NATIONSBANK CORPORATION
UNDERWRITING AGREEMENT
New York, New York
October 17, 1995
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 (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 (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 shall be deposited with the Paying Agent, Security
Registrar and Transfer Agent as custodian for The Depository
Trust Company ("DTC") and registered in the name of Cede & Co.,
as nominee for DTC.
4. AGREEMENTS. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be
filed with the Commission pursuant to Rule 424 or Rule 434
via the Electronic Data Gathering, Analysis and Retrieval
System. The Company will advise the Representatives
promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424 or Rule 434,
(ii) when any amendment to the Registration Statement
relating to the Securities shall have become effective,
(iii) of any request by the Commission for any amendment of
the Registration Statement or amendment of or supplement to
the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as
then amended or supplemented would include any untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein in light of
the circumstances under which they were made not
misleading, or if it shall be necessary to amend or
supplement the Final Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the
Company promptly will prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct
such statement or omission or an amendment which will
effect such compliance.
(c) The Company will make generally available to its
security holders and to the Representatives as soon as
practicable, but not later than 60 days after the close of
the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the
regulations under the Act) covering a twelve month period
beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.
(d) The Company will furnish to the Representatives
and counsel for the Underwriters, without charge, copies of
the Registration Statement (including exhibits thereto) and
each amendment thereto which shall become effective on or
prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Preliminary Final Prospectus
and the Final Prospectus and any amendments thereof and
supplements thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company will arrange for the qualification of
the Securities for sale under the laws of such
jurisdictions as the Representatives may reasonably
designate, will maintain such qualifications in effect so
long as required for the distribution of the Securities and
will arrange for the determination of the legality of the
Securities for purchase by institutional investors;
provided, however, that the Company shall not be required
to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action which would
subject it to general or unlimited service of process of
any jurisdiction where it is not now so subject.
(f) Until the business day following the Closing
Date, the Company will not, without the consent of the
Representatives, offer or sell, or announce the offering
of, any securities covered by the Registration Statement or
by any other registration statement filed under the Act.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS.
The obligations of the Underwriters to purchase the
Underwriters' Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date (including the filing of any
document incorporated by reference therein) and as of the
Closing Date, to the accuracy of the statements of the Company
made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and
to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall
have been instituted or threatened; and the Final
Prospectus shall have been filed or mailed for filing with
the Commission within the time period prescribed by the
Commission.
(b) The Company shall have furnished to the
Representatives the opinion of Smith Helms Mulliss & Moore,
L.L.P., counsel for the Company, dated the Closing Date, to
the effect of paragraphs (i), (iv) and (vi) through (xii)
below, and the opinion of Paul J. Polking, General Counsel
to the Company, dated the Closing Date, to the effect of
paragraphs (ii), (iii) and (v) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws
of the State of North Carolina, has the corporate
power and authority to own its properties and conduct
its business as described in the Final Prospectus, and
is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended;
NationsBank, National Association, NationsBank of
Florida, National Association, NationsBank of Georgia,
National Association, and NationsBank of Texas,
National Association, (or the successors to such
entities) (collectively, the "Subsidiaries") are
national banking associations formed under the laws of
the United States and authorized thereunder to
transact business;
(ii) except for those jurisdictions specifically
enumerated in such opinion, neither the Company nor
any of the Subsidiaries is required to be qualified or
licensed to do business as a foreign corporation in
any jurisdiction;
(iii) all the outstanding shares of capital stock
of each Subsidiary have been duly and validly
authorized and issued and are fully paid and (except
as provided in 12 U.S.C. Section 55, as amended)
nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of
capital stock of the Subsidiaries (except directors'
qualifying shares) are owned, directly or indirectly,
by the Company free and clear of any perfected
security interest and, to the knowledge of such
counsel, after due inquiry, any other security
interests, claims, liens or encumbrances;
(iv) the Securities conform in all material
respects to the description thereof contained in the
Final Prospectus;
(v) if the Securities are to be listed on the New
York Stock Exchange, authorization therefor has been
given, subject to official notice of issuance and
evidence of satisfactory distribution, or the Company
has filed a preliminary listing application and all
required supporting documents with respect to the
Securities with the New York Stock Exchange and such
counsel has no reason to believe that the Securities
will not be authorized for listing, subject to
official notice of issuance and evidence of
satisfactory distribution;
(vi) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under
the Trust Indenture Act, and constitutes a legal,
valid and binding instrument enforceable against the
Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights
of creditors now or hereafter in effect, and to
equitable principles that may limit the right to
specific enforcement of remedies, and further subject
to 12 U.S.C. 1818(b)(6)(D) and similar bank regulatory
powers and to the application of principles of public
policy); and the Securities have been duly authorized
and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to
and paid for by the Underwriters pursuant to this
Agreement, in the case of the Underwriters'
Securities, or by the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of any
Contract Securities, will constitute legal, valid and
binding obligations of the Company entitled to the
benefits of the Indenture (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other
similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that
may limit the right to specific enforcement of
remedies, and further subject to 12 U.S.C.
1818(b)(6)(D) and similar bank regulatory powers and
to the application of principles of public policy);
(vii) to the best knowledge of such counsel,
there is no pending or threatened action, suit or
proceeding before any court or governmental agency,
authority or body or any arbitrator involving the
Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement
which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or
other document of a character required to be described
in the Registration Statement or Final Prospectus, or
to be filed as an exhibit, which is not described or
filed as required;
(viii) the Registration Statement has become
effective under the Act; to the best knowledge of such
counsel no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final
Prospectus and each amendment thereof or supplement
thereto (other than the financial statements and other
financial and statistical information contained
therein or incorporated by reference therein, as to
which such counsel need express no opinion) comply as
to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the
respective rules thereunder; and such counsel has no
reason to believe that the Registration Statement or
any amendment thereof at the time it became effective
contained any untrue statement of a material fact or
omitted to state any material fact required to be
stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus,
as amended or supplemented, contains any untrue
statement of a material fact or omits to state a
material fact necessary to make the statements
therein, in light of the circumstances under which
they were made, not misleading;
(ix) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company and constitute a legal, valid
and binding instrument enforceable against the Company
in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights
of creditors now or hereafter in effect, and to
equitable principles that may limit the right to
specific enforcement of remedies, and except insofar
as the enforceability of the indemnity and
contribution provisions contained in this Agreement
may be limited by federal and state securities laws,
and further subject to 12 U.S.C. 1818(b)(6)(D) and
similar bank regulatory powers and to the application
of principles of public policy);
(x) no consent, approval, authorization or order
of any court or governmental agency or body is
required for the consummation of the transactions
contemplated herein or in any Delayed Delivery
Contracts, except such as have been obtained under the
Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in
such opinion) as have been obtained;
(xi) neither the issue and sale of the
Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment
of the terms hereof or of any Delayed Delivery
Contracts will conflict with, result in a breach of,
or constitute a default under the articles of
incorporation or by-laws of the Company or, to the
best knowledge of such counsel, the terms of any
indenture or other agreement or instrument known to
such counsel and to which the Company or any of its
subsidiaries is a party or bound, or any order or
regulation known to such counsel to be applicable to
the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the
Company or any of its affiliates; and
(xii) to the best knowledge and information of
such counsel, each holder of securities of the Company
having rights to the registration of such securities
under the Registration Statement has waived such
rights or such rights have expired by reason of lapse
of time following notification of the Company's
intention to file the Registration Statement.
In rendering such opinion, such counsel may rely (A)
as to matters involving the application of laws of any
jurisdiction other than the State of North Carolina or
the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Underwriters;
and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the
Company and its subsidiaries and public officials.
(c) The Representatives shall have received from
Stroock & Stroock & Lavan, counsel for the Underwriters,
such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration
Statement, the Final Prospectus and other related matters
as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents
as they request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the
Chairman of the Board and Chief Executive Officer or a
Senior Vice President and the principal financial or
accounting officer of the Company, dated the Closing Date,
to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final
Prospectus and this Agreement and that to the best of their
knowledge:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement, as amended, has been
issued and no proceedings for that purpose have been
instituted or threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has
been no material adverse change in the condition
(financial or other), earnings, business or properties
of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of
business, except as set forth in or contemplated in
the Final Prospectus.
(e) At the Closing Date, Price Waterhouse LLP shall
have furnished to the Representatives a letter or letters
(which may refer to letters previously delivered to one or
more of the Representatives), dated as of the Closing Date,
in form and substance satisfactory to the Representatives,
confirming that the response, if any, to Item 10 of the
Registration Statement is correct insofar as it relates to
them and stating in effect that:
(i) They are independent accountants within the
meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations
thereunder.
(ii) In their opinion, the consolidated financial
statements of the Company and its subsidiaries audited
by them and included or incorporated by reference in
the Registration Statement and Prospectus comply as to
form in all material respects with the applicable
accounting requirements of the Act and the regulations
thereunder with respect to registration statements on
Form S-3 and the Exchange Act and the regulations
thereunder.
(iii) On the basis of procedures (but not an
audit in accordance with generally accepted auditing
standards) consisting of:
(a) Reading the minutes of the meetings of
the shareholders, the board of directors,
executive committee and audit committee of the
Company and the boards of directors and executive
committees of its subsidiaries as set forth in
the minute books through a specified date not
more than five business days prior to the date of
delivery of such letter;
(b) Performing the procedures specified by
the American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed
consolidated interim financial statements of the
Company and its consolidated subsidiaries
included or incorporated by reference in the
Registration Statement and Prospectus and reading
the unaudited interim financial data, if any, for
the period from the date of the latest balance
sheet included or incorporated by reference in
the Registration Statement and Prospectus to the
date of the latest available interim financial
data; and
(c) Making inquiries of certain officials
of the Company who have responsibility for
financial and accounting matters regarding the
specific items for which representations are
requested below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1) the unaudited condensed consolidated
interim financial statements, included or
incorporated by reference in the Registration
Statement and Prospectus, do not comply as to
form in all material respects with the applicable
accounting requirements of the Exchange Act and
the published rules and regulations thereunder;
(2) any material modifications should be
made to the unaudited condensed consolidated
interim financial statements, included or
incorporated by reference in the Registration
Statement and Prospectus, for them to be in
conformity with generally accepted accounting
principles;
(3) (i) at the date of the latest
available interim financial data and at the
specified date not more than five business days
prior to the date of the delivery of such letter,
there was any change in the capital stock or the
long-term debt (other than scheduled repayments
of such debt) or any decreases in shareholders'
equity of the Company and the subsidiaries on a
consolidated basis as compared with the amounts
shown in the latest balance sheet included or
incorporated by reference in the Registration
Statement and the Prospectus or (ii) for the
period from the date of the latest available
financial data to a specified date not more than
five business days prior to the delivery of such
letter, there was any change in the capital stock
or the long-term debt (other than scheduled
repayments of such debt) or any decreases in
shareholders' equity of the Company and the
subsidiaries on a consolidated basis, except in
all instances for changes or decreases which the
Registration Statement and Prospectus discloses
have occurred or may occur, or Price Waterhouse
shall state any specific changes or decreases.
(iv) The letter shall also state that Price
Waterhouse LLP has carried out certain other specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information
which are included or incorporated by reference in the
Registration Statement and Prospectus and which are
specified by the Representatives and agreed to by
Price Waterhouse LLP, and has found such amounts,
percentages and financial information to be in
agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries
identified in such letter.
In addition, at the time this Agreement is
executed, Price Waterhouse LLP shall have furnished to
the Representatives a letter or letters, dated the
date of this Agreement, in form and substance
satisfactory to the Representatives, to the effect set
forth in this paragraph (e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Final Prospectus, there shall not have been (i) any change
or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or
any development involving a prospective change, in or
affecting the earnings, business or properties of the
Company and its subsidiaries the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the
offering or the delivery of the Securities as contemplated
by the Registration Statement and the Final Prospectus.
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may
reasonably request.
(h) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities
arranged by the Underwriters have been approved by the
Company.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement
shall not be in all material respects reasonably satisfactory in
form and substance to the Representatives and their counsel,
this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by
the Representatives. Notice of such cancellation shall be given
to the Company in writing or by telephone or telegraph confirmed
in writing.
6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale
of the Securities provided for herein is not consummated because
any condition to the obligations of the Underwriters set forth
in Section 5 hereof is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them
in connection with the proposed purchase and sale of the
Securities.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of either
the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the
registration of the Securities as originally filed or in any
amendment thereof, or in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each
such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Company will not be liable in
any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for use
in connection with the preparation thereof, and (ii) such
indemnity with respect to the Basic Prospectus or any
Preliminary Final Prospectus shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof
if such person did not receive a copy of the Final Prospectus
(or the Final Prospectus as amended or supplemented) excluding
documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in
any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in the
Basic Prospectus or any Preliminary Final Prospectus was
corrected in the Final Prospectus (or the Final Prospectus as
amended or supplemented). This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person
who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the
Representatives specifically for use in the preparation of the
documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges
that the statements set forth in the last paragraph of the cover
page and under the heading "Underwriting" or "Plan of
Distribution" in any Preliminary Final Prospectus or the Final
Prospectus constitute the only information furnished in writing
by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity, and you, as
the Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and,
to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party
and 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, Seven
Hanover Square, New York, New York 10004-2696, Attn: James R.
Tanenbaum; or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at NationsBank Corporate
Center, Charlotte, North Carolina 28255, attention of the
Secretary, with a copy to each of: NationsBank Corporation,
NationsBank Corporate Center, Legal Department, NC 1007-20-1,
Charlotte, North Carolina 28255, Attn: Paul J. Polking, General
Counsel; and Smith Helms Mulliss & Moore, L.L.P., 227 North
Tryon Street, Charlotte, North Carolina 28202, Attn: Boyd C.
Campbell, Jr.
12. SUCCESSORS. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling
persons referred to in Section 7 hereof, and no other person
will have any right or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by
and construed in accordance with the internal laws of the State
of New York, without giving effect to principles of conflict of
laws.
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: JOHN E. MACK
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
NATIONSBANC CAPITAL MARKETS, INC.
BEAR, STEARNS & CO. INC.
LEHMAN BROTHERS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN, STANLEY & CO. INCORPORATED
By: NATIONSBANC CAPITAL MARKETS, INC.
By: MARK T. WILSON
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated October 17, 1995
Registration Statement No. 33-57533
Representatives: NationsBanc Capital Markets, Inc.
Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan, Stanley & Co. Incorporated
Address of Representatives: c/o NationsBanc Capital Markets,
Inc.
100 North Tryon Street, 7th Floor
Charlotte, NC 28255
Attn: Mark T. Wilson
Title, Purchase Price and Description of Securities:
Title: 7 1/4% Subordinated Notes, due 2025
Principal amount: $450,000,000
Purchase price (include type of funds and accrued interest
or amortization, if applicable): 97.656%; in federal (same
day) funds, by certified or official bank check or checks
or wire transfer to an account previously designated to the
Representatives by the Company.
Sinking fund provisions: none
Redemption provisions: none
Other provisions: none
Closing Date, Time and Location: October 23, 1995, 9:30 a.m.,
New York City time, Office of Stroock & Stroock & Lavan
Certificates representing securities: Book-entry only form.
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 Capital Markets, Inc. ............. $ 90,000,000
Bear, Stearns & Co. Inc. ...................... 90,000,000
Lehman Brothers Inc. .......................... 90,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated ...................... 90,000,000
Morgan, Stanley & Co. Incorporated ............ 90,000,000
------------
450,000,000
============
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)