As filed with the Securities and Exchange Commission on September 28, 1998
Registration No. 333-60553
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Post Effective Amendment No. 2
to
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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NATIONSBANK CORPORATION
(To Be Renamed "BankAmerica Corporation")
(Exact name of registrant as specified in its charter)
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56-0906609 DELAWARE 6711
(I.R.S. Employer (State or other jurisdiction (Primary Standard Industrial
Identification No.) of incorporation or organization) Classification Code Number)
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NATIONSBANK CORPORATE CENTER
CHARLOTTE, NORTH CAROLINA 28225
(704) 386-5000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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COPIES TO:
PAUL J. POLKING BOYD C. CAMPBELL, JR.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL SMITH HELMS MULLISS & MOORE, L.L.P.
NATIONSBANK CORPORATION 201 NORTH TRYON STREET
NATIONSBANK CORPORATE CENTER CHARLOTTE, NORTH CAROLINA 28202
100 NORTH TRYON STREET TEL (704) 343-2000
CHARLOTTE, NORTH CAROLINA 28255 FAX (704) 334-8467
(704) 386-5000
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
[ ]__________________
If this form is a post-effective amendment filed pursuant to Rule 462(d)
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. [ ]______________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE POST-EFFECTIVE AMENDMENT TO
THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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EXPLANATORY NOTE
This Post-Effective Amendment No. 2 to Registration Statement on Form S-4
(Registration No. 333-60553) (the "Registration Statement") is filed pursuant to
Rule 414 of the Securities Act of 1933, as amended (the "Securities Act"), to
notify the Securities and Exchange Commission (the "Commission") that
NationsBank Corporation, a North Carolina corporation ("NationsBank"), has been
reincorporated from North Carolina to Delaware by forming a new, wholly owned
Delaware subsidiary named NationsBank (DE) Corporation ("NationsBank (DE)"),
having no assets or liabilities other than nominal assets or liabilities, and
merging NationsBank with and into NationsBank (DE) (the "Reincorporation
Merger"), with NationsBank (DE) as the surviving corporation in the
Reincorporation Merger and being named "NationsBank Corporation." The
Reincorporation Merger was consummated on September 25, 1998 in accordance with
the terms and conditions of the Plan of Reincorporation Merger by and between
NationsBank and NationsBank (DE), dated as of August 3, 1998 (the
"Reincorporation Merger Agreement"). Pursuant to the Reincorporation Merger
Agreement, NationsBank (DE) acquired all of the assets and assumed all the
liabilities and obligations of NationsBank.
In addition, NationsBank and BankAmerica Corporation, a Delaware
corporation ("BankAmerica"), have entered into an Agreement and Plan of
Reorganization, dated as of April 10, 1998, pursuant to which BankAmerica will
merge with and into NationsBank (DE) (the "Merger"), with NationsBank (DE) as
the surviving corporation in the Merger. Following the Merger, NationsBank (DE)
will change its name to "BankAmerica Corporation." The Reincorporation Merger
and the Merger were approved by the shareholders of NationsBank at a Special
Meeting of Shareholders held on September 24, 1998 for which proxies were
solicited pursuant to Rule 14(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
In accordance with paragraph (d) of Rule 414 of the Securities Act, except
as modified by this Post-Effective Amendment No. 2, NationsBank (DE) expressly
adopts the Registration Statement as its own registration statement for all
purposes of the Securities Act and the Exchange Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the Delaware General Corporation Law (the
"DGCL") empowers a corporation to indemnify any 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 corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful. Subsection (b) of Section 145 of the DGCL
empowers a corporation to indemnify any 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 corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit if such person acted in accordance with the above standards,
except that no indemnification may be made in respect to any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which the action or suit was brought shall determine upon application
that, despite the adjudication f liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnification
for such expenses which the Court of Chancery or such other court shall deem
proper.
Section 145 of the DGCL further provides that, to the extent that a
director or officer of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in the defense of any claim, issue or
matter therein, such person shall be indemnified against expenses
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(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith; and that indemnification provided by, or granted pursuant
to, Section 145 shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled. Section 145 further empowers the
corporation to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against him or her and incurred by
him or her in any such capacity, or arising out of such person's status as such,
whether or not the corporation would have the power to indemnify such person
against such liabilities under Section 145 of the DGCL.
Section 102(b)(7) of the DGCL provides that provisions in a corporation's
certificate of incorporation eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director shall not eliminate or limit the liability of a
director for (i) any breach of the director's duty of loyalty to the corporation
or its stockholders; (ii) acts or omissions not in good faith or which involved
intentional misconduct or a knowing violation of law; (iii) willful or negligent
unlawful payment of a dividend or stock purchase or redemption; or (iv) any
transaction from which the director derived an improper personal benefit.
The Restated Certificate of Incorporation of the Registrant prevents the
recovery by the Registrant of monetary damages against its directors to the
fullest extent permitted by the DGCL. In accordance with the provisions of the
DGCL, the Bylaws of the Registrant provide that, in addition to the
indemnification of directors and officers otherwise provided by the DGCL, the
Registrant shall, under certain circumstances, indemnify its directors,
executive officers and certain other designated officers against any and all
liability and litigation expense, including reasonable attorneys' fees, arising
out of their status or activities as directors and officers, except for
liability or litigation expense incurred on account of activities that were at
the time known or believed by such director or officer to be in conflict with
the best interests of the Registrant. Pursuant to such Bylaws and as authorized
by statute, the Registrant may also maintain 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 Bylaws or otherwise.
In addition, the Agreement and Plan of Reorganization by and between
BankAmerica and NationsBank, dated as of April 10, 1998, providing for the
Reincorporation Merger and the Merger (the "Merger Agreement"), provides that
the Registrant will, for six years after the consummation of the Merger,
indemnify directors, officers and employees of BankAmerica, NationsBank, or any
of their respective subsidiaries against certain liabilities in connection with
such persons' status as such or in connection with the Merger Agreement or any
of the transactions contemplated thereby. Pursuant to the Merger Agreement, the
Registrant will also, for six years after the consummation of the Merger and
with respect to events occurring prior to the consummation of the Merger, honor
all rights to indemnification and limitations of liability existing in favor of
the foregoing persons as provided in the governing documents of NationsBank,
BankAmerica or their respective subsidiaries.
Pursuant to the Merger Agreement, for six years after the consummation of
the Merger, the Registrant will also use its best efforts to cause the directors
and officers of BankAmerica and NationsBank to be covered by a directors' and
officers' liability insurance policy with respect to acts or omissions occurring
prior to the consummation of the Merger.
THE FOREGOING IS ONLY A GENERAL SUMMARY OF CERTAIN ASPECTS OF DELAWARE 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.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
The following exhibits are filed with or incorporated by reference in this
Registration Statement.*
EXHIBIT NO. DESCRIPTION OF EXHIBIT
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23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Ernst & Young LLP
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* All other required exhibits were previously filed as exhibits to, and are
listed in, the Registration Statement on Form S-4 to which this is
Post-Effective Amendment No. 2
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ITEM 22. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in 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 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(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 Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) The undersigned Registrant hereby undertakes as follows: that prior to
any public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this Registration Statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other items of the applicable form.
(d) The Registrant undertakes that every prospectus: (i) that is filed
pursuant to paragraph (c) immediately preceding, or (ii) that purports to meet
the requirements of Sections 10(a)(3) of the Securities Act and is used in
connection with an offering of securities subject to Rule 415, will be filed as
a part of an amendment to the Registration Statement and will not be used until
such amendment is effective, and that, for purposes of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities a that time shall be deemed to be the initial
bona fide offering thereof.
(e) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the
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payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
(f) The undersigned Registrant hereby undertakes to respond to requests
for information that is incorporated by reference into the prospectus pursuant
to Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the Registration Statement through the
date of responding to the request.
(g) The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
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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-4 and has duly caused this Post-Effective
Amendment No. 2 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Charlotte, State of North
Carolina, on September 28, 1998.
NATIONSBANK CORPORATION
By: /s/ PAUL J. POLKING
____________________________________________
Paul J. Polking
Executive Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 2 to the Registration Statement has been signed by
the following persons in the capacities and on the dates indicated.
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Signature Title Date
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* Chief Executive Officer and Director September 28, 1998
- ------------------------ (Principal Executive Officer)
Hugh L. McColl, Jr.
* Vice Chairman and September 28, 1998
- ------------------------ Chief Financial Officer and Director
James H. Hance, Jr. (Principal Financial Officer)
* Executive Vice President and September 28, 1998
- ------------------------ Chief Accounting Officer
Marc D. Oken (Principal Accounting Officer)
* Chairman of the Board September 28, 1998
- ------------------------ and Director
Charles E. Rice
- ------------------------ Director September __, 1998
Ray C. Anderson
* Director September 28, 1998
- ------------------------
Rita Bornstein
* Director September 28, 1998
- ------------------------
B. A. Bridgewater, Jr.
- ------------------------ Director September __, 1998
Thomas E. Capps
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- ------------------------ Director September __, 1998
Alvin R. Carpenter
- ------------------------ Director September __, 1998
Charles W. Coker
* Director September 28, 1998
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Thomas G. Cousins
* Director September 28, 1998
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Andrew B. Craig, III
* Director September 28, 1998
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Alan T. Dickson
* Director September 28, 1998
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Paul Fulton
* Director September 28, 1998
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C. Ray Holman
* Director September 28, 1998
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W. W. Johnson
* President and Director September 28, 1998
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Kenneth D. Lewis
* Director September 28, 1998
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Russell W. Meyer, Jr.
* Director September 28, 1998
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Richard B. Priory
* Director September 28, 1998
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John C. Slane
* Director September 28, 1998
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O. Temple Sloan, Jr.
* Director September 28, 1998
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Meredith R. Spangler
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* Director September 28, 1998
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Albert E. Suter
* Director September 28, 1998
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Ronald Townsend
* Director September 28, 1998
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Jackie M. Ward
* Director September 28, 1998
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John A. Williams
- ------------------------ Director September __, 1998
Virgil R. Williams
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*By: /s/ CHARLES M. BERGER
___________________________
Charles M. Berger
Attorney-in-Fact
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INDEX TO EXHIBITS*
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EXHIBIT NO. DESCRIPTION OF EXHIBIT
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23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Ernst & Young LLP
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* All other required exhibits were previously filed as exhibits to, and are
listed in, the Registration Statement on Form S-4 to which this is
Post-Effective Amendment No. 2.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Post-Effective
Amendments No. 1 to Registration Statements on Form S-3 (Registration Nos.
333-07229; 333-15375; 333-18273; 333-43137; 333-13811 and 333-51367); Post-
Effective Amendments No. 2 to Registration Statements on Form S-3 (Registration
Nos. 33-54784; 33-49881; 33-57533 and 33-63097); Post-Effective Amendment No. 3
to Registration Statement on Form S-3 (Registration No. 33-45498); Post-
Effective Amendment No. 2 to Registration Statement on Form S-4 (Registration
No. 333-60553); Post-Effective Amendments No. 1 to Registration Statements on
Form S-8 (Registration Nos. 33-45279; 33-60695; 333-02875; 333- 07105;
333-20913; 333-24331 and 333-58657); Post-Effective Amendment No. 5 to
Registration Statement on Form S-8 (Registration No. 2-80406) and Post-Effective
Amendments No. 2 on Form S-8 to Registration Statements on Form S-4
(Registration Nos. 33-43125; 33-55145; 33-63351; 33-62069; 33-62208; 333-16189
and 333-40515) of NationsBank Corporation, a Delaware corporation and successor
by reincorporation merger to the North Carolina corporation of the same name, of
our report dated January 9, 1998, which appears on page 46 of the NationsBank
Corporation Annual Report on Form 10-K for the year ended December 31, 1997. We
also consent to the incorporation by reference of our report dated April 13,
1998, which appears on page 75 of the NationsBank Corporation Current Report on
Form 8-K filed April 16, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Charlotte, North Carolina
September 28, 1998
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Post-Effective Amendments
No. 1 to Registration Statements on Form S-3 (Registration Nos. 333-07229;
333-13811; 333-15375; 333-18273; 333-43137 and 333-51367); Post-Effective
Amendments No. 2 to Registration Statements on Form S-3 (Registration Nos.
33-54784; 33-49881; 33-57533 and 33- 63097); Post-Effective Amendment No. 3 to
Registration Statement on Form S-3 (Registration No. 33-45498); Post- Effective
Amendment No. 2 to Registration Statement on Form S-4 (Registration No.
333-60553); Post-Effective Amendments No. 1 to Registration Statements on Form
S-8 (Registration Nos. 33-45279; 33-60695; 333-02875; 333- 07105; 333-20913;
333-24331 and 333-58657); Post-Effective Amendment No. 5 to Registration
Statement on Form S-8 (Registration No. 2-80406) and Post-Effective Amendments
No. 2 on Form S-8 to Registration Statements on Form S-4 (Registration Nos.
33-43125; 33-55145; 33-63351; 33-62069; 33-62208; 333-16189 and 333-40515) of
NationsBank Corporation of our report dated January 20, 1998, with respect to
the consolidated financial statements of BankAmerica Corporation incorporated by
reference in its Annual Report on Form 10-K for the year ended December 31,
1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Francisco, California
September 25, 1998
