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REGISTRATION NO. 333-
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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<S> <C>
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
214 NORTH CHURCH 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, 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)(4) (3)
Preferred Stock (3)(4) (3)
Depositary Shares (3)(4) (3)
Common Stock (3)(4)(5) (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 N/A
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) Includes an indeterminate amount of Debt Securities and an indeterminate
number of shares of Preferred Stock, Depositary Shares or Common Stock as
may be offered or sold in connection with market making activities by
affiliates of the Registrant.
(5) 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.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), THE PROSPECTUSES INCLUDED IN THIS REGISTRATION STATEMENT ARE
COMBINED PROSPECTUSES THAT RELATE TO THE SECURITIES THAT MAY BE ISSUED PURSUANT
TO THIS REGISTRATION STATEMENT AND ALSO TO CERTAIN SECURITIES PREVIOUSLY
REGISTERED AND REMAINING UNISSUED UNDER THE REGISTRANT'S REGISTRATION STATEMENT
ON FORM S-3 (FILE NO. 33-63097). THIS REGISTRATION STATEMENT CONSTITUTES
POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION NO. 33-63097, WHICH
POST-EFFECTIVE AMENDMENT SHALL HEREAFTER BECOME EFFECTIVE CONCURRENTLY WITH THE
EFFECTIVENESS OF THIS REGISTRATION STATEMENT AND IN ACCORDANCE WITH SECTION 8(C)
OF THE SECURITIES ACT.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT 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 NOTES
This Registration Statement contains two forms of Prospectus of NationsBank
Corporation ("NationsBank"): one (the "Debt Prospectus") to be used in
connection with the offers and sales of Debt Securities, including any Preferred
Stock, Depositary Shares, Common Stock or Debt Securities into which the Debt
Securities may be convertible, and one (the "Equity Prospectus") to be used in
connection with the offering and sale of Preferred Stock, Depositary Shares or
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.
The Debt Prospectus also includes a form of a market maker prospectus
intended for use by NationsBanc Capital Markets, Inc. ("NCMI"), a direct
wholly-owned subsidiary of NationsBank, in connection with offers and sales
related to secondary market transactions in the Debt Securities. The Debt
Prospectus follows immediately after this page of Explanatory Notes. Following
such Debt Prospectus are the alternate cover page, pages 6 through 14 and the
back cover page of the market maker Debt Prospectus. All other pages of the Debt
Prospectus are also to be used for the market maker Debt Prospectus.
The Equity Prospectus also includes a form of a market maker prospectus
intended for use by NCMI in connection with offers and sales related to
secondary market transactions in the Equity Securities. The Equity Prospectus
follows immediately after the alternate pages of the Debt Prospectus. Following
such Equity Prospectus are the alternate cover page, pages 6 through 13 and the
back cover page of the market maker Equity Prospectus. All other pages of the
Equity Prospectus are also to be used for the market maker Equity Prospectus.
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SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED JUNE 28, 1996
[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 (in the event that such series is convertible at the option
of the holder or NationsBank into Preferred Stock, Depositary Shares, Common
Stock or other Debt Securities), 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 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 , 1996.
(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, 1995;
(b) The Corporation's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996;
(c) The Corporation's Current Reports on Form 8-K filed January 12,
1996, February 1, 1996, March 8, 1996, April 17, 1996 and May 16, 1996; and
(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 banking 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 nonbanking
financial services and products through its various subsidiaries. NationsBank
manages its business activities through three major business units: the General
Bank, Global Finance and Financial Services.
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), indirect lending, dealer finance
and certain insurance services. The General Bank also offers full service
brokerage services and discount brokerage services and provides investment
advisory services to a proprietary mutual fund, as well as investment
management, banking and fiduciary services through subsidiaries of NationsBank.
As of March 31, 1996, the General Bank operated 2,005 banking offices through
the following Banks: NationsBank, N.A. (serving the states of North Carolina,
South Carolina, Maryland and Virginia and the District of Columbia);
NationsBank, N.A. (South) (serving the states of Florida and Georgia);
NationsBank of Kentucky, N.A.; NationsBank of Tennessee, N.A; and NationsBank of
Texas, N.A. The General Bank also provides fully automated, 24-hour cash
dispensing and depositing services throughout the states in which it is located,
through 2,946 automated teller machines.
Global Finance provides comprehensive corporate banking and investment
banking services to domestic and international customers, including treasury
management, loan syndication, asset-backed lending, leasing, factoring and
arrangement of asset-backed and project financing, as well as 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 Board of Governors of the Federal Reserve System (the "Federal Reserve
Board") under Section 20 of the Glass-Steagall Act), and trading and
distributing a wide range of derivative products in certain interest rate,
foreign exhange, commodity and equity markets. Global Finance provides its
services through various offices located in major United States cities as well
as in London, Frankfurt, Singapore, Bogota, Mexico City, Grand Cayman, Nassau,
Seoul, Tokyo, Osaka, Taipei and Hong Kong.
Financial Services consists of NationsCredit Consumer Corporation (formerly
NationsCredit Corporation), primarily a consumer finance subsidiary, and
NationsCredit Commercial Corporation (formerly Greyrock Capital Group Inc.),
primarily a commercial finance subsidiary. NationsCredit Consumer Corporation,
which has approximately 371 offices located in 34 states, provides personal,
mortgage and automobile loans to consumers and retail finance programs to
dealers. NationsCredit Commercial Corporation consists of six divisions that
specialize in one or more of the following areas: equipment loans and leasing;
loans for debt restructuring, mergers and acquisitions and working capital; real
estate, golf/recreational and health care financing; and inventory financing to
manufacturers, distributors and dealers.
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.
SUPERVISION AND REGULATION
GENERAL. As a registered bank holding company, NationsBank is subject to
the supervision of, and to regular inspection by, the Federal Reserve Board. The
Banks are organized as national banking associations, which
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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 operations
and management of the Corporation and its ability to make distributions. The
following discussion summarizes certain aspects of those laws and regulations
that affect NationsBank.
Under the BHCA, 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.
The BHCA also requires bank holding companies 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"), which became effective
September 29, 1995, a bank holding company may acquire banks in states other
than its home state subject to any state requirement that the bank has been
organized and operating for a minimum period of time, not to exceed five years,
and the requirement that the bank holding company, prior to or following the
proposed acquisition, controls no more than 10% of the total amount of deposits
of insured depository institutions in the United States and no more than 30% of
such deposits in that state (or such lesser or greater amount set by state law).
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 either 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 such state enacts a law permitting such DE NOVO branching.
Of those states in which the Banks are located, Delaware, 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 were 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 March 31, 1996 were 7.35% and 11.71%, 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 March 31, 1996 was 6.19%.
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 also adopted 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 proposed amendments to
existing risk-based capital regulations to provide for the consideration of
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 determination of a bank's minimum capital
requirements. This proposal, while still under consideration, would require
banks with interest rate risk in excess of defined thresholds to maintain
additional capital beyond that generally required.
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 the Banks. 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 1996, the Banks can initiate dividend
payments without prior regulatory approval of up to $905 million plus an
additional amount equal to their net profits for 1996 up to the date of any such
dividend declaration.
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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 Banks 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 three months ended March 31, 1996 and for each of the
years in the five-year period ended December 31, 1995:
<TABLE>
<CAPTION>
THREE MONTHS
ENDED YEAR ENDED
MARCH 31, DECEMBER 31,
1996 1995 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits....................................... 1.7 1.7 1.9 2.3 2.4 1.1
Including interest on deposits....................................... 1.4 1.4 1.5 1.5 1.4 1.0
</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 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,
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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 contribution
with respect to payments which the underwriters or agents may be required to
make in respect thereof.
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<PAGE>
The participation of an affiliate or subsidiary of NationsBank in the offer
and sale of the Debt Securities will comply with the requirements of Section
2720 of the Conduct Rules 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 may also 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 First Trust of
New York, National Association, as successor Trustee to BankAmerica National
Trust Company (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 each
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. The Debt Securities may be denominated in U.S. dollars or in another
currency or currency unit. Unless otherwise set forth in the applicable
Prospectus Supplement, any Debt Securities that are denominated in U.S. dollars
will be issued in denominations of $1,000 or an integral multiple thereof. If
any of the Debt Securities are denominated in a foreign currency or currency
unit, or if principal of (or premium, if any) or any interest on any of the Debt
Securities is payable in any foreign currency or currency unit, the authorized
denominations, as well as any restrictions, tax
8
<PAGE>
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 that 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 the 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 is 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; 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).
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 "NATIONSBANK
CORPORATION -- Supervision and Regulation."
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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.
CONVERSION
The Debt Securities of any series may be convertible, at the option of the
holder or the Corporation, into Preferred Stock, Depositary Shares, Common Stock
or other Debt Securities if the Prospectus Supplement relating to such series of
Debt Securities so provides. In such case, the Prospectus Supplement relating to
such series of Debt Securities will set forth (i) the period(s) during which
such conversion may be elected; (ii) the conversion price payable and the number
of shares or amount of Preferred Stock, Depositary Shares, Common Stock or other
Debt Securities purchaseable upon conversion, and adjustments thereto, if any,
in certain events; (iii) the procedures for electing such conversion; and (iv)
all other terms for such conversion (which terms shall not be inconsistent with
the provisions of the applicable Indenture).
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 of a series may be presented for exchange as provided
above, and 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 such Debt Securities 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) 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.
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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.
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 (each a "Book-Entry
Security"). Each such Book-Entry Security will be deposited with, or on behalf
of, a depositary (a "Depositary") as identified in the Prospectus Supplement
relating to such series of Debt Securities, 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 and deposit 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 of the series 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 the Debt Securities of a
series represented by a Book-Entry Security will be limited to participants or
persons that may hold interests through participants. Ownership of a beneficial
interest in the Debt Securities of a series represented by 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 the Debt Securities of a series represented
by 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 nominee, as the
case may be, will be considered the sole owner or holder of the Debt Securities
of the series 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 the Debt Securities of a series represented by a
Book-Entry Security will not be entitled to have such Debt Securities registered
in their names, will not receive or be entitled to receive physical delivery of
such Debt Securities in definitive form and will not be considered the owners or
holders thereof under the Indenture. Accordingly, in order to exercise any
rights of a holder of the Debt Securities under the applicable Indenture, each
person owning a beneficial interest in the Debt Securities of a series
represented by a Book-Entry Security must rely on the procedures of the
Depositary or, 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.
Payment of principal of (and premium, if any) and any interest on Debt
Securities of a series represented by a Book-Entry Security 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 the Debt Securities of a series represented by 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
represented by a Book-Entry Security will, upon receipt of any payment of
principal of (and premium, if any) and any interest on such Debt
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Securities, credit immediately participants' accounts with payments in amounts
proportionate to their respective holdings in principal amount of beneficial
interests in the Debt Securities of the series represented by 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 the
Debt Securities of the series represented by 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 a Book-Entry Security is exchanged in whole for Debt
Securities in definitive form, it 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 a Book-Entry Security 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 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 Debt Securities of a series represented by 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. The Prospectus Supplement
relating to each series of Subordinated Debt Securities will set forth the
aggregate amount of then outstanding Senior Indebtedness of the Corporation and
any limitation on the issuance of additional Senior Indebtedness.
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% 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
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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 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.
13
<PAGE>
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 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
14
<PAGE>
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) and upon the demand of the respective Trustee, the
Corporation will pay to such Trustee, for the benefit of the holders of the Debt
Securities, the amount then due and payable on the Debt Securities for principal
and 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
First Trust of New York, National Association, 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, 1995, 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.
15
<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
, 1996
<PAGE>
SUBJECT TO COMPLETION [ALTERNATE PAGE -- DEBT]
PRELIMINARY PROSPECTUS DATED JUNE 28, 1996
[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 (in the event that such series is convertible at the option
of the holder or NationsBank into Preferred Stock, Depositary Shares, Common
Stock or other Debt Securities), 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
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.
THIS PROSPECTUS AND RELATED PROSPECTUS SUPPLEMENTS ARE TO BE USED BY NATIONSBANC
CAPITAL MARKETS, INC. ("NCMI"), A BROKER-DEALER AND A DIRECT WHOLLY-OWNED
SUBSIDIARY OF NATIONSBANK, IN CONNECTION WITH OFFERS AND SALES RELATED
TO SECONDARY MARKET TRANSACTIONS IN THE DEBT SECURITIES. NCMI OR ITS
AFFILIATES MAY ACT AS PRINCIPAL OR AGENT IN SUCH TRANSACTIONS.
ANY SUCH SALES WILL BE MADE AT NEGOTIATED PRICES RELATING TO
PREVAILING MARKET PRICES AT THE TIME OF SALE OR
OTHERWISE.
NATIONSBANC CAPITAL MARKETS, INC.
The date of this Prospectus is , 1996.
(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>
[ALTERNATE PAGE -- DEBT]
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 Banks 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 three months ended March 31, 1996 and for each of the
years in the five-year period ended December 31, 1995:
<TABLE>
<CAPTION>
THREE MONTHS
ENDED YEAR ENDED
MARCH 31, DECEMBER 31,
1996 1995 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits...................................... 1.7 1.7 1.9 2.3 2.4 1.1
Including interest on deposits...................................... 1.4 1.4 1.5 1.5 1.4 1.0
</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
This Prospectus and related Prospectus Supplements are to be used by
NationsBanc Capital Markets, Inc. ("NCMI"), a broker-dealer and a direct
wholly-owned subsidiary of NationsBank, in connection with offers and sales of
the Debt Securities in secondary market transactions at negotiated prices
relating to prevailing prices at the time of sale or otherwise. NCMI may act as
principal or agent in such transactions. The participation of NCMI in the offer
and sale of the Debt Securities complies with the requirements of Section 2720
of the Conduct Rules of the National Association of Securities Dealers, Inc.
(the "NASD") regarding underwriting of securities of an affiliate. NCMI will not
execute a transaction in the Debt Securities in a discretionary account without
the prior written specific approval of NCMI's customer. NCMI has no obligation
to make a market in
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<PAGE>
[ALTERNATE PAGE -- DEBT]
the Debt Securities and may discontinue its market-making activities at any time
without notice, at its sole discretion. Furthermore, NCMI may be required to
discontinue its market-making activities during periods when the Corporation is
involved in a distribution of certain of its securities or when NCMI, by virtue
of its ownership by the Corporation, is aware of material non-public information
relating to the Corporation. NCMI would not be able to recommence its
market-making activities until such distribution has been completed or such
information has become publicly available. It is not possible to determine the
impact, if any, that any such discontinuance may have on the market for the Debt
Securities. While other broker-dealers may make a market in the Debt Securities
from time to time, there can be no assurance that any other broker-dealer will
do so at any time when NCMI discontinues its market-making activities.
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 First Trust of
New York, National Association, as successor Trustee to BankAmerica National
Trust Company (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 each
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. The Debt Securities may be denominated in U.S. dollars or in another
currency or currency unit. Unless otherwise set forth in the applicable
Prospectus Supplement, any Debt Securities that are denominated in U.S. dollars
will be issued in denominations of $1,000 or an integral multiple thereof. If
any of the Debt Securities are denominated in a foreign currency or currency
unit, or if principal of (or premium, if any) or any interest on any of the Debt
Securities is payable in any foreign currency or currency unit, the authorized
denominations, as well as any 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
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<PAGE>
[ALTERNATE PAGE -- DEBT]
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 that 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 the 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 is 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; 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).
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 "NATIONSBANK
CORPORATION -- 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
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declines as a result of such an event, or otherwise, the ratings of any Debt
Securities then outstanding may be withdrawn or downgraded.
CONVERSION
The Debt Securities of any series may be convertible, at the option of the
holder or the Corporation, into Preferred Stock, Depositary Shares, Common Stock
or other Debt Securities if the Prospectus Supplement relating to such series of
Debt Securities so provides. In such case, the Prospectus Supplement relating to
such series of Debt Securities will set forth (i) the period(s) during which
such conversion may be elected; (ii) the conversion price payable and the number
of shares or amount of Preferred Stock, Depositary Shares, Common Stock or other
Debt Securities purchaseable upon conversion, and adjustments thereto, if any,
in certain events; (iii) the procedures for electing such conversion; and (iv)
all other terms for such conversion (which terms shall not be inconsistent with
the provisions of the applicable Indenture).
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 of a series may be presented for exchange as provided
above, and 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 such Debt Securities 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) 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
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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.
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 (each a "Book-Entry
Security"). Each such Book-Entry Security will be deposited with, or on behalf
of, a depositary (a "Depositary") as identified in the Prospectus Supplement
relating to such series of Debt Securities, 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 and deposit 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 of the series 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 the Debt Securities of a
series represented by a Book-Entry Security will be limited to participants or
persons that may hold interests through participants. Ownership of a beneficial
interest in the Debt Securities of a series represented by 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 the Debt Securities of a series represented
by 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 nominee, as the
case may be, will be considered the sole owner or holder of the Debt Securities
of the series 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 the Debt Securities of a series represented by a
Book-Entry Security will not be entitled to have such Debt Securities registered
in their names, will not receive or be entitled to receive physical delivery of
such Debt Securities in definitive form and will not be considered the owners or
holders thereof under the Indenture. Accordingly, in order to exercise any
rights of a holder of the Debt Securities under the applicable Indenture, each
person owning a beneficial interest in the Debt Securities of a series
represented by a Book-Entry Security must rely on the procedures of the
Depositary or, 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.
Payment of principal of (and premium, if any) and any interest on Debt
Securities of a series represented by a Book-Entry Security 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 the Debt Securities of a series represented by 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
represented by a Book-Entry Security will, upon receipt of any payment of
principal of (and premium, if any) and any interest on such Debt Securities,
credit immediately participants' accounts with payments in amounts proportionate
to their respective holdings in principal amount of beneficial interests in the
Debt Securities of the series represented by 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 the Debt Securities of the
series represented by such Book-
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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 a Book-Entry Security is exchanged in whole for Debt
Securities in definitive form, it 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 a Book-Entry Security 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 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 Debt Securities of a series represented by 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. The Prospectus Supplement
relating to each series of Subordinated Debt Securities will set forth the
aggregate amount of then outstanding Senior Indebtedness of the Corporation and
any limitation on the issuance of additional Senior Indebtedness.
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% 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
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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 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.
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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 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
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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) and upon the demand of the respective Trustee, the
Corporation will pay to such Trustee, for the benefit of the holders of the Debt
Securities, the amount then due and payable on the Debt Securities for principal
and 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
First Trust of New York, National Association, 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, 1995, 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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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 OR NATIONSBANC CAPITAL MARKETS, INC. 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. THIS PROSPECTUS AND RELATED PROSPECTUS
SUPPLEMENTS ARE TO BE USED BY NATIONSBANC CAPITAL MARKETS, INC., A BROKER-DEALER
AND A DIRECT WHOLLY-OWNED SUBSIDIARY OF THE CORPORATION, IN CONNECTION WITH
OFFERS AND SALES RELATED TO SECONDARY MARKET TRANSACTIONS.
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................. 7
Legal Opinions................................. 14
Experts........................................ 14
</TABLE>
$3,000,000,000
NATIONSBANK(Register mark)
DEBT SECURITIES
PROSPECTUS
NATIONSBANC CAPITAL
MARKETS, INC.
, 1996
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY STATE.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED JUNE 28, 1996
[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 specific terms of any Securities offered pursuant to this Prospectus
will be set forth in a Prospectus Supplement. Such terms will include: (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 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 , 1996.
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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, 1995;
(b) The Corporation's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996;
(c) The Corporation's Current Reports on Form 8-K filed January 12,
1996, February 1, 1996, March 8, 1996, April 17, 1996 and May 16, 1996; and
(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.
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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 banking 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 nonbanking
financial services and products through its various subsidiaries. NationsBank
manages its business activities through three major business units: the General
Bank, Global Finance and Financial Services.
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), indirect lending, dealer finance
and certain insurance services. The General Bank also offers full service
brokerage services and discount brokerage services and provides investment
advisory services to a proprietary mutual fund, as well as investment
management, banking and fiduciary services through subsidiaries of NationsBank.
As of March 31, 1996, the General Bank operated 2,005 banking offices through
the following Banks: NationsBank, N.A. (serving the states of North Carolina,
South Carolina, Maryland and Virginia and the District of Columbia);
NationsBank, N.A. (South) (serving the states of Florida and Georgia);
NationsBank of Kentucky, N.A.; NationsBank of Tennessee, N.A; and NationsBank of
Texas, N.A. The General Bank also provides fully automated, 24-hour cash
dispensing and depositing services throughout the states in which it is located,
through 2,946 automated teller machines.
Global Finance provides comprehensive corporate banking and investment
banking services to domestic and international customers, including treasury
management, loan syndication, asset-backed lending, leasing, factoring and
arrangement of asset-backed and project financing, as well as 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 Board of Governors of the Federal Reserve System (the "Federal Reserve
Board") under Section 20 of the Glass-Steagall Act), and trading and
distributing a wide range of derivative products in certain interest rate,
foreign exhange, commodity and equity markets. Global Finance provides its
services through various offices located in major United States cities as well
as in London, Frankfurt, Singapore, Bogota, Mexico City, Grand Cayman, Nassau,
Seoul, Tokyo, Osaka, Taipei and Hong Kong.
Financial Services consists of NationsCredit Consumer Corporation (formerly
NationsCredit Corporation), primarily a consumer finance subsidiary, and
NationsCredit Commercial Corporation (formerly Greyrock Capital Group Inc.),
primarily a commercial finance subsidiary. NationsCredit Consumer Corporation,
which has approximately 371 offices located in 34 states, provides personal,
mortgage and automobile loans to consumers and retail finance programs to
dealers. NationsCredit Commercial Corporation consists of six divisions that
specialize in one or more of the following areas: equipment loans and leasing;
loans for debt restructuring, mergers and acquisitions and working capital; real
estate, golf/recreational and health care financing; and inventory financing to
manufacturers, distributors and dealers.
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.
SUPERVISION AND REGULATION
GENERAL. As a registered bank holding company, NationsBank is subject to
the supervision of, and to regular inspection by, the Federal Reserve Board. The
Banks are organized as national banking associations, which
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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 operations
and management of the Corporation and its ability to make distributions. The
following discussion summarizes certain aspects of those laws and regulations
that affect NationsBank.
Under the BHCA, 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.
The BHCA also requires bank holding companies 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"), which became effective
September 29, 1995, a bank holding company may acquire banks in states other
than its home state subject to any state requirement that the bank has been
organized and operating for a minimum period of time, not to exceed five years,
and the requirement that the bank holding company, prior to or following the
proposed acquisition, controls no more than 10% of the total amount of deposits
of insured depository institutions in the United States and no more than 30% of
such deposits in that state (or such lesser or greater amount set by state law).
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 either 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 such state enacts a law permitting such DE NOVO branching.
Of those states in which the Banks are located, Delaware, 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 were 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 March 31, 1996 were 7.35% and 11.71%, 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 March 31, 1996 was 6.19%.
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 also adopted 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 proposed amendments to
existing risk-based capital regulations to provide for the consideration of
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 determination of a bank's minimum capital
requirements. This proposal, while still under consideration, would require
banks with interest rate risk in excess of defined thresholds to maintain
additional capital beyond that generally required.
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 the Banks. 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 1996, the Banks can initiate dividend
payments without prior regulatory approval of up to $905 million plus an
additional amount equal to their net profits for 1996 up to the date of any such
dividend declaration.
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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 Banks 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 three months ended
March 31, 1996 and for each of the years in the five-year period ended December
31, 1995:
<TABLE>
<CAPTION>
THREE MONTHS
ENDED YEAR ENDED
MARCH 31, DECEMBER 31,
1996 1995 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends:
Excluding interest on deposits...................................... 1.7 1.6 1.8 2.3 2.3 1.1
Including interest on deposits...................................... 1.4 1.4 1.5 1.5 1.4 1.0
</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.
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
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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 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
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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 Securities will comply with the requirements of Section 2720 of
the Conduct Rules 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 may also 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 2,445,143
shares were issued and outstanding as of March 31, 1996.
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 "NATIONSBANK
CORPORATION -- 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 or NationsBank 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 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.
The Preferred Stock ranks senior to the Common Stock as to the payment of
dividends and the distribution of assets on liquidation, dissolution and winding
up of the Corporation. The dividend and liquidation preference rights of the
Preferred Stock relative to the ESOP Preferred Stock or any future series of
preferred
8
<PAGE>
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.
ESOP PREFERRED STOCK
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.
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 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.
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<PAGE>
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, which may be paid in cash or shares of Common Stock, will
depend upon the time of redemption. Specifically, the redemption price for the
12-month period beginning July 1, 1996, is $43.49 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. 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.
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 form of Deposit Agreement (as
described below), the Depositary Shares and the form of 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
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<PAGE>
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.
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, with the approval of
NationsBank, may 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
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<PAGE>
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.
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
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<PAGE>
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 299,317,787 shares were outstanding as of March 31, 1996. The Common
Stock is traded on the New York Stock Exchange, Inc. and on The Pacific Stock
Exchange Incorporated under the symbol "NB" and on the London Stock Exchange;
certain shares of Common Stock are also listed and traded on the Tokyo Stock
Exchange. As of March 31, 1996, 15.1 million shares were reserved for issuance
in connection with various employee benefit plans of NationsBank and the
conversion of the ESOP Preferred Stock; 2.8 million shares were reserved for
issuance under the Corporation's Dividend Reinvestment and Stock Purchase Plan;
and up to 1.5 million shares were reserved for issuance in connection with
pending acquisitions. After taking into account the shares reserved as described
above, approximately 482 million authorized shares of the Common Stock remained
available for issuance for other corporate purposes as of March 31, 1996.
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 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.
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Chase 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 series of 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
"NATIONSBANK CORPORATION -- 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, 1995, 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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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.......................... 6
Description of Preferred Stock................ 8
Description of Depositary Shares.............. 10
Description of Common Stock................... 13
Legal Opinions................................ 14
Experts....................................... 14
</TABLE>
$3,000,000,000
NATIONSBANK(Register mark)
PREFERRED STOCK
COMMON STOCK
PROSPECTUS
, 1996
<PAGE>
SUBJECT TO COMPLETION [ALTERNATE PAGE -- EQUITY]
PRELIMINARY PROSPECTUS DATED JUNE 28, 1996
[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 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.
THIS PROSPECTUS AND RELATED PROSPECTUS SUPPLEMENTS ARE TO BE USED BY NATIONSBANC
CAPITAL MARKETS, INC. ("NCMI"), A BROKER-DEALER AND A DIRECT WHOLLY-OWNED
SUBSIDIARY OF NATIONSBANK, IN CONNECTION WITH OFFERS AND SALES RELATED
TO SECONDARY MARKET TRANSACTIONS IN THE SECURITIES. NCMI OR ITS
AFFILIATES MAY ACT AS PRINCIPAL OR AGENT IN SUCH TRANSACTIONS. ANY
SUCH SALES WILL BE MADE AT NEGOTIATED PRICES RELATING TO
PREVAILING MARKET PRICES AT THE TIME OF SALE OR OTHERWISE.
NATIONSBANC CAPITAL MARKETS, INC.
The date of this Prospectus is , 1996.
(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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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 Banks 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 three months ended
March 31, 1996 and for each of the years in the five-year period ended December
31, 1995:
<TABLE>
<CAPTION>
THREE MONTHS
ENDED YEAR ENDED
MARCH 31, DECEMBER 31,
1996 1995 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends:
Excluding interest on deposits...................................... 1.7 1.6 1.8 2.3 2.3 1.1
Including interest on deposits...................................... 1.4 1.4 1.5 1.5 1.4 1.0
</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.
PLAN OF DISTRIBUTION
This Prospectus and related Prospectus Supplements are to be used by
NationsBanc Capital Markets, Inc. ("NCMI"), a broker-dealer and a direct
wholly-owned subsidiary of NationsBank, in connection with offers and sales of
the Securities in secondary market transactions at negotiated prices relating to
prevailing prices at the
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time of sale or otherwise. NCMI may act as principal or agent in such
transactions. The participation of NCMI in the offer and sale of the Securities
complies with the requirements of Section 2720 of the Conduct Rules of the
National Association of Securities Dealers, Inc. (the "NASD") regarding
underwriting of securities of an affiliate. NCMI will not execute a transaction
in the Securities in a discretionary account without the prior written specific
approval of NCMI's customer. NCMI has no obligation to make a market in the
Securities and may discontinue its market-making activities at any time without
notice, at its sole discretion. Furthermore, NCMI may be required to discontinue
its market-making activities during periods when the Corporation is involved in
a distribution of certain of its securities or when NCMI, by virtue of its
ownership by the Corporation, is aware of material non-public information
relating to the Corporation. NCMI would not be able to recommence its
market-making activities until such distribution has been completed or such
information has become publicly available. It is not possible to determine the
impact, if any, that any such discontinuance may have on the market for the
Securities. While other broker-dealers may make a market in the Securities from
time to time, there can be no assurance that any other broker-dealer will do so
at any time when NCMI discontinues its market-making activities.
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 2,445,143
shares were issued and outstanding as of March 31, 1996.
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 "NATIONSBANK
CORPORATION -- 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 or NationsBank 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 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.
The Preferred Stock ranks senior to the Common Stock as to the payment of
dividends and the distribution of assets on liquidation, dissolution and winding
up of the Corporation. The dividend and liquidation preference rights of the
Preferred Stock relative to the ESOP Preferred Stock or any future series of
preferred
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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.
ESOP PREFERRED STOCK
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.
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 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.
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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, which may be paid in cash or shares of Common Stock, will
depend upon the time of redemption. Specifically, the redemption price for the
12-month period beginning July 1, 1996, is $43.49 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. 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.
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 form of Deposit Agreement (as
described below), the Depositary Shares and the form of 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
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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.
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, with the approval of
NationsBank, may 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
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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.
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
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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 299,317,787 shares were outstanding as of March 31, 1996. The Common
Stock is traded on the New York Stock Exchange, Inc. and on The Pacific Stock
Exchange Incorporated under the symbol "NB" and on the London Stock Exchange;
certain shares of Common Stock are also listed and traded on the Tokyo Stock
Exchange. As of March 31, 1996, 15.1 million shares were reserved for issuance
in connection with various employee benefit plans of NationsBank and the
conversion of the ESOP Preferred Stock; 2.8 million shares were reserved for
issuance under the Corporation's Dividend Reinvestment and Stock Purchase Plan;
and up to 1.5 million shares were reserved for issuance in connection with
pending acquisitions. After taking into account the shares reserved as described
above, approximately 482 million authorized shares of the Common Stock remained
available for issuance for other corporate purposes as of March 31, 1996.
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 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.
ALT-12
<PAGE>
[ALTERNATE PAGE -- EQUITY]
Chase 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 series of 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
"NATIONSBANK CORPORATION -- 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, 1995, 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.
ALT-13
<PAGE>
[ALTERNATE PAGE -- EQUITY]
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 OR NATIONSBANC CAPITAL MARKETS, INC. 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. THIS PROSPECTUS AND RELATED PROSPECTUS
SUPPLEMENTS ARE TO BE USED BY NATIONSBANC CAPITAL MARKETS, INC., A BROKER-DEALER
AND A DIRECT WHOLLY-OWNED SUBSIDIARY OF THE CORPORATION, IN CONNECTION WITH
OFFERS AND SALES RELATED TO SECONDARY MARKET TRANSACTIONS.
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........................... 6
Description of Preferred Stock................. 7
Description of Depositary Shares............... 9
Description of Common Stock.................... 12
Legal Opinions................................. 13
Experts........................................ 13
</TABLE>
$3,000,000,000
NATIONSBANK(Register mark)
PREFERRED STOCK
COMMON STOCK
PROSPECTUS
NATIONSBANC CAPITAL
MARKETS, INC.
, 1996
<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 Successor Trustee Agreement effective December 15, 1995, between NationsBank Corporation and
First Trust Bank of New York, as successor trustee to BankAmerica National Trust Company
4.3 Form of Senior Registered Note, incorporated herein by reference to Exhibit 4.2 of the
Registrant's Registration Statement on Form S-3 (Registration No. 33-63097)
4.4 Form of Senior Medium-Term Note (Fixed Rate), incorporated herein by reference to Exhibit 4.3 of
the Registrant's Registration Statement on Form S-3 (Registration No. 33-63097)
4.5 Form of Senior Medium-Term Note (Floating Rate), incorporated herein by reference to Exhibit 4.4
of the Registrant's Registration Statement on Form S-3 (Registration No. 33-63097)
4.6 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)
4.7 Form of Subordinated Registered Note, incorporated herein by reference to Exhibit 4.6 of the
Registrant's Registration Statement on Form S-3 (Registration No. 33-63097)
4.8 Form of Subordinated Medium-Term Note (Fixed Rate), incorporated herein by reference to Exhibit
4.7 of the Registrant's Registration Statement on Form S-3 (Registration No. 33-63097)
4.9 Form of Subordinated Medium-Term Note (Floating Rate), incorporated herein by reference to
Exhibit 4.8 of the Registrant's Registration Statement on Form S-3 (Registration No. 33-63097)
4.10 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)
4.11 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)
4.12 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 March 31, 1996
(File No. 1-6523)
12.2 Calculation of Ratios of Earnings to Fixed Charges and Preferred Dividends, incorporated herein
by reference to Exhibit 12(b) to the Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996 (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
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <S>
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, incorporated herein by reference to Exhibit 99.1 of the
Registrant's Registration Statement on Form S-3 (Registration No. 33-63097)
</TABLE>
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 herein, 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 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 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-3
<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 June 28, 1996.
NATIONSBANK CORPORATION
(REGISTRANT)
By: /s/ HUGH L. MCCOLL, JR.
HUGH L. MCCOLL, JR.
CHAIRMAN OF THE BOARD 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>
/s/ HUGH L. MCCOLL, JR. Chairman of the Board, Chief Executive June 28, 1996
Officer and Director (Principal
(HUGH L. MCCOLL, JR.) Executive Officer)
/s/ JAMES H. HANCE, JR. Vice Chairman and Chief Financial Officer June 28, 1996
(Principal Financial Officer)
(JAMES H. HANCE, JR.)
/s/ MARK D. OKEN Executive Vice President June 28, 1996
and Chief Accounting Officer
(MARC D. OKEN) (Principal Accounting
Officer)
RONALD W. ALLEN* Director June 28, 1996
(RONALD W. ALLEN)
WILLIAM M. BARNHARDT* Director June 28, 1996
(WILLIAM M. BARNHARDT)
THOMAS E. CAPPS* Director June 28, 1996
(THOMAS E. CAPPS)
CHARLES W. COKER* Director June 28, 1996
(CHARLES W. COKER)
THOMAS G. COUSINS* Director June 28, 1996
(THOMAS G. COUSINS)
ALAN T. DICKSON* Director June 28, 1996
(ALAN T. DICKSON)
W. FRANK DOWD, JR.* Director June 28, 1996
(W. FRANK DOWD, JR.)
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
PAUL FULTON* Director June 28, 1996
(PAUL FULTON)
TIMOTHY L. GUZZLE* Director June 28, 1996
(TIMOTHY L. GUZZLE)
W. W. JOHNSON* Director June 28, 1996
(W. W. JOHNSON)
JOHN J. MURPHY* Director June 28, 1996
(JOHN J. MURPHY)
JOHN C. SLANE* Director June 28, 1996
(JOHN C. SLANE)
JOHN W. SNOW* Director June 28, 1996
(JOHN W. SNOW)
MEREDITH R. SPANGLER* Director June 28, 1996
(MEREDITH R. SPANGLER)
ROBERT H. SPILMAN* Director June 28, 1996
(ROBERT H. SPILMAN)
RONALD TOWNSEND* Director June 28, 1996
(RONALD TOWNSEND)
E. CRAIG WALL, JR.* Director June 28, 1996
(E. CRAIG WALL, JR.)
JACKIE M. WARD* Director June 28, 1996
(JACKIE M. WARD)
VIRGIL R. WILLIAMS* Director June 28, 1996
(VIRGIL R. WILLIAMS)
*By: /s/ CHARLES M. BERGER
CHARLES M. BERGER, ATTORNEY-IN-FACT
</TABLE>
II-5
<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 Successor Trustee Agreement effective December 15, 1995, between
NationsBank Corporation and First Trust Bank of New York, as successor
trustee to BankAmerica National Trust Company
4.3 Form of Senior Registered Note, incorporated herein by reference to
Exhibit 4.2 of the Registrant's Registration Statement on Form S-3
(Registration No. 33-63097)
4.4 Form of Senior Medium-Term Note (Fixed Rate), incorporated herein by
reference to Exhibit 4.3 of the Registrant's Registration Statement on
Form S-3 (Registration No. 33-63097)
4.5 Form of Senior Medium-Term Note (Floating Rate), incorporated herein by
reference to Exhibit 4.4 of the Registrant's Registration Statement on
Form S-3 (Registration No. 33-63097)
4.6 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)
4.7 Form of Subordinated Registered Note, incorporated herein by reference
to Exhibit 4.6 of the Registrant's Registration Statement on Form S-3
(Registration No. 33-63097)
4.8 Form of Subordinated Medium-Term Note (Fixed Rate), incorporated herein
by reference to Exhibit 4.7 of the Registrant's Registration Statement
on Form S-3 (Registration No. 33-63097)
4.9 Form of Subordinated Medium-Term Note (Floating Rate), incorporated
herein by reference to Exhibit 4.8 of the Registrant's Registration
Statement on Form S-3 (Registration No. 33-63097)
4.10 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)
4.11 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)
4.12 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 March 31, 1996 (File No. 1-6523)
12.2 Calculation of Ratios of Earnings to Fixed Charges and Preferred
Dividends, incorporated herein by reference to Exhibit 12(b) to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended March
31, 1996 (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, incorporated
herein by reference to Exhibit 99.1 of the Registrant's Registration
Statement on Form S-3 (Registration No. 33-63097)
</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, as amended (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 statement, including the exhibits thereto,
as amended at the
<PAGE>
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 be stated therein or necessary in order to
make the statements therein, in light of the circumstances under
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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 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
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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 may be deposited with The
Depository Trust Company ("DTC") or a custodian of 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) 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
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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, except with
respect to any such delivery requirement imposed upon an affiliate of
the Company in connection with any secondary market sales, 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
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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; provided, however, the Company may, at any time, offer
or sell or announce the offering of any securities (A) covered by a
registration statement on Form S-8 or (B) covered by a registration
statement on Form S-3 and pursuant to which the Company issues
securities for its Dividend Reinvestment Plan.
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:
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(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 (South) and NationsBank of Texas,
National Association (or the successors to such entities)
(collectively, the "Principal Banking 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
Principal Banking 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
Principal Banking Subsidiary have been duly and validly
authorized and issued and are fully paid and (except as
provided in 12 U.S.C. ss. 55, as amended) nonassessable, and,
except as otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of the Principal Banking
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 by the Company, has been duly
qualified under the Trust Indenture Act, and
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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
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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of the Act and the Exchange Act and the respective
rules thereunder;
(ix) such counsel has 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 each constitutes a legal, valid and binding agreement of
the Company 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 on behalf
of the Company 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 or insurance 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 material indenture
or other agreement or instrument known to
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such counsel and to which the Company or any of the Principal
Banking Subsidiaries is a party or bound, or any order or
regulation known to such counsel to be applicable to the
Company or any of the Principal Banking 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, but without opining in
connection therewith such counsel shall also state
that although it has not independently verified, is
not passing upon and assumes 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 contained any untrue
statement of a 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.
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
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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 Registration
Statement and Final 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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(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
Final 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 Final 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 Final 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 Final 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 Final 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
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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
Final 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 as originally filed or in any amendment thereof, 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, 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 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
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by or on behalf of any Underwriter through the Representatives specifically for
use in connection with the preparation thereof, or arises out of or is based
upon statements in or omissions from 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, 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 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 language on the cover page required by Item
509 of Regulation S-K 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
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<PAGE>
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 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
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<PAGE>
underwriters relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount applicable to the Securities
purchased by such Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of the Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to clause (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
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<PAGE>
liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in 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., 214 North Church 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
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<PAGE>
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.
<PAGE>
SCHEDULE I
Underwriting Agreement dated ___________, 199_
Registration Statement No. 333-
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
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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"), $ 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
Underwriting Agreement referred to in the Final Prospectus mentioned above.
Promptly after completion of such sale to the Underwriters, the Company will
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<PAGE>
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(c) 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 includes
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 file number of which is set forth in
Schedule I hereto),
<PAGE>
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 any such time, and the Final Prospectus, as
amended or supplemented as of any such time, will comply in all
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<PAGE>
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 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. Initial
Shares to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Initial 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
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<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 option is
exercised shall be purchased by the Underwriters
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<PAGE>
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
"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 may be deposited with The
Depository Trust Company ("DTC") or custodian for 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
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<PAGE>
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 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, except with
respect to any such delivery requirement imposed upon an affiliate of
the Company in connection with any secondary market sales, 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
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<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
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; provided, however, the Company may, at any time, offer
or sell or announce the offering of any securities (A) covered by a
registration statement on Form S-8 or (B) covered by a registration
statement on Form S-3 and pursuant to which the Company issues
securities for its Dividend Reinvestment Plan.
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
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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 (South) and NationsBank of Texas,
National Association (or the successors to such entities)
(collectively, the "Principal Banking 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
Principal Banking 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
Principal Banking Subsidiary have been duly and validly
authorized and issued and are fully paid and (except as
provided in 12 U.S.C. ss. 55, as amended) nonassessable, and,
except as otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of the Principal Banking
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
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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 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;
(viii) this 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
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<PAGE>
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 on behalf
of the Company 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 or insurance 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 material indenture
or other agreement or instrument known to such counsel and to
which the Company or any of the Principal Banking Subsidiaries
is a party or bound, or any order or regulation known to such
counsel to be applicable to the Company or any of the
Principal Banking 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) the Securities have been duly authorized and, when
paid for as contemplated herein, will be duly issued, fully
paid and nonassessable.
In rendering such opinion, but without opining in
connection therewith such counsel shall also state
that although it has not independently verified, is
not passing upon and assumes 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 contained any untrue
statement of a 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.
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
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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 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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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 Final 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
Final 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 Final 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;
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<PAGE>
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 Final 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 Final 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 Final 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
Final 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.
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<PAGE>
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 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
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<PAGE>
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, 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(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
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<PAGE>
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 J. 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)(v) shall be a date not more than five days prior
to the Date of Delivery;
(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; and
(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
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<PAGE>
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.
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 as
originally filed or in any amendment thereof, 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, 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 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, or arises out of or is based upon
statements in or omissions from 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, 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
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<PAGE>
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 languare on the cover page required by Item
509 of Regulation S-K 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
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<PAGE>
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 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
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<PAGE>
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
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
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<PAGE>
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 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., 214 North Church 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.
- 21 -
<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.
- 22 -
<PAGE>
SCHEDULE I
Underwriting Agreement dated ___________, 199_
Registration Statement No. 333-
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
<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
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
<PAGE>
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)
- 2 -
<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 Underwriting 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 Underwriting 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.
<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.
-2-
<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 at
the date of this Agreement, meets the requirements set
<PAGE>
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 Act, and the
Exchange Act and the respective rules thereunder, (ii) the Registration
Statement, as amended as
- 2 -
<PAGE>
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 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
- 3 -
<PAGE>
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 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.
- 4 -
<PAGE>
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 may be deposited with The Depository Trust Company
("DTC") or a custodian for 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 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 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
- 5 -
<PAGE>
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, except with respect to any
such delivery requirement imposed upon an affiliate of the Company in
connection with any secondary market sales, 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.
- 6 -
<PAGE>
(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; provided, however, the Company may, at any time, offer
or sell or announce the offering of any securities (A) covered by a
registration statement on Form S-8 or (B) covered by a registration
statement on Form S-3 and pursuant to which the Company issues
securities for its Dividend Reinvestment Plan.
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 (South) and NationsBank of Texas,
National Association (or the successors to such entities)
(collectively, the "Principal Banking 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
Principal Banking 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
Principal Banking Subsidiary have been duly and validly
authorized and issued and are fully paid and (except as
provided in 12 U.S.C. ss. 55, as amended) nonassessable, and,
except as otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of the Principal Banking
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;
(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
- 8 -
<PAGE>
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;
(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 agreement of the Company 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
- 9 -
<PAGE>
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 on behalf of
the Company 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 or insurance 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 material indenture
or other agreement or instrument known to such counsel and to
which the Company or any of the Principal Banking Subsidiaries
is a party or bound, or any order or regulation known to such
counsel to be applicable to the Company or any of the
Principal Banking 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) the 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, but without opining in
connection therewith such counsel shall also state
that although it has not independently verified, is
not passing upon and assumes 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 contained any untrue
statement of a 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.
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 more of the Representatives),
dated as of the Closing Date,
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<PAGE>
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 Final 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
Final 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 Final 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:
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<PAGE>
(1) the unaudited condensed consolidated interim
financial statements, included or incorporated by reference in
the Registration Statement and Final 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 Final 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 Final 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 Final 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
Final 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
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<PAGE>
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 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 J. 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)(v) shall be a date not more than five days prior
to the Date of Delivery;
(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 Shares as contemplated by the Registration
Statement and the Final Prospectus; and
(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
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<PAGE>
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.
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 as
originally filed or in any amendment thereof, 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, 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 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, or arises out of or is based upon statements in or omissions from 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, 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
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<PAGE>
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 language on the cover page required by Item
509 of Regulation S-K 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
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<PAGE>
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 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
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<PAGE>
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 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.
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<PAGE>
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 Shares. The provisions of
Section 6 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., 214 North Church 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.
<PAGE>
SCHEDULE I
Underwriting Agreement dated ___________, 199_
Registration Statement No. 333-
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
-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 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 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
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<PAGE>
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)
-4-
<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 Underwriting 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 Underwriting 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.
<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.
-2-
<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 1(f) of this Agreement.
Dear Sirs:
NationsBank Corporation, a North Carolina corporation (the
"Corporation"), has authorized and proposes to issue and sell from time to time
in the manner contemplated by this Agreement 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 First Trust of New York, N.A. (the "Senior
Trustee"), as successor trustee to BankAmerica National Trust Company (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."
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, depositary 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) and the
prospectus relating to the offer and sale of the Corporation's debt securities
constituting a part thereof, as supplemented by a prospectus supplement dated on
or about the date hereof 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
<PAGE>
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) or Rule 434 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.
The Corporation confirms its agreement with each of you (individually,
an "Agent" and collectively, the "Agents") with respect to the issue and sale
from time to time by the Corporation of the Notes as follows:
SECTION 1. Appointment of Agents.
(a) Appointment. Subject to the terms and conditions stated herein, the
Corporation hereby appoints each of you as Agent in connection with the offer
and sale of the Notes. Notwithstanding the foregoing or any other provision
herein to the contrary, the Corporation reserves the right to sell Notes, at any
time, on its own behalf to any unsolicited purchaser, whether directly to such
purchaser or through an agent for such purchaser. Upon the sale of any Notes to
an unsolicited purchaser, no Agent named herein shall be entitled to any
commission pursuant to this Agreement.
(b) Solicitations as Agent. Subject to the terms and conditions set
forth herein, each Agent agrees, as agent of the Company, to use its reasonable
best efforts when requested by the Company to solicit offers to purchase the
Notes upon the terms and conditions set forth in the Prospectus and the
administrative procedures with respect to the sale of Notes as may be agreed
upon from time to time between 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. Notwithstanding
any provision herein to the contrary, 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 of the Notes until such time as the
Corporation has advised the Agents that such solicitation may be resumed.
Each 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 persons
solicited by the Agent, as a whole or in part, and any such rejection shall not
be deemed
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<PAGE>
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.
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.
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 such Agent and set forth in a pricing supplement to the
Prospectus (a "Pricing Supplement") to be prepared following each acceptance by
the Corporation of an offer for the purchase of Notes.
Such 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 gross 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.
(c) Commissions. 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 and disclosed in a Pricing Supplement,
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.
(d) 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 expressly agree from time to time that such Agent shall purchase
Notes as principal. In the event that an Agent and the Corporation shall
expressly so agree, Notes shall be purchased by such Agent as principal. Unless
otherwise agreed between the Corporation and the Agent and disclosed in a
Pricing Supplement, each Note sold to an Agent as principal shall be purchased
by such Agent at a price equal to 100% of the principal amount thereof less a
discount equivalent to the applicable commissions set forth in Exhibit C hereto
and may be resold by such Agent at prevailing market prices at the time or times
of resale as determined by such Agent. Such purchases as principal shall
otherwise 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
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<PAGE>
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 set forth herein,
including Section 10(b) hereof.
(e) Sub-Agents. An Agent may engage the services of any other broker or
dealer in connection with the resale of any Notes purchased as principal but no
Agent may appoint sub-agents. In connection with sales by an Agent of Notes
purchased by such Agent as principal to other brokers or dealers, such Agent may
allow any portion of the discount received in connection with such purchases
from the Corporation to such brokers and dealers.
(f) Appointment of Additional Agents. Notwithstanding any provision
herein to the contrary, the Corporation reserves the right to appoint additional
agents for the offer and sale of Notes, which agency may be on an on-going basis
or on a one-time basis. Any such additional agent 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, at such Agent's
request, copies of the documents delivered to other Agents under Sections 4(a),
4(b) and 4(c) and, if such appointment is on an on-going basis, Sections 6(b),
6(c) and 6(d) hereof.
(g) 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 or provided in the Procedures.
(h) 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.
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
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<PAGE>
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 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 and regulations 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.
5
<PAGE>
(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 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. 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
6
<PAGE>
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 as to which the Agents or their counsel 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 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 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
7
<PAGE>
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 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 Qualification. 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;
8
<PAGE>
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, 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 4. 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:
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(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 (A) NationsBank, National Association, (B)
NationsBank, National Association (South), and (C) NationsBank
of Texas, National Association (or the successors to such
entities) (collectively, the "Subsidiaries"), is a national
banking association formed under the laws of 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. ss.
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. ss. 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 by the Corporation, has been duly
qualified under the 1939 Act, as applicable, and constitutes a
legal, valid and binding
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instrument of the Corporation 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 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. ss. 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.
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(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 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 on behalf of the Corporation 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.
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(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 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
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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:
(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;
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(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 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 4 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
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covenant regarding provision of an earnings statement set forth in Section 3(h)
hereof, the provisions concerning payment of expenses under Section 8 hereof,
the indemnity and contribution agreements set forth in Section 7 hereof, the
provisions concerning the representations, warranties and agreements to survive
delivery set forth in Section 9 hereof and the provisions regarding parties set
forth under Section 13 hereof shall remain in effect.
SECTION 5. 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 6. 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
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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 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 4(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
4(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 4(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
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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, 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 4(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 4(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 7. 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
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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 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, or arises out of or is based upon statements in or
omissions from 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, 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 written 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.
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(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 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 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 7 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
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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
misrepresentation. For purposes of this Section 7, 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 8. 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;
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(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 Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the Notes;
(h) The preparation, printing, reproduction 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 9. 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 10. 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
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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 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 10, 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 Section 1(c) hereof, (ii) if at the time of
termination (a) any Agent shall own any Notes purchased by it as
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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 3 and 6 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 3(h) hereof, the provisions of Section 8
hereof, the indemnity and contribution agreements set forth in Section 7 hereof,
and the provisions of Sections 9, 12 and 13 hereof shall remain in effect.
SECTION 11. 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.
214 North Church Street
Charlotte, North Carolina 28202
Attention: Boyd C. Campbell, Jr.
Telecopy: (704) 334-8467
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 11.
SECTION 12. Governing Law; Counterparts.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the
24
<PAGE>
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 13. 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 7 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 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]
25
<PAGE>
[Signature Page for Agents]
26
<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]
27
<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:
28
<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:
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
<S> <C>
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
</TABLE>
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.
29
<PAGE>
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 _____________, 1996 (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 on or before 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:__________________
30
<PAGE>
SUCCESSOR TRUSTEE AGREEMENT
THIS AGREEMENT is made effective December 15, 1995 by and between
NATIONSBANK CORPORATION, a North Carolina corporation (the "Company") and FIRST
TRUST OF NEW YORK, NATIONAL ASSOCIATION, a national banking association ("First
Trust");
W I T N E S S E T H:
WHEREAS, the Company is the issuer of Senior Debt Securities issued or to
be issued pursuant to the terms of (i) an Indenture dated as of October 1, 1986
between the Company and BANKAMERICA NATIONAL TRUST COMPANY ("BankAmerica"), as
successor trustee to Security Pacific National Trust Company (New York) (the
"1986 Indenture"); (ii) an Indenture dated as of January 1, 1992 between the
Company and BankAmerica, as successor trustee to BankAmerica Trust Company of
New York, as amended (the "1992 Indenture"); and (iii) an Indenture dated as of
January 1, 1995 between the Company and BankAmerica (the "Current Senior
Indenture") and with the 1986 Indenture and the 1992 Indenture, the
"Indentures");
WHEREAS, effective December 15, 1995, BankAmerica transferred and assigned
to First Trust all of its rights and duties under the Indentures; and
WHEREAS, the Company and First Trust intend for this agreement to document
the role of First Trust under the Indentures;
NOW, THEREFORE, in consideration of the premises and the covenants of the
parties contained herein, the parties hereto agree as follows:
1. Confirmation. First Trust hereby confirms that:
a. Under the terms of a Purchase and Assumption Agreement dated
August 21, 1995 and related Instrument of Transfer and Assignment
of New York Appointments, it has succeeded to substantially all
of the corporate trust business of BankAmerica; and
b. It meets the standards of qualification and
eligibility set forth in Article Seven of each of
the Indentures;
c. It accepts its designation as successor Trustee
under the Indentures and agrees to perform the
duties of Trustee thereunder.
2. Acceptance by Company. The Company hereby affirms its
acceptance of First Trust as successor Trustee under
the terms of the Indentures.
<PAGE>
3. Ratification of Indentures. The parties hereto ratify
and confirm the terms of the Indentures with First
Trust as successor Trustee thereunder.
IN WITNESS WHEREOF, the Company and First Trust have each caused this
agreement to be executed in its respective name by its duly authorized officers,
effective the date set forth above.
NATIONSBANK CORPORATION
ATTEST: By:-s- JOHN E. MACK
Senior Vice President
and Treasurer
- -s- ALLISON GILLIAM
Assistant Secretary
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
ATTEST: By:-s- GEOVANNI BARRIS
Assistant Vice President
- -s- KENNETH RACIOPPO
Assistant Secretary
2
<PAGE>
SMITH HELMS MULLISS & MOORE, L.L.P.
Attorneys at Law
214 North Church Street
Charlotte, North Carolina 28202
Telephone (704) 343-2098
June 28, 1996
NationsBank Corporation
NationsBank Corporate Center
Charlotte, North Carolina 28255
Re: Registration Statement on Form S-3 filed on June 28, 1996
with respect to an Aggregate of $3,000,000,000 of Debt
Securities, Preferred Stock, Depositary Shares 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,
<PAGE>
the applicable Prospectus and the applicable supplement(s) 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.
In rendering this opinion, we are not expressing an opinion as to the laws
of any jurisdiction other than the State of North Carolina and the United States
of America, and we assume no responsibility as to the applicability of any other
jurisdiction to the subject matter hereof or to the effects of such laws
thereon.
This opinion is rendered to you and for your benefit solely in connection
with the registration of the Securities. This opinion may not be relied on by
you for any other purpose and may not be relied upon by, nor may copies thereof
be provided to, any other person, firm, corporation or entity for any purposes
whatsoever without our prior written consent. 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. Unless the prior written
consent of our firm is obtained, this opinion is not to be quoted or otherwise
referred to in any written report, proxy statement or other registration
statement, nor is it to be filed with or furnished to any other governmental
agency or other person, except as otherwise required by law.
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 12, 1996, which appears on page 46 of
the 1995 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, 1995. We also consent to the reference to
us under the heading "EXPERTS" in such Prospectus.
PRICE WATERHOUSE, LLP
Charlotte, North Carolina
June 28, 1996
<PAGE>
<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 June 26,
1996, 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 OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
Dated: June 26, 1996
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<C> <S> <C>
/s/ HUGH L. MCCOLL, JR. Chairman of the Board, Chief Executive Officer and June 26, 1996
Director (Principal Executive Officer)
(HUGH L. MCCOLL, JR.)
/s/ JAMES H. HANCE, JR. Vice Chairman and Chief Financial Officer June 26, 1996
(Principal Financial Officer)
(JAMES H. HANCE, JR.)
/s/ MARC D. OKEN Executive Vice President and Chief June 26, 1996
Accounting Officer (Principal
(MARC D. OKEN) Accounting Officer)
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<C> <S> <C>
/s/ RONALD W. ALLEN Director June 26, 1996
(RONALD W. ALLEN)
/s/ WILLIAM M. BARNHARDT Director June 26, 1996
(WILLIAM M. BARNHARDT)
/s/ THOMAS E. CAPPS Director June 26, 1996
(THOMAS E. CAPPS)
/s/ CHARLES W. COKER Director June 26, 1996
(CHARLES W. COKER)
/s/ THOMAS G. COUSINS Director June 26, 1996
(THOMAS G. COUSINS)
/s/ ALAN T. DICKSON Director June 26, 1996
(ALAN T. DICKSON)
/s/ W. FRANK DOWD, JR. Director June 26, 1996
(W. FRANK DOWD, JR.)
/s/ PAUL FULTON Director June 26, 1996
(PAUL FULTON)
/s/ TIMOTHY L. GUZZLE Director June 26, 1996
(TIMOTHY L. GUZZLE)
/s/ W. W. JOHNSON Director June 26, 1996
(W. W. JOHNSON)
/s/ JOHN J. MURPHY Director June 26, 1996
(JOHN J. MURPHY)
/s/ JOHN C. SLANE Director June 26, 1996
(JOHN C. SLANE)
/s/ JOHN W. SNOW Director June 26, 1996
(JOHN W. SNOW)
/s/ MEREDITH R. SPANGLER Director June 26, 1996
(MEREDITH R. SPANGLER)
/s/ ROBERT H. SPILMAN Director June 26, 1996
(ROBERT H. SPILMAN)
/s/ RONALD TOWNSEND Director June 26, 1996
(RONALD TOWNSEND)
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<C> <S> <C>
/s/ E. CRAIG WALL, JR. Director June 26, 1996
(E. CRAIG WALL, JR.)
/s/ JACKIE M. WARD Director June 26, 1996
(JACKIE M. WARD)
/s/ VIRGIL R. WILLIAMS Director June 26, 1996
(VIRGIL R. WILLIAMS)
</TABLE>
<PAGE>
RESOLUTIONS OF
THE BOARD OF DIRECTORS OF
NATIONSBANK CORPORATION
June 26, 1996
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 June 26, 1996, at
which meeting a quorum was present and acting throughout and that said
resolutions are in full force and effect and have 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 26th day of June, 1996.
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)_____
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION (Exact name of trustee as
specified in its charter)
13-3781471
(I.R.S. Employer Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
For information, contact:
Dennis Calabrese, President
First Trust of New York, National Association
100 Wall Street, 16th Floor
New York, NY 10005
(212) 361-2502
NATIONSBANK CORPORATION
(Exact name 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 28255
Charlotte, North Carolina (Zip Code)
(Address of principal executive offices)
Debt Securities
(Title of the indenture securities)
<PAGE>
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.
Name Address
Comptroller of the Currency Washington D.C.
(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.
None
Item 16. List of Exhibits
Exhibit 1 Articles of Association of First Trust of
New York, National Association, incorporated
herein by reference to Exhibit 1 of Form
T-1, Registration No. 33-83774.
Exhibit 2 Certificate of Authority to Commence
Business for First Trust of New York,
National Association, incorporated herein by
reference to Exhibit 2 of Form T-1,
Registration No. 33-83774.
Exhibit 3 Authorization of the Trustee to exercise
corporate trust powers for First Trust of
New York, National Association, incorporated
herein by reference to Exhibit 3 of Form
T-1, Registration No. 33-83774.
Exhibit 4 By-Laws of First Trust of New York,
National Association, Incorporated herein by
reference to Exhibit 4 of Form T-1,
Registration No. 33-55851.
Exhibit 5 Not applicable.
Exhibit 6 Consent of First Trust of New York,
National Association, required by Section
321(b) of the Act, incorporated herein by
reference to Exhibit 6 of Form T-1,
Registration No. 33-83774.
Exhibit 7 Report of Condition of First Trust of New
York, National Association, as of the close
of business on March 31, 1996, published
pursuant to law or the requirements of its
supervising or examining authority.
-2-
<PAGE>
Exhibit 8 Not applicable.
Exhibit 9 Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Trust of New York, National Association, 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 28th day of June, 1996.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
By
Geovanni Barris
Assistant Vice President
-3-
<PAGE>
Exhibit 7
First Trust of New York, N.A.
Statement of Financial Condition
As of 3/31/96
($000's)
<TABLE>
<CAPTION>
Assets 3/31/96
<S> <C>
Cash and Due From Depository Institutions $23,596
Federal Reserve Stock 3,600
Fixed Assets 764
Intangible Assets 84,233
Other Assets 9,068
Total Assets $121,261
Liabilities
Other Liabilities 2,553
Total Liabilities 2,553
Equity
Common and Preferred Stock 1,000
Surplus 120,932
Undivided Profits (3,224)
Total Liabilities and Equity Capital $121,261
</TABLE>
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
First Trust of New York, N.A.
By:
Geovanni Barris
Assistant Vice President
Date: June 28, 1996
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2) (3)___(3)
------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
13-5160382
(I.R.S. employer identification no.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip Code)
-------------------
The Bank of New York
10161 Centurion Parkway
Towermarc Plaza, 2nd Floor
Jacksonville, Florida 32256
Attn: Ms. Sandra Carreker
(904) 998-4716
(Name, address and telephone number of agent for service)
--------------------
NATIONSBANK CORPORATION
(Exact name of obligor as specified in its charter)
North Carolina 56-0906609
State or other jurisdiction of (IRS 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--
Name and address of each examining or supervising authority to which
it is subject.
Superintendent of Banks of the State of New York
2 Rector Street
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, N.Y.
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 4.)
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 commence business and a
<PAGE>
grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment 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.)
(6) The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6
to Form T-1 filed with Registration No. 33-44051.)
(7) A copy of the latest report of condition of the Trustee published pursuant
to law or 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.
<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 Jacksonville and the
State of Florida, on the 28th day of June, 1996.
THE BANK OF NEW YORK
By: /s/ Sandra Carreker
Sandra Carreker, Agent
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EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, in connection with the proposed issuance of NationsBank Corporation.
Subordinated Debt Securities, The Bank of New York hereby consents that reports
of examinations by Federal, State, Territorial or District Authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
THE BANK OF NEW YORK
By: /s/ Sandra Carreker
Sandra Carreker, Agent
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EXHIBIT 7 TO FORM T-1
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 March 31, 1996 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
in Thousands
ASSETS
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin $ 2,461,550
Interest-bearing balances 835.563
Securities:
Held-to-maturity securities 802,064
Available-for-sale securities 2,051,263
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold 3,885,475
Securities purchased under
agreements to resell
Loans and lease financing receivables:
Loans and leases,
net of unearned income . . . . 27,820,159
LESS: Allowance for loan and
lease losses . . . . . . . . . 509,817
LESS: Allocated transfer
risk reserve . . . . . . . . . 1,000
Loans and leases, net of unearned
income and allowance and reserve 27,309,342
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Assets held in trading accounts 837,118
Premises and fixed assets (including
capitalized leases) 614,567
Other real estate owned 51,631
Investments in unconsolidated
subsidiaries and associated
companies 225,158
Customers' liability to this bank
on acceptances outstanding 800,375
Intangible assets 436,668
Other assets 1,247,908
Total assets $41,558,682
LIABILITIES
Deposits:
In domestic offices $18,851,327
Noninterest-bearing 7,102,645
Interest-bearing 11,748,682
In foreign offices, Edge and
Agreement subsidiaries, and IBFs 10,965,604
Noninterest-bearing 37,855
Interest-bearing 10,927,749
Federal funds purchased and securities
sold under agreements to repurchase in
domestic offices of the bank and of its
Edge and Agreement subsidiaries,
and in IBFs: Federal funds purchased 1,224,886
Securities sold under
agreements
to repurchase 29,728
Demand notes issued to the
U.S. Treasury 118,870
Trading liabilities 673,944
Other borrowed money:
With original maturity of one year
or less 2,713,248
With original maturity of more
than one year 20,780
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Bank's liability on acceptances
executed and outstanding 803,292
Subordinated notes and debentures 1,022,860
Other liabilities 1,590,564
Total liabilities 38,015,103
EQUITY CAPITAL
Common stock 942,284
Surplus 525,666
Undivided profits and capital
reserves 2,078,197
Net unrealized holding gains (losses)
on available-for-sale securities 3,197
Cumulative foreign currency
translation adjustments (5,765)
Total equity capital 3,543,579
Total liabilities and equity capital $41,558,682
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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
Alan R. Griffith )
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