Interest Payment Date, except that interest payable on any
such Maturity Date will include interest accrued to, but
excluding, such Maturity Date. If any Interest Payment Date
falls on a day which is not a Business Day, as defined
below, such Interest Payment Date shall be the following day
that is a Business Day, except that if the Base Rate is
LIBOR, if such next Business Day falls in the next
succeeding calendar month, such Interest Payment Date will
be the preceding day that is a Business Day; and if the
Maturity Date falls on a day which is not a Business Day,
principal or interest payable with respect to such Maturity
Date will be paid on the next succeeding Business Day with
the same force and effect as if made on such Maturity Date,
and no additional interest shall accrue for the period from
and after such Maturity Date. The interest so payable, and
punctually paid or duly provided for, on any Interest
Payment Date will be paid to the person in whose
2
<PAGE>
name this Note (or one or more predecessor Notes evidencing all or
a portion of the same debt as this Note) is registered at the close
of business on the date 15 calendar days prior to such Interest
Payment Date, whether or not a Business Day (the "Regular Record
Date"); provided, however, that the first payment of interest on
any Note with an Original Issue Date, as specified above, between a
Regular Record Date and an Interest Payment Date or on an Interest
Payment Date will be made on the Interest Payment Date following
the next succeeding Regular Record Date to the person in whose name
this Note is registered at the close of business on such next
succeeding Regular Record Date; and provided, further, that
interest payable on the Maturity Date will be payable to the person
to whom the principal hereof shall be payable. Any such interest
not punctually paid or duly provided for shall be payable as
provided in the Indenture. As used herein, "Business Day" means
any day, other than a Saturday or Sunday, (i) on which banks in The
City of New York, Charlotte, North Carolina or ___________ are not
authorized or required by law to be closed and (ii) if the Base
Rate is LIBOR, is a day on which dealings in deposits on U.S.
dollars are transacted in the London interbank market.
The principal of and interest on this Note are payable
in immediately available funds in such coin or currency of
the United States of America as at the time of payment is
legal tender for payment of public and private debts at the
office or agency of the Corporation designated as provided
in the Indenture; provided, however, that interest may be
paid, at the option of the Corporation, by check mailed to
the person entitled thereto at his address last appearing on
the registry books of the Corporation relating to the Notes.
Notwithstanding the preceding sentence, payments of
principal of and interest payable on the Maturity Date will
be made by wire transfer of immediately available funds to a
designated account maintained in the United States upon (i)
receipt of written notice by the Issuing and Paying Agent
from the holder hereof not less than one Business Day prior
to the due date of such principal and (ii) presentation of
this Note to the Issuing and Paying Agent at [NationsBank of
Georgia, National Association, as Issuing and Paying Agent,
600 Peachtree Street, Suite 900, Atlanta, Georgia 60608]
(the "Corporate Trust Office").
Reference is hereby made to the further provisions of
this Note set forth on the reverse hereof, which shall have
the same effect as though fully set forth at this place.
Unless the Certificate of Authentication hereon has
been executed by the Trustee or an Authenticating Agent on
behalf of the Trustee by manual signature, this Note shall
not be entitled to any benefit under such Indenture or be
valid or obligatory for any purpose.
3
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this
Instrument to be duly executed, by manual or facsimile
signature, under its corporate seal or a facsimile thereof.
NATIONSBANK CORPORATION
By:________________________________
[SEAL] Title: Senior Vice President
ATTEST:
____________________________
Assistant Secretary
4
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated: ____________________________
The Bank of New York, as
Trustee
By: [NATIONSBANK OF GEORGIA,
NATIONAL ASSOCIATION, as
Authenticating Agent]
By:______________________
Authorized Signatory
5
<PAGE>
[Reverse of Note]
NATIONSBANK CORPORATION
MEDIUM-TERM SUBORDINATED NOTE,
SERIES ___
(Floating Rate)
This Medium-Term Note is one of a duly authorized
series of Securities of the Corporation unlimited in
aggregate principal amount (herein called the "Notes")
issued and to be issued under an Indenture dated as of
January 1, 1995 (herein called the "Indenture"), between the
Corporation and The Bank of New York, as Trustee (herein
called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a
statement of the respective rights thereunder of the
Corporation, the Trustee and the holders of the Notes, and
the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is also one of the
Notes designated as the Corporation's Subordinated Medium-
Term Notes, Series ___, limited in aggregate principal
amount to [$____________]. The Notes may bear different
dates, mature at different times, bear interest at different
rates and vary in such other ways as are provided in the
Indenture.
THE INDEBTEDNESS OF THE CORPORATION EVIDENCED BY THE
NOTES, INCLUDING THE PRINCIPAL THEREOF AND INTEREST THEREON,
IS, TO THE EXTENT AND IN THE MANNER SET FORTH IN THE
INDENTURE, SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT TO ITS
OBLIGATIONS TO HOLDERS OF SENIOR INDEBTEDNESS, AS DEFINED IN
THE INDENTURE, AND EACH HOLDER OF THE NOTES, BY THE
ACCEPTANCE HEREOF, AGREES TO AND SHALL BE BOUND BY SUCH
PROVISIONS OF THE INDENTURE.
This Note is not subject to any sinking fund.
This Note may be subject to repayment at the option of
the holder only if Optional Repayment Date(s) are indicated
on the face hereof. IF NO OPTIONAL REPAYMENT DATES ARE SET
FORTH ON THE FACE HEREOF, THIS NOTE MAY NOT BE SO REPAID AT
THE OPTION OF THE HOLDER HEREOF PRIOR TO THE STATED MATURITY
DATE. On any Optional Repayment Date, this Note shall be
repayable in whole or in part in increments of $1,000 at the
option of the holder hereof at a repayment price equal to
100% of the principal amount to be repaid, together with
interest thereon payable to the date of repayment. For this
Note to be repaid in whole or in part at the option of the
holder hereof, this Note must be received, with the form
below entitled "Option to Elect Repayment" duly completed,
by the Issuing and Paying Agent at the Corporate Trust
Office, or such other address of which the Corporation shall
from time to time notify the holders of the Notes, not more
than 60 nor less than 30 days prior to an Optional Repayment
Date. Exercise of such repayment option by the holder
hereof shall be irrevocable.
6
<PAGE>
This Note may be redeemed at the option of the Corporation on
any date on and after the Initial Redemption Date, if any,
specified on the face hereof (the "Redemption Date"). IF NO
INITIAL REDEMPTION DATE IS SET FORTH ON THE FACE HEREOF, THIS NOTE
MAY NOT BE REDEEMED AT THE OPTION OF THE CORPORATION PRIOR TO THE
STATED MATURITY DATE. On and after the Initial Redemption Date, if
any, this Note may be redeemed at any time in whole or from time to
time in part in increments of $1,000 at the option of the
Corporation at the applicable Redemption Price (as defined below)
together with interest thereon payable to the Redemption Date, on
notice given not more than 60 nor less than 30 days prior to the
Redemption Date. In the event of redemption of this Note in part
only, a new Note for the unredeemed portion hereof shall be issued
in the name of the Holder hereof upon the surrender hereof.
If this Note is redeemable at the option of the
Corporation, the "Redemption Price" shall initially be the
Initial Redemption Percentage, specified on the face hereof,
of the principal amount of this Note to be redeemed and
shall decline at each anniversary of the Initial Redemption
Date by the Annual Redemption Percentage Reduction, if any,
specified on the face hereof, of the principal amount to be
redeemed until the Redemption Price is 100% of such
principal amount.
Accrued interest hereon shall be calculated by
multiplying the face amount hereof by an accrued interest
factor. Such accrued interest factor shall be computed by
adding the interest factor calculated for each day from and
including Original Issue Date, or from but excluding the
last date to which interest has been paid, as the case may
be, to and including the date for which accrued interest is
being calculated. The interest factor (expressed as a
decimal) for each such day shall be computed by dividing the
interest rate in effect on such day by 360 or, in the case
of Notes having the Treasury Rate as their Base Rate, by the
actual number of days in the year.
The Base Rate (as defined herein) with respect to this
Note may be (i) the CD Rate, (ii) the Commercial Paper Rate,
(iii) LIBOR, (iv) the Federal Funds Rate, (v) the Prime
Rate, (vi) the Treasury Rate, (vii) the CMT Rate, (viii) the
Eleventh District Cost of Funds Rate or (ix) such other rate
as will be described on the face hereof and a rider to this
Note.
Except as described below, this Note will bear interest
at the rate determined by reference to the appropriate
interest rate basis (the "Base Rate") and Index Maturity
shown on the face hereof (i) plus or minus the Spread, if
any, or (ii) multiplied by the Spread Multiplier, if any,
specified on the face hereof. The interest rate in effect
on each day shall be (a) if such day is an Interest Reset
Date, the interest rate determined as of the Interest
Determination Date (as defined below) pertaining to such
Interest Reset Date or (b) if such day is not an Interest
Reset
7
Date, the interest rate determined as of the Interest
Determination Date pertaining to the next preceding Interest
Reset Date, provided that (i) the interest rate in effect
from the Original Issue Date to the first Interest Reset
Date shall be the Initial Interest Rate specified on the
face hereof, and (ii) the interest rate in effect for the
ten calendar days immediately prior to the Maturity Date
shall be the rate in effect on the tenth calendar day
preceding such Maturity Date. If any Interest Reset Date
would otherwise be a day that is not a Business Day, such
Interest Reset Date shall be postponed to the next day that
is a Business Day, except that if the Base Rate specified on
the face hereof is LIBOR, if such next Business Day is in
the next succeeding calendar month, such Interest Reset Date
shall be the immediately preceding Business Day. The term
"Final Interest Payment Period" means the period from the
final Interest Reset Date to the Maturity Date.
The Interest Determination Date with respect to any
Note that has as its Base Rate the CD Rate, the Commercial
Paper Rate, the Federal Funds rate, the Prime Rate or the
CMT Rate will be the second Business Day preceding the
Interest Reset Date. The Interest Determination Date with
respect to LIBOR shall be the second London Banking Day (as
defined below) preceding the Interest Reset Date. The
Interest Determination Date with respect to the Eleventh
District Cost of Funds Rate will be the last Business Day of
the month immediately preceding such Interest Reset Date in
which the Federal Home Loan Bank of San Francisco (the
"FHLB") publishes such Index (as defined below); and the
Interest Determination Date with respect to the Treasury
Rate shall be the day of the week in which the Interest
Reset Date falls on which Treasury bills of the Index
Maturity specified on the face hereof normally would be
auctioned; provided, however, that if as a result of a legal
holiday an auction is held on the Friday of the week
preceding the Interest Reset Date, the related Interest
Determination Date shall be such preceding Friday; and
provided, further, that if an auction shall fall on any
Interest Reset Date then the Interest Reset Date shall
instead be the first Business Day following such auction.
The "Calculation Date" pertaining to any Interest
Determination Date shall be the earlier of (i) the tenth
calendar day after such Interest Determination Date or, if
such day is not a Business Day, the next succeeding Business
Day, or (ii) the Business Day next preceding the applicable
Interest Payment Date or Maturity Date, as the case may be.
All percentages resulting from any calculation on the
Notes will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upward, and all
dollar amounts used in or resulting from such calculation on
the Notes will be rounded to the nearest cent (with one-half
cent being rounded upward).
8
<PAGE>
Determination of CD Rate. CD Rate means, with respect
to an Interest Determination Date (a "CD Rate Interest
Determination Date"), the rate on such CD Rate Interest
Determination Date for negotiable certificates of deposit
having the Index Maturity specified on the face hereof, as
such rate is published by the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board") in
"Statistical Release H.15(519), Selected Interest Rates," or
any successor publication of the Federal Reserve Board
("H.15(519)"), under the heading "CDs (Secondary Market),"
or, if not so published by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such CD Rate Interest
Determination Date, the CD Rate will be the rate on such CD
Rate Interest Determination Date for negotiable certificates
of deposit of the Index Maturity specified on the face
hereof, as published by the Federal Reserve Bank of New York
in its daily statistical release "Composite 3:30 P.M.
Quotations for U.S. Government Securities" ("Composite
Quotations") under the heading "Certificates of Deposit."
If such rate is not published in either H.15(519) or the
Composite Quotations by 3:00 P.M., New York City time, on
such Calculation Date, then the CD Rate on such CD Rate
Interest Determination Date will be calculated by the
Calculation Agent and will be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York
City time, on such CD Rate Interest Determination Date, of
three leading nonbank dealers in negotiable U.S. dollar
certificates of deposit in The City of New York selected by
the Calculation Agent for negotiable certificates of deposit
of major United States money center banks of the highest
credit standing (in the market for negotiable certificates
of deposit) with a remaining maturity closest to the Index
Maturity specified on the face hereof in denominations of
$5,000,000; provided, however, that if the dealers selected
as aforesaid by the Calculation Agent are not quoting as set
forth above, the CD Rate for such CD Rate Interest
Determination Date will be the CD Rate in effect on such CD
Rate Interest Determination Date.
Determination of Commercial Paper Rate. The Commercial
Paper Rate means, with respect to an Interest Determination
Date (a "Commercial Paper Rate Interest Determination
Date"), the Money Market Yield (as defined below) of the
rate on such date for commercial paper having the Index
Maturity specified on the face hereof as published in
H.15(519) under the heading "Commercial Paper." In the
event such rate is not published by 3:00 P.M., New York City
time, on the Calculation Date pertaining to such Commercial
Paper Rate Interest Determination Date, the Commercial Paper
Rate shall be the Money Market Yield on such Commercial
Paper Rate Interest Determination Date of the rate for
commercial paper having the Index Maturity specified on the
face hereof as published in Composite Quotations under the
heading "Commercial Paper." If such rate is not published
in either H.15(519) or Composite Quotations by 3:00 P.M.,
New York City time, on such Calculation Date, the Commercial
Paper Rate for that Commercial Paper Rate Interest
Determination Date shall be
9
<PAGE>
calculated by the Calculation Agent and shall be the Money Market
Yield of the arithmetic mean of the offered rates as of 11:00 A.M.,
New York City time, on such Commercial Paper Rate Interest
Determination Date of three leading dealers of commercial paper in
The City of New York selected by the Calculation Agent for
commercial paper of the Index Maturity specified on the face hereof
placed for an industrial issuer whose bond rating is "AA", or the
equivalent, by a nationally recognized statistical rating agency;
provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as set forth above, the
Commercial Paper Rate with respect to such Commercial Paper Rate
Interest Determination Date will be the Commercial Paper Rate then
in effect on such Commercial Paper Rate Interest Determination
Date.
"Money Market Yield" shall be the yield (expressed as a
percentage rounded to the nearest one ten-thousandth of a
percent, with five one hundred-thousandths of a percent
rounded upward) calculated in accordance with the following
formula:
Money Market Yield = D multiplied by 360 divided by the
difference between 360 and the product
of D multiplied by M, multiplied by 100
where "D" refers to the per annum rate for commercial paper
quoted on a bank discount basis and expressed as a decimal,
and "M" refers to the actual number of days in the interest
period for which interest is being calculated.
Determination of LIBOR. LIBOR means the rate
determined by the Calculation Agent in accordance with the
following provisions:
(i) With respect to an Interest Determination
Date (a "LIBOR Interest Determination Date"), LIBOR
will be "LIBOR Telerate" unless "LIBOR Reuters" is
specified on the face of this Note or LIBOR Telerate is
not available. "LIBOR Telerate" is the rate for
deposits in the LIBOR Currency (as defined below)
having the Index Maturity specified on the face hereof
that appears on the Designated LIBOR Page (as defined
below) specified on the face hereof as of 11:00 A.M.
London time, on that LIBOR Interest Determination Date.
"LIBOR Reuters" is that rate which is the arithmetic
mean of the offered rates (unless the specified
Designated LIBOR Page by its terms provides only for a
single rate, in which case such single rate shall be
used) for deposits in the LIBOR Currency having the
Index Maturity specified on the face hereof that appear
on the Designated LIBOR Page specified on the face
hereof as of 11:00 A.M. London time, on that LIBOR
Interest Determination Date, if at least two such
offered rates appear (unless, as aforesaid, only a
single rate is required) on such Designated LIBOR Page.
If LIBOR cannot be determined under this clause (i),
LIBOR in respect of the related LIBOR Interest
Determination Date
10
<PAGE>
will be determined as if the parties had specified the rate
described in clause (ii) below.
(ii) With respect to a LIBOR Interest
Determination Date on which LIBOR cannot be determined
under clause (i) above, the Calculation Agent will
request the principal London offices of each of four
major reference banks in the London interbank market,
as selected by the Calculation Agent to provide the
Calculation Agent with its offered quotation for
deposits in the LIBOR Currency for the period of the
Index Maturity specified on the face hereof to prime
banks in the London interbank market at approximately
11:00 A.M., London time, on such LIBOR Interest
Determination Date and in a principal amount that is
representative for a single transaction in such LIBOR
Currency in such market at such time. If at least two
such quotations are provided, LIBOR determined on such
LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two
such quotations are provided, LIBOR for such LIBOR
Interest Determination Date will be the arithmetic mean
of the rates quoted at approximately 11:00 A.M. in the
applicable Principal Financial Center (as defined
below), on such LIBOR Interest Determination Date by
three major banks in such Principal Financial Center
selected by the Calculation Agent for loans in the
LIBOR Currency to leading European banks, having the
Index Maturity specified on the face hereof and in a
principal amount that is representative for a single
transaction in such LIBOR Currency in such market at
such time; provided, however, that if the banks so
selected by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR determined on such
LIBOR Interest determination Date will be LIBOR then in
effect on such LIBOR Interest Determination Date.
"LIBOR Currency" means the currency (including
composite currencies) specified on the face hereof for which
LIBOR shall be calculated. If no such currency is specified
on the face hereof, the LIBOR Currency shall be U.S.
dollars.
"Designated LIBOR Page" means either (a) if "LIBOR
Telerate" is specified on the face hereof, the display on
the Dow Jones Telerate Service for the purpose of displaying
the London interbank rates of major banks for the applicable
LIBOR Currency or (b) if "LIBOR Reuters" is specified on the
face hereof, the display on the Reuters Monitor Money Rates
Service for the purpose of displaying the London interbank
rates of major banks for the applicable LIBOR Currency. If
neither LIBOR Telerate nor LIBOR Reuters is specified on the
face hereof, LIBOR for the applicable LIBOR Currency will be
determined as if LIBOR Telerate (and, if the U.S. dollar is
the LIBOR Currency, LIBO Page) had been specified.
11
<PAGE>
"Principal Financial Center" shall generally be the
capital city of the country of the specified LIBOR Currency,
except that with respect to U.S. dollars, Deutsche Marks and
ECUs, the Principal Financial Center shall be The City of
New York, Frankfurt and Luxembourg, respectively.
Determination of Federal Funds Rate. The Federal Funds
Rate means, with respect to an Interest Determination Date
(a "Federal Funds Rate Interest Determination Date"), the
rate on that date for Federal Funds as published in
H.15(519) under the heading "Federal Funds (Effective)." If
H.15(519) is not so published by 3:00 P.M., New York City
time, on the Calculation Date pertaining to such Federal
Funds Rate Interest Determination Date, the Federal Funds
Rate will be the rate on such Federal Funds Rate Interest
Determination Date as published in Composite Quotations
under the heading "Federal Funds/Effective Rate." If such
rate is not yet published in either H.15(519) or Composite
Quotations by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Federal Funds Rate
Interest Determination Date, the Federal Funds Rate for such
Federal Funds Rate Interest Determination Date will be
calculated by the Calculation Agent and will be the
arithmetic mean of the rates for the last transaction in
overnight Federal Funds as of 9:00 A.M., New York City time,
on such Federal Funds Rate Interest Determination Date
quoted by each of three leading brokers of Federal Funds
transactions in The City of New York selected by the
Calculation Agent; provided, however, that if fewer than
three such brokers are so quoting such rates, the Federal
Funds Rate with respect to such Federal Funds Rate Interest
Determination Date will be the Federal Funds Rate then in
effect on such Federal Funds Rate Interest Determination
Date.
Determination of Prime Rate. Prime Rate means, with
respect to an Interest Determination Date (a "Prime Rate
Interest Determination Date"), the rate set forth on such
date in H.15(519) under the heading "Bank Prime Loan," or if
not so published prior to 9:00 A.M. New York City time, on
the Calculation Date pertaining to such Prime Rate Interest
Determination Date, then the Prime Rate will be determined
by the Calculation Agent and will be the arithmetic mean of
the rates of interest publicly announced by each bank that
appears on the Reuters Screen NYMF Page (as defined below)
as such bank's prime rate or base lending rates as in effect
for that Prime Rate Interest Determination Date. If fewer
than four such rates but more than one such rate appear on
the Reuters Screen NYMF Page for the Prime Rate Interest
Determination Date, the Prime Rate will be determined by the
Calculation Agent and will be the arithmetic mean of the
prime rates, quoted on the basis of the actual number of
days in the year divided by a 360-day year, as of the close
of business on such Prime Rate Interest Determination Date
by four major money center banks in The City of New York as
selected by the Calculation Agent. If fewer than two such
quotations are provided, the Prime Rate shall be
12
<PAGE>
determined by the Calculation Agent as of the close of business on
the Prime Rate Interest Determination Date, on the basis of the
prime rates, as of the close of business on such date, furnished in
The City of New York by the appropriate number of substitute banks
or trust companies organized and doing business under the laws of
the United States, or any State thereof, having total equity
capital of at least $500 million and being subject to supervision
or examination by Federal or State authority, selected by the
Calculation Agent to provide such rate or rates; provided, however,
that if the banks selected as aforesaid are not quoting as
mentioned in this sentence, the Prime Rate for such Prime Rate
Interest Determination Date will be the Prime Rate then in effect
on such Prime Rate Interest Determination Date.
"Reuters Screen NYMF Page" means the display designated
as page "NYMF" on the Reuters Monitor Money Rates Service
(or such other page as may replace the NYMF page on that
service for the purpose of displaying prime rates or base
lending rates of major United States banks).
Determination of Treasury Rate. Treasury Rate means,
with respect to an Interest Determination Date (a "Treasury
Rate Interest Determination Date"), the rate for the auction
held on such Treasury Rate Interest Determination Date of
direct obligations of the United States ("Treasury Bills")
having the Index Maturity specified on the face hereof, as
published in H.15(519) under the heading "U.S. Government
Securities -- Treasury Bills -- auction average
(investment)." If such rate is not published by 3:00 P.M.,
New York City time, on the Calculation Date pertaining to
such Treasury Rate Interest Determination Date, the Treasury
Rate will be the auction average rate (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) on such Treasury
Rate Interest Determination Date as otherwise announced by
the United States Department of the Treasury. In the event
that the results of the auction of Treasury bills having the
Index Maturity specified on the face hereof are not reported
as provided by 3:00 P.M., New York City time, on such
Calculation Date, or if no such auction is held on such
Treasury Rate Interest Determination Date, then the Treasury
Rate for such Treasury Rate Interest Determination Date
shall be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic
mean of the secondary market bid rates, as of approximately
3:30 P.M., New York City time, on such Treasury Rate
Interest Determination Date, of three leading primary United
States government securities dealers selected by the
Calculation Agent, for the issue of Treasury bills with a
remaining maturity closest to the Index Maturity specified
on the face hereof; provided, however, that if the dealers
selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, the Treasury Rate
with respect to such Treasury Rate
13
<PAGE>
Interest Determination Date will be the Treasury Rate then in
effect on such Treasury Rate Interest Determination Date.
Determination of CMT Rate. CMT Rate means with respect
to an Interest Determination Date relating to a CMT Rate
Note or any Floating Rate Note for which the interest rate
is determined by reference to the CMT Rate (a "CMT Rate
Interest Determination Date"), the rate displayed on the
designated CMT Telerate Page under the caption "Treasury
Constant Maturities . . . Federal Reserve Board Release H.15
. . . Mondays approximately 3:45 p.m.," under the column for
the Designated CMT Maturity Index for (i) if the Designated
CMT Telerate Page is 7055, the rate on such CMT Rate
Interest Determination Date and (ii) if the Designated CMT
Telerate Page is 7052, the week, or the month, as
applicable, ended immediately preceding the week in which
the Related CMT Rate Interest Determination Date occurs. If
such rate is no longer displayed on the relevant page, or if
not displayed by 3:00 p.m., New York City time, on the
related Calculation Date, then the CMT Rate for such CMT
Rate Interest Determination Date will be such Treasury
Constant Maturity Rate for the Designated CMT Maturity Index
as published in the relevant H.15(519). If such rate is no
longer published, or if not published by 3:00 p.m. New York
City time, on the related Calculation Date, then the CMT
Rate for such CMT Rate Interest Determination Date will be
such Treasury Constant Maturity Rate for the Designated CMT
Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest
Determination Date with respect to such Interest Reset Date
as may then be published by either the Board of Governors of
the Federal Reserve System or the United States Department
of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated
CMT Telerate Page and published in the relevant H.15(519).
If such information is not provided by 3:00 p.m., New York
City time, on the related Calculation Date, then the CMT
Rate for the CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to
maturity, based on the arithmetic mean of the secondary
market closing offer side prices as of approximately 3:30
p.m., New York City time, on the CMT Interest Determination
Date reported, according to their written records, by three
leading primary United States government securities dealers
(each a "Referenced Dealer") in The City of New York
selected by the Calculation Agent (from five such Referenced
Dealers selected by the Calculation Agent and eliminating
the highest quotation (or, in the event of equality, one of
the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued
direct, non-callable fixed rate obligations of the United
States ("Treasury Note") with an original maturity of
approximately the Designated CMT Maturity Index and a
remaining term to maturity of not less than such Designated
CMT Maturity Index minus one year. If the Calculation Agent
cannot obtain three such Treasury Note quotations, the CMT
Rate for such CMT Rate Interest Determination
14
<PAGE>
Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary
market side offer prices as of approximately 3:30 p.m. New York
City time on the CMT Rate Interest Determination Date of three
Referenced Dealers in The City of New York (from five such
Referenced Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the even of equality, one
of the highest) and lowest quotation (or, in the event of equality,
one of the lowest)), for Treasury Notes with original maturity of
the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least
$100,000,000. If three or four (and not five) of such Referenced
Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and
neither the highest nor lowest of such quotes will be eliminated;
provided however, that if fewer than three Referenced Dealers
selected by the Calculation Agent are quoting as described herein,
the CMT Rate will be the CMT Rate in effect on such CMT Rate
Interest Determination Date. If two Treasury Notes with an original
maturity as described in the third preceding sentence have
remaining terms to maturity equally close to the Designated CMT
Maturity Index, the quotes for the CMT Rate Note with the shorter
remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the
Dow Jones Telerate Service on the page designated on the
face of this Note (or any other page as may replace such
page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)), or the
purpose of displaying Treasury Constant Maturity as reported
in H.15(519). If no such page is specified, the Designated
CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original
period to maturity of the U.S. Treasury Securities (either
1, 2, 3, 5, 7, 10, 20 or 30 years) specified on the fact of
this Note with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face of
this Note, the Designated CMT Maturity Index shall be two
years.
Determination of Eleventh District Cost of Funds Rate.
Eleventh District Cost of Funds Rate means, with respect to
an Interest Determination Date relating to an Eleventh
District Cost of Funds Rate (an "Eleventh District Cost of
Funds Rate Interest Determination Date"), the rate equal to
the monthly weighted average cost of funds for the calendar
month preceding such Eleventh District Cost of Funds Rate
Interest Determination Date as set forth under the caption
"Eleventh District" on Telerate page 7058 as of 11:00 a.m.,
San Francisco time, on such Eleventh District Cost of Funds
Rate Interest Determination Date. If such rate does not
appear on the Telerate page 7058 on any related Eleventh
District Cost of Funds Rate Interest Determination Date,
15
<PAGE>
the Eleventh District Cost of Funds Rate for such Eleventh District
Cost of Funds Rate Interest Determination Date shall be the monthly
weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently
announced (the "Index") by the FHLB of San Francisco as such cost
of funds for the calendar month preceding the date of such
announcement. If the FHLB of San Francisco fails to announce such
rate for the calendar month next preceding such Eleventh District
Cost of Funds Rate Interest Determination Date, then the Eleventh
District Cost of Funds Rate for such Eleventh District Cost of
Funds Rate Interest Determination Date will be the Eleventh
District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date. "Telerate Page
7058" means the display on the Dow Jones Telerate Service on such
page (or such other page as may replace such page on the service
for the purpose of displaying the Eleventh District Cost of Funds
Rate) for the purpose of displaying the monthly average cost of the
funds paid by member institutions of the Eleventh Federal Home Loan
Bank District.
Notwithstanding the foregoing, the interest rate hereon
shall not be greater than the Maximum Interest Rate, if any,
or less than the Minimum Interest Rate, if any, specified on
the face hereof. The Calculation Agent shall calculate the
interest rate hereon in accordance with the foregoing on or
before each Calculation Date. The interest rate on this
Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by
United States law of general application.
At the request of the holder hereof, the Calculation
Agent will provide to the holder hereof the interest rate
hereon then in effect and, if determined, the interest rate
which will become effective as of the next Interest Reset
Date.
If an Event of Default (defined in the Indenture as
certain events involving the bankruptcy of the Corporation)
shall occur with respect to the Notes, the principal of all
the Notes may be declared due and payable in the manner and
with the effect provided in the Indenture. There is no
right of acceleration provided in the Indenture in case of a
default in the payment of interest or the performance of any
other covenant by the Corporation.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification
of the rights and obligations of the Corporation and the
rights of the holders of the Notes under the Indenture at
any time by the Corporation with the consent of the holders
of not less than 66 2/3% in aggregate principal amount of
the Notes then outstanding and all other Securities then
outstanding under the Indenture and affected by such
amendment and modification. The Indenture also contains
provisions permitting the holders of a majority in
16
<PAGE>
aggregate principal amount of the Notes then outstanding and all
other Securities then outstanding under the Indenture and affected
thereby, on behalf of the holders of all such Securities, to waive
compliance by the Corporation with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this
Note shall be conclusive and binding upon such holder and upon all
future holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange here for or in lieu
hereof whether or not notation of such consent or waiver is made
upon this Note.
No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the
obligation of the Corporation, which is absolute and
unconditional, to pay the principal of and interest on this
Note at the time, place and rate, and in the coin or
currency, herein prescribed.
No recourse shall be had for the payment of the
principal of or the interest on this Note, or for any claim
based hereon, or otherwise in respect hereof, or based on or
in respect of the Indenture or any indenture supplemented
thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the
Corporation or any predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for issue hereof,
expressly waived and released.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note may
be registered on the registry books of the Corporation
relating to the Notes, upon surrender of this Note for
registration of transfer at the office or agency of the
Corporation designated by it pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Corporation and the
Trustee duly executed by, the holder hereof or his attorney
duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only as registered Notes without
coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture, and subject to
certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes
of different authorized denominations, as requested by the
holder surrendering the same.
No service charge will be made for any such
registration of transfer or exchange, but the Corporation
may require payment of
17
<PAGE>
a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment for registration of transfer
of this Note, the Corporation, the Issuing and Paying Agent
and any agent of the Corporation or the Issuing and Paying
Agent may treat the entity in whose name this Note is
registered as the absolute owner hereof for the purpose of
receiving payment as herein provided and for all other
purposes, whether or not this Note be overdue, and neither
the Corporation, the Issuing and Paying Agent nor any such
agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
[NOTES ISSUED AND OUTSTANDING PURSUANT TO A BOOK-ENTRY
SYSTEM SHALL BE DEEMED TO CONTAIN THE FOLLOWING PARAGRAPH:
The Notes are being issued by means of a book-entry system
with no physical distribution of certificates to be made
except as provided in the Indenture. The book-entry system
maintained by Depository Trust Company ("DTC") will evidence
ownership of the Notes, with transfers of ownership effected
on the records of DTC and its participants pursuant to rules
and procedures established by DTC and its participants. The
Corporation will recognize Cede & Co., as nominee of DTC,
while the registered Owner of the Notes, as the owner of the
Notes for all purposes, including payment of principal and
interest, notices and voting. Transfer of principal and
interest to participants of DTC will be the responsibility
of DTC, and transfer of principal and interest to beneficial
owners of the Notes by participants of DTC will be the
responsibility of such participants and other nominees of
such beneficial owners. So long as the book-entry system is
in effect, the selection of any Notes to be redeemed will be
determined by DTC pursuant to rules and procedures
established by DTC and its participants. The Corporation
will not be responsible or liable for such transfers of
payments or for maintaining, supervising or reviewing the
records maintained by DTC, its participants or persons
acting through such participants.]
18
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the
inscription on the face of the interim Note, shall be
construed as though they were written out in full according
to applicable laws or regulations:
TEN COM--as tenants in common
TEN ENT-- as tenants by the entireties
JT TEN-- as joint tenants with right of
survivorship and not as tenants in
common
UNIF GIFT MIN ACT--.............Custodian..........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
Additional abbreviations may also be used though not in
the above list.
_____________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE OF ASSIGNEE]
Please Insert Social Security or Other
Identifying Number of Assignee:
the within Note and all rights thereunder, hereby
irrevocably constituting and appointing
Attorney to transfer said
Note on the books of the Corporation, with full power of
substitution in the premises.
Dated:_________________________ _________________________
NOTICE: The signature to this assignment must correspond
with the name as written upon the face of the within Note in
every particular, without alteration or enlargement, or any
change whatever and must be guaranteed.
19
<PAGE>
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and
instruct(s) the Corporation to repay this Note (or portion
hereof specified below) pursuant to its terms at a price
equal to the principal amount hereof together with interest
to the repayment date, to the undersigned, at
________________________________
____________________________________________________________
(Please print or typewrite name and address of the
undersigned)
For this Note to be repaid, the Trustee (or the Paying
Agent on behalf of the Trustee) must receive at
______________, or at such other place or places of which
the Corporation shall from time to time notify the Holder of
this Note, not more than 60 nor less than 30 days prior to
an Optional Repayment Date, if any, shown on the face of
this Note, this Note with this "Option to Elect Repayment"
form duly completed.
If less than the entire principal amount of this Note
is to be repaid, specify the portion hereof (which shall be
in increments of $1,000) which the Holder elects to have
repaid and specify the denomination or denominations (which
shall be $__________ or an integral multiple Of $1,000 in
excess of $__________) of the Notes to be issued to the
Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be
issued for the portion not
being repaid).
$___________________ ___________________________________
NOTICE: The signature on this
Option to Elect Repayment must
Date:_______________ correspond with the name as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatever.]
20
<PAGE>
RENEWABLE NOTE RIDER
The Corporation and the purchaser of this Note have
agreed that this Note is a Renewable Note which initially
matures on the Stated Maturity Date shown on the face of
this Note. At each Renewal Date, the maturity of this Note
will be automatically extended to the corresponding New
Maturity Date unless the holder of this Note delivers a
completed Extension Termination Notice to the Trustee or the
Paying Agent on behalf of the Trustee not less than 15 nor
more than 30 days prior to the applicable Renewal Date. The
Extension Termination Notice may specify all or a portion of
the outstanding principal amount of the Note so long as the
principal amount of the Note remaining outstanding after
repayment is an integral multiple of $1,000. Upon timely
delivery of such Extension Termination Notice, the term of
the principal amount of this Note subject to such notice
will be deemed automatically to mature on the Stated
Maturity Date or the then applicable New Maturity Date, as
the case may be. The remaining principal balance of such
Note, if any, will be deemed to automatically be extended to
the corresponding New Maturity Date but in no circumstances
may such maturity be extended beyond the Final Maturity
Date. Notwithstanding any such extension, the interest rate
applicable to this Note will continue to be calculated as
set forth in this Note.
STATED MATURITY DATE:_________________________________
FINAL MATURITY DATE:__________________________________
Renewal Date (s) New Maturity Date(s)
21
<PAGE>
EXTENDIBLE NOTE RIDER
The Corporation and the purchaser of this Note have
agreed that this Note is an Extendible Note, whereby the
Corporation has the option to extend the maturity of this
Note by delivery to the Trustee (or any duly authorized
Paying Agent) of an Extendible Option Notice under the terms
of this Note as supplemented by this Extendible Note Rider.
Stated Maturity Date:
Final Maturity Date:
Extension Notice Extended
Due Date Maturity Date
The Corporation may exercise its option with respect to
an Extendible Note by delivery to the Trustee (or any duly
appointed Paying Agent) of an Extendible Option Notice at
least 45 but not more than 60 days prior to the Stated
Maturity Date originally in effect with respect to such Note
or, if the Stated Maturity Date of such Note has already
been extended, the Extended Maturity Date then in effect.
After such receipt and not later than 40 days prior to the
Stated Maturity Date or an Extended Maturity Date, as the
case may be (each, a "Maturity Date"), the Trustee (or any
duly appointed Paying Agent) will mail first class mail,
postage prepaid, to the holder of such Extendible Note a
notice (the "Extension Notice") relating to such extension
period (the "Extension Period") setting forth (i) the
election of the Corporation to extend the maturity of such
Extendible Note, (ii) the new Extended Maturity Date, (iii)
in the case of a Fixed Rate Note, the interest rate
applicable to the Extension Period or, in the case of a
Floating Rate Note, the Spread and/or Spread Multiplier
applicable to the Extension Period, and (iv) the provisions,
if any, for redemption during the Extension Period,
including the date or dates on which, the period or periods
during which and the price or prices at which such
redemption may occur during the Extension Period. Upon the
mailing by the Trustee (or any duly appointed Paying Agent)
of an Extension Notice to the holder of an Extendible Note,
the maturity of such Note shall be extended automatically as
set forth in the Extension Notice, and, except as modified
by the Extension Notice and as described in the next
paragraph, such Extendible Note will have the same terms as
prior to the mailing of such Extension Notice.
22
<PAGE>
Notwithstanding the foregoing, not later than 20 days
prior to the Maturity Date for an Extendible Note (or, if
such date is not a Business Day, on the immediately
succeeding Business Day), the Corporation may, at its
option, revoke the interest rate, in the case of a Fixed
Rate Note, or the Spread and/or Spread Multiplier, in the
case of a Floating Rate Note, provided for in the Extension
Notice and establish a higher interest rate, in the case of
a Fixed Rate Note, or a higher Spread and/or Spread
Multiplier, in the case of a Floating Rate Note, for the
Extension period by mailing or causing the Trustee (or any
duly appointed Paying Agent) to mail notice of such higher
interest rate or higher Spread and/or Spread Multiplier, as
the case may be, first class mail, postage prepaid, to the
holder of such Note. Such notice shall be irrevocable. All
Extendible Notes with respect to which the Maturity Date is
extended will bear such higher interest rate, in the case of
a Fixed Rate Note, or higher Spread and/or Spread
Multiplier, in the case of a Floating Rate Note, for the
Extension Period.
If the Corporation elects to extend the maturity of an
Extendible Note, the holder of such Note will have the
option to elect repayment of such Note by the Corporation on
the Maturity Date then in effect at a price equal to the
principal amount thereof plus any accrued and unpaid
interest to such date. In order for an Extendible Note to
be so repaid on the Maturity Date, the Corporation must
receive, at least 15 days but not more than 30 days prior to
the Maturity Date then in effect with respect to the Note,
(i) the Note with the form "Option to Elect Repayment" on
the reverse of the Note duly completed or (ii) a telegram,
telex, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of
Securities Dealers, Inc. or a commercial bank or trust
company in the United States setting forth the name of the
holder of the Note, the principal amount of the Note, the
principal amount of the Note to be repaid, the certificate
number or a description of the tenor and terms of the Note,
a statement that the option to elect repayment is being
exercised thereby and a guarantee that the Note to be
repaid, together with the duly completed form entitled
"Option to Elect Repayment" attached to the Note, will be
received by the Trustee (or any duly appointed Paying Agent)
not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter, provided,
however, that such telegram, telex, facsimile transmission
or letter shall only be effective if such Note and duly
completed form are received by the Trustee (or any duly
appointed Paying Agent) by such fifth Business Day. Such
option may be exercised by the holder of an Extendible Note
for less than the aggregate principal amount of the Note
then outstanding, provided that the principal amount of the
Note remaining outstanding after repayment is an integral
multiple of $1,000.
23
<PAGE>
SMITH HELMS MULLISS & MOORE, L.L.P.
Attorneys at Law
Post Office Box 31247
Charlotte, North Carolina 28231
Telephone (704) 343-2000
September 29, 1995
NationsBank Corporation
NationsBank Corporate Center
Charlotte, North Carolina 28255
Re: Registration Statement on Form S-3 filed on September 29,
1995 with respect to an Aggregate of $3,000,000,000
of Debt Securities, Preferred Stock and Common Stock
Ladies and Gentlemen:
We have acted as counsel to NationsBank Corporation (the
"Corporation") in connection with the registration by the
Corporation of (A) up to an aggregate of $3,000,000,000
of its (i) unsecured debt securities (the "Debt
Securities"), which may be either senior or subordinated, (ii)
shares of its preferred stock (the "Preferred Stock"), which may
be represented by depositary shares (the "Depositary Shares"),
and (iii) shares of its common stock (the "Common Stock" and,
together with the Debt Securities, Preferred Stock and
Depositary Shares, the "Securities") and (B) an indeterminate
amount of Securities that may be issued upon conversion of Debt
Securities, Preferred Stock or Depositary Shares, as set forth in
the Registration Statement on Form S-3 (the "Registration
Statement") that is being filed on the date hereof with the
Securities and Exchange Commission by the Corporation pursuant to
the Securities Act of 1933, as amended. This opinion
letter is Exhibit 5.1 to the Registration Statement.
The Securities are to be issued, separately or together, in
one or more series and are to be sold from time to time as set
forth in the Registration Statement, the Prospectuses contained
therein (each, a "Prospectus") and any amendments or supplements
thereto.
We have relied upon an officer's certificate as to
corporate action heretofore taken with respect to the
Securities.
Based on the foregoing, we are of the opinion that when (1)
the Registration Statement shall have been declared effective by
order of the Securities and Exchange Commission, (2) the terms of
any class or series of such Securities have been authorized by
appropriate corporate action of the Corporation and (3) such
Securities have been issued and sold upon the terms and
conditions set forth in the Registration Statement, the
applicable Prospectus and the applicable supplement to such
Prospectus, then (a) the Debt Securities will be validly
authorized and issued and binding obligations of the Corporation,
and (b) the shares of the Preferred Stock and Common Stock will
be legally issued, fully paid and non-assessable.
We hereby consent to be named in the Registration Statement
and in each of the Prospectuses as attorneys who passed upon the
legality of the Securities and to the filing of a copy of this
opinion as Exhibit 5.1 to the Registration Statement.
Very truly yours,
SMITH HELMS MULLISS & MOORE, L.L.P.
2
<PAGE>
<PAGE>
Exhibit 23.2
CONSENT OF PRICE WATERHOUSE LLP
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of NationsBank
Corporation of our report dated January 13, 1995, which appears on page
57 of the 1994 Annual Report to Shareholders of NationsBank Corporation,
which is incorporated by reference in NationsBank Corporation's Annual Report
on Form 10-K for the year ended December 31, 1994. We also consent to the
reference to us under the heading "EXPERTS" in such Prospectus.
(Signature of Price Waterhouse LLP)
PRICE WATERHOUSE LLP
Charlotte, North Carolina
September 29, 1995
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of NationsBank Corporation, and
the several undersigned Officers and Directors thereof whose signatures appear
below, hereby makes, constitutes and appoints Paul J. Polking and Charles M.
Berger, and each of them acting individually, its his and her true and lawful
attorneys, with power to act without any other and with full power of
substitution, to execute, deliver and file in its, his and her name and on its,
his and her behalf, and in each of the undersigned Officer's and Director's
capacity or capacities as shown below, (a) a Registration Statement on Form S-3
(or other appropriate form) with respect to the registration under the
Securities Act of 1933, as amended, of up to $3,000,000,000 in aggregate initial
offering price of (i) NationsBank Corporation's unsecured debt securities, which
may be either senior or subordinated and which may include medium-term notes and
debt denominated in foreign currencies, (ii) shares of NationsBank Corporation
preferred stock, which may be represented by depositary shares, and (iii) shares
of NationsBank Corporation common stock (the debt securities, preferred stock
and common stock hereinafter collectively referred to as the "Securities"),
which Securities may be offered separately or together, in separate series and
in amounts, at prices and on terms to be determined at the time of sale, all as
authorized by the Board of Directors of NationsBank Corporation as of September
27, 1995, and all documents in support thereof or supplemental thereto and any
and all amendments, including any and all pre-effective and post-effective
amendments, to the foregoing (hereinafter collectively called the "Registration
Statement"), and (b) such registration statements, petitions, applications,
consents to service of process or other instruments, any and all documents in
support thereof or supplemental thereto, and any and all amendments or
supplements to the foregoing, as may be necessary or advisable to qualify or
register the securities covered by said Registration Statement under such
securities laws, regulations and requirements as may be applicable; and each of
NationsBank Corporation and said Officers and Directors hereby grants to said
attorneys, and to each of them, full power and authority to do and perform each
and every act and thing whatsoever as said attorneys or attorney may deem
necessary or advisable to carry out fully the intent of this power of attorney
to the same extent and with the same effect as NationsBank Corporation might or
could do, and as each of said Officers and Directors might or could do
personally in his or her capacity or capacities as aforesaid, and each of
NationsBank Corporation and said Officers and Directors hereby ratifies and
confirms all acts and things which said attorneys or attorney might do or cause
to be done by virtue of this power of attorney and its, his or her signature as
the same may be signed by said attorneys or attorney, or any of them, to any or
all of the following (and/or any and all amendments and supplements to any or
all thereof): such Registration Statement under the Securities Act of 1933, as
amended, and all such registration statements, petitions, applications, consents
to service of process and other instruments, and any and all documents in
support thereof or supplemental thereto, under such securities laws, regulations
and requirements as may be applicable.
IN WITNESS WHEREOF, NationsBank Corporation has caused this power of
attorney to be signed on its behalf, and each of the undersigned Officers and
Directors in the capacity or capacities noted has hereunto set his or her hand
as of the date indicated below.
NATIONSBANK CORPORATION
(Registrant)
By: /s/ HUGH L. MCCOLL, JR.
HUGH L. MCCOLL, JR.
CHAIRMAN AND
CHIEF EXECUTIVE OFFICER
Dated: September 27, 1995
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<C> <S> <C>
/s/ HUGH L. MCCOLL, JR. Chairman, Chief Executive Officer and September 27, 1995
(HUGH L. MCCOLL, JR.) Director (Principal Executive Officer)
/s/ JAMES H. HANCE, JR. Chief Financial Officer September 27, 1995
(JAMES H. HANCE, JR.) (Principal Financial Officer)
/s/ MARC D. OKEN Executive Vice President and Chief September 27, 1995
(MARC D. OKEN) Accounting Officer (Principal Accounting
Officer)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<C> <S> <C>
/s/ RONALD W. ALLEN Director September 27, 1995
(RONALD W. ALLEN)
/s/ WILLIAM M. BARNHARDT Director September 27, 1995
(WILLIAM M. BARNHARDT)
/s/ THOMAS E. CAPPS Director September 27, 1995
(THOMAS E. CAPPS)
/s/ CHARLES W. COKER Director September 27, 1995
(CHARLES W. COKER)
/s/ THOMAS G. COUSINS Director September 27, 1995
(THOMAS G. COUSINS)
/s/ ALAN T. DICKSON Director September 27, 1995
(ALAN T. DICKSON)
/s/ W. FRANK DOWD, JR. Director September 27, 1995
(W. FRANK DOWD, JR.)
/s/ A. L. ELLIS Director September 27, 1995
(A. L. ELLIS)
/s/ PAUL FULTON Director September 27, 1995
(PAUL FULTON)
/s/ L. L. GELLERSTEDT, JR. Director September 27, 1995
(L. L. GELLERSTEDT, JR.)
/s/ TIMOTHY L. GUZZLE Director September 27, 1995
(TIMOTHY L. GUZZLE)
/s/ W. W. JOHNSON Director September 27, 1995
(W. W. JOHNSON)
/s/ BUCK MICKEL Director September 27, 1995
(BUCK MICKEL)
/s/ JOHN J. MURPHY Director September 27, 1995
(JOHN J. MURPHY)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<C> <S> <C>
/s/ JOHN C. SLANE Director September 27, 1995
(JOHN C. SLANE)
/s/ JOHN W. SNOW Director September 27, 1995
(JOHN W. SNOW)
/s/ MEREDITH R. SPANGLER Director September 27, 1995
(MEREDITH R. SPANGLER)
/s/ ROBERT H. SPILMAN Director September 27, 1995
(ROBERT H. SPILMAN)
Director
(RONALD TOWNSEND)
/s/ JACKIE M. WARD Director September 27, 1995
(JACKIE M. WARD)
</TABLE>
<PAGE>
RESOLUTIONS OF
THE BOARD OF DIRECTORS OF
NATIONSBANK CORPORATION
September 27, 1995
REGISTRATION OF DEBT SECURITIES, PREFERRED STOCK
AND COMMON STOCK AND APPOINTMENT OF COMMITTEE
RESOLVED FURTHER, that Paul J. Polking and Charles M. Berger
hereby are appointed attorneys-in-fact for, and each of them with
full power to act without the other hereby is authorized and
empowered to sign the Registration Statement and any amendment or
amendments (including any pre-effective or post-effective
amendments) thereto on behalf of, the Corporation and any of the
following, to wit: the Principal Executive Officer, the
Principal Financial Officer, the Principal Accounting Officer,
and any other officer of the Corporation;
<PAGE>
CERTIFICATE OF SECRETARY
I, Allison Gilliam, Assistant Secretary of NationsBank
Corporation, a corporation duly organized and existing under the
laws of the State of North Carolina (the "Corporation"), do
hereby certify that the foregoing is a true and correct copy of
the resolutions duly adopted by the Board of Directors of the
Corporation at a meeting of the Board of directors held on
September 27, 1995, at which meeting a quorum was present and
acting throughout and that said resolution is in full force and
effect and has not been amended or rescinded as of the date
hereof.
IN WITNESS WHEREOF, I have hereupon set my hand and affixed
the seal of the Corporation as of this 27th day of September,
1995.
/s/ Allison Gilliam
___________________________________
Assistant Secretary
(CORPORATE SEAL)
2
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
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)_____
BANKAMERICA NATIONAL TRUST COMPANY
(Exact name of trustee as specified in its charter)
Not Applicable
(Jurisdiction of incorporation or organization if not a U.S. national bank)
95-3804037
(I.R.S. Employer Identification No.)
One World Trade Center, New York, New York 10048-1191
(Address of principal executive offices) (Zip Code)
General Counsel
Bank of America NT & SA
335 Madison Avenue, 4th Floor
New York, NY 10017
(212) 503-8297
(Name, address and telephone number of agent for services)
NationsBank Corporation
(Exact name obligor as specified in its
its charter)
North Carolina 56-0906609
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
NationsBank Corporate Center 28255
Charlotte, North Carolina (Zip Code)
(Address of principal executive offices)
Debt Securities
(Title of the indenture securities)
<PAGE>
GENERAL
Item 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.
Comptroller of the Currency, 250 E Street,
S.W., Washington, D.C. 20219; Federal Deposit
Insurance Corporation, 550 17th Street, N.W.,
Washington, D.C. 20429; Board of Governors of The
Federal Reserve System, 20th and C Streets, N.W.,
Washington, D.C. 20551
(b) Whether it is authorized to exercise corporate
trust powers.
Yes
Item 2. Affiliations with Obligor
If the obligor is an affiliate of the trustee, describe
each such affiliation.
The obligor is not an affiliate of the trustee. (See
Note on Page 3)
Item 16. List of Exhibits
List below are exhibits filed as a part of this
statement of eligibility and qualification.
Exhibit 1 A copy of the Articles of Association
of the Trustee; incorporated herein by
reference to Exhibit 1 filed with Form
T-1 Statement, Registration No. 33-34670.
Exhibit 2 A copy of the Certificate of Authority
to Commence Business of the Trustee,
incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement,
Registration No. 2-97868.
Exhibit 3 Included in Exhibit 1.
Exhibit 4 A copy of the existing by-laws of the
Trustee; incorporated herein by
reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 33- 34670.
Exhibit 5 A copy of each indenture referred to in
Item 4 if the obligor is in default.
Not applicable.
-2-
<PAGE> Exhibit 6 Consents of BankAmerica National
Trust Company formerly Security Pacific
National Trust Company (New York) required
by Section 321 (b) of the Trust Indenture
Act of 1939; incorporated herein by
reference to Exhibit 6, filed with Form
T-1 Statement, Registration No. 2- 97868.
Exhibit 7 A copy of the latest report of the Trustee
published pursuant to the laws or the
requirements of its supervising or
examining authority.
Exhibit 8 A copy of any order pursuant to which the
foreign trustee is authorized to act as
sole trustee under indentures qualified or
to be qualified under the Act.
Not Applicable.
Exhibit 9 Foreign trustees are required to file a
consent to service of process on Form F-X.
Not Applicable.
NOTE
Inasmuch as this Form T-1 is filed prior to the
ascertainment by the Trustee of all facts on which to base
responsive answers to Item 2 the answer to said Item is
based on incomplete information.
Item 2 may be considered correct unless amended
by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture
Act of 1939 the Trustee, BankAmerica National Trust Company,
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
New York and State of New York, on the 27th day of September, 1995.
BANKAMERICA NATIONAL TRUST COMPANY
By
Geovanni Barris
Assistant Vice President
-3-
<PAGE>
BANKAMERICA NATIONAL TRUST COMPANY Exhibit 7 to Form T-1
One World Trade Center, 18th Floor
New York City, NY 10048
FDIC Certificate Number 24430
Consolidated Report of Condition for
Insured Commercial Banks for June 30, 1995
All schedules are to be reported in thousands of dollars.
Unless otherwise indicated, report the amount outstanding as of the
last business day of the quarter.
SCHEDULE RC - BALANCE SHEET
Dollar Amounts in Thousands
Assets
1. Cash and balances due from depository
institutions (from Schedule RC-A):
a. Noninterest-bearing balances and
currency and coin [1]............................202,209
b. Interest-bearing balances [2].................... 97,788
2. Securities:
a. Held-to-maturity securities
(from Schedule RC-B, column A)..................... 2,011
b. Available-for-sale securities
(from Schedule RC-B, column D)..................... 4,749
3. Federal funds sold and securities
purchases under agreements to resell:
a. Federal funds sold...............................
b. Securities purchased under
agreements to resell..............................
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned
income (from Schedule RC-C).............129,742
b. LESS: Allowance for loan and
lease losses................................338
c. LESS: Allocated transfer risk
reserve................................
d. Loans and leases, net of
unearned income, allowance,
and reserve (item 4.a minus
4.b and 4.c)....................................129,404
5. Assets held in trading accounts (from
Schedule RC-D)........................................... 887
6. Premises and fixed assets (including
capitalized leases).......................................
7. Other real estate owned...............................
8. Investments in unconsolidated subsidiaries and
associated companies..................................
9. Customer's liability to this bank on
acceptances outstanding...............................
10. Intangible assets (from Schedule RC-M)................. 8,833
11. Other assets (from Schedule RC-F).................... 47,531
12. Total assets (sum of items 1 through 11............. 493,412
_______________
<PAGE>
[1] Includes cash items in process of collection and unposted debits.
[2] Includes time certificates of deposit not held in trading ccounts.
SCHEDULE RC-CONTINUED
Dollar Amounts in Thousands
Liabilities
13. Deposits:
a. In domestic offices (sum of totals of columns
A and C from Schedule RC-E)....................... 331,041
(1) Noninterest-bearing [1].........................331,041
(2) Interest-bearing.....................
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................
(1) Noninterest-bearing...........................
(2) Interest-bearing..............................
14. Federal funds purchased and securities
sold under agreements to repurchase:
a. Federal funds purchased...........................
b. Securities sold under agreements to repurchase....
15. Demand notes issued to the U.S. Treasury.............
16. Other borrowed money................................. 6,046
17. Mortgage indebtedness and obligations
under capitalized leases.............................
18. Bank's liability on acceptances executed
and outstanding......................................
19. Notes and debentures subordinated to deposits........
20. Other liabilities (from Schedule RC-G)............... 35,986
21. Total liabilities (sum of items 13 through 20).........373,073
22. Limited-life preferred stock.........................
EQUITY CAPITAL
23. Perpetual preferred stock............................
24. Common Stock......................................... 500
25. Surplus.............................................. 137,410
26(a)Undivided profits and capital reserves............... (17,585)
26(b)Net unrealized holding gains (losses) on available for sale
securities........................................... 14
27. Cumulative foreign currency translation adjustments..
28. Total equity capital (sum of items 23 through 27).... 120,339
29. Total liabilities, limited-life preferred stock,
and equity capital (sum of items 21,22 and 28)....... 493,412
_______________
1] Includes total demand deposits and noninterest-bearing
time and savings deposits.
<PAGE>
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) ( )
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York
13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
NATIONSBANK CORPORATION
(Exact name of obligor as specified in its charter)
North Carolina 56-0906609
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
NationsBank Corporate Center
Charlotte, North Carolina 28255
(Address of principal executive offices) (Zip code)
______________________
Subordinated Debt Securities
(Title of the indenture securities)
<PAGE>
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.
Name Address
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of
1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
1. A copy of the Organization Certificate of The Bank of New
York (formerly Irving Trust Company) as now in effect,
which contains the authority to com- mence business and a
grant of powers to exercise corporate trust powers.
(Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672
and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4
to Form T-1 filed with Registration Statement No.
33-31019.)
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<PAGE>
6. The consent of the Trustee required by Section 321(b) of
the Act. (Exhibit 6 to Form T-1 filed with Registration
Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the Trustee of all facts on which to base a responsive answer to
Item 2, the answer to said Item is based on incomplete
information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
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<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the
State of New York, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on
the 26th day of September, 1995.
THE BANK OF NEW YORK
By: (Signature of Lloyd A. McKenzie)
Name: Lloyd A. McKenzie
Title: Assistant Vice President
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<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
June 30, 1995, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 3,025,419
Interest-bearing balances .......... 881,413
Securities:
Held-to-maturity securities ........ 1,242,368
Available-for-sale securities ...... 1,774,079
Federal funds sold in domestic
offices of the bank ................ 5,503,445
Securities purchased under agree-
ments to resell .................... 200,634
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................26,599,533
LESS: Allowance for loan and
lease losses ..............516,283
Loans and leases, net of unearned
income and allowance 26,083,250
Assets held in trading accounts ...... 1,455,639
Premises and fixed assets (including
capitalized leases) ................ 612,547
Other real estate owned .............. 79,667
Investments in unconsolidated
subsidiaries and associated
companies .......................... 198,737
Customers' liability to this bank on
acceptances outstanding ............ 1,111,464
Intangible assets .................... 105,263
Other assets ......................... 1,237,264
Total assets ......................... $43,511,189
LIABILITIES
Deposits:
In domestic offices ................ $19,233,885
Noninterest-bearing .......7,677,954
Interest-bearing .........11,555,931
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 12,641,676
Noninterest-bearing ..........72,479
Interest-bearing .........12,569,197
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,747,659
Securities sold under agreements
to repurchase .................... 73,553
Demand notes issued to the U.S.
Treasury ........................... 300,000
Trading liabilities .................. 738,317
Other borrowed money:
With original maturity of one year
or less .......................... 1,586,443
With original maturity of more than
one year ......................... 220,877
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,113,102
Subordinated notes and debentures .... 1,053,860
Other liabilities .................... 1,489,252
Total liabilities .................... 40,198,624
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,849,221
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 662)
Cumulative foreign currency transla-
tion adjustments .................. ( 3,944)
Total equity capital ................ 3,312,565
Total liabilities and equity
capital ........................... $43,511,189
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of
this Report of Condition and 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 issued by the Board of
Governors of the Federal Reserve System and is true and correct.
J. Carter Bacot
Thomas A. Renyi Directors
Samuel F. Chevalier
<PAGE>
EXHIBIT 99.1
PROVISIONS OF NORTH CAROLINA BUSINESS CORPORATION ACT
REGARDING INDEMNIFICATION
(section mark)55-8-50. Policy statement and definitions.
(a) It is the public policy of this State to enable corporations organized
under this Chapter to attract and maintain responsible, qualified directors,
officers, employees and agents, and, to that end, to permit corporations
organized under this Chapter to allocate the risk of personal liability of
directors, officers, employees and agents through indemnification and insurance
as authorized in this Part.
(b) Definitions in this Part:
(1) "Corporation" includes any domestic or foreign corporation
absorbed in a merger which, if its separate existence had continued, would
have had the obligation or power to indemnify its directors, officers,
employees, or agents, so that a person who would have been entitled to
receive or request indemnification from such corporation if its separate
existence had continued shall stand in the same position under this Part
with respect to the surviving corporation.
(2) "Director" means an individual who is or was a director of a
corporation or an individual who, while a director of a corporation, is or
was serving at the corporation's request as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other
enterprise. A director is considered to be serving an employee benefit plan
at the corporation's request if his duties to the corporation also impose
duties on, or otherwise involve services by, him to the plan or to
participants in or beneficiaries of the plan. "Director" includes, unless
the context requires otherwise, the estate or personal representative of a
director.
(3) "Expenses" means expenses of every kind incurred in defending a
proceeding, including counsel fees.
(4) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred with respect to a
proceeding.
(4a) "Officer", "employee", or "agent" includes, unless context
requires otherwise, the estate or personal representative of a person who
acted in that capacity.
(5) "Official capacity" means: (i) when used with respect to a
director, the office of director in a corporation; and (ii) when used with
respect to an individual other than a director, as contemplated in G.S.
55-8-56, the office in a corporation held by the officer or the employment
or agency relationship undertaken by the employee or agent on behalf of the
corporation. 'Official capacity' does not include service for any other
foreign or domestic corporation or any partnership, joint venture, trust,
employee benefit plan, or other enterprise.
(6) "Party" includes an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(7) "Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
(section mark)55-8-51. Authority to indemnify.
(a) Except as provided in subsection (d), a corporation may indemnify an
individual made a party to a proceeding because he is or was a director against
liability incurred in the proceeding if:
(1) He conducted himself in good faith; and
(2) He reasonably believed (i) in the case of conduct in his official
capacity with the corporation, that his conduct was in its best interests;
and (ii) in all other cases, that his conduct was at least not opposed to
its best interests; and
(3) In the case of any criminal proceeding, he had no reasonable cause
to believe his conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for a
purpose he reasonably believed to be in the interests of the participants in and
beneficiaries of the plan is conduct that satisfies the requirement of
subsection (a)(2)(ii).
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of no contest or its equivalent is not, of itself,
determinative that the director did not meet the standard of conduct described
in this section.
(d) A corporation may not indemnify a director under this section:
<PAGE>
(1) In connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the corporation;
or
(2) In connection with any other proceeding charging improper personal
benefit to him, whether or not involving action in his official capacity,
in which he was adjudged liable on the basis that personal benefit was
improperly received by him.
(e) Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation that is concluded without a
final adjudication on the issue of liability is limited to reasonable expenses
incurred in connection with the proceeding.
(f) The authorization, approval or favorable recommendation by the board of
directors of a corporation of indemnification, as permitted by this section,
shall not be deemed an act or corporate transaction in which a director has a
conflict of interest, and no such indemnification shall be void or voidable on
such ground.
(section mark)55-8-52. Mandatory indemnification.
Unless limited by its articles of incorporation, a corporation shall
indemnify a director who was 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.
(section mark)55-8-53. Advance for expenses.
Expenses incurred by a director in defending a proceeding may be paid by
the corporation in advance of the final disposition of such proceeding as
authorized by the board of directors in the specific case 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.
(section mark)55-8-54. Court-ordered indemnification.
Unless a corporation's articles of incorporation provide otherwise, a
director of the corporation who is a party to a proceeding may apply for
indemnification to the court conducting the proceeding or to another court of
competent jurisdiction. On receipt of an application, the court after giving any
notice the court considers necessary may order indemnification if it determines:
(1) The director is entitled to mandatory indemnification under G.S.
55-8-52, in which case the court shall also order the corporation to pay
the director's reasonable expenses incurred to obtain court-ordered
indemnification; or
(2) The director is fairly and reasonably entitled to indemnification
in view of all the relevant circumstances, whether or not he met the
standard of conduct set forth in G.S. 55-8-51 or was adjudged liable as
described in G.S. 55-8-51(d), but if he was adjudged so liable his
indemnification is limited to reasonable expenses incurred.
(section mark)55-8-55. Determination and authorization of indemnification.
(a) A corporation may not indemnify a director under G.S. 55-8-51 unless
authorized in the specific case after a determination has been made that
indemnification of the director is permissible in the circumstances because he
has met the standard of conduct set forth in G.S. 55-8-51.
(b) The determination shall be made:
(1) By the board of directors by majority vote of a quorum consisting
of directors not at the time parties to the proceeding;
(2) If a quorum cannot be obtained under subdivision (1), by majority
vote of a committee duly designated by the board of directors (in which
designation directors who are parties may participate), consisting solely
of two or more directors not at the time parties to the proceeding;
(3) By special legal counsel (i) selected by the board of directors or
its committee in the manner prescribed in subdivision (1) or (2); or (ii)
if a quorum of the board of directors cannot be obtained under subdivision
(1) and a committee cannot be designated under subdivision (2), selected by
majority vote of the full board of directors (in which selection directors
who are parties may participate); or
(4) By the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the proceeding may not
be voted on the determination.
<PAGE>
(c) Authorization of indemnification and evaluation as to reasonableness of
expenses shall be made in the same manner as the determination that
indemnification is permissible, except that if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subsection
(b)(3) to select counsel.
(section mark)55-8-56. Indemnification of officers, employees, and agents.
Unless a corporation's articles of incorporation provide otherwise:
(1) An officer of the corporation is entitled to mandatory
indemnification under G.S. 55-8-52, and is entitled to apply for
court-ordered indemnification under G.S. 55-8-54, in each case to the same
extent as a director;
(2) The corporation may indemnify and advance expenses under this Part
to an officer, employee, or agent of the corporation to the same extent as
to a director; and
(3) A corporation may also indemnify and advance expenses to an
officer, employee, or agent who is not a director to the extent, consistent
with public policy, that may be provided by its articles of incorporation,
bylaws, general or specific action of its board of directors, or contract.
(section mark)55-8-57. Additional indemnification and insurance.
(a) In addition to and separate and apart from the indemnification
provided for in G.S. 55-8-51, 55-8-52, 55-8-54, 55-8-55 and 55-8-56, a
corporation may in its articles of incorporation or bylaws or by contract
or resolution indemnify or agree to indemnify any one or more of its
directors, officers, employees, or agents against liability and expenses in
any proceeding (including without limitation a proceeding brought by or on
behalf of the corporation itself) arising out of their status as such or
their activities in any of the foregoing capacities; provided, however,
that a corporation may not indemnify or agree to indemnify a person against
liability or expenses he may incur on account of his activities which were
at the time taken known or believed by him to be clearly in conflict with
the best interests of the corporation. A corporation may likewise and to
the same extent indemnify or agree to indemnify any person who, at the
request of the corporation, is or was serving as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise or as
trustee or administrator under an employee benefit plan. Any provision in
any articles of incorporation, bylaw, contract, or resolution permitted
under this section may include provisions for recovery from the corporation
of reasonable costs, expenses, and attorneys' fees in connection with the
enforcement of rights to indemnification granted therein and may further
include provisions establishing reasonable procedures for determining and
enforcing the rights granted therein.
(b) The authorization, adoption, approval, or favorable recommendation
by the board of directors of a public corporation of any provision in any
articles of incorporation, bylaw, contract or resolution, as permitted in
this section, shall not be deemed an act or corporate transaction in which
a director has a conflict of interest, and no such articles of
incorporation or bylaw provision or contract or resolution shall be void or
voidable on such grounds. The authorization, adoption, approval, or
favorable recommendation by the board of directors of a nonpublic
corporation of any provision in any articles of incorporation, bylaw,
contract or resolution, as permitted in this section, which occurred on or
prior to July 1, 1990, shall not be deemed an act or corporate transaction
in which a director has a conflict of interest, and no such articles of
incorporation, bylaw provision, contract or resolution shall be void or
voidable on such grounds. Except as permitted in G.S. 55-8-31, no such
bylaw, contract, or resolution not adopted, authorized, approved or
ratified by shareholders shall be effective as to claims made or
liabilities asserted against any director prior to its adoption,
authorization, or approval by the board of directors.
(c) A corporation may purchase and maintain insurance on behalf of an
individual who is or was a director, officer, employee, or agent of the
corporation, or who, while a director, officer, employee, or agent of the
corporation, is or was serving at the request of the corporation as a
director, officer, partner, trustee, employee, or agent of another foreign
or domestic corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise, against liability asserted against or
incurred by him in that capacity or arising from his status as a director,
officer, employee, or agent, whether or not the corporation would have
power to indemnify him against the same liability under any provision of
this act.
(section mark)55-8-58. Application of Part.
(a) If articles of incorporation limit indemnification or advance for
expenses, indemnification and advance for expenses are valid only to the
extent consistent with the articles.
<PAGE>
(b) This Part does not limit a corporation's power to pay or reimburse
expenses incurred by a director in connection with his appearance as a
witness in a proceeding at a time when he has not been made a named
defendant or respondent to the proceeding.
(c) This Part shall not affect rights or liabilities arising out of
acts or omissions occurring before July 1, 1990.
