SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
January 29, 1998
NATIONSBANK CORPORATION
(Exact name of registrant as specified in its charter)
North Carolina
(State of Incorporation)
1-6523
(Commission File Number)
56-0906609
(IRS Employer Identification No.)
NationsBank Corporate Center
Charlotte, North Carolina
(Address of principal executive offices)
28255
(Zip Code)
(704) 386-5000
Registrant's telephone number, including area code)
ITEM 5. OTHER EVENTS.
On January 29, 1998, a Committee of the Board of
Directors of the Registrant approved the public offering of an
aggregate principal amount of $350,000,000 of the Registrant's
6-3/8% Subordinated Notes, due 2008 (the "Notes") to various
underwriters (the "Underwriters") and otherwise established the
terms and conditions of the Notes and the sale thereof. The
resolutions of such Committee are included as Exhibit 99.1
hereto.
Also on January 29, 1998, the Registrant entered into an
underwriting agreement with the Underwriters ("Underwriting
Agreement"). The terms of the offering and the Notes are
described in the Registrant's Prospectus dated December 19, 1996
constituting a part of the Registration Statement (hereinafter
described), as supplemented by a Prospectus Supplement dated
January 29, 1998. The Underwriting Agreement is included as
Exhibit 1.1 hereto.
The Notes were issued pursuant to the Registrant's
Registration Statement on Form S-3, Registration No. 333-13811
(the "Registration Statement"), on a delayed basis pursuant to
Rule 415 under the Securities Act of 1933, as amended. The
Registration Statement registered up to $3,000,000,000 aggregate
initial offering price of the Registrant's unsecured debt
securities (either senior or subordinated) and shares of its
preferred stock and common stock and was declared effective on
December 19, 1996. After the closing of the sale of the Notes,
expected to occur on February 4, 1998, debt securities,
preferred stock or common stock having an approximate aggregate
initial offering price of $2,650,000,000 will remain unsold under
the Registration Statement.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
The following exhibits are filed herewith:
EXHIBIT NO. DESCRIPTION OF EXHIBIT
1.1 Underwriting Agreement dated January 29,
1998 with respect to the offering
of the Notes
4.1 Form of Note
5.1 Opinion of Smith Helms Mulliss & Moore,
L.L.P. regarding legality of the Notes
99.1 Resolutions of a Committee of the Board
of Directors effective January 29, 1998
with respect to the terms of the
offering of the Notes
99.2 News Release disseminated on January 29,
1998 regarding the sale of the Notes
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
NATIONSBANK CORPORATION
By: /s/ CHARLES M. BERGER
CHARLES M. BERGER
Associate General Counsel
Dated: February 3, 1998
NATIONSBANK CORPORATION
UNDERWRITING AGREEMENT
New York, New York
January 29, 1998
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
NationsBank Corporation, a North Carolina corporation (the
"Company"), proposes to sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting
as representatives (the "Representatives"), the principal amount
of its securities identified in Schedule I hereto (the
"Securities"), to be issued under an indenture (the "Indenture")
dated as of January 1, 1995 between the Company and The Bank of
New York, as trustee (the "Trustee"). If the firm or firms
listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, each shall be deemed to refer
to such firm or firms.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of
Form S-3 under the Securities Act of 1933, as amended
(the "Act"), and has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on
such form (the file number of which is set forth in Schedule
I hereto), which has become effective, for the registration
under the Act of the Securities. Such registration
statement, as amended at the date of this Agreement, meets
the requirements set forth in Rule 415(a)(1) under the Act
and complies in all other material respects with said Rule.
The Company proposes to file with the Commission pursuant to
Rule 424 or Rule 434 under the Act a supplement to the form
of prospectus included in such registration statement
relating to the Securities and the plan of distribution
thereof and has previously advised you of all further
information (financial and other) with respect to the
Company to be set forth therein. Such registration
statement, including the exhibits thereto, as amended at the
date of this Agreement, is hereinafter called the
"Registration Statement;" such prospectus in the form in
which it appears in the Registration Statement is
hereinafter called the "Basic Prospectus;" and such
supplemented form of prospectus, in the form in which it
shall be filed with the Commission pursuant to Rule 424 or
Rule 434 (including the Basic Prospectus as so supplemented)
is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 hereinafter is
called the "Preliminary Final Prospectus." Any reference
herein to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the
date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to
the terms "amend," "amendment" or "supplement" with respect
to the Registration Statement, the Basic Prospectus, and the
Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document
under the Exchange Act after the date of this Agreement, or
the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may
be, and deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus
is first filed pursuant to Rule 424 or Rule 434 under the
Act, when, prior to the Closing Date (as hereinafter
defined), any amendment to the Registration Statement
becomes effective (including the filing of any document
incorporated by reference in the Registration Statement),
when any supplement to the Final Prospectus is filed with
the Commission and at the Closing Date (as hereinafter
defined), (i) the Registration Statement as amended as of
any such time, and the Final Prospectus, as amended or
supplemented as of any such time, and the Indenture will
comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939
(the "Trust Indenture Act") and the Exchange Act and the
respective rules thereunder, (ii) the Registration
Statement, as amended as of any such time, will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and
(iii) the Final Prospectus, as amended or supplemented as of
any such time, will not contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as
to (A) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification of
the Trustee (Form T-1) under the Trust Indenture Act of the
Trustee or (B) the information contained in or omitted from
the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the
preparation of the Registration Statement and the Final
Prospectus.
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein
set forth, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price set forth in Schedule I
hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto, except that, if
Schedule I hereto provides for the sale of Securities pursuant to
delayed delivery arrangements, the respective principal amounts
of Securities to be purchased by the Underwriters shall be set
forth in Schedule II hereto, less the respective amounts of
Contract Securities determined as provided below. Securities to
be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased
pursuant to Delayed Delivery Contracts as hereinafter provided
are herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"), substantially in the form of Schedule III hereto but
with such changes therein as the Company may authorize or
approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay
to the Representatives, for the account of the Underwriters, on
the Closing Date, the percentage set forth in Schedule I hereto
of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to
be with institutional investors, including commercial and savings
banks, insurance companies, pension funds, investment companies
and educational and charitable institutions. The Company will
make Delayed Delivery Contracts in all cases where sales of
Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise
agree, each such Delayed Delivery Contract must be for not less
than the minimum principal amount set forth in Schedule I hereto
and the aggregate principal amount of Contract Securities may not
exceed the maximum aggregate principal amount set forth in
Schedule I hereto. The Underwriters will not have any
responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The principal amount of Securities
to be purchased by each Underwriter as set forth in Schedule II
hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities
as the principal amount of Securities set forth opposite the name
of such Underwriter bears to the aggregate principal amount set
forth in Schedule II hereto, except to the extent that you
determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided,
however, that the total principal amount of Securities to be
purchased by all Underwriters shall be the aggregate principal
amount set forth in Schedule II hereto, less the aggregate
principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the
time specified in Schedule I hereto, which date and time may be
postponed by agreement between the Representatives and the
Company or as provided in Section 8 hereof (such date and time of
delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Underwriters' Securities shall
be made to the Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof in the
manner set forth in Schedule I hereto. Unless otherwise agreed,
certificates for the Underwriters' Securities shall be in the
form set forth in Schedule I hereto, and such certificates may be
deposited with The Depository Trust Company ("DTC") or a
custodian of DTC and registered in the name of Cede & Co., as
nominee for DTC.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be
filed with the Commission pursuant to Rule 424 or Rule 434
via the Electronic Data Gathering, Analysis and Retrieval
System. The Company will advise the Representatives
promptly (i) when the Final Prospectus shall have been filed
with the Commission pursuant to Rule 424 or Rule 434, (ii)
when any amendment to the Registration Statement relating to
the Securities shall have become effective, (iii) of any
request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the
Final Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that
purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent
the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, except
with respect to any such delivery requirement imposed upon
an affiliate of the Company in connection with any secondary
market sales, any event occurs as a result of which the
Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein in light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend or
supplement the Final Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the
Company promptly will prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct
such statement or omission or an amendment which will effect
such compliance.
(c) The Company will make generally available to its
security holders and to the Representatives as soon as
practicable, but not later than 60 days after the close of
the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the regulations
under the Act) covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule
158) of the Registration Statement.
(d) The Company will furnish to the Representatives
and counsel for the Underwriters, without charge, copies of
the Registration Statement (including exhibits thereto) and
each amendment thereto which shall become effective on or
prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Preliminary Final Prospectus
and the Final Prospectus and any amendments thereof and
supplements thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company will arrange for the qualification of
the Securities for sale under the laws of such jurisdictions
as the Representatives may reasonably designate, will
maintain such qualifications in effect so long as required
for the distribution of the Securities and will arrange for
the determination of the legality of the Securities for
purchase by institutional investors; provided, however, that
the Company shall not be required to qualify to do business
in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general or
unlimited service of process of any jurisdiction where it is
not now so subject.
(f) Until the business day following the Closing Date,
the Company will not, without the consent of the
Representatives, offer or sell, or announce the offering of,
any securities covered by the Registration Statement or by
any other registration statement filed under the Act;
provided, however, the Company may, at any time, offer or
sell or announce the offering of any securities (A) covered
by a registration statement on Form S-8 or (B) covered by a
registration statement on Form S-3 and pursuant to which the
Company issues securities for its Dividend Reinvestment
Plan.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters'
Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date (including the filing of any
document incorporated by reference therein) and as of the Closing
Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall
have been instituted or threatened; and the Final Prospectus
shall have been filed or mailed for filing with the
Commission within the time period prescribed by the
Commission.
(b) The Company shall have furnished to the
Representatives the opinion of Smith Helms Mulliss & Moore,
L.L.P., counsel for the Company, dated the Closing Date, to
the effect of paragraphs (i), (iv) and (vi) through (xii)
below, and the opinion of Paul J. Polking, General Counsel
to the Company, dated the Closing Date, to the effect of
paragraphs (ii), (iii) and (v) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of
the State of North Carolina, has the corporate power
and authority to own its properties and conduct its
business as described in the Final Prospectus, and is
duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended;
NationsBank, National Association, Barnett Bank, N.A.
and NationsBank of Texas, National Association (or the
successors to such entities) (collectively, the
"Principal Subsidiary Banks") are national banking
associations formed under the laws of the United States
and authorized thereunder to transact business;
(ii) except for those jurisdictions specifically
enumerated in such opinion, neither the Company nor any
of the Principal Subsidiary Banks is required to be
qualified or licensed to do business as a foreign
corporation in any jurisdiction;
(iii) all the outstanding shares of capital stock
of each Principal Subsidiary Bank have been duly and
validly authorized and issued and are fully paid and
(except as provided in 12 U.S.C. Section 55, as
amended) nonassessable, and, except as otherwise set
forth in the Final Prospectus, all outstanding shares
of capital stock of the Principal Subsidiary Banks
(except directors' qualifying shares) are owned,
directly or indirectly, by the Company free and clear
of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(iv) the Securities conform in all material
respects to the description thereof contained in the
Final Prospectus;
(v) if the Securities are to be listed on the New
York Stock Exchange, authorization therefor has been
given, subject to official notice of issuance and
evidence of satisfactory distribution, or the Company
has filed a preliminary listing application and all
required supporting documents with respect to the
Securities with the New York Stock Exchange and such
counsel has no reason to believe that the Securities
will not be authorized for listing, subject to official
notice of issuance and evidence of satisfactory
distribution;
(vi) the Indenture has been duly authorized,
executed and delivered by the Company, has been duly
qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws
affecting the rights of creditors now or hereafter in
effect, and to equitable principles that may limit the
right to specific enforcement of remedies, and further
subject to 12 U.S.C. Section 1818(b)(6)(D) and similar
bank regulatory powers and to the application of
principles of public policy); and the Securities have
been duly authorized and, when executed and
authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, in the case of
the Underwriters' Securities, or by the purchasers
thereof pursuant to Delayed Delivery Contracts, in the
case of any Contract Securities, will constitute legal,
valid and binding obligations of the Company entitled
to the benefits of the Indenture (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights
of creditors now or hereafter in effect, and to
equitable principles that may limit the right to
specific enforcement of remedies, and further subject
to 12 U.S.C. Section 1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles
of public policy);
(vii) to the best knowledge of such counsel, there
is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of
its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there
is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
(viii) the Registration Statement has become
effective under the Act; to the best knowledge of such
counsel no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final
Prospectus and each amendment thereof or supplement
thereto (other than the financial statements and other
financial and statistical information contained therein
or incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the applicable requirements
of the Act and the Exchange Act and the respective
rules thereunder;
(ix) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company and each constitutes a legal,
valid and binding agreement of the Company enforceable
against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting
the rights of creditors now or hereafter in effect, and
to equitable principles that may limit the right to
specific enforcement of remedies, and except insofar as
the enforceability of the indemnity and contribution
provisions contained in this Agreement may be limited
by federal and state securities laws, and further
subject to 12 U.S.C. 1818(b)(6)(D) and similar bank
regulatory powers and to the application of principles
of public policy);
(x) no consent, approval, authorization or order
of any court or governmental agency or body is required
on behalf of the Company for the consummation of the
transactions contemplated herein or in any Delayed
Delivery Contracts, except such as have been obtained
under the Act and such as may be required under the
blue sky or insurance laws of any jurisdiction in
connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(xi) neither the issue and sale of the Securities,
nor the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms
hereof or of any Delayed Delivery Contracts will
conflict with, result in a breach of, or constitute a
default under the articles of incorporation or by-laws
of the Company or, to the best knowledge of such
counsel, the terms of any material indenture or other
agreement or instrument known to such counsel and to
which the Company or any of the Principal Subsidiary
Banks is a party or bound, or any order or regulation
known to such counsel to be applicable to the Company
or any of the Principal Subsidiary Banks of any court,
regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company
or any of its affiliates; and
(xii) to the best knowledge and information of
such counsel, each holder of securities of the Company
having rights to the registration of such securities
under the Registration Statement has waived such rights
or such rights have expired by reason of lapse of time
following notification of the Company's intention to
file the Registration Statement.
In rendering such opinion, but without opining in
connection therewith, such counsel shall also state
that, although it has not independently verified, is
not passing upon and assumes no responsibility for the
accuracy, completeness or fairness of the statements
contained in the Registration Statement, it has no
reason to believe that the Registration Statement or
any amendment thereof at the time it became effective
contained any untrue statement of a material fact or
omitted to state any material fact required to be
stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus, as
amended or supplemented, contains any untrue statement
of a material fact or omits to state a material fact
necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely (A) as
to matters involving the application of laws of any
jurisdiction other than the State of North Carolina or
the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Underwriters;
and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the
Company and its subsidiaries and public officials.
(c) The Representatives shall have received from
Stroock & Stroock & Lavan LLP, counsel for the Underwriters,
such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration
Statement, the Final Prospectus and other related matters as
the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such
matters.
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the
Chairman of the Board and Chief Executive Officer or a
Senior Vice President and the principal financial or
accounting officer of the Company, dated the Closing Date,
to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final
Prospectus and this Agreement and that to the best of their
knowledge:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement, as amended, has been issued
and no proceedings for that purpose have been
instituted or threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has
been no material adverse change in the condition
(financial or other), earnings, business or properties
of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Final Prospectus.
(e) At the Closing Date, Price Waterhouse LLP shall
have furnished to the Representatives a letter or letters
(which may refer to letters previously delivered to one or
more of the Representatives), dated as of the Closing Date,
in form and substance satisfactory to the Representatives,
confirming that the response, if any, to Item 10 of the
Registration Statement is correct insofar as it relates to
them and stating in effect that:
(i) They are independent accountants within the
meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations
thereunder.
(ii) In their opinion, the consolidated financial
statements of the Company and its subsidiaries audited
by them and included or incorporated by reference in
the Registration Statement and Final Prospectus comply
as to form in all material respects with the applicable
accounting requirements of the Act and the regulations
thereunder with respect to registration statements on
Form S-3 and the Exchange Act and the regulations
thereunder.
(iii) On the basis of procedures (but not an audit
in accordance with generally accepted auditing
standards) consisting of:
(a) Reading the minutes of the meetings of the
shareholders, the board of directors, executive
committee and audit committee of the Company and the
boards of directors and executive committees of its
subsidiaries as set forth in the minute books through a
specified date not more than five business days prior
to the date of delivery of such letter;
(b) Performing the procedures specified by the
American Institute of Certified Public Accountants for
a review of interim financial information as described
in SAS No. 71, Interim Financial Information, on the
unaudited condensed consolidated interim financial
statements of the Company and its consolidated
subsidiaries included or incorporated by reference in
the Registration Statement and Final Prospectus and
reading the unaudited interim financial data, if any,
for the period from the date of the latest balance
sheet included or incorporated by reference in the
Registration Statement and Final Prospectus to the date
of the latest available interim financial data; and
(c) Making inquiries of certain officials of the
Company who have responsibility for financial and
accounting matters regarding the specific items for
which representations are requested below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1) the unaudited condensed consolidated interim
financial statements, included or incorporated by
reference in the Registration Statement and Final
Prospectus, do not comply as to form in all material
respects with the applicable accounting requirements of
the Exchange Act and the published rules and
regulations thereunder;
(2) any material modifications should be made to
the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in
the Registration Statement and Final Prospectus, for
them to be in conformity with generally accepted
accounting principles;
(3) (i) at the date of the latest available
interim financial data and at the specified date not
more than five business days prior to the date of the
delivery of such letter, there was any change in the
capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in
shareholders' equity of the Company and the
subsidiaries on a consolidated basis as compared with
the amounts shown in the latest balance sheet included
or incorporated by reference in the Registration
Statement and the Final Prospectus or (ii) for the
period from the date of the latest available financial
data to a specified date not more than five business
days prior to the delivery of such letter, there was
any change in the capital stock or the long-term debt
(other than scheduled repayments of such debt) or any
decreases in shareholders' equity of the Company and
the subsidiaries on a consolidated basis, except in all
instances for changes or decreases which the
Registration Statement and Prospectus discloses have
occurred or may occur, or Price Waterhouse LLP shall
state any specific changes or decreases.
(iv) The letter shall also state that Price
Waterhouse LLP has carried out certain other specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information
which are included or incorporated by reference in the
Registration Statement and Final Prospectus and which
are specified by the Representatives and agreed to by
Price Waterhouse LLP, and has found such amounts,
percentages and financial information to be in
agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries
identified in such letter.
In addition, at the time this Agreement is executed,
Price Waterhouse LLP shall have furnished to the
Representatives a letter or letters, dated the date of this
Agreement, in form and substance satisfactory to the
Representatives, to the effect set forth in this paragraph
(e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Final Prospectus, there shall not have been (i) any change
or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or
any development involving a prospective change, in or
affecting the earnings, business or properties of the
Company and its subsidiaries the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the
offering or the delivery of the Securities as contemplated
by the Registration Statement and the Final Prospectus.
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may
reasonably request.
(h) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities
arranged by the Underwriters have been approved by the
Company.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this
Agreement and all obligations of the Underwriters hereunder may
be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to
the Company in writing or by telephone or telegraph confirmed in
writing.
6. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated because
any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them
in connection with the proposed purchase and sale of the
Securities.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of either
the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed
or in any amendment thereof, or arise out of or are based upon
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Prospectus, or any amendment or supplement
thereof, or arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company
by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof,
or arises out of or is based upon statements in or omissions from
that part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification of the Trustee
(Form T-1) under the 1939 Act of either of the Trustees, and (ii)
such indemnity with respect to the Basic Prospectus or any
Preliminary Final Prospectus shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof
if such person did not receive a copy of the Final Prospectus (or
the Final Prospectus as amended or supplemented) excluding
documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in any
case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the Basic
Prospectus or any Preliminary Final Prospectus was corrected in
the Final Prospectus (or the Final Prospectus as amended or
supplemented). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the
Representatives specifically for use in the preparation of the
documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that
the statements set forth in the language on the cover page
required by Item 509 of Regulation S-K and under the heading
"Underwriting" or "Plan of Distribution" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm
that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and,
to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel,
approved by the Representatives in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who
are parties to such action), (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and
except that if clause (i) or (iii) is applicable, such liability
shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 7 is due in accordance with its
terms but is for any reason held by a court to be unavailable
from the Company on the grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the
Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of
such discount and the purchase price of the Securities specified
in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (y) in no case shall any
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount
applicable to the Securities purchased by such Underwriter
hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls an Underwriter within
the meaning of the Act shall have the same rights to contribution
as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to
clause (y) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against
another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the
party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bear to the aggregate
amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for
such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by
notice given to the Company prior to delivery of and payment for
the Securities, if prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall
have been declared either by Federal, Florida, Georgia, Maryland,
New York, North Carolina, South Carolina, Texas or Virginia State
authorities or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States
is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities.
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for
the Securities. The provisions of Section 6 and 7 hereof and
this Section 10 shall survive the termination or cancellation of
this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telegraphed and
confirmed to them, at the address specified in Schedule I hereto,
with a copy to: Stroock & Stroock & Lavan LLP, 180 Maiden Lane,
New York, New York 10038, Attn: James R. Tanenbaum; or, if sent
to the Company, will be mailed, delivered or telegraphed and
confirmed to it at NationsBank Corporate Center, Charlotte, North
Carolina 28255, attention of the Secretary, with a copy to each
of: NationsBank Corporation, NationsBank Corporate Center, Legal
Department, NC 1007-20-1, Charlotte, North Carolina 28255, Attn:
Paul J. Polking, General Counsel; and Smith Helms Mulliss &
Moore, L.L.P., 214 North Church Street, Charlotte, North Carolina
28202, Attn: Boyd C. Campbell, Jr.
12. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 7 hereof, and no other person will have
any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of
New York, without giving effect to principles of conflict of
laws.<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several
Underwriters.
Very truly yours,
NATIONSBANK CORPORATION
By: /S/ JOHN E. MACK
John E. Mack
Senior Vice President
and Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
NATIONSBANC MONTGOMERY SECURITIES LLC
BEAR,STEARNS & CO. INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON BROTHERS INC
By: NATIONSBANC MONTGOMERY SECURITIES LLC
By: /S/ MICHAEL A. WHEELER
Michael A. Wheeler
Managing Director
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated January 29, 1998
Registration Statement No. 333-13811
Representatives: NationsBanc Montgomery Securities LLC
Bear, Stearns & Co. Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Salomon Brothers Inc
Address of Representatives:
c/o NationsBanc Montgomery Securities LLC
100 North Tryon Street, 7th Floor
Charlotte, North Carolina 28255
Attention: Michael A. Wheeler, Managing Director
Title, Purchase Price and Description of Securities:
Title: 6-3/8% Subordinated Notes, due 2008
Principal amount: $350,000,000
Purchase price (include type of funds and accrued interest or
amortization, if applicable): 99.208%; in federal (same
day) funds or wire transfer to an account previously
designated to the Representatives by the Company or, if
agreed to by the Representatives and the Company, by
certified or official bank check or checks.
Sinking fund provisions: none
Redemption provisions: none
Other provisions: none
Closing Date, Time and Location: February 4, 1998, New York City
time, Office of Stroock & Stroock & Lavan LLP
Listing: none
Delayed Delivery Arrangements: none
Additional items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 5(e) at the
time this Agreement is executed: none
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
NationsBanc Montgomery
Securities LLC ............................... $ 87,500,000
Bear, Stearns & Co. Inc ........................ 87,500,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated ...................... 87,500,000
Salomon Brothers Inc ........................... 87,500,000
------------
$350,000,000
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from NationsBank
Corporation (the "Company"), and the Company agrees to sell to
the undersigned, on , 19 , (the "Delivery
Date"), $ principal amount of the
Company's (the "Securities") offered by
the Company's Final Prospectus dated , 19 , receipt of
a copy of which is hereby acknowledged, at a purchase price of
% of the principal amount thereof, plus accrued interest, if any,
thereon from , 19 , to the date of payment and
delivery, and on the further terms and conditions set forth in
this contract.
Payment for the Securities to be purchased by the
undersigned shall be made on or before 11:00 A.M. on the Delivery
Date to or upon the order of the Company in New York Clearing
House (next day) funds, at your office or at such other place as
shall be agreed between the Company and the undersigned upon
delivery to the undersigned of the Securities in definitive fully
registered form and in such authorized denominations and
registered in such names as the undersigned may request by
written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date. If
no request is received, the Securities will be registered in the
name of the undersigned and issued in a denomination equal to the
aggregate principal amount of Securities to be purchased by the
undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for Securities on the Delivery Date, and the
obligation of the Company to sell and deliver Securities on the
Delivery Date, shall be subject to the conditions (and neither
party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not
prohibited on the date hereof, shall not on the Delivery Date be
prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such principal amount of the Securities as is to
be sold to them pursuant to the Underwriting Agreement referred
to in the Final Prospectus mentioned above. Promptly after
completion of such sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in
connection therewith. The obligation of the undersigned to take
delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and
delivered, shall not be affected by the failure of any purchaser
to take delivery of and make payment for the Securities pursuant
to other contracts similar to this contract.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will
not be assignable by either party hereto without the written
consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and,
without limiting the foregoing, need not be on the first come,
first served basis. If this contract is acceptable to the
Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the
undersigned, as of the date first above written, when such
counterpart is so mailed or delivered.
This agreement shall be governed by and construed in
accordance with the internal laws of the State of New York,
without giving effect to principles of conflict of laws.
Very truly yours,
_____________________________
(Name of Purchaser)
BY:____________________________
(Signature and Title of Officer)
________________________________
(Address)
Accepted:
NATIONSBANK CORPORATION
By:____________________________
(Authorized Signature)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or
its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT AND IS NOT AN
OBLIGATION OF OR GUARANTEED BY ANY BANKING OR NONBANKING
AFFILIATE OF NATIONSBANK CORPORATION AND IS NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
REGISTERED $
NUMBER R-__
CUSIP 638585 BDO
SEE REVERSE FOR CERTAIN DEFINITIONS
AND ADDITIONAL PROVISIONS
NATIONSBANK CORPORATION
6 3/8% SUBORDINATED NOTE, DUE 2008
NATIONSBANK CORPORATION, a corporation duly organized and existing under
the laws of the State of North Carolina (herein called the "Corporation," which
term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of ____________________________
_____ DOLLARS on February 15, 2008, and to pay interest on said principal
sum, semi-annually in arrears on February 15 and August 15 of each year
commencing August 15, 1998, at the rate of 6 % per annum, from the
February 15 or August 15, as the case may be, next preceding the date of
this Note to which interest has been paid, unless the date hereof is a date
to which interest has been paid, in which case from the date of this Note,
or unless no interest has been paid on the Notes, in which case from
February 4, 1998, until payment of such principal sum has been made or duly
provided for. Notwithstanding the foregoing, if the date hereof is after a
record date for the Notes (which shall be the close of business on the last
day of the calendar month next preceding an interest payment date) and
before the next succeeding interest payment date, this Note shall bear
interest from such interest payment date; provided, however, that if the
Corporation shall default in the payment of interest due on such interest
payment date, then this Note shall bear interest from the next preceding
interest payment date to which interest has been paid, or, if no
interest has been paid on the Notes, from February 4, 1998. The interest so
payable, and punctually paid or duly provided for, on any interest payment
date will, as provided in such Indenture, be paid to the person in whose
name this Note (or one or more predecessor Notes evidencing all or a portion
of the same debt as this Note) is registered at the close of business
on the record date for such interest payment date.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts, at the office or agency of
the Corporation in New York, New York or such other places that the
Corporation shall designate as provided in such Indenture; provided,
however, that interest may be paid, at the option of the Corporation, by
check mailed to the person entitled thereto at his address last appearing
on the Security Register of the Corporation relating to the Notes. Any
interest not punctually paid or duly provided for shall be payable as
provided in such Indenture.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth
at this place.
Unless the certificate of authentication hereon has been duly executed by
or on behalf of the Trustee or an authenticating agent on behalf of the
Trustee by manual signature, this Note shall not be entitled to any benefit
under such Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed by manual or facsimile signature under its corporate seal or a
facsimile thereof.
NATIONSBANK CORPORATION
Attest:
By:
Title: Senior Vice President
Assistant Secretary
[CORPORATE SEAL]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: February 4, 1998.
THE BANK OF NEW YORK,
as Trustee,
By:
Authorized Signatory
[Reverse Side of Note]
NATIONSBANK CORPORATION
6 3/8% SUBORDINATED NOTE, DUE 2008
This Note is one of a duly authorized series of Securities of the
Corporation unlimited in aggregate principal amount issued and to be issued
under an Indenture dated as of January 1, 1995 (herein called the "Indenture"),
between the Corporation and The Bank of New York, as Trustee (herein called
the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights thereunder
of the Corporation, the Trustee and the holders of the Notes, and the terms
upon which the Notes are, and are to be, authenticated and delivered. This
Note is also one of the Notes designated as the Corporation's 6 3/8%
Subordinated Notes, due 2008 (herein called the "Notes"), limited in
aggregate principal amount to $350,000,000. The Trustee shall initially
act as Security Registrar, Authenticating and Paying Agent in connection
with the Notes.
THE INDEBTEDNESS OF THE CORPORATION EVIDENCED BY THE NOTES,
INCLUDING THE PRINCIPAL THEREOF AND INTEREST THEREON, IS, TO THE
EXTENT AND IN THE MANNER SET FORTH IN THE INDENTURE, SUBORDINATE
AND JUNIOR IN RIGHT OF PAYMENT TO ITS OBLIGATIONS TO HOLDERS OF
SENIOR INDEBTEDNESS, AS DEFINED IN THE INDENTURE, AND EACH HOLDER
OF THE NOTES, BY THE ACCEPTANCE THEREOF, AGREES TO AND SHALL BE
BOUND BY SUCH PROVISIONS OF THE INDENTURE.
The Notes of this series are not subject to redemption at the option of
the Corporation or repayment at the option of the holder prior to maturity.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security
Register of the Corporation relating to the Notes, upon surrender of this
Note for registration of transfer at the office or agency of the
Corporation designated by it pursuant to the Indenture, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to
the Corporation and the Trustee or the Security Registrar duly executed by,
the registered holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only as registered Notes without coupons in the
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture, and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of different
authorized denominations, as requested by the holder surrendering the same.
If any interest payment date or maturity date for a Note falls on a day
that is not a Business Day, the interest payment date or maturity date will
be the following day that is a Business Day and the payment of interest or
principal will be made on the next Business Day as if it were made on the
date such payment was due and no additional interest will accrue on
the amount so payable for the period from and after such interest payment
date or maturity date.
No service charge will be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment for registration of transfer of this Note, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the person in whose name this Note is registered as the absolute owner
hereof for the purpose of receiving payment as herein provided and for all
other purposes, whether or not this Note be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to
the contrary.
If an Event of Default (defined in the Indenture as certain events
involving the bankruptcy of the Corporation) shall occur with respect to the
Notes, the principal of all the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture. THERE IS NO RIGHT OF
ACCELERATION PROVIDED IN THE INDENTURE IN CASE OF A DEFAULT IN THE PAYMENT
OF INTEREST OR THE PERFORMANCE OF ANY OTHER COVENANT BY THE CORPORATION.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the holders of the Notes under the Indenture
at any time by the Corporation with the consent of the holders of not less
than 66-2/3% in aggregate principal amount of the Notes then outstanding and
all other Securities then outstanding issued under the Indenture and affected
by such amendment and modification. The Indenture also contains provisions
permitting the holders of a majority in aggregate principal amount of the
Notes then outstanding and all other Securities then outstanding issued
under the Indenture and affected thereby, on behalf of the holders of all
such Securities, to waive compliance by the Corporation with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the holder of this Note
shall be conclusive and binding upon such holder and upon all future holders
of this Note and of any Note issued upon the registration of transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Corporation, which
is absolute and unconditional, to pay the principal of and interest on this
Note at the times, place and rate, and in the coin or currency, herein
prescribed.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Corporation or any
predecessor or successor corporation, whether by virtue of any constitution,
Statute or rule of law, or by the enforcement of any assessment or penalty
or otherwise, all such liability being, by the acceptance hereof and as part
of the consideration for the issue hereof, expressly waived and released.
The Notes of this series shall be dated the date of their authentication.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
The Notes are being issued by means of a book-entry system with no
physical distribution of certificates to be made except as provided in the
Indenture. The book-entry system maintained by The Depository Trust Company
("DTC") will evidence ownership of the Notes, with transfers of ownership
effected on the records of DTC and its participants pursuant to rules and
procedures established by DTC and its participants. The Corporation will
recognize Cede & Co., as nominee of DTC, while the registered owner of the
Notes, as the owner of the Notes for all purposes, including payment of
principal and interest, notices and voting. Transfer of principal and
interest to participants of DTC will be the responsibility of DTC, and
transfer of principal and interest to beneficial owners of the Notes by
participants of DTC will be the responsibility of such participants and
other nominees of such beneficial owners. The Corporation will not be
responsible or liable for such transfers or payments or for maintaining,
supervising or reviewing the records maintained by DTC, its participants
or persons acting through such participants.
______________________
The following abbreviations, when used in the inscription on the face of
the within Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM as tenants in common
TEN ENT as tenants by the entireties
JT TEN as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT _________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors
Act __________ (State)
Additional abbreviations may also be used though not in the above list.
__________
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Name and Address of Assignee, including zip code, must be printed or
typewritten.)
the within
Note, and all rights thereunder, hereby irrevocably constituting and appointing
Attorney
to transfer said Note on the books of the Corporation, with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever and must be guaranteed.
SMITH HELMS MULLISS & MOORE, L.L.P.
Attorneys at Law
Post Office Box 31247
Charlotte, North Carolina 28231
Tel (704)343-2000
Fax (704)334-8467
January 29, 1998
NationsBank Corporation
NationsBank Corporate Center
Charlotte, North Carolina 28255-0065
Re: Public Offering of $350,000,000 Aggregate Principal Amount of 6-3/8%
Subordinated Notes, due 2008
Ladies and Gentlemen:
We have acted as counsel to NationsBank Corporation, a North Carolina
corporation (the "Corporation"), in connection with (i) the isssuance of
$350,000,000 in aggregate principal amount of its 6-3/8% Subordinated Notes,
due 2008 (the "Notes") and (ii) the Registration Statement on Form S-3,
Registration No. 333-13811 (the "Registration Statement"), filed with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), with respect to $3,000,000,000 aggregate
principal amount of the Corporation's unsecured debt securities, shares of
its preferred stock and shares of its common stock and the Prospectus dated
December 19, 1996 constituting a part thereof, as supplemented
by the Prospectus Supplement dated January 29, 1998 (as so supplemented, the
"Base Prospectus"), filed with the Commission pursuant to Rule 424(b) under
the Act, relating to the Notes.
As such counsel, we have examined and are familiar with such original
or photocopies or certified copies of such records of the Corporation and its
subsidiaries, certificates of officers of the Corporation and of public
officials and such other documents as we have deemed relevant or necessary
as the basis for the opinion set forth below. In such examinations, we have
assumed the legal capacity of natural persons, the genuineness of all
signatures on, and the authenticity of, all documents submitted to us as
originals and the conformity to original documents of all documents submitted
to us as certified copies or photocopies and the authenticity of the originals
of such copies. We have also relied upon statements of fact contained in
documents that we have examined in connection with our representation of the
Corporation.
Based solely upon the foregoing, and in reliance thereon, and subject
to the limitations, qualifications and exceptions set forth below, we are of
the opinion that the Notes, when executed, issued and delivered by the
Corporation to The Bank of New York for authentication in accordance with
the Indenture dated as of January 1, 1995 between the Corporation and The
Bank of New York, as trustee (the "Indenture"), authenticated and delivered
by The Bank of New York, as issuing and paying agent, in accordance with the
Indenture and paid for, all as contemplated in the Board Resolution or
Company Order (as each is defined in the Indenture), will have been validly
authorized and issued under the Indenture and will constitute valid and
legally binding obligations of the Corporation.
In rendering this opinion, we are not expressing an opinion as to the
laws of any jurisdiction other than the State of North Carolina and the
United States of America, and we assume no responsibility as to the
applicability of the laws of any other jurisdiction.
We hereby consent to be named in the Registration Statement as attorneys
who passed upon the legality of the Notes and to the filing of a copy of
this opinion as part of the Corporation's Current Report on Form 8-K to be
filed for the purpose of including this opinion as part of the Registration
Statement.
Very truly yours,
/s/ SMITH HELMS MULLISS & MOORE, L.L.P.
WRITTEN CONSENT TO ACTION WITHOUT MEETING OF COMMITTEE
APPOINTED BY THE BOARD OF DIRECTORS OF
NATIONSBANK CORPORATION
January 29, 1998
WHEREAS, by resolutions adopted by the Board of Directors (the "Board") of
NationsBank Corporation (the "Corporation") at a meeting duly called and held
on September 25, 1996, this Committee was appointed by the Board (the
"Committee") with full authority to take action in connection with the
issuance of up to an aggregate principal amount of $3,000,000,000
(the "Original Authorization") of the Corporation's unsecured debt securities
(either senior or subordinated), shares of its preferred stock and shares of
its common stock (collectively, the "Securities") to be offered at the times
and on terms to be determined by the Committee;
WHEREAS, on October 9, 1996, the Corporation filed a Registration Statement
on Form S-3, Registration No. 333-13811 (the "Registration Statement"), with
the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended, with respect to the Securities which are
to be offered on a delayed or continuous basis, which Registration Statement
was amended on December 10, 1996 and December 19, 1996 and was declared
effective on December 19, 1996;
WHEREAS, on January 8, 1998, the Corporation allocated and designated
$2,000,000,000 of the Original Authorization to the Corporation's Medium
Term Notes, Series G (the "MTN Program"), leaving $1,000,000,000 aggregate
principal amount of Securities either unissued or unallocated under the
Registration Statement;
WHEREAS, this Committee has determined to authorize the issuance of a
series of $350,000,000 of subordinated notes as provided by these
resolutions; and
WHEREAS, no stop order suspending the effectiveness of the Registration
Statement has been received by the Corporation and no proceedings for that
purpose have been instituted or threatened against the Corporation;
AUTHORIZATION OF SUBORDINATED NOTES
NOW, THEREFORE, BE IT RESOLVED, that pursuant to the resolutions
adopted by the Board on September 25, 1996, and the terms and provisions of
the Indenture between the Corporation and The Bank of New York, as trustee
(the "Trustee"), dated as of January 1, 1995 (the "Indenture"), the
Corporation shall issue a series of its subordinated unsecured indebtedness
consisting of $350,000,000 in aggregate principal amount of its 6 3/8%
Subordinated Notes, due 2008, which series of subordinated notes shall be
designated "6 3/8% Subordinated Notes, due 2008" ("the "Notes"), and which
shall be subject to the terms and entitled to the benefits of the Indenture;
RESOLVED FURTHER, that the Notes shall bear interest at the rate of
6 3/8% per annum, which interest shall accrue from February 4, 1998, and be
payable semiannually on February 15 and August 15, commencing August 15,
1998; and the record date for the interest payable shall be the close of
business on the last day of the calendar month next preceding each interest
payment date;
RESOLVED FURTHER, that the maturity date of the Notes shall be
February 15, 2008;
RESOLVED FURTHER, that, with respect to the Notes, a "Business Day"
shall mean any day, other than a Saturday or Sunday or a legal holiday in
New York, New York or Charlotte, North Carolina, that is not a day on which
banking institutions in New York, New York, or Charlotte, North Carolina are
authorized or required by law or regulation to be closed;
RESOLVED FURTHER, that the Notes shall be sold to NationsBanc
Montgomery Securities LLC and the other Underwriters (as named in the
Underwriting Agreement hereinafter described) (the "Underwriters"), pursuant
to the terms of the Underwriting Agreement, who the Committee understands
will reoffer the Notes for sale in a public offering;
RESOLVED FURTHER, that the Notes shall not be eligible for redemption or
entitled to any sinking fund and shall not be subject to the provisions of
Section 14.02 and 14.03 of the Indenture;
RESOLVED FURTHER, that the Notes shall be sold to the Underwriters on
February 4, 1998, at a price of 99.208% of the principal amount, and that
the Notes shall be initially offered to the public at a price of 99.858% of
the principal amount;
RESOLVED FURTHER, that the Committee was advised by the Underwriters
that they will initially offer the Notes to certain dealers at the initial
public offering price, less a concession not in excess of .40% of the
principal amount of the Notes, and that the Underwriters may allow, and such
dealers may reallow, a concession not in excess of .25% of such principal
amount on sales to other dealers;
RESOLVED FURTHER, that the Notes shall be issued as Registered
Securities (as defined in the Indenture) initially in book-entry only form,
represented by one or more global notes registered in the name of The
Depository Trust Company, or its nominee, in the manner requested by the
Representatives (as defined in the Underwriting Agreement), in denominations
of $1,000 or integral multiples thereof, and shall be dated the date of
authentication and delivery, which date shall occur on or about February 4,
1998 and the form of registered note presented to this Committee and
attached to the minutes hereof as Exhibit A, together with such modifications
as are appropriate to reflect the determinations of the Committee, is hereby
in all respects approved;
RESOLVED FURTHER, that the Notes shall be executed in the name of and on
behalf of the Corporation by the Chief Executive Officer, or any Senior or
other Vice President, the corporate seal thereon shall be attested by the
Secretary or any Assistant Secretary, and the signatures of the Chief
Executive Officer, any Vice President, the Secretary and any Assistant
Secretary may be in the form of facsimile signatures of the present or any
future Chief Executive Officer, Vice President, Secretary or Assistant
Secretary, and should any officer of the Corporation who signs, or whose
facsimile signature appears upon, any of the Notes, cease to be
such an officer prior to the issuance of such Notes, the Notes so signed or
bearing such facsimile signature shall, nevertheless, be valid, and, without
prejudice to the use of the facsimile signatures of any other officer as
hereinbefore authorized, the facsimile signatures of Hugh L. McColl, Jr.,
Chief Executive Officer of the Corporation, John E. Mack, Senior Vice
President, James W. Kiser, Secretary of the Corporation, and Allison Gilliam,
Assistant Secretary, are hereby expressly approved and accepted;
RESOLVED FURTHER, that pursuant to the provisions of the Indenture,
the Chief Executive Officer, the Chief Financial Officer, any Senior Vice
President or any Associate General Counsel of the Corporation (each, an
"Authorized Officer") be, and each of them is, hereby authorized and
empowered to cause the Notes, upon execution thereof, to be delivered to the
Trustee under the Indenture, or to any agent designated by the Trustee, for
authentication and delivery by it and to deliver to said Trustee or agent
thereof, as the case may be, the written order of the corporation for the
authentication and delivery of the Notes and to negotiate, execute and
deliver any and all agreements and other documents and certificates necessary
in connection with the issuance, sale and delivery of the Notes;
RESOLVED FURTHER, that, unless and until otherwise determined by an
Authorized Officer, The Bank of New York, as Trustee, shall act as the agent
for the Corporation for the registration, transfer, exchange and payment of
the Notes (the "Paying Agent"), and as authenticating agent, and that the
offices of the Trustee located at 101 Barclay Street, New York, New York,
hereby is designated, pursuant to the provisions of the Indenture, as the
office or agency of the Corporation where the Notes may be presented for
registration, transfer, exchange and payment, and the proper officers of the
Corporation are hereby authorized and empowered to execute and deliver any
documents required by the Trustee under the Indenture in connection
with such duties;
RESOLVED FURTHER, that any Authorized Officer is hereby authorized and
empowered to execute and deliver, and this Committee hereby approves, the
underwriting agreement (the "Underwriting Agreement"), dated as of January 29,
1998, among the Corporation and the Representatives (as defined therein), in
the form presented to the Committee and attached to the minutes hereof as
Exhibit B, relating, among other things, to the sale of the Notes and to the
indemnification of and contribution to the Underwriters, and such Underwriting
Agreement shall be, and it hereby is, in all respects authorized and approved,
the execution thereof being conclusive evidence of such approval;
RESOLVED FURTHER, that the officers of the Corporation be, and they
hereby are, authorized and directed to do any and all things necessary,
appropriate or convenient to carry into effect the foregoing resolutions.
NATIONSBANK CORPORATION
Corporate Center, 56th Floor
Charlotte, NC 28255
NATIONSBANK NEWS RELEASE
FOR IMMEDIATE RELEASE
January 29, 1998
contact: Bob Stickler 704-386-8465
CHARLOTTE, NC, January 29, 1998 -- NationBank Corporation today entered into
an agreement for the underwritten public offering of $350 million in
subordinated notes due February 2008.
The public debt issue is part of a shelf registration for corporate debt
securities and preferred and common stock previously declared effective by
the Securities and Exchange Commission.
The 10-year non-callable subordinated notes have a coupon interest rate of
6 3/8 percent. The notes qualify as Tier 2 capital under the Federal
Reserve Board's capital guidelines.
The offering will be sold through underwriters led by NationsBanc Montgomery
Securities LLC, Bear, Stearns & Co., Inc., Merrill Lynch & Co. and Salomon
Smith Barney. Closing is scheduled for February 4, 1998. Proceeds from the
debt issue will be used for general corporate purposes.
NationsBank Corporation is the country's third largest banking company, with
full-service banking offices in 16 states and the District of Columbia.
Assets as of January 28, 1998 were $310.6 billion.
www.nationsbank.com
