<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 1, 1996
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
<TABLE>
<S> <C>
NATIONSBANK CORPORATION NB CAPITAL TRUST I
(Exact name of registrant as specified in charter) (Exact name of registrant as specified in charter)
NORTH CAROLINA DELAWARE
(State or other jurisdiction or organization) (State or other jurisdiction or organization)
56-0906609 [TO BE APPLIED FOR]
(I.R.S. employer identification number) (I.R.S. employer identification number)
NB CAPITAL TRUST II NB CAPITAL TRUST III
(Exact name of registrant as specified in charter) (Exact name of registrant as specified in charter)
DELAWARE DELAWARE
(State or other jurisdiction or organization) (State or other jurisdiction or organization)
[TO BE APPLIED FOR] [TO BE APPLIED FOR]
(I.R.S. employer identification number) (I.R.S. employer identification number)
</TABLE>
NATIONSBANK CORPORATION, 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:
<TABLE>
<S> <C>
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
</TABLE>
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]
<TABLE>
<S> <C> <C> <C>
TITLE OF EACH PROPOSED MAXIMUM PROPOSED MAXIMUM
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE
TO BE REGISTERED REGISTERED (1) PER UNIT (1)(2)(3) OFFERING PRICE (2)(3)
<S> <C> <C> <C>
Junior Subordinated Debt Securities
of NationsBank Corporation (4) $1,000,000
Preferred Securities of NB Capital
Trust I, II and III $1,000,000
Guarantees of Preferred Securities
of NB Capital Trust I, NB Capital
Trust II and NB Capital Trust III
and certain
back-up undertakings (5) NA NA NA
Total $1,000,000 100% $1,000,000
<CAPTION>
TITLE OF EACH
CLASS OF SECURITIES AMOUNT OF
TO BE REGISTERED REGISTRATION FEE
<S> <C>
Junior Subordinated Debt Securities
of NationsBank Corporation (4) $303
Preferred Securities of NB Capital
Trust I, II and III NA
Guarantees of Preferred Securities
of NB Capital Trust I, NB Capital
Trust II and NB Capital Trust III
and certain
back-up undertakings (5) NA
Total $303.
</TABLE>
(1) Such indeterminate number of Preferred Securities of NB Capital Trust I, NB
Capital Trust II and NB Capital Trust III and such indeterminate principal
amount of Junior Subordinated Debt Securities of NationsBank Corporation as
may from time to time be issued at indeterminate prices.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457. The aggregate public offering price of the Preferred
Securities of NB Capital Trust I, NB Capital Trust II and NB Capital Trust
III and the Junior Subordinated Debt Securities of NationsBank Corporation
registered hereby will not exceed $1,000,000.
(3) Exclusive of accrued interest and distributions, if any.
(4) The Junior Subordinated Debt Securities of NationsBank Corporation will be
purchased by NB Capital Trust I, NB Capital Trust II and NB Capital Trust
III with the proceeds of the sale of the Preferred Securities.
(5) No separate consideration will be received for any Guarantees. The
Guarantees include the rights of holders of the Preferred Securities under
the Guarantees and certain back-up undertakings, comprised of obligations of
NationsBank Corporation under the Indenture and any supplemental indenture
thereto and pursuant to Declarations of Trust to provide certain indemnities
in respect of, and be responsible for certain costs, expenses, debts and
liabilities of each of NB Capital Trust I, NB Capital Trust II and NB
Capital Trust III, each as described in the Registration Statement. All
obligations under the Declarations of Trust, including the indemnity
obligation, are included in the back-up undertakings.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
<PAGE>
PROSPECTUS
$1,000,000
NATIONSBANK(Register mark)
JUNIOR SUBORDINATED DEBT SECURITIES
NB CAPITAL TRUST I
NB CAPITAL TRUST II
NB CAPITAL TRUST III
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
NATIONSBANK CORPORATION
NationsBank Corporation ("NationsBank" or the "Corporation") may offer from
time to time its subordinated debentures, notes or other evidence of
indebtedness (the "Junior Subordinated Debt Securities") in one or more series
and in amounts, at prices and on terms to be determined at the time of the
offering. The Junior Subordinated Debt Securities when issued will be unsecured
obligations of the Corporation. The Corporation's obligations under the Junior
Subordinated Debt Securities will be subordinate and junior in right of payment
to other indebtedness of the Corporation, as may be described in an accompanying
Prospectus Supplement (the "Prospectus Supplement") and in an aggregate amount
to be set forth as of the most recent practicable date in such Prospectus
Supplement.
NB Capital Trust I, NB Capital Trust II and NB Capital Trust III (each, a
"NB Capital Trust"), each a statutory business trust formed under the laws of
the State of Delaware, may offer, from time to time, preferred securities,
representing undivided beneficial interests in the assets of the respective NB
Capital Trust ("Preferred Securities"). The payment of periodic cash
distributions ("distributions") with respect to Preferred Securities of each of
the NB Capital Trusts out of moneys held by each of the NB Capital Trusts, and
payment on liquidation, redemption or otherwise with respect to such Preferred
Securities, will be guaranteed by NationsBank to the extent described herein
(each a "Preferred Securities Guarantee"). See "Description of the Preferred
Securities Guarantees" below. The Corporation's obligations under the Preferred
Securities Guarantees are subordinate and junior in right of payment to all
other liabilities of the Corporation and rank pari passu with the most senior
preferred stock, if any, issued from time to time by the Corporation. Junior
Subordinated Debt Securities may be issued and sold from time to time in one or
more series to a NB Capital Trust, or a trustee of such NB Capital Trust, in
connection with the investment of the proceeds from the offering of Preferred
Securities and Common Securities (as defined herein, together the "Trust
Securities") of such NB Capital Trust. The Junior Subordinated Debt Securities
purchased by a NB Capital Trust may be subsequently distributed pro rata to
holders of Preferred Securities and Common Securities in connection with the
dissolution of such NB Capital Trust upon the occurrence of certain events as
may be described in an accompanying Prospectus Supplement. The Junior
Subordinated Debt Securities and the Preferred Securities and the related
Preferred Securities Guarantees are sometimes collectively referred to hereafter
as the "Offered Securities."
Specific terms of the Junior Subordinated Debt Securities of any series or
the Preferred Securities of any NB Capital Trust, the terms of which will mirror
the terms of the Junior Subordinated Debt Securities held by any NB Capital
Trust, in respect of which this prospectus (the "Prospectus") is being delivered
will be set forth in a Prospectus Supplement with respect to such securities,
which will describe, without limitation and where applicable, the following: (i)
in the case of Junior Subordinated Debt Securities, the specific designation,
aggregate principal amount, denomination, maturity, premium, if any, any
exchange, conversion, redemption or sinking fund provisions, if any, interest
rate (which may be fixed or variable), if any, the time and method of
<PAGE>
calculating interest payments, if any, dates on which premium, if any, and
interest, if any, will be payable, the right of NationsBank, if any, to defer
payment of interest on the Junior Subordinated Debt Securities and the maximum
length of such deferral period, the initial public offering price, subordination
terms, and any listing on a securities exchange and other specific terms of the
offering; and (ii) in the case of Preferred Securities, the designation, number
of securities, liquidation preference per security, initial public offering
price, any listing on a securities exchange, distribution rate (or method of
calculation thereof), dates on which distributions shall be payable and dates
from which distributions shall accrue, any voting rights, terms for any
conversion or exchange into other securities, any redemption, exchange or
sinking fund provisions, any other rights, preferences, privileges, limitations
or restrictions relating to the Preferred Securities and the terms upon which
the proceeds of the sale of the Preferred Securities shall be used to purchase a
specific series of Junior Subordinated Debt Securities of NationsBank.
The Offered Securities may be offered in amounts, at prices and on terms to
be determined at the time of offering; provided, however, that the aggregate
initial public offering price of all Offered Securities shall not exceed
$1,000,000. The Prospectus Supplement relating to any series of Offered
Securities will contain information concerning certain United States federal
income tax considerations, if applicable to the Offered Securities.
NationsBank and/or each of the NB Capital Trusts may sell the Offered
Securities directly, through agents designated from time to time, or through
underwriters or dealers. See "Plan of Distribution" below. If any agents of
NationsBank and/or any NB Capital Trust or any underwriters or dealers are
involved in the sale of the Offered Securities, the names of such agents,
underwriters or dealers and any applicable commissions and discounts will be set
forth in any related Prospectus Supplement.
This Prospectus may not be used to consummate sales of securities unless
accompanied by a Prospectus Supplement.
THE OFFERED SECURITIES ARE NOT SAVINGS ACCOUNTS OR BANK DEPOSITS, ARE NOT
OBLIGATIONS OF OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF
NATIONSBANK, (EXCEPT TO THE EXTENT THAT THE PREFERRED SECURITIES
ARE GUARANTEED BY NATIONSBANK AS DESCRIBED HEREIN) ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENT AGENCY AND INVOLVE INVESTMENT
RISKS, INCLUDING POSSIBLE LOSS OF PRINCIPAL.
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
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS OR ANY
ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY NATIONSBANK
CORPORATION, ANY OF THE NB CAPITAL TRUSTS OR THE UNDERWRITERS. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT NOR ANY
SALE MADE HEREUNDER AND THEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF NATIONSBANK
CORPORATION OR ANY OF THE NB CAPITAL TRUSTS SINCE THE DATE HEREOF. THIS
PROSPECTUS OR ANY
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<PAGE>
ACCOMPANYING PROSPECTUS SUPPLEMENT 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.
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 Reports on Form 10-Q for the quarters
ended March 31, 1996 and June 30, 1996;
(c) The Corporation's Current Reports on Form 8-K filed January 12,
1996, February 1, 1996, March 8, 1996, April 17, 1996, May 16, 1996, July
5, 1996, July 31, 1996, September 6, 1996 (as amended by Form 8-K/A-1 filed
September 11, 1996), September 20, 1996 (as amended by Form 8-K/A filed
September 23, 1996) and October 25, 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 Offered 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
This Prospectus constitutes a part of a combined Registration Statement on
Form S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") filed by NationsBank and the NB Capital Trusts with the Commission
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Offered Securities. This Prospectus does not contain all of the
information set forth in such Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission, although
it does include a summary of the material terms of the Indenture and the
Declarations (each as defined herein). Reference is made to such Registration
Statement and to the exhibits relating thereto for further information with
respect to the NationsBank, the NB Capital Trusts and the Offered Securities.
Any statements contained herein concerning the provisions of any document filed
as an exhibit to the Registration Statement or otherwise filed with the
Commission or incorporated by reference herein are not necessarily complete,
and, in each instance, reference is made to the copy of such document so filed
for a more complete description of the matter involved. Each such statement is
qualified in its entirety by such reference.
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<PAGE>
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. The Commission
maintains an Internet web site that contains reports, proxy and information
statements and other information regarding issuers who file electronically with
the Commission. The address of that site is http://www.sec.gov. 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.
No separate financial statements of any of the NB Capital Trusts have been
included herein. NationsBank does not consider that such financial statements
would be material to holders of the Preferred Securities because (i) all of the
voting securities of each of the NB Capital Trusts will be owned, directly or
indirectly, by NationsBank, a reporting company under the 1934 Act, (ii) each of
the NB Capital Trusts has no independent operations but exists for the sole
purpose of issuing securities representing undivided beneficial interests in the
assets of such NB Capital Trust and investing the proceeds thereof in Junior
Subordinated Debt Securities issued by NationsBank, and (iii) the Corporation's
obligations described herein and in any accompanying Prospectus Supplement to
provide certain indemnities in respect of and be responsible for certain costs,
expenses, debts and liabilities of each of the NB Capital Trusts under the
Indenture and any supplemental indenture thereto and pursuant to the
Declarations of each NB Capital Trust, the guarantee issued with respect to
Preferred Securities issued by that NB Capital Trust, the Junior Subordinated
Debt Securities purchased by that NB Capital Trust and the related Indenture,
taken together, constitute a full and unconditional guarantee of payments due on
the Preferred Securities. See "Description of the Junior Subordinated Debt
Securities" and "Description of the Preferred Securities Guarantees."
The NB Capital Trusts are not currently subject to the information
reporting requirements of the 1934 Act. The NB Capital Trusts will become
subject to such requirements upon the effectiveness of the Registration
Statement, although they intend to seek and expect to receive exemptions
therefrom.
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 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 June 30, 1996, the General Bank
operated 1,948 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);
4
<PAGE>
NationsBank of Kentucky, N.A.; NationsBank of Tennessee, N.A.; NationsBank of
Texas, N.A.; and Sun World, N.A. (serving the states of Texas and New Mexico).
The General Bank also provides fully automated, 24-hour cash dispensing and
depositing services throughout the states in which it is located, through 3,333
automated teller machines.
Global Finance provides comprehensive corporate and investment banking as
well as trading and distribution services to domestic and international
customers. The group serves as a principal lender and investor, as well as an
advisor, arranger and underwriter, and manages treasury and trade transactions
for clients and customers. Loan origination and syndication, asset-backed
lending, leasing, factoring, project finance and mergers and acquisitions are
representative of the services provided by the group. Global Finance also
underwrites, trades and distributes 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")), and trades and distributes a wide range of derivative products
in certain interest rate, foreign exchange, 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 includes NationsCredit Consumer Corporation, primarily a
consumer finance subsidiary, and NationsCredit Commercial Corporation, primarily
a commercial finance subsidiary. NationsCredit Consumer Corporation, which has
approximately 331 offices located in 36 states, provides personal, mortgage and
automobile loans to consumers and retail finance programs to dealers.
NationsCredit Commercial Corporation consists of seven 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 are subject to
regulation, supervision and examination by the Office of the Comptroller of the
Currency (the "Comptroller"). The Banks are also subject to regulation by the
Federal Deposit Insurance Corporation (the "FDIC") and other federal regulatory
agencies. In addition to banking laws, regulations and regulatory agencies,
NationsBank and its subsidiaries and affiliates are subject to various other
laws and regulations and supervision and examination by other regulatory
agencies, all of which directly or indirectly affect the Corporation's
operations, management and ability to make distributions. The following
discussion summarizes certain aspects of those laws and regulations that affect
NationsBank.
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
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<PAGE>
the bank holding company. Pursuant to the Riegle-Neal Interstate Banking and
Branching Efficiency Act of 1994 (the "Interstate Banking and Branching Act"), a
bank holding company became able to acquire banks in states other than its home
state beginning September 29, 1995, without regard to the permissibility of such
acquisition under state law, but 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 the laws of such state permit such DE NOVO branching. Of
those states in which the Banks are located, Delaware, Maryland, New Mexico,
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.
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. Tier 2
capital consists of subordinated and other qualifying debt, and the allowance
for credit losses up to 1.25% of risk-weighted assets. The sum of Tier 1 and
Tier 2 capital less investments in unconsolidated subsidiaries represents
qualifying total capital, at least 50% of which must consist of Tier 1 capital.
Risk-based capital ratios are calculated by dividing Tier 1 and total capital by
risk-weighted assets. Assets and off-balance sheet exposures are assigned to one
of four categories of risk-weights, based primarily on relative credit risk. The
minimum Tier 1 capital ratio is 4% and the minimum total capital ratio is 8%.
The Corporation's Tier 1 and total risk-based capital ratios under these
guidelines at June 30, 1996 were 7.58% and 11.93%, respectively.
The leverage ratio is determined by dividing Tier 1 capital by adjusted
average total assets. Although the stated minimum ratio is 3%, most banking
organizations are required to maintain ratios of at least 100 to 200 basis
points above 3%. The Corporation's leverage ratio at June 30, 1996 was 6.64%.
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
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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, as
of June 30, 1996, each of the Banks was considered well capitalized.
Banking agencies have recently adopted final regulations which mandate that
regulators take into consideration concentrations of credit risk and risks from
non-traditional activities, as well as an institution's ability to manage those
risks, when determining the adequacy of an institution's capital. This
evaluation will be made as a part of the institution's regular safety and
soundness examination. Banking agencies also have recently adopted final
regulations requiring regulators to consider interest rate risk (when the
interest rate sensitivity of an institution's assets does not match the
sensitivity of its liabilities or its off-balance-sheet position) in the
evaluation of a bank's capital adequacy. Concurrently, banking agencies have
proposed a methodology for evaluating interest rate risk. After gaining
experience with the proposed measurement process, these banking agencies intend
to propose further regulations to establish an explicit risk-based capital
charge for interest rate risk.
DISTRIBUTIONS. The Corporation's funds for cash distributions to its
shareholders are derived from a variety of sources, including cash and temporary
investments. The primary source of such funds, however, is dividends received
from 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. As of January 1, 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.
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.
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<PAGE>
THE TRUSTS
Each of the NB Capital Trusts is a statutory business trust formed under
Delaware law pursuant to (i) a separate declaration of trust executed by the
Corporation, as sponsor for such trust (the "Sponsor") and the NB Capital
Trustees (as defined herein) for such trust and (ii) the filing of a separate
certificate of trust with the Delaware Secretary of State. The declarations of
trust with respect to each of the NB Capital Trusts have identical terms (except
with respect to the name of the NB Capital Trust to which it relates) and each
is referred to as a "Declaration". Each NB Capital Trust exists for the
exclusive purposes of (i) issuing the Preferred Securities and common securities
representing undivided beneficial interests in the assets of such Trust (the
"Common Securities" and, together with the Preferred Securities, the "Trust
Securities"), (ii) investing the gross proceeds from the sale of the Trust
Securities in the purchase of Junior Subordinated Debt Securities, and (iii)
engaging in only those other activities necessary or incidental thereto. The
Common Securities will rank pari passu, and payments will be made thereon pro
rata, with the Preferred Securities except that upon an event of default under
the Declaration, the rights of the holders of the Common Securities to payment
in respect of distributions and payments upon liquidation, redemption and
otherwise will be subordinated to the rights of the holders of the Preferred
Securities. The Corporation will, directly or indirectly, purchase and own all
of the Common Securities of each NB Capital Trust, which will represent an
aggregate liquidation amount equal to approximately 3% of the total capital of
each NB Capital Trust. Each NB Capital Trust has a term of approximately 55
years, but may earlier terminate as provided in the Declaration. Each NB Capital
Trust's business and affairs will be conducted by the trustees (the "NB Capital
Trustees") appointed by the Corporation, as the direct or indirect holder of all
the Common Securities. The holder of the Common Securities will be entitled to
appoint, remove or replace any of, or increase or reduce the number of, the NB
Capital Trustees of a NB Capital Trust. The duties and obligations of the NB
Capital Trustees shall be governed by the Declaration of such NB Capital Trust.
A majority of the NB Capital Trustees (the "Regular Trustees") of each NB
Capital Trust will be persons who are employees or officers of or who are
otherwise affiliated with the Corporation. One NB Capital Trustee of each NB
Capital Trust will be a financial institution which will be unaffiliated with
the Corporation and which shall act as property trustee and as indenture trustee
for purposes of compliance with the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), pursuant to the terms set forth in a Prospectus
Supplement (the "Property Trustee"). The Property Trustee will hold title to the
Junior Subordinated Debt Securities for the benefit of the holders of the Trust
Securities and will have the power to exercise all rights, power and privileges
under the Indenture as the holder of the Junior Subordinated Debt Securities. In
addition, the Property Trustee will maintain exclusive control of a segregated
non-interest bearing bank account (the "Property Account") to hold all payments
made in respect of the Junior Subordinated Debt Securities for the benefit of
the holders of Trust Securities. The Property Trustee will make payments of
distributions and payments on liquidation, redemption or otherwise to the
holders of the Trust Securities out of funds from the Property Account. In
addition, unless the Property Trustee maintains a principal place of business in
the State of Delaware, and otherwise meets the requirements of applicable law,
one NB Capital Trustee of each NB Capital Trust will have its principal place of
business or reside in the State of Delaware (the "Delaware Trustee"). The
Corporation will pay all fees and expenses related to the NB Capital Trusts and
the offering of Trust Securities, the payment of which will be guaranteed by the
Corporation. The office of the Delaware Trustee for each NB Capital Trust in the
State of Delaware is The Bank of New York (Delaware), White Clay Center, Route
273, Newark, Delaware 19711. The principal place of business of each NB Capital
Trust shall be c/o NationsBank Corporation, Corporate Treasury Division,
NationsBank Corporate Center, Charlotte, North Carolina 28255.
USE OF PROCEEDS
Each NB Capital Trust will use the gross proceeds received from the sale of
the Preferred Securities to purchase Junior Subordinated Debt Securities from
NationsBank. NationsBank intends to add the net proceeds from the sale of the
Junior Subordinated Debt Securities to its general funds, to 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
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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 Junior Subordinated 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 and ratios of earnings to combined fixed charges and preferred
stock dividend requirements for the six months ended June 30, 1996 and for each
of the years in the five-year period ended December 31, 1995:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED YEAR ENDED
JUNE 30, 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......................................... 1.8 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
Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends:
Excluding interest on deposits......................................... 1.8 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
NationsBank may sell the Junior Subordinated Debt Securities and any NB
Capital Trust may sell Preferred Securities in any of, or any combination of,
the following ways: (i) directly to purchasers, (ii) through agents, (iii)
through underwriters, and (iv) through dealers.
Offers to purchase Offered Securities may be solicited directly by
NationsBank and/or any NB Capital Trust, as the case may be, or by agents
designated by NationsBank and/or any NB Capital Trust, as the case may be, from
time to time. Any such agent, who may be deemed to be an underwriter as that
term is defined in the Securities Act, involved in the offer or sale of the
Offered Securities in respect of which this Prospectus is delivered will be
named, and any commissions payable by NationsBank to such agent will be set
forth, in the Prospectus Supplement. Unless otherwise indicated in the
Prospectus Supplement, any such agency will be acting in a best efforts basis
for the period of its appointment (ordinarily five business days or less).
Agents, dealers and underwriters may be customers of, engage in transactions
with, or perform services for the Corporation in the ordinary course of
business.
If an underwriter or underwriters are utilized in the sale of the Offered
Securities, NationsBank and/or the NB Capital Trust as to which such Offered
Securities relate, will execute an underwriting agreement with such underwriters
at the time of sale to them and the names of the underwriters and the terms of
the transaction will be set forth in the Prospectus Supplement, which will be
used by the underwriters to make releases of the Offered Securities in respect
of which this Prospectus is delivered to the public.
If a dealer is utilized in the sale of the Offered Securities in respect of
which this Prospectus is delivered, NationsBank and/or any NB Capital Trust, as
the case may be, will sell such Offered Securities to the dealer, as principal.
The dealer may then resell such Offered Securities to the public at varying
prices to be determined by such dealer at the time of resale. The name of the
dealer and the terms of the transaction will be set forth in the Prospectus
Supplement.
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Agents, underwriters, and dealers may be entitled under the relevant
agreements to indemnification by NationsBank and/or any NB Capital Trust, as the
case may be, against certain liabilities, including liabilities under the
Securities Act.
The place and time of delivery for the Offered Securities in respect of
which this Prospectus is delivered are set forth in the accompanying Prospectus
Supplement.
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<PAGE>
DESCRIPTION OF THE SUBORDINATED DEBT SECURITIES
THE FOLLOWING DESCRIPTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES SETS
FORTH CERTAIN GENERAL TERMS AND PROVISIONS OF THE JUNIOR SUBORDINATED DEBT
SECURITIES TO WHICH ANY PROSPECTUS SUPPLEMENT MAY RELATE. THE PARTICULAR TERMS
OF THE JUNIOR SUBORDINATED DEBT SECURITIES OFFERED BY ANY PROSPECTUS SUPPLEMENT
AND THE EXTENT, IF ANY, TO WHICH SUCH GENERAL PROVISIONS MAY APPLY TO THE
SUBORDINATED DEBT SECURITIES SO OFFERED WILL BE DESCRIBED IN THE PROSPECTUS
SUPPLEMENT RELATING TO SUCH JUNIOR SUBORDINATED DEBT SECURITIES.
Junior Subordinated Debt Securities may be issued from time to time in one
or more series under an Indenture (the "Indenture"), between the Corporation and
The Bank of New York, as Trustee (in such capacity, the "Debt Trustee"). The
Indenture is incorporated by reference in the Registration Statement of which
this Prospectus forms a part. The terms of the Junior Subordinated Debt
Securities will include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act. The following summary of
certain provisions of the Indenture does not purport to be complete and is
subject in all respects to the provisions of, and is qualified in its entirety
by reference to, the Indenture, and the Trust Indenture Act. Unless otherwise
indicated, Section and Article references used herein are references to
provisions of the Indenture and capitalized terms shall have the meanings
ascribed to them in the Indenture.
GENERAL
The Junior Subordinated Debt Securities will be unsecured, subordinated
obligations of the Corporation. The Indenture does not limit the aggregate
principal amount of Junior Subordinated Debt Securities which may be issued
thereunder and provides that the Junior Subordinated Debt Securities may be
issued from time to time in one or more series. The Subordinated Debt Securities
are issuable in one or more series pursuant to an indenture supplemental to the
Indenture or a resolution of the Corporation's Board of Directors or a special
committee appointed thereby (each, a "Supplemental Indenture").
In the event Junior Subordinated Debt Securities are issued to a NB Capital
Trust or a trustee of such trust in connection with the issuance of Trust
Securities by such NB Capital Trust, such Junior Subordinated Debt Securities
subsequently may be distributed pro rata to the holders of such Trust Securities
in connection with the dissolution of such NB Capital Trust upon the occurrence
of certain events described in the Prospectus Supplement relating to such Trust
Securities. Only one series of Junior Subordinated Debt Securities will be
issued to a NB Capital Trust or a trustee of such trust in connection with the
issuance of Trust Securities by such NB Capital Trust.
Reference is made to the Prospectus Supplement relating to the particular
Junior Subordinated Debt Securities being offered thereby for the following
terms: (i) the designation of such Junior Subordinated Debt Securities; (ii) the
aggregate principal amount of such Junior Subordinated Debt Securities; (iii)
the percentage of their principal amount at which such Junior Subordinated Debt
Securities will be issued; (iv) the date or dates on which such Junior
Subordinated Debt Securities will mature and the right, if any, to extend such
date or dates; (v) the rate or rates, if any, per annum, at which such Junior
Subordinated Debt Securities will bear interest, or the method of determination
of such rate or rates; (vi) the date or dates from which such interest shall
accrue, the interest payment dates on which such interest will be payable or the
manner of determination of such interest payment dates and the record dates for
the determination of holders to whom interest is payable on any such interest
payment dates; (vii) the right to extend the interest payment periods and the
duration of such extension; (viii) provisions for a sinking purchase or other
analogous fund, if any; (ix) the period or periods, if any, within which, the
price or prices of which, and the terms and conditions upon which such
Subordinated Debt Securities may be redeemed, in whole or in part, at the option
of the Corporation or the holder; (x) the form of such Junior Subordinated Debt
Securities; and (xi) any other specific terms of the Junior Subordinated Debt
Securities. Principal, premium, if any, and interest, if any, will be payable,
and the Subordinated Debt Securities offered hereby will be transferable, at the
corporate trust office of the Debt Trustee in New York, New York, provided that
payment of interest, if any, may be made at the option of the Corporation by
check mailed to the address of the person entitled thereto as it appears in the
Security Register.
The ability of NationsBank to make payments of principal of (and premium,
if any, on) and any interest on the Junior Subordinated 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
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further, influenced by bank regulatory requirements and capital guidelines. See
"NATIONSBANK CORPORATION -- Supervision and Regulation."
FORM, EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise specified in the applicable Prospectus Supplement, the
Junior Subordinated Debt Securities will be issued in fully registered form
without coupons and in denominations of $1,000 and multiples of $1,000. No
service charge will be made for any transfer or exchange of the Subordinated
Debt Securities, but the Corporation or the Debt Trustee may require payment of
a sum sufficient to cover any tax or other government charge payable in
connection therewith.
Unless otherwise provided in the applicable Prospectus Supplement,
principal and premium, if any, or interest, if any, will be payable and the
Junior Subordinated Debt Securities may be surrendered for payment or
transferred at the offices of the Debt Trustee as paying and authenticating
agent, provided that payment of interest on registered securities may be made at
the option of the Corporation by check mailed to the address of the person
entitled thereto as it appears in the Security Register.
BOOK-ENTRY JUNIOR SUBORDINATED DEBT SECURITIES
The Junior Subordinated Debt Securities of a series may be issued in whole
or in part in the form of one or more Global Securities that will be deposited
with, or on behalf of, a depositary (the "Global Depositary"), or its nominee,
identified in the Prospectus Supplement relating to such series. In such a case,
one or more Global Securities will be issued in a denomination or aggregate
denomination equal to the portion of the aggregate principal amount of
Outstanding Junior Subordinated Debt Securities of the series to be represented
by such Global Security or Securities. Unless and until it is exchanged in whole
or in part for Junior Subordinated Debt Securities in definitive registered
form, a Global Security may not be registered for transfer or exchange except as
a whole by the Global Depositary for such Global Security to a nominee for such
Global Depositary and except in the circumstances described in the applicable
Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of Subordinated Debt Securities to be represented by a
Global Security and a description of the Global Depositary will be provided in
the applicable Prospectus Supplement.
SUBORDINATION
The Junior Subordinated Debt Securities will be subordinated and junior in
right of payment to other indebtedness of the Corporation to the extent set
forth in the applicable Prospectus Supplement.
CERTAIN COVENANTS OF THE CORPORATION
If Junior Subordinated Debt Securities are issued to a NB Capital Trust or
a trustee of such trust in connection with the issuance of Trust Securities by
such NB Capital Trust and there shall have occurred any event that would
constitute an Event of Default (as defined herein), then (a) the Corporation
shall not declare or pay any dividend on, make any distributions with respect
to, or redeem, purchase or make a liquidation payment with respect to, any of
its Common Stock (other than (i) purchases or acquisitions of shares of
NationsBank Common Stock in connection with the satisfaction by NationsBank of
its obligations under any employee benefit plans, (ii) as a result of a
reclassification of NationsBank capital stock or the exchange or conversion of
one class or series of NationsBank capital stock for another class or series of
NationsBank capital stock or (iii) the purchase of fractional interests in
shares of NationsBank capital stock pursuant to an acquisition or the conversion
or exchange provisions of such NationsBank capital stock or the security being
converted or exchanged ("Permitted Purchases/Exchanges")) and (b) the
Corporation shall not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities (including
guarantees) issued by the Corporation which rank pari passu with or junior to
such Junior Subordinated Debt Securities.
If Junior Subordinated Debt Securities are issued to a NB Capital Trust or
a trustee of such trust in connection with the issuance of Trust Securities by
such NB Capital Trust and the Corporation shall have given notice of its
election to defer payments of interest on such Junior Subordinated Debt
Securities by extending the interest payment period as provided in the Indenture
and such period, or any extension thereof, shall be continuing, then (a) the
Corporation shall not declare or pay any dividend on, make any distributions
with
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<PAGE>
respect to, or redeem, purchase or make a liquidation payment with respect to,
any of its Common Stock (other than Permitted Purchases/Exchanges), and (b) the
Corporation shall not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities (including
guarantees) issued by the Corporation which rank pari passu with or junior to
such Junior Subordinated Debt Securities.
If Junior Subordinated Debt Securities are issued to a NB Capital Trust or
a trustee of such trust in connection with the issuance of Trust Securities by
such NB Capital Trust, for so long as such Trust Securities remain outstanding,
the Corporation will covenant (i) to directly or indirectly maintain 100 percent
ownership of the Common Securities of such NB Capital Trust; provided, however,
that any permitted successor of the Corporation under the Indenture may succeed
to the Corporation's ownership of such Common Securities, (ii) to use its
reasonable efforts to cause such NB Capital Trust (a) to remain a statutory
business trust, except in connection with the distribution of Junior
Subordinated Debt Securities to the holders of Trust Securities in liquidation
of such NB Capital Trust, the redemption of all of the Trust Securities of such
NB Capital Trust, or certain mergers, consolidations or amalgamations, each as
permitted by the Declaration of such NB Capital Trust, and (b) to otherwise
continue not to be classified as an association taxable as a corporation or a
partnership for United States federal income tax purposes and (iii) to use its
reasonable efforts to cause each holder of Trust Securities to be treated as
owning an undivided beneficial interest in the Junior Subordinated Debt
Securities.
LIMITATION ON MERGERS AND SALES OF ASSETS
The Corporation shall not consolidate with, or merge into, any corporation
or convey or transfer its properties and assets substantially as an entirety to
any Person unless the successor entity shall be a corporation organized under
the laws of the United States or any State or the District of Columbia and shall
expressly assume the obligations of the Corporation under the Indenture.
EVENTS OF DEFAULT, WAIVER AND NOTICE
The Indenture provides that any one or more of the following described
events which has occurred and is continuing constitutes an "Event of Default"
with respect to each series of Junior Subordinated Debt Securities:
(a) certain events of bankruptcy, insolvency or reorganization of the
Corporation; or
(b) in the event Junior Subordinated Debt Securities are issued to a NB
Capital Trust or a trustee of such trust in connection with the issuance of
Trust Securities by such NB Capital Trust, the voluntary or involuntary
dissolution, winding-up or termination of such NB Capital Trust, except in
connection with the distribution of Subordinated Debt Securities to the holders
of Trust Securities in liquidation of such NB Capital Trust, the redemption of
all of the Trust Securities of such NB Capital Trust, or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration of such NB
Capital Trust.
The Indenture provides that the Debt Trustee may withhold notice to the
holders of a series of Subordinated Debt Securities (except in payment of
principal or of interest or premium on the Junior Subordinated Debt Securities)
if the Trustee considers it in the interest of such holders to do so.
The Indenture provides that, if an Event of Default resulting from certain
events of bankruptcy, insolvency and reorganization of the Corporation shall
have occurred and be continuing, either the Debt Trustee or the holders of 25
percent in principal amount of all Subordinated Debt Securities then outstanding
(treated as one class) may declare the principal of all Junior Subordinated Debt
Securities to be due and payable immediately, but upon certain conditions such
declarations may be annulled and past defaults may be waived by the holders of a
majority in principal amount of the Subordinated Debt Securities of such series
(or of all series, as the case may be) then outstanding.
The holders of a majority in principal amount of the Subordinated Debt
Securities of any and all series affected and then outstanding shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Debt Trustee under the Indenture, provided that the
holders of the Junior Subordinated Debt Securities shall have offered to the
Debt Trustee reasonable indemnity against expenses and liabilities. The
Indenture requires the annual filing by the Company with the Debt Trustee of a
certificate as to the absence of certain defaults under the Indenture.
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MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Corporation and the Debt
Trustee, with the consent of the holders of not less than a majority in
principal amount of the Subordinated Debt Securities of all series affected by
such modification at the time outstanding, to modify the Indenture or any
supplemental indenture or the rights of the holders of the Junior Subordinated
Debt Securities; provided that no such modification shall (i) extend the fixed
maturity of any Security, or reduce the principal amount thereof (including in
the case of a discounted Security the amount payable thereon in the event of
acceleration or the amount provable in bankruptcy) or any redemption premium
thereon, or reduce the rate or extend the time of payment of interest thereon,
or make the principal of, or interest or premium on, the Junior Subordinated
Debt Securities payable in any coin or currency other than that provided in the
Subordinated Debt Securities, or impair or affect the right of any holder of
Subordinated Debt Securities to institute suit for the payment thereof or the
right of prepayment, if any, at the option of the holder, without the consent of
the holder of each Security so affected, or (ii) reduce the aforesaid percentage
of Subordinated Debt Securities the consent of the holders of which is required
for any such modification without the consent of the holders of each Security
affected.
DEFEASANCE AND DISCHARGE
The Indenture provides that the Corporation (a) will be Discharged from any
and all obligations in respect of the Junior Subordinated Debt Securities of a
series (except for certain obligations to register the transfer or exchange of
Junior Subordinated Debt Securities, replace stolen, lost or mutilated Junior
Subordinated Debt Securities, maintain paying agencies and hold moneys for
payment in trust) or (b) need not comply with certain restrictive covenants of
the Indenture (including those described under "Certain Covenants of the
Corporation"), in each case if the Corporation, at its option, deposits, in
trust with the Debt Trustee or the Defeasance Agent, money or U.S. Government
Obligations which through the payment of interest thereon and principal thereof
in accordance with their terms will provide money, in an amount sufficient to
pay all the principal of, and interest and premium, if any, on, the Junior
Subordinated Debt Securities of such series on the dates such payments are due
in accordance with the terms of such Junior Subordinated Debt Securities. To
exercise any such option, the Corporation is required to deliver to the Debt
Trustee and the Defeasance Agent, if any, an opinion of counsel to the effect
that (i) the deposit and related defeasance would not cause the holders of the
Junior Subordinated Debt Securities of such series to recognize income, gain or
loss for United States federal income tax purposes and, in the case of a
Discharge pursuant to clause (a), such opinion shall be accompanied by a private
letter ruling to that effect received by the Corporation from the United States
Internal Revenue Service or a revenue ruling pertaining to a comparable form of
transaction to that effect published by the United States Internal Revenue
Service, and (ii) if listed on any national securities exchange, such
Subordinated Debt Securities would not be delisted from such exchange as a
result of the exercise of such option.
GOVERNING LAW
The Indenture and the Junior Subordinated Debt Securities will be governed
by, and construed in accordance with, the internal laws of the State of New
York.
THE DEBT TRUSTEE
The Corporation and certain of its affiliates have from time to time
maintained deposit accounts and conducted other banking transactions with the
Debt Trustee and its affiliated entities in the ordinary course of business. The
Debt Trustee also serves as trustee for certain series of the Corporation's
outstanding indebtedness under other indentures.
DESCRIPTION OF THE PREFERRED SECURITIES
Each NB Capital Trust may issue, from time to time, only one series of
Preferred Securities having terms described in the Prospectus Supplement
relating thereto. The Declaration of each NB Capital Trust authorizes the
Regular Trustees of that NB Capital Trust to issue one series of Preferred
Securities. The Declaration will be qualified as an indenture under the Trust
Indenture Act. The Preferred Securities will have such terms, including
distributions, redemption, voting, liquidation rights and such other preferred,
deferred or other special rights or such restrictions as shall be set forth in
the Declaration or made part of the Declaration by the
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Trust Indenture Act and which will mirror the terms of the Subordinated Debt
Securities held by that NB Capital Trust and described in the Prospectus
Supplement relating thereto. Reference is made to the Prospectus Supplement
relating to the Preferred Securities of the NB Capital Trust for specific terms,
including (i) the distinctive designation of such Preferred Securities; (ii) the
number of Preferred Securities issued by such NB Capital Trust; (iii) the annual
distribution rate (or method of determining such rate) for Preferred Securities
issued by such NB Capital Trust and the date or dates upon which such
distributions shall be payable; provided, however, that distributions on such
Preferred Securities shall be payable on a quarterly basis to holders of such
Preferred Securities as of a record date in each quarter during which such
Preferred Securities are outstanding; (iv) whether distributions on Preferred
Securities issued by such NB Capital Trust shall be cumulative, and, in the case
of Preferred Securities having cumulative distribution rights, the date or dates
or method of determining the date or dates from which distributions on Preferred
Securities issued by such NB Capital Trust shall be cumulative; (v) the amount
or amounts which shall be paid out of the assets of such NB Capital Trust to the
holders of Preferred Securities of such NB Capital Trust upon voluntary or
involuntary dissolution, winding-up or termination of such NB Capital Trust;
(vi) the obligation, if any, of such NB Capital Trust to purchase or redeem
Preferred Securities issued by such NB Capital Trust and the price or prices at
which, the period or periods within which, and the terms and conditions upon
which, Preferred Securities issued by such NB Capital Trust shall be purchased
or redeemed, in whole or in part, pursuant to such obligation; (vii) the voting
rights, if any, of Preferred Securities issued by such NB Capital Trust in
addition to those required by law, including the number of votes per Preferred
Security and any requirement for the approval by the holders of Preferred
Securities, or of Preferred Securities issued by one or more NB Capital Trusts,
or of both, as a condition to specified action or amendments to the Declaration
of such NB Capital Trust; (viii) the terms and conditions, if any, upon which
the Junior Subordinated Debt Securities may be distributed to holders of
Preferred Securities; (ix) if applicable, any securities exchange upon which the
Preferred Securities shall be listed; and (x) any other relevant rights,
preferences, privileges, limitations or restrictions of Preferred Securities
issued by such NB Capital Trust not inconsistent with the Declaration of such NB
Capital Trust or with applicable law. All Preferred Securities offered hereby
will be guaranteed by the Corporation to the extent set forth below under
"Description of the Preferred Securities Guarantees." Certain United States
federal income tax considerations applicable to any offering of Preferred
Securities will be described in the Prospectus Supplement relating thereto.
The Declaration of each NB Capital Trust authorizes its Regular Trustees to
issue on behalf of that NB Capital Trust one series of Common Securities having
such terms including distributions, redemption, voting, liquidation rights or
such restrictions as shall be set forth therein. In connection with the issuance
of Preferred Securities, the Regular Trustees of each NB Capital Trust will
exercise that authority and each such trust shall issue one series of Common
Securities. The terms of the Common Securities issued by a NB Capital Trust will
be substantially identical to the terms of the Preferred Securities issued by
that trust and the Common Securities will rank pari passu, and payments will be
made thereon pro rata, with the Preferred Securities except that, upon an event
of default under the Declaration, the rights of the holders of the Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Preferred Securities. Except in certain limited circumstances, the Common
Securities will also carry the right to vote to appoint, remove or replace any
of the NB Capital Trustees of a NB Capital Trust. All of the Common Securities
of each NB Capital Trust will be directly or indirectly owned by the
Corporation.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If an Event of Default under the Declaration of a NB Capital Trust occurs
and is continuing, then the holders of Preferred Securities of such NB Capital
Trust would rely on the enforcement by the Property Trustee of its rights as a
holder of the applicable series of Junior Subordinated Debt Securities against
the Corporation. In addition, the holders of a majority in liquidation amount of
the Preferred Securities of such NB Capital Trust will have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Property Trustee or to direct the exercise of any trust or power
conferred upon the Property Trustee under the applicable Declaration, including
the right to direct the Property Trustee to exercise the remedies available to
it as a holder of the Junior Subordinated Debt Securities. If the Property
Trustee fails to enforce its rights under the applicable series of Junior
Subordinated Debt Securities, a holder of Preferred Securities of such NB
Capital Trust may, to the extent permitted by applicable law, institute a legal
proceeding
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directly against the Corporation to enforce the Property Trustee's rights under
the applicable series of Subordinated Debt Securities without first instituting
any legal proceeding against the Property Trustee or any other person or entity.
PROPOSED TAX LEGISLATION
On March 19, 1996, President Clinton proposed certain tax law changes as
part of his fiscal 1997 budget that would, among other things, generally deny
corporate issuers a deduction for interest in respect of certain debt
obligations issued on or after December 7, 1995 (the "Proposed Legislation") if
such debt obligations have a maximum term in excess of twenty years and are not
shown as indebtedness on the issuer's applicable consolidated balance sheet. In
addition, the Proposed Legislation would treat as equity for United States
federal income tax purposes debt instruments with a weighted average maturity of
greater than 40 years, thereby denying issuers an interest deduction on any such
debt instruments. On March 29, 1996, Senate Finance Committee Chairman William
V. Roth, Jr. and House Ways and Means Committee Chairman Bill Archer issued a
joint statement (the "Joint Statement") indicating their intent that certain
legislative proposals initiated by the Clinton administration, including the
Proposed Legislation, that may be adopted by either of the tax-writing
committees of Congress would have an effective date that is no earlier than the
date of "appropriate Congressional action." Based upon the Joint Statement, it
is expected that if the Proposed Legislation were to be enacted, such
Legislation would not apply to a series of Subordinated Debt Securities if the
series (i) was issued prior to the date of "appropriate Congressional action" or
(ii) had a maximum term that did not exceed 20 years. The Corporation intends
that any series of Junior Subordinated Debt Securities will either be issued
prior to the date of "appropriate Congressional action" or will have a maximum
term that does not exceed 20 years. Accordingly, the Corporation does not expect
the Proposed Legislation to apply to any series of Junior Subordinated Debt
Securities. There can be no assurances, however, that the effective date
guidance contained in the Joint Statement will be incorporated into the Proposed
Legislation, if enacted, or that other legislation enacted after the date hereof
will not otherwise adversely affect the ability of the Corporation to deduct the
interest payable on any series of Subordinated Debt Securities. Accordingly,
there can be no assurance that a Tax Event will not occur.
DESCRIPTION OF THE PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the Preferred
Securities Guarantees which will be executed and delivered by NationsBank for
the benefit of the holders from time to time of Preferred Securities. Each
Preferred Securities Guarantee will be qualified as an indenture under the Trust
Indenture Act. The Bank of New York will act as indenture trustee under each
Preferred Securities Guarantee for purposes of the Trust Indenture Act (the
"Preferred Guarantee Trustee"). The terms of each Preferred Securities Guarantee
will be those set forth in such Preferred Securities Guarantee and those made
part of such Preferred Securities Guarantee by the Trust Indenture Act. The
summary of the material terms of the Preferred Securities Guarantees does not
purport to be complete and is subject in all respects to the provisions of, and
is qualified in its entirety by reference to, the form of Preferred Securities
Guarantee, which is filed as an exhibit to the Registration Statement of which
this Prospectus forms a part, and the Trust Indenture Act. Each Preferred
Securities Guarantee will be held by the Preferred Guarantee Trustee for the
benefit of the holders of the Preferred Securities of the applicable NB Capital
Trust.
GENERAL
Pursuant to each Preferred Securities Guarantee, the Corporation will
irrevocably and unconditionally agree, to the extent set forth therein, to pay
in full, to the holders of the Preferred Securities issued by a NB Capital
Trust, the Guarantee Payments (as defined herein) (except to the extent paid by
such NB Capital Trust), as and when due, regardless of any defense, right of
set-off or counterclaim which such NB Capital Trust may have or assert. The
following payments with respect to Preferred Securities issued by a NB Capital
Trust to the extent not paid by such NB Capital Trust (the "Guarantee
Payments"), will be subject to the Preferred Securities Guarantee thereon
(without duplication): (i) any accrued and unpaid distributions which are
required to be paid on such Preferred Securities, to the extent such NB Capital
Trust shall have funds available therefor; (ii) the redemption price, including
all accrued and unpaid distributions (the "Redemption
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Price"), to the extent such NB Capital Trust has funds available therefor with
respect to any Preferred Securities called for redemption by such NB Capital
Trust and (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of such NB Capital Trust (other than in connection with the
distribution of Junior Subordinated Debt Securities to the holders of Preferred
Securities or the redemption of all of the Preferred Securities), the lesser of
(a) the aggregate of the liquidation amount and all accrued and unpaid
distributions on such Preferred Securities to the date of payment, to the extent
such NB Capital Trust has funds available therefor and (b) the amount of assets
of such NB Capital Trust remaining available for distribution to holders of such
Preferred Securities in liquidation of such NB Capital Trust. The redemption
price and liquidation amount will be fixed at the time the Preferred Securities
are issued. The Corporation's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Corporation to the
holders of Preferred Securities or by causing the applicable NB Capital Trust to
pay such amounts to such holders.
Each Preferred Securities Guarantee will not apply to any payment of
distributions except to the extent such NB Capital Trust shall have funds
available therefor. If the Corporation does not make interest payments on the
Subordinated Debt Securities purchased by a NB Capital Trust, such NB Capital
Trust will not pay distributions on the Preferred Securities issued by such NB
Capital Trust and will not have funds available therefor. See "Description of
the Junior Subordinated Debt Securities -- Certain Covenants of the
Corporation." The Preferred Securities Guarantee, when taken together with the
Corporation's obligations under the Subordinated Debt Securities, the Indenture
and the Declaration, including its obligations to pay costs, expenses, debts and
liabilities of such NB Capital Trust (other than with respect to the Trust
Securities), will provide a full and unconditional guarantee on a subordinated
basis by the Corporation of payments due on the Preferred Securities.
The Corporation has also agreed separately to irrevocably and
unconditionally guarantee the obligations of the NB Capital Trusts with respect
to the Common Securities (the "Common Securities Guarantees") to the same extent
as the Preferred Securities Guarantees, except that upon an event of default
under the Indenture, holders of Preferred Securities shall have priority over
holders of Common Securities with respect to distributions and payments on
liquidation, redemption or otherwise.
CERTAIN COVENANTS OF THE CORPORATION
In each Preferred Securities Guarantee, the Corporation will covenant that,
so long as any Preferred Securities issued by the applicable NB Capital Trust
remain outstanding, if there shall have occurred any event that would constitute
an event of default under such Preferred Securities Guarantee or the Declaration
of such NB Capital Trust, then (a) the Corporation shall not declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase or make
a liquidation payment with respect to, any of its Common Stock (other than
Permitted Purchases/Exchanges) or make any guarantee payments with respect to
the foregoing, (b) the Corporation shall not declare or pay any dividend on,
make any distributions with respect to, or redeem, purchase or make a
liquidation payment with respect to, any of its Preferred Stock (other than
Permitted Purchases/Exchanges) except that the Corporation may meet the same
proportion of its payment obligations with respect to its Preferred Stock that
it meets under such Preferred Securities Guarantee and (c) the Corporation shall
not make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees) issued by the
Corporation which rank pari passu with or junior to such Junior Subordinated
Debt Securities.
MODIFICATION OF THE PREFERRED SECURITIES GUARANTEES; ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of Preferred Securities (in which case no vote will be required),
each Preferred Securities Guarantee may be amended only with the prior approval
of the holders of not less than a majority in liquidation amount of the
outstanding Preferred Securities issued by the applicable NB Capital Trust. The
manner of obtaining any such approval of holders of such Preferred Securities
will be as set forth in an accompanying Prospectus Supplement. All guarantees
and agreements contained in a Preferred Securities Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of the Corporation
and shall inure to the benefit of the holders of the Preferred Securities of the
applicable NB Capital Trust then outstanding.
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TERMINATION
Each Preferred Securities Guarantee will terminate as to the Preferred
Securities issued by the applicable NB Capital Trust (a) upon full payment of
the Redemption Price of all Preferred Securities of such NB Capital Trust, (b)
upon distribution of the Junior Subordinated Debt Securities held by such NB
Capital Trust to the holders of the Preferred Securities of such NB Capital
Trust or (c) upon full payment of the amounts payable in accordance with the
Declaration of such NB Capital Trust upon liquidation of such NB Capital Trust.
Each Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of Preferred
Securities issued by the applicable NB Capital Trust must restore payment of any
sums paid under such Preferred Securities or such Preferred Securities
Guarantee.
EVENTS OF DEFAULT
An event of default under a Preferred Securities Guarantee will occur upon
the failure of the Corporation to perform any of its payment or other
obligations thereunder.
The holders of a majority in liquidation amount of the Preferred Securities
relating to such Preferred Securities Guarantee have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Preferred Guarantee Trustee in respect of the Preferred Securities Guarantee
or to direct the exercise of any trust or power conferred upon the Preferred
Guarantee Trustee under such Preferred Securities. If the Preferred Guarantee
Trustee fails to enforce such Preferred Securities Guarantee, any holder of
Preferred Securities relating to such Preferred Securities Guarantee may
institute a legal proceeding directly against the Corporation to enforce the
Preferred Guarantee Trustee's rights under such Preferred Securities Guarantee,
without first instituting a legal proceeding against the relevant NB Capital
Trust, the Preferred Guarantee Trustee or any other person or entity.
Notwithstanding the foregoing, if the Corporation has failed to make a guarantee
payment, a holder of Preferred Securities may directly institute a proceeding
against the Corporation for enforcement of the Preferred Securities Guarantee
for such payment. The Corporation waives any right or remedy to require that any
action be brought first against such NB Capital Trust or any other person or
entity before proceeding directly against the Corporation.
STATUS OF THE PREFERRED SECURITIES GUARANTEES
The Preferred Securities Guarantees will constitute unsecured obligations
of the Corporation and will rank (i) subordinate and junior in right of payment
to all other liabilities of the Corporation, (ii) pari passu with the most
senior preferred or preference stock now or hereafter issued by the Corporation
and with any guarantee now or hereafter entered into by NationsBank in respect
of any preferred or preference stock of any affiliate of the Corporation, and
(iii) senior to the Corporation's common stock. The terms of the Preferred
Securities provide that each holder of Preferred Securities issued by the
applicable NB Capital Trust by acceptance thereof agrees to the subordination
provisions and other terms of the Preferred Securities Guarantee relating
thereto.
The Preferred Securities Guarantees will constitute a guarantee of payment
and not of collection (that is, the guaranteed party may institute a legal
proceeding directly against the guarantor to enforce its rights under the
Preferred Securities Guarantee without instituting a legal proceeding against
any other person or entity).
INFORMATION CONCERNING THE PREFERRED GUARANTEE TRUSTEE
The Preferred Guarantee Trustee, prior to the occurrence of a default with
respect to a Preferred Securities Guarantee, undertakes to perform only such
duties as are specifically set forth in such Preferred Securities Guarantee and,
after default, shall exercise the same degree of care as a prudent individual
would exercise in the conduct of his or her own affairs. Subject to such
provisions, the Preferred Guarantee Trustee is under no obligation to exercise
any of the powers vested in it by a Preferred Securities Guarantee at the
request of any holder of Preferred Securities, unless offered reasonable
indemnity against the costs, expenses and liabilities which might be incurred
thereby.
The Corporation and certain of its affiliates have from time to time
maintained deposit accounts and conducted other banking transactions with the
Preferred Guarantee Trustee and its afifiliated entities in the ordinary course
of business. The Preferred Guarantee Trustee also serves as trustee for certain
series of the Corporation's outstanding indebtedness under other indentures.
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GOVERNING LAW
The Preferred Securities Guarantees will be governed by and construed in
accordance with, the internal laws of the State of New York.
EFFECT OF OBLIGATIONS UNDER THE
SUBORDINATED DEBT SECURITIES AND THE GUARANTEE
As set forth in the Declaration, the sole purpose of each of the NB Capital
Trusts is to issue the Trust Securities evidencing undivided beneficial
interests in the assets of each of the NB Capital Trusts, and to invest the
proceeds from such issuance and sale in the Junior Subordinated Debt Securities.
As long as payments of interest and other payments are made when due on the
Junior Subordinated Debt Securities, such payments will be sufficient to cover
distributions and payments due on the Trust Securities because of the following
factors: (i) the aggregate principal amount of Junior Subordinated Debt
Securities will be equal to the sum of the aggregate stated liquidation amount
of the Trust Securities; (ii) the interest rate and the interest and other
payment dates on the Subordinated Debt Securities will match the distribution
rate and distribution and other payment dates for the Preferred Securities;
(iii) NationsBank shall pay all, and the applicable NB Capital Trust shall not
be obligated to pay, directly or indirectly, all costs, expenses, debt, and
obligations of the applicable NB Capital Trust (other than with respect to the
Trust Securities); and (iv) the Declaration further provides that the
NationsBank Trustees shall not take or cause or permit the applicable NB Capital
Trust to, among other things, engage in any activity that is not consistent with
the purposes of the applicable NB Capital Trust.
Payments of distributions (to the extent funds therefor are available) and
other payments due on the Preferred Securities (to the extent funds therefor are
available) are guaranteed by NationsBank as and to the extent set forth under
"Description of the Preferred Securities Guarantees." If NationsBank does not
make interest payments on the Subordinated Debt Securities purchased by the
applicable NB Capital Trust, it is expected that the applicable NB Capital Trust
will not have sufficient funds to pay distributions on the Preferred Securities.
The Preferred Securities Guarantee does not apply to any payment of
distributions unless and until the applicable NB Capital Trust has sufficient
funds for the payment of such distributions. The Preferred Securities Guarantee
covers the payment of distributions and other payments on the Preferred
Securities only if and to the extent that NationsBank has made a payment of
interest or principal on the Junior Subordinated Debt Securities held by the
applicable NB Capital Trust as its sole asset. The Preferred Securities
Guarantee, when taken together with the Corporation's obligations under the
Junior Subordinated Debt Securities and the Indenture and its obligations under
the Declaration, including its obligations to pay costs, expenses, debts and
liabilities of the applicable NB Capital Trust (other than with respect to the
Trust Securities), provide a full and unconditional guarantee, on a subordinated
basis, by the Corporation of amounts due on the Preferred Securities.
If NationsBank fails to make interest or other payments on the Subordinated
Debt Securities when due (taking account of any Extension Period), the
Declaration provides a mechanism whereby the holders of the Preferred
Securities, using the procedures described in "Description of the Preferred
Securities -- Book-Entry Only Issuance -- The Depository Trust Company" and
" -- Voting Rights" in any accompanying Prospectus Supplement, may direct the
Property Trustee to enforce its rights under the Junior Subordinated Debt
Securities. If the Property Trustee fails to enforce its rights under the Junior
Subordinated Debt Securities, a holder of Preferred Securities may, to the
extent permitted by applicable law, institute a legal proceeding against
NationsBank to enforce the Property Trustee's rights under the Subordinated Debt
Securities without first instituting any legal proceeding against the Property
Trustee or any other person or entity. NationsBank, under the Guarantee,
acknowledges that the Guarantee Trustee shall enforce the Preferred Securities
Guarantee on behalf of the holders of the Preferred Securities. If NationsBank
fails to make payments under the Preferred Securities Guarantee, the Preferred
Securities Guarantee provides a mechanism whereby the holders of the Preferred
Securities may direct the Preferred Securities Guarantee Trustee to enforce its
rights thereunder. Any holder of Preferred Securities may institute a legal
proceeding directly against NationsBank to enforce the Preferred Securities
Guarantee Trustee's rights under the Preferred Securities Guarantee without
first instituting a legal proceeding against the applicable NB Capital Trust,
the Preferred Securities Guarantee Trustee, or any other person or entity.
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NationsBank and each of the NB Capital Trusts believe that the above
mechanisms and obligations, taken together, provide a full and unconditional
guarantee by NationsBank of payments due on the Preferred Securities. See
"Description of the Preferred Securities Guarantees -- General."
LEGAL OPINIONS
Certain matters of Delaware law relating to the validity of the Preferred
Securities will be passed upon on behalf of the NB Capital Trusts by Richards,
Layton & Finger, special Delaware counsel to the NB Capital Trusts. The validity
of the Junior Subordinated Debt Securities and the Preferred Securities
Guarantees and certain matters relating thereto will be passed upon for
NationsBank by Smith Helms Mulliss & Moore, L.L.P. and for the underwriters by
Stroock & Stroock & Lavan. Certain United States federal income taxation matters
will be passed upon for NationsBank and the NB Capital Trusts by Stroock &
Stroock & Lavan, special tax counsel to NationsBank and the NB Capital Trusts.
Smith Helms Mullis & Moore, L.L.P. and Stroock & Stroock & Lavan will rely on
the opinion of Richards, Layton & Finger as to matters of Delaware law.
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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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>
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Securities Act Registration Fee..................... $ *
Printing and Engraving Expenses..................... *
Legal Fees and Expenses............................. *
Accounting Fees and Expenses........................ *
Blue Sky Fees and Expenses.......................... *
Indenture Trustee Expenses.......................... *
Rating Agency Fees and Expenses..................... *
Listing Fees........................................ *
Miscellaneous....................................... *
$ *
</TABLE>
* To be filed by amendment
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
There are no provisions in the Corporation's Restated Articles of
Incorporation, and no contracts between the Corporation and its directors and
officers, relating to indemnification. The Corporation's Restated Articles of
Incorporation prevent the recovery by the Corporation of monetary damages
against its directors. However, in accordance with the provisions of the North
Carolina Business Corporation Act (the "Act"), the Corporation's Amended and
Restated Bylaws provide that, in addition to the indemnification of directors
and officers otherwise provided by the Act, the Corporation 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 Corporation. Pursuant to such bylaw and as authorized by
statute, the Corporation 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.
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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 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.
The Declarations of Trust of NB Capital Trust I, NB Capital Trust II, and
NB Capital Trust III (each a "Trust" and together the "Trusts") provide that to
the fullest extent permitted by applicable law, the Sponsor shall indemnify and
hold harmless each of the Regular Trustees of the respective Trust, any
Affiliate of any such Regular Trustee, any officer, director, shareholder,
member, partner, employee, representative or agent of any such Regular Trustee,
or any employee or agent of the Trust or its Affiliates (each a "Company
Indemnified Person"), from and against any loss, damage or claim incurred by
such Company Indemnified Person by reason of any act or omission performed or
omitted by such Company Indemnified Person in good faith on behalf of the Trust
and in a manner such Company Indemnified Person reasonably believed to be in or
not opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was illegal. The Declarations of Trust also provide that, to the fullest extent
permitted by applicable law, expenses (including legal fees) incurred by a
Company Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by the Company prior to the
final disposition of such claim, demand, action suit or proceeding upon receipt
by the Company of any undertaking by or on behalf of the Company Indemnified
Person to repay such amount if it shall be determined that the Company
Indemnified Person is not entitled to be indemnified as authority in the
Declaration of Trust. The Declarations of Trust further provide that no Company
Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Trust or any Covered Person (as defined therein) or for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Company Indemnified Person in good faith on behalf of the Trust
and in a manner such Company Indemnified Person reasonably believed to be within
the scope of the authority conferred on such Company Indemnified Person by the
Declaration of Trust or by law, except that a Company Indemnified Person shall
be liable for any such loss, damage or claim incurred by reason of such Company
Indemnified Person's gross negligence or willful misconduct with respect to acts
or omissions.
In addition, certain sections of each of the form of Underwriting Agreement
filed as an Exhibit hereto provide for indemnification of the Registrants and
their 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 Corporation.
ITEM 16. LIST OF EXHIBITS.
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1.1 Form of Underwriting Agreement for offering of Preferred Securities*
4.1 Certificate of Trust of NB Capital Trust I
4.2 Certificate of Trust of NB Capital Trust II
4.3 Certificate of Trust of NB Capital Trust III
4.4 Declaration of Trust of NB Capital Trust I
4.5 Declaration of Trust of NB Capital Trust II
4.6 Declaration of Trust of NB Capital Trust III
4.7 Form of Amended and Restated Declaration of Trust for NB Capital Trust I*
4.8 Form of Amended and Restated Declaration of Trust for NB Capital Trust II*
4.9 Form of Amended and Restated Declaration of Trust for NB Capital Trust III*
4.10 Form of Indenture between NationsBank Corporation and The Bank of New York, as Trustee.*
4.11 Form of Supplemental Indenture to be used in connection with the issuance of Junior Subordinated
Debt Securities and Preferred Securities.*
4.12 Form of Preferred Security (included in 4.7-4.9 above).*
4.13 Form of Junior Subordinated Debt Security (included in 4.11 above).*
4.14 Form of Guarantee with respect to Preferred Securities issued by NB Capital Trust I*
4.15 Form of Guarantee with respect to Preferred Securities issued by NB Capital Trust II*
4.16 Form of Guarantee with respect to Preferred Securities issued by NB Capital Trust III*
5.1 Opinion of Smith Helms Mulliss & Moore, L.L.P.*
5.2 Opinion of Stroock & Stroock & Lavan*
</TABLE>
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<TABLE>
<S> <C>
8.1 Opinion of Stroock & Stroock & Lavan*
12.1 Calculation of Ratios of Earnings to Fixed Charges, incorporated herein by reference to Exhibit
12(a) to the Corporation's Quarterly Report on Form 10-Q for the quarter ended June 30, 1996
(File No. 1-6523)
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Ernst & Young LLP
23.3 Consent of Smith Helms Mulliss & Moore, L.L.P. (included in Exhibit 5.1)
23.4 Consent of Stroock & Stroock & Lavan (included in Exhibit 5.2)
23.5 Consent of Stroock & Stroock & Lavan (included in Exhibit 8.1)
24.1 Powers of Attorney.
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Debt Trustee under the Indenture.*
25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Property Trustee under the Amended and Restated Declaration of Trust of NB Capital
Trust I*
25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Property Trustee under the Amended and Restated Declaration of Trust of NB Capital
Trust II*
25.4 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Property Trustee under the Amended and Restated Declaration of Trust of NB Capital
Trust III*
25.5 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Preferred Guarantee Trustee under the Preferred Securities Guarantee of NationsBank
Corporation for the benefit of the holders of Preferred Securities of NB Capital Trust I*
25.6 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Preferred Guarantee Trustee under the Preferred Securities Guarantee of NationsBank
Corporation for the benefit of the holders of Preferred Securities of NB Capital Trust II*
25.7 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Preferred Guarantee Trustee under the Preferred Securities Guarantee of NationsBank
Corporation for the benefit of the holders of Preferred Securities of NB Capital Trust III*
</TABLE>
* To be filed by amendment
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the 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.
II-3
<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the 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.
(b) The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the 1933 Act, each filing of the Corporation's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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 Registrants of expenses incurred or
paid by a director, officer or controlling person of the Registrants 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 Registrants 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.
(d) The undersigned Registrants hereby undertake that:
(1) For purposes of determining any liability under the 1933 Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrants pursuant to Rule 424(b)(1) or (4) or 497(h)
under the 1933 Act shall be deemed to be part of this Registration Statement as
of the time it was declared effective.
(2) For the purpose of determining any liability under the 1933 Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Charlotte, North Carolina, on November 1, 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 November 1, 1996
(HUGH L. MCCOLL, JR.) Officer and Director (Principal
Executive Officer)
/s/ JAMES H. HANCE, JR.* Vice Chairman and Chief Financial November 1, 1996
(JAMES H. HANCE, JR.) Officer (Principal Financial Officer)
/s/ MARC D. OKEN* Executive Vice President November 1, 1996
(MARC D. OKEN) and Chief Accounting Officer
(Principal Accounting
Officer)
Director
(RONALD W. ALLEN)
/s/ RAY C. ANDERSON* Director November 1, 1996
(RAY C. ANDERSON)
/s/ WILLIAM M. BARNHARDT* Director November 1, 1996
(WILLIAM M. BARNHARDT)
Director
(THOMAS E. CAPPS)
/s/ CHARLES W. COKER* Director November 1, 1996
(CHARLES W. COKER)
/s/ THOMAS G. COUSINS* Director November 1, 1996
(THOMAS G. COUSINS)
/s/ ALAN T. DICKSON* Director November 1, 1996
(ALAN T. DICKSON)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
Director
(W. FRANK DOWD, JR.)
Director
(PAUL FULTON)
/s/ TIMOTHY L. GUZZLE* Director November 1, 1996
(TIMOTHY L. GUZZLE)
/s/ W. W. JOHNSON* Director November 1, 1996
(W. W. JOHNSON)
/s/ JOHN J. MURPHY* Director November 1, 1996
(JOHN J. MURPHY)
Director
(JOHN C. SLANE)
Director
(O. TEMPLE SLOAN, JR.)
Director
(JOHN W. SNOW)
/s/ MEREDITH R. SPANGLER* Director November 1, 1996
(MEREDITH R. SPANGLER)
/s/ ROBERT H. SPILMAN* Director November 1, 1996
(ROBERT H. SPILMAN)
/s/ RONALD TOWNSEND* Director November 1, 1996
(RONALD TOWNSEND)
/s/ E. CRAIG WALL, JR.* Director November 1, 1996
(E. CRAIG WALL, JR.)
/s/ JACKIE M. WARD* Director November 1, 1996
(JACKIE M. WARD)
/s/ VIRGIL R. WILLIAMS* Director November 1, 1996
(VIRGIL R. WILLIAMS)
*By: CHARLES M. BERGER
CHARLES M. BERGER, ATTORNEY-IN-FACT
</TABLE>
II-6
<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 authorized,
in the City of Charlotte, North Carolina, on November 1, 1996.
NB CAPITAL TRUST I
By: /s/ JOHN E. MACK
JOHN E. MACK
REGULAR TRUSTEE
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 authorized,
in the City of Charlotte, North Carolina, on November 1, 1996.
NB CAPITAL TRUST II
By: /s/ JOHN E. MACK
JOHN E. MACK
REGULAR TRUSTEE
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 authorized,
in the City of Charlotte, North Carolina, on November 1, 1996.
NB CAPITAL TRUST III
By: /s/ JOHN E. MACK
JOHN E. MACK
REGULAR TRUSTEE
II-7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NO.
<S> <C> <C>
1.1 Form of Underwriting Agreement for offering of Preferred Securities*
4.1 Certificate of Trust of NB Capital Trust I
4.2 Certificate of Trust of NB Capital Trust II
4.3 Certificate of Trust of NB Capital Trust III
4.4 Declaration of Trust of NB Capital Trust I
4.5 Declaration of Trust of NB Capital Trust II
4.6 Declaration of Trust of NB Capital Trust III
4.7 Form of Amended and Restated Declaration of Trust for NB Capital Trust I*
4.8 Form of Amended and Restated Declaration of Trust for NB Capital Trust II*
4.9 Form of Amended and Restated Declaration of Trust for NB Capital Trust III*
4.10 Form of Indenture between NationsBank Corporation and The Bank of New York, as Trustee.*
4.11 Form of Supplemental Indenture to be used in connection with the issuance of Junior Subordinated
Debt Securities and Preferred Securities.*
4.12 Form of Preferred Security (included in 4.7-4.9 above).*
4.13 Form of Junior Subordinated Debt Security (included in 4.11 above).*
4.14 Form of Guarantee with respect to Preferred Securities issued by NB Capital Trust I*
4.15 Form of Guarantee with respect to Preferred Securities issued by NB Capital Trust II*
4.16 Form of Guarantee with respect to Preferred Securities issued by NB Capital Trust III*
5.1 Opinion of Smith Helms Mulliss & Moore, L.L.P.*
5.2 Opinion of Stroock & Stroock & Lavan*
8.1 Opinion of Stroock & Stroock & Lavan*
12.1 Calculation of Ratios of Earnings to Fixed Charges, incorporated herein by reference to Exhibit
12(a) to the Corporation's Quarterly Report on Form 10-Q for the quarter ended June 30, 1996
(File No. 1-6523)
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Ernst & Young LLP
23.3 Consent of Smith Helms Mulliss & Moore, L.L.P. (included in Exhibit 5.1)
23.4 Consent of Stroock & Stroock & Lavan (included in Exhibit 5.2)
23.5 Consent of Stroock & Stroock & Lavan (included in Exhibit 8.1)
24.1 Powers of Attorney.
25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Debt Trustee under the Indenture.*
25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Property Trustee under the Amended and Restated Declaration of Trust of NB Capital
Trust I*
25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Property Trustee under the Amended and Restated Declaration of Trust of NB Capital
Trust II*
25.4 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Property Trustee under the Amended and Restated Declaration of Trust of NB Capital
Trust III*
25.5 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Preferred Guarantee Trustee under the Preferred Securities Guarantee of NationsBank
Corporation for the benefit of the holders of Preferred Securities of NB Capital Trust I*
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NO.
<S> <C> <C>
25.6 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Preferred Guarantee Trustee under the Preferred Securities Guarantee of NationsBank
Corporation for the benefit of the holders of Preferred Securities of NB Capital Trust II*
25.7 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New
York, as Preferred Guarantee Trustee under the Preferred Securities Guarantee of NationsBank
Corporation for the benefit of the holders of Preferred Securities of NB Capital Trust III*
</TABLE>
* To be filed by amendment
EXHIBIT 4.1
CERTIFICATE OF TRUST
FOR
NB CAPITAL TRUST I
The undersigned, the trustees of NB Capital Trust I, desiring
to form a business trust pursuant to Delaware Business Trust Act, 12 Del. C.
(Section Mark) 3810, hereby certify as follows:
i. The name of the business trust being formed
hereby (the "Trust") is "NB Capital
Trust I."
ii. The name and business address of the trustee
of the Trust which has its principal place of
business in the State of Delaware is as fol-
lows:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
iii. This Certificate of Trust shall be effective
as of the date of filing.
Dated: October 29, 1996
/s/ John E. Mack
Name: John E. Mack
Title: Trustee
THE BANK OF NEW YORK (DELAWARE), as
Trustee
By: /s/ Melissa Beneduce
Name: Melissa Beneduce
Title: Assistant Vice President
<PAGE>
EXHIBIT 4.2
CERTIFICATE OF TRUST
FOR
NB CAPITAL TRUST II
The undersigned, the trustees of NB Capital Trust II, desiring
to form a business trust pursuant to Delaware Business Trust Act, 12 Del. C.
(Section Mark) 3810, hereby certify as follows:
i. The name of the business trust being formed
hereby (the "Trust") is "NB Capital
Trust II."
ii. The name and business address of the
trustee of the Trust which has its princi-
pal place of business in the State of Dela-
ware is as follows:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
iii. This Certificate of Trust shall be effec-
tive as of the date of filing.
Dated: October 29, 1996
/s/ John E. Mack
Name: John E. Mack
Title: Trustee
THE BANK OF NEW YORK
(DELAWARE), as Trustee
By: /s/ Melissa Beneduce
Name: Melissa Beneduce
Title: Assistant Vice President
<PAGE>
EXHIBIT 4.3
CERTIFICATE OF TRUST
FOR
NB CAPITAL TRUST III
The undersigned, the trustees of NB Capital Trust III,
desiring to form a business trust pursuant to Delaware Business Trust Act,
12 Del. C. (Section Mark) 3810, hereby certify as follows:
i. The name of the business trust being formed
hereby (the "Trust") is "NB Capital
Trust III."
ii. The name and business address of the
trustee of the Trust which has its princi-
pal place of business in the State of Dela-
ware is as follows:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
iii. This Certificate of Trust shall be effec-
tive as of the date of filing.
Dated: October 29, 1996
/s/ John E. Mack
Name: John E. Mack
Title: Trustee
THE BANK OF NEW YORK
(DELAWARE), as Trustee
By: /s/ Melissa Beneduce
Name: Melissa Beneduce
Title: Assistant Vice President
<PAGE>
EXHIBIT 4.4
================================
DECLARATION OF TRUST
NB CAPITAL TRUST I
Dated as of October 29, 1996
================================
1
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 1.1 Definitions............................................................................1
ARTICLE II
ORGANIZATION
SECTION 2.1 Name...................................................................................4
SECTION 2.2 Office.................................................................................4
SECTION 2.3 Purpose................................................................................4
SECTION 2.4 Authority..............................................................................4
SECTION 2.5 Title to Property of the Trust.........................................................4
SECTION 2.6 Powers of the Trustees.................................................................4
SECTION 2.7 Filing of Certificate of Trust.........................................................6
SECTION 2.8 Duration of Trust......................................................................6
SECTION 2.9 Responsibilities of the Sponsor........................................................6
SECTION 2.10 Declaration Binding on Securities Holders..............................................7
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees...............................................................................7
SECTION 3.2 Regular Trustees.......................................................................7
SECTION 3.3 Delaware Trustee.......................................................................8
SECTION 3.4 Property Trustee.......................................................................8
SECTION 3.5 Not Responsible for Recitals or Sufficiency
of Declaration....................................................................8
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation............................................................................8
SECTION 4.2 Fiduciary Duty.........................................................................9
SECTION 4.3 Indemnification.......................................................................10
SECTION 4.4 Outside Businesses....................................................................14
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments............................................................................14
SECTION 5.2 Termination of Trust..................................................................14
SECTION 5.3 Governing Law.........................................................................15
SECTION 5.4 Headings..............................................................................15
SECTION 5.5 Successors and Assigns................................................................15
SECTION 5.6 Partial Enforceability................................................................15
SECTION 5.7 Counterparts..........................................................................15
</TABLE>
i
<PAGE>
DECLARATION OF TRUST
OF
NB CAPITAL TRUST I
October 29, 1996
THIS DECLARATION OF TRUST ("Declaration") dated and effective
as of October 29, 1996 by the Trustees (as defined herein), the Sponsor (as
defined herein), and by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a
trust (the "Trust") pursuant to the Business Trust Act (as defined herein) for
the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain Notes of the Note Issuer; and
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the exclusive benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the
same meaning throughout unless otherwise specified;
(c) all references to "the Declaration" or "this Declara-
tion" are to this Declaration of Trust as modified,
supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sec-
tions are to Articles and Sections of this Declaration
unless otherwise specified; and
<PAGE>
(e) a reference to the singular includes the plural and
vice versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York and Charlotte, North Carolina are authorized
or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss.3801 et seq., as it may be amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Company" means NationsBank Corporation, a North Carolina
corporation or any successor entity in a merger.
"Company Indemnified Person" means (a) any Regular Trustee;
(b) any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee; or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (I) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Delaware Trustee" has the meaning set forth in Section
3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set
forth in Section 4.3(b).
"Indemnified Person" means a Company Indemnified Person
or a Fiduciary Indemnified Person.
"Indenture" means the indenture to be entered into
between the Company and the Note Trustee and any indenture
2
<PAGE>
supplemental thereto pursuant to which the Notes are to be issued.
"Institutional Trustee" has the meaning set forth in
Section 3.4.
"Note Issuer" means the Company in its capacity as the
issuer of the Notes under the Indenture.
"Notes" means the series of Notes to be issued by the
Note Issuer and acquired by the Trust.
"Note Trustee" means The Bank of New York, a New York banking
corporation, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorpo rated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Security" means a security representing an
undivided beneficial interest in the assets of the Trust with such terms as may
be set out in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware
Trustee and the Institutional Trustee (as hereinafter defined).
"Securities" means the Common Securities and the
Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Sponsor" means the Company in its capacity as sponsor
of the Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
3
<PAGE>
ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
The Trust created by this Declaration is named "NB
Capital Trust I." The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
The address of the principal office of the Trust is c/o
NationsBank Corporation, Corporate Treasury Division, NationsBank Corporate
Center, Charlotte, North Carolina 28255. At any time, the Regular Trustees may
designate another principal office.
SECTION 2.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities and use the proceeds from such sale to acquire the
Notes, and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 2.4 Authority.
Subject to the limitations provided in this Declaration, the
Regular Trustees shall have exclusive and complete authority to carry out the
purposes of the Trust. An action taken by the Regular Trustees in accordance
with their powers shall constitute the act of and serve to bind the Trust. In
dealing with the Regular Trustees acting on behalf of the Trust, no person shall
be required to inquire into the authority of the Regular Trustees to bind the
Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the
Trust.
SECTION 2.6 Powers of the Trustees.
The Regular Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
4
<PAGE>
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Preferred Securities and
no more than one series of Common Securities, and, provided further,
that there shall be no interests in the Trust other than the Securities
and the issuance of the Securities shall be limited to a one-time,
simultaneous issuance of both Preferred Securities and Common
Securities;
(b) in connection with the issue and sale of the Pre-
ferred Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a regis-
tration statement on Form S-3 prepared by the Sponsor,
including any amendments thereto in relation to the Preferred
Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities
for sale;
(iii) execute and file an application, prepared by
the Sponsor, to the New York Stock Exchange, Inc. or any other
national stock exchange or the Nasdaq Stock Market's National
Market for listing upon notice of issuance of any Preferred
Securities;
(iv) execute and file with the Commission a reg-
istration statement on Form 8-A, including any amendments
thereto, prepared by the Sponsor, relating to the registration
of the Preferred Securities under Section 12(b) of the
Exchange Act; and
(v) execute and enter into an underwriting
agreement and pricing agreement providing for the sale
of the Preferred Securities;
(c) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors,
advisors, and consultants and provide for reasonable compensation for
such services;
(d) to incur expenses which are necessary or incidental
to carry out any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform
all duties and powers, and do all things for and on behalf
5
<PAGE>
of the Trust in all matters necessary or incidental to the
foregoing.
SECTION 2.7 Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the
Trustees shall cause the Certificate of Trust for the Trust in the form attached
hereto as Exhibit A to be filed with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of
Section 5.2, shall have existence for 55 years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the Com-
mission a registration statement on Form S-3 in relation to
the Preferred Securities, including any amendments thereto;
(b) to determine the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must
take, and prepare for execution and filing any documents to be executed
and filed by the Trust, as the Sponsor deems necessary or advisable in
order to comply with the applicable laws of any such states;
(c) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the
Nasdaq National Market for listing upon notice of issuance of any
Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
class of Preferred Securities under Sec tion 12(b) of the Exchange Act,
including any amendments thereto; and
(e) to negotiate the terms of an underwriting agree-
ment and pricing agreement providing for the sale of the
Preferred Securities.
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SECTION 2.10 Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a Security
or any interest therein in accordance with the terms of this Declaration, shall
be deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
The number of Trustees initially shall be two, and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor. The Sponsor is entitled to
appoint or remove without cause any Trustee at any time; provided, however, that
the number of Trustees shall in no event be less than two; provided further that
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, is an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); provided further that there shall be at least one trustee
who is an employee or officer of, or is affiliated with the Company (a "Regular
Trustee").
SECTION 3.2 Regular Trustee.
The initial Regular Trustees shall be:
John E. Mack
(a) Except as expressly set forth in this Declaration, any
power of the Regular Trustees may be exercised by, or with the consent
of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act, any Regular
Trustee is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to cause the
Trust to execute pursuant to Section 2.6 provided, that, the
registration statement referred to in Section 2.6(b), including any
amendments thereto, shall be signed by a majority of the Regular
Trustees; and
(c) a Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age
of 21 his or her power for the purposes of signing any documents which
the Regular Trustees have power and authority to cause the Trust to
execute pursuant to Section 2.6.
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SECTION 3.3 Delaware Trustee.
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor shall
the Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
SECTION 3.4 Property Trustee.
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Institutional
Trustee") meeting the requirements of an eligible trustee of the Trust Indenture
Act of 1939, as amended, by the execution of an amendment to this Declaration
executed by the Regular Trustees, the Sponsor, the Institutional Trustee and the
Delaware Trustee.
SECTION 3.5 Not Responsible for Recitals or Sufficiency
of Declaration.
The recitals contained in this Declaration shall be taken as
the statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Decla ration.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such
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Indemnified Person in good faith on behalf of the Trust and in a manner
such Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this Declaration
or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified
Person's gross negligence or willful misconduct with respect to such
acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as
to matters the Indemnified Person reasonably believes are within such
other Person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount
of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
distributions to holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified
Person acting under this Declaration shall not be liable to the Trust
or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to
the extent that they restrict the duties and liabilities of an
Indemnified Person otherwise existing at law or in equity, are agreed
by the parties hereto to replace such other duties and liabilities of
such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any holder of
Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or
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accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person
is permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
SECTION 4.3 Indemnification.
(a) The Note Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees), judg-
ments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Trust, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
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(i) The Note Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust and except that no
such indemnification shall be made in respect of any claim,
issue or matter as to which such Company Indemnified Person
shall have been adjudged to be liable to the Trust unless and
only to the extent that the Court of Chancery of Delaware or
the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for
such expenses which such Court of Chancery or such other court
shall deem proper.
(ii) To the extent that a Company Indemnified Person
shall be successful on the merits or otherwise (including
dismissal of an action without prejudice or the settlement of
an action without admission of liability) in defense of any
action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 4.3(a), or in defense of any claim, issue
or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
therewith.
(iii) Any indemnification under paragraphs (i), (ii)
and (iii) of this Section 4.3(a) (unless ordered by a court)
shall be made by the Note Issuer only as authorized in the
specific case upon a determination that indemnification of the
Company Indemnified Person is proper in the circumstances
because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be
made (1) by the Regular Trustees by a majority vote of a
quorum consisting of such Regular Trustees who were not par-
ties to such action, suit or proceeding, (2) if such a quorum
is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion, or (3) by the Common
Security holder of the Trust.
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(iv) Expenses (including attorneys' fees) incurred by
a Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 4.3(a)
shall be paid by the Note Issuer in advance of the final
disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Note Issuer as authorized in this Section 4.3(a).
Notwithstanding the foregoing, no advance shall be made by the
Note Issuer if a determination is reasonably and promptly made
(i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion or (iii) the Common
Security holder of the Trust, that, based upon the facts known
to the Regular Trustees, counsel or the Common Security holder
at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the
Regular Trustees, independent legal counsel or Common Security
holder reasonably determine that such person deliberately
breached his duty to the Trust or its Common or Preferred
Security holders.
(v) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 4.3(a) shall not be deemed exclusive of any other
rights to which those seeking indemnification and advancement
of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Note Issuer or
Preferred Security Holders of the Trust or otherwise, both as
to action in his official capacity and as to action in another
capacity while holding such office. All rights to
indemnification under this Section 4.3(a) shall be deemed to
be provided by a contract between the Note Issuer and each
Company Indemnified Person who serves in such capacity at any
time while this Section 4.3(a) is in effect. Any repeal or
modification of this Section 4.3(a) shall not affect any
rights or obligations then existing.
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(vi) The Note Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a
Company Indemnified Person against any liability asserted
against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Note
Issuer would have the power to indemnify him against such
liability under the provisions of this Section 4.3(a).
(vii) For purposes of this Section 4.3(a), refer-
ences to "the Trust" shall include, in addition to the
resulting or surviving entity, any constituent entity
(including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a
director, trustee, officer or employee of such constituent
entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee
or agent of another entity, shall stand in the same position
under the provisions of this Section 4.3(a) with respect to
the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence
had continued.
(viii) The indemnification and advancement of
expenses provided by, or granted pursuant to, this Section
4.3(a) shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(b) The Note Issuer agrees to indemnify (i) the Delaware
Trustee, (ii) any Affiliate of the Delaware Trustee, and (iii) any
officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Delaware Trustee
(each of the Persons in (i) through (iii) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary
Indemnified Person harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this Section 4.3(b) shall survive the
termination of this Declaration.
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SECTION 4.4 Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent
for or may act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
At any time before the issue of any Securities, this
Declaration may be amended by, and only by, a written instrument executed by all
of the Regular Trustees and the Sponsor.
SECTION 5.2 Termination of Trust.
(a) The Trust shall dissolve:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of disso-
lution or its equivalent with respect to the Sponsor or
the revocation of the Sponsor's charter or of the
Trust's certificate of trust;
(iii) upon the entry of a decree of judicial
dissolution of the Sponsor, or the Trust; and
(iv) before the issue of any Securities, with
the consent of all of the Regular Trustees and the
Sponsor; and
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(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), and after satisfaction of all obligations of the
Trust, the Trustees shall file a certificate of cancellation with the Secretary
of State of the State of Delaware and the Trust shall terminate.
SECTION 5.3 Governing Law.
This Declaration and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 5.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 5.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether or not so expressed.
SECTION 5.6 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, each of the undersigned has caused these
presents to be executed as of the day and year first above written.
/s/ John E. Mack
Name: John E. Mack
Title: Regular Trustee
------------------------------
THE BANK OF NEW YORK (DELAWARE), as
Delaware Trustee
By:/s/ Joseph G. Ernst
Name: Joseph G. Ernst
Title: Assistant Vice President
NATIONSBANK CORPORATION, as Sponsor
By:/s/ E. Jeffery Couch
Name: E. Jeffery Couch
Title: Senior Vice President
16
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EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of NB Capital
Trust I, desiring to form a business trust pursuant to Delaware
Business Trust Act, 12 Del. C. ss. 3810, hereby certify as follows:
(a) The name of the business trust being formed
hereby (the "Trust") is "NB Capital
Trust I."
(b) The name and business address of the
trustee of the Trust which has its principal
place of business in the State of Delaware is as
follows:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
(c) This Certificate of Trust shall be effective
as of the date of filing.
Dated: October 29, 1996
Name: John E. Mack
Title: Trustee
THE BANK OF NEW YORK (DELAWARE), as Trustee
By:
Name:
Title: Vice President
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================================
DECLARATION OF TRUST
NB CAPITAL TRUST II
Dated as of October 29, 1996
================================
1
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions..................................1
ARTICLE II
ORGANIZATION
SECTION 2.1 Name.........................................4
SECTION 2.2 Office.......................................4
SECTION 2.3 Purpose......................................4
SECTION 2.4 Authority....................................4
SECTION 2.5 Title to Property of the Trust...............4
SECTION 2.6 Powers of the Trustees.......................4
SECTION 2.7 Filing of Certificate of Trust...............6
SECTION 2.8 Duration of Trust............................6
SECTION 2.9 Responsibilities of the Sponsor..............6
SECTION 2.10 Declaration Binding on Securities Holders....7
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.....................................7
SECTION 3.2 Regular Trustees.............................7
SECTION 3.3 Delaware Trustee.............................8
SECTION 3.4 Property Trustee.............................8
SECTION 3.5 Not Responsible for Recitals or Sufficiency
of Declaration..........................8
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation..................................8
SECTION 4.2 Fiduciary Duty...............................9
SECTION 4.3 Indemnification.............................10
SECTION 4.4 Outside Businesses..........................14
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments..................................14
SECTION 5.2 Termination of Trust........................14
SECTION 5.3 Governing Law...............................15
SECTION 5.4 Headings....................................15
SECTION 5.5 Successors and Assigns......................15
SECTION 5.6 Partial Enforceability......................15
SECTION 5.7 Counterparts................................15
Document Number: 88903
i
<PAGE>
DECLARATION OF TRUST
OF
NB CAPITAL TRUST II
October 29, 1996
THIS DECLARATION OF TRUST ("Declaration") dated and effective
as of October 29, 1996 by the Trustees (as defined herein), the Sponsor (as
defined herein), and by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a
trust (the "Trust") pursuant to the Business Trust Act (as defined herein) for
the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain Notes of the Note Issuer; and
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the exclusive benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the
same meaning throughout unless otherwise specified;
(c) all references to "the Declaration" or "this Declara-
tion" are to this Declaration of Trust as modified,
supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sec-
tions are to Articles and Sections of this Declaration
unless otherwise specified; and
<PAGE>
(e) a reference to the singular includes the plural and
vice versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York and Charlotte, North Carolina are authorized
or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss.3801 et seq., as it may be amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Company" means NationsBank Corporation, a North Carolina
corporation or any successor entity in a merger.
"Company Indemnified Person" means (a) any Regular Trustee;
(b) any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee; or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (I) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Delaware Trustee" has the meaning set forth in Section
3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set
forth in Section 4.3(b).
"Indemnified Person" means a Company Indemnified Person
or a Fiduciary Indemnified Person.
"Indenture" means the indenture to be entered into
between the Company and the Note Trustee and any indenture
2
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supplemental thereto pursuant to which the Notes are to be
issued.
"Institutional Trustee" has the meaning set forth in
Section 3.4.
"Note Issuer" means the Company in its capacity as the
issuer of the Notes under the Indenture.
"Notes" means the series of Notes to be issued by the
Note Issuer and acquired by the Trust.
"Note Trustee" means The Bank of New York, a New York banking
corporation, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Security" means a security representing an
undivided beneficial interest in the assets of the Trust with such terms as may
be set out in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware
Trustee and the Institutional Trustee (as hereinafter defined).
"Securities" means the Common Securities and the
Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Sponsor" means the Company in its capacity as sponsor
of the Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
3
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ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
The Trust created by this Declaration is named "NB
Capital Trust II." The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
The address of the principal office of the Trust is c/o
NationsBank Corporation, Corporate Treasury Division, NationsBank Corporate
Center, Charlotte, North Carolina 28255. At any time, the Regular Trustees may
designate another principal office.
SECTION 2.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities and use the proceeds from such sale to acquire the
Notes, and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 2.4 Authority.
Subject to the limitations provided in this Declaration, the
Regular Trustees shall have exclusive and complete authority to carry out the
purposes of the Trust. An action taken by the Regular Trustees in accordance
with their powers shall constitute the act of and serve to bind the Trust. In
dealing with the Regular Trustees acting on behalf of the Trust, no person shall
be required to inquire into the authority of the Regular Trustees to bind the
Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the
Trust.
SECTION 2.6 Powers of the Trustees.
The Regular Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
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(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Preferred Securities and
no more than one series of Common Securities, and, provided further,
that there shall be no interests in the Trust other than the Securities
and the issuance of the Securities shall be limited to a one-time,
simultaneous issuance of both Preferred Securities and Common
Securities;
(b) in connection with the issue and sale of the Pre-
ferred Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a regis-
tration statement on Form S-3 prepared by the Sponsor,
including any amendments thereto in relation to the Preferred
Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities
for sale;
(iii) execute and file an application, prepared by
the Sponsor, to the New York Stock Exchange, Inc. or any other
national stock exchange or the Nasdaq Stock Market's National
Market for listing upon notice of issuance of any Preferred
Securities;
(iv) execute and file with the Commission a reg-
istration statement on Form 8-A, including any amendments
thereto, prepared by the Sponsor, relating to the registration
of the Preferred Securities under Section 12(b) of the
Exchange Act; and
(v) execute and enter into an underwriting
agreement and pricing agreement providing for the sale
of the Preferred Securities;
(c) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors,
advisors, and consultants and provide for reasonable compensation for
such services;
(d) to incur expenses which are necessary or inciden-
tal to carry out any of the purposes of this Declaration;
and
(e) to execute all documents or instruments, perform
all duties and powers, and do all things for and on behalf
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of the Trust in all matters necessary or incidental to the
foregoing.
SECTION 2.7 Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the
Trustees shall cause the Certificate of Trust for the Trust in the form attached
hereto as Exhibit A to be filed with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of
Section 5.2, shall have existence for 55 years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the Com-
mission a registration statement on Form S-3 in relation to
the Preferred Securities, including any amendments thereto;
(b) to determine the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must
take, and prepare for execution and filing any documents to be executed
and filed by the Trust, as the Sponsor deems necessary or advisable in
order to comply with the applicable laws of any such states;
(c) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the
Nasdaq National Market for listing upon notice of issuance of any
Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
class of Preferred Securities under Section 12(b) of the Exchange Act,
including any amendments thereto; and
(e) to negotiate the terms of an underwriting agree-
ment and pricing agreement providing for the sale of the
Preferred Securities.
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SECTION 2.10 Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a Security
or any interest therein in accordance with the terms of this Declaration, shall
be deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
The number of Trustees initially shall be two, and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor. The Sponsor is entitled to
appoint or remove without cause any Trustee at any time; provided, however, that
the number of Trustees shall in no event be less than two; provided further that
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, is an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); provided further that there shall be at least one trustee
who is an employee or officer of, or is affiliated with the Company (a "Regular
Trustee").
SECTION 3.2 Regular Trustees.
The initial Regular Trustee shall be:
John E. Mack
(a) Except as expressly set forth in this Declaration, any
power of the Regular Trustees may be exercised by, or with the consent
of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act, any Regular
Trustee is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to cause the
Trust to execute pursuant to Section 2.6 provided, that, the
registration statement referred to in Section 2.6(b), including any
amendments thereto, shall be signed by a majority of the Regular
Trustees; and
(c) a Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age
of 21 his or her power for the purposes of signing any documents which
the Regular Trustees
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have power and authority to cause the Trust to execute
pursuant to Section 2.6.
SECTION 3.3 Delaware Trustee.
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor shall
the Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
SECTION 3.4 Property Trustee.
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Institutional
Trustee") meeting the requirements of an eligible trustee of the Trust Indenture
Act of 1939, as amended, by the execution of an amendment to this Declaration
executed by the Regular Trustees, the Sponsor, the Institutional Trustee and the
Delaware Trustee.
SECTION 3.5 Not Responsible for Recitals or Sufficiency
of Declaration.
The recitals contained in this Declaration shall be taken as
the statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Decla ration.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible
or accountable in damages or otherwise to the Trust or any
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Covered Person for any loss, damage or claim incurred by reason of any
act or omission performed or omitted by such Indemnified Person in good
faith on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority conferred
on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence
or willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as
to matters the Indemnified Person reasonably believes are within such
other Person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount
of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
distributions to holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified
Person acting under this Declaration shall not be liable to the Trust
or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to
the extent that they restrict the duties and liabilities of an
Indemnified Person otherwise existing at law or in equity, are agreed
by the parties hereto to replace such other duties and liabilities of
such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any holder of
Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest)
9
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to such conflict, agreement, transaction or situation and the benefits and
burdens relating to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting practices or
principles. In the absence of bad faith by the Indemnified Person, the
resolution, action or term so made, taken or provided by the Indemnified Person
shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person
is permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
SECTION 4.3 Indemnification.
(a) The Note Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees), judg-
ments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Trust, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
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(i) The Note Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust and except that no
such indemnification shall be made in respect of any claim,
issue or matter as to which such Company Indemnified Person
shall have been adjudged to be liable to the Trust unless and
only to the extent that the Court of Chancery of Delaware or
the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for
such expenses which such Court of Chancery or such other court
shall deem proper.
(ii) To the extent that a Company Indemnified Person
shall be successful on the merits or otherwise (including
dismissal of an action without prejudice or the settlement of
an action without admission of liability) in defense of any
action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 4.3(a), or in defense of any claim, issue
or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
therewith.
(iii) Any indemnification under paragraphs (i), (ii)
and (iii) of this Section 4.3(a) (unless ordered by a court)
shall be made by the Note Issuer only as authorized in the
specific case upon a determination that indemnification of the
Company Indemnified Person is proper in the circumstances
because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be
made (1) by the Regular Trustees by a majority vote of a
quorum consisting of such Regular Trustees who were not par-
ties to such action, suit or proceeding, (2) if such a quorum
is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion, or (3) by the Common
Security holder of the Trust.
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(iv) Expenses (including attorneys' fees) incurred by
a Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 4.3(a)
shall be paid by the Note Issuer in advance of the final
disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Note Issuer as authorized in this Section 4.3(a).
Notwithstanding the foregoing, no advance shall be made by the
Note Issuer if a determination is reasonably and promptly made
(i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion or (iii) the Common
Security holder of the Trust, that, based upon the facts known
to the Regular Trustees, counsel or the Common Security holder
at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the
Regular Trustees, independent legal counsel or Common Security
holder reasonably determine that such person deliberately
breached his duty to the Trust or its Common or Preferred
Security holders.
(v) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 4.3(a) shall not be deemed exclusive of any other
rights to which those seeking indemnification and advancement
of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Note Issuer or
Preferred Security Holders of the Trust or otherwise, both as
to action in his official capacity and as to action in another
capacity while holding such office. All rights to
indemnification under this Section 4.3(a) shall be deemed to
be provided by a contract between the Note Issuer and each
Company Indemnified Person who serves in such capacity at any
time while this Section 4.3(a) is in effect. Any repeal or
modification of this Section 4.3(a) shall not affect any
rights or obligations then existing.
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(vi) The Note Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a
Company Indemnified Person against any liability asserted
against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Note
Issuer would have the power to indemnify him against such
liability under the provisions of this Section 4.3(a).
(vii) For purposes of this Section 4.3(a), refer-
ences to "the Trust" shall include, in addition to the
resulting or surviving entity, any constituent entity
(including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a
director, trustee, officer or employee of such constituent
entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee
or agent of another entity, shall stand in the same position
under the provisions of this Section 4.3(a) with respect to
the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence
had continued.
(viii) The indemnification and advancement of
expenses provided by, or granted pursuant to, this Section
4.3(a) shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(b) The Note Issuer agrees to indemnify (i) the Delaware
Trustee, (ii) any Affiliate of the Delaware Trustee, and (iii) any
officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Delaware Trustee
(each of the Persons in (i) through (iii) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary
Indemnified Person harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this Section 4.3(b) shall survive the
termination of this Declaration.
13
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SECTION 4.4 Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent
for or may act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
At any time before the issue of any Securities, this
Declaration may be amended by, and only by, a written instrument executed by all
of the Regular Trustees and the Sponsor.
SECTION 5.2 Termination of Trust.
(a) The Trust shall dissolve:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of disso-
lution or its equivalent with respect to the Sponsor or
the revocation of the Sponsor's charter or of the
Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dis-
solution of the Sponsor, or the Trust; and
(iv) before the issue of any Securities, with
the consent of all of the Regular Trustees and the
Sponsor; and
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(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), and after satisfaction of all obligations of the
Trust, the Trustees shall file a certificate of cancellation with the Secretary
of State of the State of Delaware and the Trust shall terminate.
SECTION 5.3 Governing Law.
This Declaration and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 5.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 5.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether or not so expressed.
SECTION 5.6 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
15
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IN WITNESS WHEREOF, each of the undersigned has caused these
presents to be executed as of the day and year first above written.
/s/ John E. Mack
Name: John E. Mack
Title: Regular Trustee
-----------------------------------
THE BANK OF NEW YORK (DELAWARE), as
Delaware Trustee
By: /s/ Joseph G. Ernst
Name: Joseph G. Ernst
Title: Assistant Vice President
NATIONSBANK CORPORATION, as Sponsor
By: /s/ E. Jeffery Couch
Name: E. Jeffery Couch
Title: Senior Vice President
16
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EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of NB Capital
Trust II, desiring to form a business trust pursuant to Delaware
Business Trust Act, 12 Del. C. ss. 3810, hereby certify as follows:
(a) The name of the business trust being
formed hereby (the "Trust") is "NB Capital
hereby (the "Trust") is "NB Capital
Trust II."
(b) The name and business address of the
trustee of the Trust which has its princi-
pal place of business in the State of Dela-
ware is as follows:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
(c) This Certificate of Trust shall be effec-
tive as of the date of filing.
Dated: October 29, 1996
Name: John E. Mack
Title: Trustee
THE BANK OF NEW YORK (DELAWARE), as
Trustee
By:
Name:
Title: Vice President
<PAGE>
17
================================
DECLARATION OF TRUST
NB CAPITAL TRUST III
Dated as of October 29, 1996
================================
1
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions............................................................................1
ARTICLE II
ORGANIZATION
SECTION 2.1 Name...................................................................................4
SECTION 2.2 Office.................................................................................4
SECTION 2.3 Purpose................................................................................4
SECTION 2.4 Authority..............................................................................4
SECTION 2.5 Title to Property of the Trust.........................................................4
SECTION 2.6 Powers of the Trustees.................................................................4
SECTION 2.7 Filing of Certificate of Trust.........................................................6
SECTION 2.8 Duration of Trust......................................................................6
SECTION 2.9 Responsibilities of the Sponsor........................................................6
SECTION 2.10 Declaration Binding on Securities Holders..............................................7
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees...............................................................................7
SECTION 3.2 Regular Trustees.......................................................................7
SECTION 3.3 Delaware Trustee.......................................................................8
SECTION 3.4 Property Trustee.......................................................................8
SECTION 3.5 Not Responsible for Recitals or Sufficiency
of Declaration....................................................................8
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation............................................................................8
SECTION 4.2 Fiduciary Duty.........................................................................9
SECTION 4.3 Indemnification.......................................................................10
SECTION 4.4 Outside Businesses....................................................................14
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments............................................................................14
SECTION 5.2 Termination of Trust..................................................................14
SECTION 5.3 Governing Law.........................................................................15
SECTION 5.4 Headings..............................................................................15
SECTION 5.5 Successors and Assigns................................................................15
SECTION 5.6 Partial Enforceability................................................................15
SECTION 5.7 Counterparts..........................................................................15
i
<PAGE>
DECLARATION OF TRUST
OF
NB CAPITAL TRUST III
October 29, 1996
THIS DECLARATION OF TRUST ("Declaration") dated and effective
as of October 29, 1996 by the Trustees (as defined herein), the Sponsor (as
defined herein), and by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a
trust (the "Trust") pursuant to the Business Trust Act (as defined herein) for
the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain Notes of the Note Issuer; and
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the exclusive benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the
same meaning throughout unless otherwise specified;
(c) all references to "the Declaration" or "this Declara-
tion" are to this Declaration of Trust as modified,
supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sec-
tions are to Articles and Sections of this Declaration
unless otherwise specified; and
<PAGE>
(e) a reference to the singular includes the plural and
vice versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Business Day" means any day other than a day on which banking
institutions in New York, New York and Charlotte, North Carolina are authorized
or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss.3801 et seq., as it may be amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Company" means NationsBank Corporation, a North Carolina
corporation or any successor entity in a merger.
"Company Indemnified Person" means (a) any Regular Trustee;
(b) any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee; or (d) any employee or agent of the Trust or its Affiliates.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (I) the Trust or (ii) the
Trust's Affiliates and (b) any holder of Securities.
"Delaware Trustee" has the meaning set forth in Section
3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set
forth in Section 4.3(b).
"Indemnified Person" means a Company Indemnified Person
or a Fiduciary Indemnified Person.
"Indenture" means the indenture to be entered into
between the Company and the Note Trustee and any indenture
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supplemental thereto pursuant to which the Notes are to be
issued.
"Institutional Trustee" has the meaning set forth in
Section 3.4.
"Note Issuer" means the Company in its capacity as the
issuer of the Notes under the Indenture.
"Notes" means the series of Notes to be issued by the
Note Issuer and acquired by the Trust.
"Note Trustee" means The Bank of New York, a New York banking
corporation, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Security" means a security representing an
undivided beneficial interest in the assets of the Trust with such terms as may
be set out in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware
Trustee and the Institutional Trustee (as hereinafter defined).
"Securities" means the Common Securities and the
Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Sponsor" means the Company in its capacity as sponsor
of the Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
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ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
The Trust created by this Declaration is named "NB
Capital Trust III." The Trust's activities may be conducted under the name of
the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
The address of the principal office of the Trust is c/o
NationsBank Corporation, Corporate Treasury Division, NationsBank Corporate
Center, Charlotte, North Carolina 28255. At any time, the Regular Trustees may
designate another principal office.
SECTION 2.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities and use the proceeds from such sale to acquire the
Notes, and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 2.4 Authority.
Subject to the limitations provided in this Declaration, the
Regular Trustees shall have exclusive and complete authority to carry out the
purposes of the Trust. An action taken by the Regular Trustees in accordance
with their powers shall constitute the act of and serve to bind the Trust. In
dealing with the Regular Trustees acting on behalf of the Trust, no person shall
be required to inquire into the authority of the Regular Trustees to bind the
Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the
Trust.
SECTION 2.6 Powers of the Trustees.
The Regular Trustees shall have the exclusive power and
authority to cause the Trust to engage in the following activities:
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(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Preferred Securities and
no more than one series of Common Securities, and, provided further,
that there shall be no interests in the Trust other than the Securities
and the issuance of the Securities shall be limited to a one-time,
simultaneous issuance of both Preferred Securities and Common
Securities;
(b) in connection with the issue and sale of the Pre-
ferred Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission a regis-
tration statement on Form S-3 prepared by the Sponsor,
including any amendments thereto in relation to the Preferred
Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Preferred Securities
for sale;
(iii) execute and file an application, prepared by
the Sponsor, to the New York Stock Exchange, Inc. or any other
national stock exchange or the Nasdaq Stock Market's National
Market for listing upon notice of issuance of any Preferred
Securities;
(iv) execute and file with the Commission a reg-
istration statement on Form 8-A, including any amendments
thereto, prepared by the Sponsor, relating to the registration
of the Preferred Securities under Section 12(b) of the
Exchange Act; and
(v) execute and enter into an underwriting
agreement and pricing agreement providing for the sale
of the Preferred Securities;
(c) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors,
advisors, and consultants and provide for reasonable compensation for
such services;
(d) to incur expenses which are necessary or inciden-
tal to carry out any of the purposes of this Declaration;
and
(e) to execute all documents or instruments, perform
all duties and powers, and do all things for and on behalf
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of the Trust in all matters necessary or incidental to the
foregoing.
SECTION 2.7 Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the
Trustees shall cause the Certificate of Trust for the Trust in the form attached
hereto as Exhibit A to be filed with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of
Section 5.2, shall have existence for 55 years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the Com-
mission a registration statement on Form S-3 in relation to
the Preferred Securities, including any amendments thereto;
(b) to determine the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must
take, and prepare for execution and filing any documents to be executed
and filed by the Trust, as the Sponsor deems necessary or advisable in
order to comply with the applicable laws of any such states;
(c) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the
Nasdaq National Market for listing upon notice of issuance of any
Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
class of Preferred Securities under Section 12(b) of the Exchange Act,
including any amendments thereto; and
(e) to negotiate the terms of an underwriting agree-
ment and pricing agreement providing for the sale of the
Preferred Securities.
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SECTION 2.10 Declaration Binding on Securities Holders.
Every Person by virtue of having become a holder of a Security
or any interest therein in accordance with the terms of this Declaration, shall
be deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Declaration.
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
The number of Trustees initially shall be two, and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor. The Sponsor is entitled to
appoint or remove without cause any Trustee at any time; provided, however, that
the number of Trustees shall in no event be less than two; provided further that
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or that, if not a natural person, is an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee"); provided further that there shall be at least one trustee
who is an employee or officer of, or is affiliated with the Company (a "Regular
Trustee").
SECTION 3.2 Regular Trustees.
The initial Regular Trustee shall be:
John E. Mack
(a) Except as expressly set forth in this Declaration, any
power of the Regular Trustees may be exercised by, or with the consent
of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act, any Regular
Trustee is authorized to execute on behalf of the Trust any documents
which the Regular Trustees have the power and authority to cause the
Trust to execute pursuant to Section 2.6 provided, that, the
registration statement referred to in Section 2.6(b), including any
amendments thereto, shall be signed by a majority of the Regular
Trustees; and
(c) a Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age
of 21 his or her power for the purposes of signing any documents which
the Regular Trustees
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have power and authority to cause the Trust to execute
pursuant to Section 2.6.
SECTION 3.3 Delaware Trustee.
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any of the powers, nor shall
the Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Business Trust Act. Notwithstanding anything herein to the contrary, the
Delaware Trustee shall not be liable for the acts or omissions to act of the
Trust or of the Regular Trustees except such acts as the Delaware Trustee is
expressly obligated or authorized to undertake under this Declaration or the
Business Trust Act and except for the gross negligence or willful misconduct of
the Delaware Trustee.
SECTION 3.4 Property Trustee.
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Institutional
Trustee") meeting the requirements of an eligible trustee of the Trust Indenture
Act of 1939, as amended, by the execution of an amendment to this Declaration
executed by the Regular Trustees, the Sponsor, the Institutional Trustee and the
Delaware Trustee.
SECTION 3.5 Not Responsible for Recitals or Sufficiency
of Declaration.
The recitals contained in this Declaration shall be taken as
the statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible
or accountable in damages or otherwise to the Trust or any
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Covered Person for any loss, damage or claim incurred by reason of any
act or omission performed or omitted by such Indemnified Person in good
faith on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority conferred
on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence
or willful misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as
to matters the Indemnified Person reasonably believes are within such
other Person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount
of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
distributions to holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified
Person acting under this Declaration shall not be liable to the Trust
or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to
the extent that they restrict the duties and liabilities of an
Indemnified Person otherwise existing at law or in equity, are agreed
by the parties hereto to replace such other duties and liabilities of
such Indemnified Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any holder of
Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest)
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to such conflict, agreement, transaction or situation and the benefits and
burdens relating to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting practices or
principles. In the absence of bad faith by the Indemnified Person, the
resolution, action or term so made, taken or provided by the Indemnified Person
shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indem nified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person
is permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
SECTION 4.3 Indemnification.
(a) The Note Issuer shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees), judg-
ments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Trust, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
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(i) The Note Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Trust and except that no
such indemnification shall be made in respect of any claim,
issue or matter as to which such Company Indemnified Person
shall have been adjudged to be liable to the Trust unless and
only to the extent that the Court of Chancery of Delaware or
the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for
such expenses which such Court of Chancery or such other court
shall deem proper.
(ii) To the extent that a Company Indemnified Person
shall be successful on the merits or otherwise (including
dismissal of an action without prejudice or the settlement of
an action without admission of liability) in defense of any
action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 4.3(a), or in defense of any claim, issue
or matter therein, he shall be indemnified, to the full extent
permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
therewith.
(iii) Any indemnification under paragraphs (i), (ii)
and (iii) of this Section 4.3(a) (unless ordered by a court)
shall be made by the Note Issuer only as authorized in the
specific case upon a determination that indemnification of the
Company Indemnified Person is proper in the circumstances
because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be
made (1) by the Regular Trustees by a majority vote of a
quorum consisting of such Regular Trustees who were not par-
ties to such action, suit or proceeding, (2) if such a quorum
is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion, or (3) by the Common
Security holder of the Trust.
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(iv) Expenses (including attorneys' fees) incurred by
a Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 4.3(a)
shall be paid by the Note Issuer in advance of the final
disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such Company Indemnified
Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
Note Issuer as authorized in this Section 4.3(a).
Notwithstanding the foregoing, no advance shall be made by the
Note Issuer if a determination is reasonably and promptly made
(i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion or (iii) the Common
Security holder of the Trust, that, based upon the facts known
to the Regular Trustees, counsel or the Common Security holder
at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal
proceed ing, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the
Regular Trustees, independent legal counsel or Common Security
holder reasonably determine that such person deliberately
breached his duty to the Trust or its Common or Preferred
Security holders.
(v) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 4.3(a) shall not be deemed exclusive of any other
rights to which those seeking indemnification and advancement
of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Note Issuer or
Preferred Security Holders of the Trust or otherwise, both as
to action in his official capacity and as to action in another
capacity while holding such office. All rights to
indemnification under this Section 4.3(a) shall be deemed to
be provided by a contract between the Note Issuer and each
Company Indemnified Person who serves in such capacity at any
time while this Section 4.3(a) is in effect. Any repeal or
modification of this Section 4.3(a) shall not affect any
rights or obligations then existing.
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(vi) The Note Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a
Company Indemnified Person against any liability asserted
against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Note
Issuer would have the power to indemnify him against such
liability under the provisions of this Section 4.3(a).
(vii) For purposes of this Section 4.3(a), refer-
ences to "the Trust" shall include, in addition to the
resulting or surviving entity, any constituent entity
(including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a
director, trustee, officer or employee of such constituent
entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee
or agent of another entity, shall stand in the same position
under the provisions of this Section 4.3(a) with respect to
the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence
had continued.
(viii) The indemnification and advancement of
expenses provided by, or granted pursuant to, this Section
4.3(a) shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(b) The Note Issuer agrees to indemnify (i) the Delaware
Trustee, (ii) any Affiliate of the Delaware Trustee, and (iii) any
officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Delaware Trustee
(each of the Persons in (i) through (iii) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary
Indemnified Person harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this Section 4.3(b) shall survive the
termination of this Declaration.
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SECTION 4.4 Outside Businesses.
Any Covered Person, the Sponsor and the Delaware Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor or the Delaware Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor and the
Delaware Trustee shall have the right to take for its own account (individually
or as a partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person and the Delaware Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent
for or may act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
At any time before the issue of any Securities, this
Declaration may be amended by, and only by, a written instrument executed by all
of the Regular Trustees and the Sponsor.
SECTION 5.2 Termination of Trust.
(a) The Trust shall dissolve:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of disso-
lution or its equivalent with respect to the Sponsor or
the revocation of the Sponsor's charter or of the
Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dis-
solution of the Sponsor, or the Trust; and
(iv) before the issue of any Securities, with
the consent of all of the Regular Trustees and the
Sponsor; and
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(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), and after satisfaction of all obligations of the
Trust, the Trustees shall file a certificate of cancellation with the Secretary
of State of the State of Delaware and the Trust shall terminate.
SECTION 5.3 Governing Law.
This Declaration and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 5.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 5.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether or not so expressed.
SECTION 5.6 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, each of the undersigned has caused these
presents to be executed as of the day and year first above written.
/s/ John E. Mack
Name: John E. Mack
Title: Regular Trustee
THE BANK OF NEW YORK (DELAWARE), as
Delaware Trustee
By:/s/ Joseph G. Ernst
Name: Joseph G. Ernst
Title: Assistant Vice President
NATIONSBANK CORPORATION, as Sponsor
By:/s/ E. Jeffery Couch
Name: E. Jeffery Couch
Title: Senior Vice President
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EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of NB Capital
Trust III, desiring to form a business trust pursuant to Delaware
Business Trust Act, 12 Del. C. ss. 3810, hereby certify as follows:
(a) The name of the business trust being formed
hereby (the "Trust") is "NB Capital
Trust III."
(b) The name and business address of the
trustee of the Trust which has its princi-
pal place of business in the State of Dela-
ware is as follows:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
(c) This Certificate of Trust shall be effec-
tive as of the date of filing.
Dated: October 29, 1996
Name: John E. Mack
Title: Trustee
THE BANK OF NEW YORK (DELAWARE), as
Trustee
By:
Name:
Title: Vice President
17
</TABLE>
Exhibit 23.1
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.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Charlotte, North Carolina
November 1, 1996
<PAGE>
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Registration Statement
(Form S-3) and related prospectus of NationsBank Corporation for the
registration of $1,000,000 of junior subordinated debt and preferred securities
of our report dated January 18, 1996 (except for the pooling of interests with
Fourth Financial Corporation as of January 31, 1996, and Note 3, for which the
date is January 31, 1996) with respect to the supplemental consolidated
financial statements of Boatmen's Bancshares, Inc. for the three years ended
December 31, 1995, 1994, and 1993 incorporated by reference in NationsBank
Corporation's Current Report on Form 8-K dated September 6, 1996, (as amended by
Form 8-K/A-1 on September 11, 1996) as filed with the Securities and Exchange
Commission.
St. Louis, Missouri
October 31, 1996
<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 (the "Securities Act"), of up to
$1,000,000,000 in aggregate initial offering price of (i) NationsBank
Corporation's Subordinated Debt Securities, (the "Subordinated Debt
Securities"), (ii) Preferred Securities of NationsBanc Capital Trust I,
NationsBanc Capital Trust II and NationsBanc Capital Trust III (the "Preferred
Securities") and (iii) NationsBank Corporation's Guarantees (the "Guarantees")
of the Preferred Securities (the Subordinated Debt Securities, the Preferred
Securities and the Guarantees 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 October 23, 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: October 29, 1996
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ HUGH L. MCCOLL, JR. Chairman of the Board, Chief Executive Officer October 29, 1996
(HUGH L. MCCOLL, JR.) and Director (Principal Executive Officer)
/s/ JAMES H. HANCE, JR. Vice Chairman and Chief Financial Officer October 29, 1996
(JAMES H. HANCE, JR.) (Principal Financial Officer)
/s/ MARC D. OKEN Executive Vice President and Chief October 29, 1996
(MARC D. OKEN) Accounting Officer (Principal
Accounting Officer)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
Director October 29, 1996
(RONALD W. ALLEN)
/s/ RAY C. ANDERSON Director October 29, 1996
(RAY C. ANDERSON)
/s/ WILLIAM M. BARNHARDT Director October 29, 1996
(WILLIAM M. BARNHARDT)
Director October 29, 1996
(THOMAS E. CAPPS)
/s/ CHARLES W. COKER Director October 29, 1996
(CHARLES W. COKER)
/s/ THOMAS G. COUSINS Director October 29, 1996
(THOMAS G. COUSINS)
/s/ ALAN T. DICKSON Director October 29, 1996
(ALAN T. DICKSON)
Director October 29, 1996
(W. FRANK DOWD, JR.)
Director October 29, 1996
(PAUL FULTON)
/s/ TIMOTHY L. GUZZLE Director October 29, 1996
(TIMOTHY L. GUZZLE)
/s/ W. W. JOHNSON Director October 29, 1996
(W. W. JOHNSON)
/s/ JOHN J. MURPHY Director October 29, 1996
(JOHN J. MURPHY)
Director October 29, 1996
(JOHN C. SLANE)
Director October 29, 1996
(O. TEMPLE SLOAN, JR.)
Director October 29, 1996
(JOHN W. SNOW)
/s/ MEREDITH R. SPANGLER Director October 29, 1996
(MEREDITH R. SPANGLER)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ ROBERT H. SPILMAN Director October 29, 1996
(ROBERT H. SPILMAN)
/s/ RONALD TOWNSEND Director October 29, 1996
(RONALD TOWNSEND)
/s/ E. CRAIG WALL, JR. Director October 29, 1996
(E. CRAIG WALL, JR.)
/s/ JACKIE M. WARD Director October 29, 1996
(JACKIE M. WARD)
/s/ VIRGIL R. WILLIAMS Director October 29, 1996
(VIRGIL R. WILLIAMS)
</TABLE>
