[Common Stock]
NATIONSBANK CORPORATION
UNDERWRITING AGREEMENT
New York, New York
, 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 issue and sell to the underwriters named
in Schedule II hereto (the "Underwriters"), for whom you are
acting as representatives (the "Representatives"), _________
shares (the "Initial Shares") of the Company's common stock (the
"Common Stock"). Such Initial Shares are to be sold to each
Underwriter, acting severally and not jointly, in such amounts as
are listed in Schedule II opposite the name of each Underwriter.
The Company also grants to the Underwriters, severally and not
jointly, the option described in Section 2(c) to purchase up to
_______ additional shares (the "Option Shares"; together with the
Initial Shares, the "Shares") of Common Stock to cover over-
allotments. The Common Stock is more fully described in the
Final Prospectus, referred to below. If the firm or firms listed
in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, each shall be deemed to refer
to such firm or firms.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter, as of the
date hereof and as of the date of the Pricing Agreement (such
latter date being hereinafter referred to as the "Representation
Date") that:
(a)The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933 (the "Act") and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement on such Form (the
file number of which is set forth in Schedule I hereto),
which has become effective, for the registration under the
Act of the Shares. Such registration statement, as amended
at the date of this Agreement, meets the requirements set
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
under the Act a supplement to the form of prospectus
included in such registration statement relating to the
Shares and the plan of distribution thereof and has
previously advised you of all further information (financial
and other) with respect to the Company to be set forth
therein. Such registration statement, including the
exhibits thereto, as amended at the date of this Agreement,
is hereinafter called the "Registration Statement"; such
prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in
the form in which it shall be filed with the Commission
pursuant to Rule 424 (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 under the Act, when,
prior to the Closing Date (as hereinafter defined), any
amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by
reference in the Registration Statement), when any
supplement to the Final Prospectus is filed with the
Commission and at the Closing Date (as hereinafter defined),
(i) the Registration Statement as amended as of any such
time, and the Final Prospectus, as amended or supplemented
as of any such time, will comply in all material respects
with the applicable requirements of the Act and the Exchange
Act and the respective rules thereunder, (ii) the
Registration Statement, as amended as of any such time, will
not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary in order to make the statements therein not
misleading, and (iii) the Final Prospectus, as amended or
supplemented as of any such time, will not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations
or warranties as to the information contained in or omitted
from the Registration Statement or the Final Prospectus or
any amendment thereof or supplement thereto in reliance upon
and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the
preparation of the Registration Statement and the Final
Prospectus.
2. Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company the respective number of
Initial Shares set forth opposite such Underwriter's name in
Schedule II hereto, except that, if Schedule I hereto provides
for the sale of Initial Shares pursuant to delayed delivery
arrangements, the respective amounts of Initial Shares to be
purchased by the Underwriters shall be set forth in Schedule II
hereto, less the respective amounts of Contract Securities
determined as provided below. Shares to be purchased by the
Underwriters are herein sometimes called the "Underwriters'
Securities" and Shares to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called
"Contract Securities."
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Initial Shares from the
Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"), substantially in the form of Schedule III hereto but
with such changes therein as the Company may authorize or
approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay
to the Representatives, for the account of the Underwriters, on
the Closing Date, the purchase price set forth on Schedule I
hereto, of the Initial Shares for which Delayed Delivery
Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks,
insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will make
Delayed Delivery Contracts in all cases where sales of Contract
Securities arranged by the Underwriters have been approved by the
Company but, except as the Company may otherwise agree, each such
Delayed Delivery Contract must be for not less than the minimum
amount of Initial Shares set forth in Schedule I hereto and the
aggregate amount of Contract Securities may not exceed the
maximum aggregate amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts. The
amount of Initial Shares to be purchased by each Underwriter as
set forth in Schedule II hereto shall be reduced by an amount
which shall bear the same proportion to the total amount of
Contract Securities as the amount of Initial Shares set forth
opposite the name of such Underwriter bears to the aggregate
amount set forth in Schedule II hereto, except to the extent that
you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided,
however, that the total amount of Initial Shares to be purchased
by all Underwriters shall be the aggregate amount set forth in
Schedule II hereto, less the aggregate amount of Contract
Securities.
(b) The initial public offering price and the purchase
price of the Initial Shares shall be set forth in a separate
written instrument (the "Pricing Agreement") signed by the
Representatives and the Company, the form of which is attached
hereto as Schedule IV. From and after the execution and delivery
of the Pricing Agreement, this Agreement shall be deemed to
include the Pricing Agreement. The purchase price per share to
be paid by the several Underwriters for the Initial Shares shall
be an amount equal to the initial public offering price, less an
amount per share to be determined by agreement among the
Representatives and the Company.
(c) In addition, on the basis of the representations and
warranties contained herein, and subject to the terms and
conditions set forth herein, the Company grants an option to the
Underwriters, severally and not jointly, to purchase up to an
additional _______ Option Shares at the same price per share
determined as provided above for the Initial Shares. The option
hereby granted will expire 30 days after the date of the Pricing
Agreement, and may be exercised, in whole or in part (but not
more than once), only for the purpose of covering over-allotments
upon notice by the Representatives to the Company setting forth
the number of Option Shares as to which the several Underwriters
are exercising the option, and the time and date of payment and
delivery thereof. Such time and date of Delivery (the "Date of
Delivery") shall be determined by the Representatives but shall
not be later than seven full business days after the exercise of
such option and not in any event prior to the Closing Date (as
defined below). If the option is exercised as to all or any
portion of the Option Shares, the Option Shares as to which the
option is exercised shall be purchased by the Underwriters
severally and not jointly, in proportion to, as nearly as
practicable, their respective Initial Shares underwriting
obligations as set forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for the
Initial Shares shall be made at the office, on the date and at
the time specified in Pricing Agreement, which date and time may
be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of
delivery and payment for the Initial Shares being herein called
the "Closing Date"). Delivery of the Initial Shares shall be
made to the Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof in the
manner set forth in Schedule I hereto. Certificates for the
Initial Shares shall be in definitive form, registered in such
names and in such denominations as the Representatives may
request not less than three full business days in advance of the
Closing Date.
The Company agrees to have the Initial Shares available for
inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 PM on the business day prior
to the Closing Date.
In addition, in the event that any or all of the Option
Shares are purchased by the Underwriters, delivery and payment
for the Option Shares shall be made at the office specified for
delivery of the Initial Shares in the Pricing Agreement, or at
such other place as the Company and the Representatives shall
determine, on the Date of Delivery as specified in the notice
from the Representatives to the Company. Delivery of the Option
Shares shall be made to the Representatives against payment by
the Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company in the manner
set forth in Schedule I hereto. Certificates for the Option
Shares shall be in definitive form, registered in such names and
in such denominations as the Representatives may request not less
than three full business days in advance of the Date of Delivery.
The Company agrees to have the Option Shares available for
inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 PM on the business day prior
to the Date of Delivery.
4. Agreements. The Company agrees with the several
Underwriters that:
(a)Prior to the termination of the offering of the
Shares, the Company will not file any amendment of the
Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be
filed with the Commission pursuant to Rule 424 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 for filing pursuant to Rule 424, (ii) when any
amendment to the Registration Statement relating to the
Shares shall have become effective, (iii) of any request by
the Commission for any amendment of the Registration
Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that
purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or
the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent
the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b)If, at any time when a prospectus relating to the
Shares is required to be delivered under the Act, 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 Shares for sale under the laws of such jurisdictions as
the Representatives may reasonably designate, will maintain
such qualifications in effect so long as required for the
distribution of the Shares and will arrange for the
determination of the legality of the Shares for purchase by
institutional investors; provided, however, that the Company
shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any
action which would subject it to general or unlimited
service of process of any jurisdiction where it is not now
so subject.
(f)Until the business day following the Closing Date,
the Company will not, without the consent of the
Representatives, offer or sell, or announce the offering of,
any securities covered by the Registration Statement or by
any other registration statement filed under the Act.
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 of Florida, National Association,
NationsBank of Georgia, National Association,
NationsBank, National Association (Carolinas),
NationsBank of Texas, National Association, NationsBank
of Maryland, National Association and NationsBank of
Virginia, 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) 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 mark) 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 Shares conform in all material respects
to the description thereof contained in the Final
Prospectus;
(v) if the Shares are to be listed on the New York
Stock Exchange, authorization therefor has been given,
subject to official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required
supporting documents with respect to the Initial Shares
with the New York Stock Exchange and such counsel has
no reason to believe that the Initial Shares will not
be authorized for listing, subject to official notice
of issuance and evidence of satisfactory distribution;
(vi) to the best knowledge of such counsel, there
is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of
its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there
is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
(vii) the Registration Statement has become
effective under the Act; to the best knowledge of such
counsel no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final
Prospectus and each amendment thereof or supplement
thereto (other than the financial statements and other
financial and statistical information contained therein
or incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the applicable requirements
of the Act and the Exchange Act and the respective
rules thereunder; 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;
(viii) this Agreement, the Pricing Agreement and
any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and
each constitutes a legal, valid and binding 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);
(ix) 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 Shares by the Underwriters and such
other approvals (specified in such opinion) as have
been obtained;
(x) neither the issue and sale of the Shares, nor
the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms
hereof or of any Delayed Delivery Contracts will
conflict with, result in a breach of, or constitute a
default under the articles of incorporation or by-laws
of the Company or, to the best knowledge of such
counsel, the terms of any 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
(xi) to the best knowledge and information of such
counsel, each holder of securities of the Company
having rights to the registration of such securities
under the Registration Statement has waived such rights
or such rights have expired by reason of lapse of time
following notification of the Company's intention to
file the Registration Statement.
(xii) the Initial Shares, any Option Shares as to
which the option granted in Section 2 has been
exercised and the Date of Delivery determined by the
Representatives to be the same as the Closing Date,
have been duly authorized and, when paid for as
contemplated herein, will be duly issued, fully paid
and nonassessable.
In rendering such opinion, 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 Initial Shares, 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 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 they are independent accountants within the
meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder, 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) 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 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(ii)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 1934 Act
and the published rules and regulations thereunder;
(2)any material modifications should be made to
the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in
the Registration Statement and Prospectus, for them to
be in conformity with generally accepted accounting
principles;
(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.
(iii) The letter shall also state that Price
Waterhouse has carried out certain other specified
procedures, not constituting an audit, with respect to
certain amounts percentages and financial information which
are included or incorporated by reference in the
Registration Statement and Prospectus and which are
specified by the Agents and agreed to by Price Waterhouse,
and has found such amounts, percentages and financial
information to be in agreement with the relevant accounting,
financial and other records of the 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 Shares as contemplated by
the Registration Statement and the Final Prospectus.
(g)Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may
reasonably request.
(h)The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities
arranged by the Underwriters have been approved by the
Company.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this
Agreement and all obligations of the Underwriters hereunder may
be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to
the Company in writing or by telephone or telegraph confirmed in
writing.
6. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this
Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment
thereto, (ii) the copying of this Agreement and the Pricing
Agreement, (iii) the preparation, issuance and delivery of the
certificates for the Shares to the Underwriters, including
capital duties, stamp duties and stock transfer taxes, if any,
payable upon issuance of any of the Shares, the sale of the
Shares to the Underwriters and the fees and expenses of the
transfer agent for the Shares (iv) the fees and disbursements of
the Company's counsel and accountants, (v) the qualification of
the Shares under state securities laws in accordance with the
provisions of Section 4(e), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of
the Blue Sky Survey, (vi) the printing and delivery to the
Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of the
preliminary prospectuses, and of the Prospectuses and any
amendments or supplements thereto, (vii) the printing and
delivery to the Underwriters of copies of the Blue Sky Survey,
and (viii) the fee of the National Association of Shares Dealers,
Inc. and, if applicable, the New York Stock Exchange.
If the sale of the Shares provided for herein is not
consummated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied or
because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have
been incurred by them in connection with the proposed purchase
and sale of the Shares.
7. Conditions to Purchase of Option Shares. In the
event the Underwriters exercise the option granted in Section
2(c) hereof to purchase all or any portion of the Option Shares
and the Date of Delivery determined by the Representatives
pursuant to Section 2 is later than the Closing Date, the
obligations of the several Underwriters to purchase and pay for
the Option Shares that they shall have respectively agreed to
purchase hereunder are subject to the accuracy of the
representations and warranties of the Company contained herein,
to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall
have been instituted or threatened; and any required filing
of the Final Prospectus pursuant to Rule 424(b) under the
Act shall have been made within the proper time period.
(b) At the Date of Delivery, the Representatives shall
have received, each dated the Date of Delivery and relating
to the Option Shares:
(i) the favorable opinion of Smith Helms Mulliss
& Moore, L.L.P., counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters,
to the same effect as the opinion required by Section
5(b);
(ii) the favorable opinion of Paul Polking, Esq.,
General Counsel to the Company, in form and substance
satisfactory to counsel for the Underwriters, to the
same effect as the opinion required by Section 5(b);
(iii) the favorable opinion of Stroock & Stroock &
Lavan, counsel for the Underwriters, to the same effect
as the opinion required by Section 5(c);
(iv) a certificate, of the Chairman of the Board
and Chief Executive Officer or Senior Vice President of
the Company and of the principal financial or
accounting officer of the Company with respect to the
matters set forth in Section 5(d);
(v) a letter from Price Waterhouse, in form and
substance satisfactory to the Underwriters,
substantially the same in scope and substance as the
letter furnished to the Underwriters pursuant to
Section 5(e) except that the "specified date" in the
letter furnished pursuant to this Section 7(b)(iv)
shall be a date not more than five days prior to the
Date of Delivery; and
(vi) Subsequent to the respective dates as of
which information is given in the Registration
Statement and the Final Prospectus, there shall not
have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (b)(iv) of
this Section 7 or (ii) any change, or any development
involving a prospective change, in or affecting the
earnings, business or properties of the Company and its
subsidiaries the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the judgment of
the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the
offering or the delivery of the Shares as contemplated
by the Registration Statement and the Final Prospectus.
(vii) such other information, certificates and
documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 7 shall
not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this
Agreement and all obligations of the Underwriters hereunder may
be canceled at, or at any time prior to, the Date of Delivery by
the Representatives. Notice of such cancellation shall be given
to the Company in writing or by telephone or facsimile confirmed
in writing.
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of either
the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration
of the Shares 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 Shares which are the subject thereof if
such person did not receive a copy of the Final Prospectus (or
the Final Prospectus as amended or supplemented) excluding
documents incorporated therein by reference at or prior to the
confirmation of the sale of such Shares to such person in any
case where such delivery is required by the Act and the untrue
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 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 8. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and,
to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel,
approved by the Representatives in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who
are parties to such action), (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and
except that if clause (i) or (iii) is applicable, such liability
shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 8 is due in accordance with its
terms but is for any reason held by a court to be unavailable
from the Company on the grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the
Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of
such discount and the purchase price of the Shares 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 Shares) be responsible for any
amount in excess of the underwriting discount applicable to the
Shares purchased by such Underwriter hereunder and (z) no person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of the Act shall
have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either
the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the
Company, subject in each case to clause (y) of this paragraph
(d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under
this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they
may have hereunder or otherwise than under this paragraph (d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Shares
agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions
which the amount of Shares set forth opposite their names in
Schedule II hereto bear to the aggregate amount of Shares set
forth opposite the names of all the remaining Underwriters) the
Shares which the defaulting Underwriter or Underwriters agreed
but failed to purchase; provided, however, that in the event that
the aggregate amount of Shares which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Shares set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all,
but shall not be under any obligation to purchase any, of the
Shares, and if such nondefaulting Underwriters do not purchase
all the Shares, this Agreement will terminate without liability
to any nondefaulting Underwriter or the Company. In the event of
a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company
and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by
notice given to the Company prior to delivery of and payment for
the Shares, if prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall
have been declared either by Federal, Florida, Georgia, New York,
North Carolina, South Carolina, Texas, Maryland or Virginia State
authorities or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis
the effect of which on the financial markets of the United States
is such as to make it, in the judgment of the Representatives,
impracticable to market the Shares.
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for
the Shares. The provisions of Section 7 and 8 hereof and this
Section 11 shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telegraphed and
confirmed to them, at the address specified in Schedule I hereto,
with a copy to: Stroock & Stroock & Lavan, Seven Hanover Square,
New York, New York 10004-2696, Attn: James R. Tanenbaum; or, if
sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at NationsBank Corporate Center, Charlotte, North
Carolina 28255, attention of the Secretary, with a copy to each
of: NationsBank corporation, NationsBank Corporate Center, Legal
Department, NC 1007-20-01, Charlotte, North Carolina 28255, Attn:
Paul J. Polking, General Counsel; and Smith Helms Mulliss &
Moore, L.L.P., 227 North Tryon Street, Charlotte, North Carolina
28202, Attn: Boyd C. Campbell, Jr.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 7 hereof, and no other person will have
any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of
New York, without giving effect to principles of conflict of
laws.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several
Underwriters.
Very truly yours,
NATIONSBANK CORPORATION
By:_________________________
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: [Name of Representatives]
By:__________________________
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement. SCHEDULE I
Underwriting Agreement dated ____________, 1995
Registration Statement No. 33-_____________________
Representatives:___________________________________
Title, Purchase Price and Description of Shares:
Title:_________________________________________
Purchase price (include type of funds, if
applicable):______________
Other provisions:________________________________________
Delayed Delivery Arrangements:________________________________
Fee:_____________________________________________________
Minimum amount of each contract: ______________
Maximum aggregate amount of
all contracts: ______________
Additional items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 5(e) at the
time this Agreement is executed:____________________________
SCHEDULE II
Number
of Initial Shares to
Underwriters to be Purchased
Total....................................... $
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from NationsBank
Corporation (the "Company"), and the Company agrees to sell to
the undersigned, on , 19 , (the "Delivery Date"),
shares of the Company's Common Stock
(the "Shares") offered by the Company's Final Prospectus dated
, 19 , receipt of a copy of which is hereby acknowledged,
at a purchase price of % of the principal amount thereof, plus
accrued interest, if any, thereon from , 19 ,
to the date of payment and delivery, and on the further terms and
conditions set forth in this contract.
Payment for the Shares to be purchased by the undersigned
shall be made on or before 11:00 A.M. on the Delivery Date to or
upon the order of the Company in New York Clearing House (next
day) funds, at your office or at such other place as shall be
agreed between the Company and the undersigned upon delivery to
the undersigned of the Shares in definitive fully registered form
and in such authorized denominations and registered in such names
as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five full
business days prior to the Delivery Date. If no request is
received, the Shares will be registered in the name of the
undersigned and issued in a denomination equal to the aggregate
amount of Shares to be purchased by the undersigned on the
Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for Shares on the Delivery Date, and the obligation
of the Company to sell and deliver Shares on the Delivery Date,
shall be subject to the conditions (and neither party shall incur
any liability by reason of the failure thereof) that (1) the
purchase of Shares to be made by the undersigned, which purchase
the undersigned represents is not prohibited on the date hereof,
shall not on the Delivery Date be prohibited under the laws of
the jurisdiction to which the undersigned is subject, and (2) the
Company, on or before the Delivery Date, shall have sold to
certain underwriters (the "Underwriters") such amount of the
Shares as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Final Prospectus mentioned above.
Promptly after completion of such sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of
the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Shares,
and the obligation of the Company to cause the Shares to be sold
and delivered, shall not be affected by the failure of any
purchaser to take delivery of and make payment for the Shares
pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will
not be assignable by either party hereto without the written
consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and,
without limiting the foregoing, need not be on the first come,
first served basis. If this contract is acceptable to the
Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the
undersigned, as of the date first above written, when such
counterpart is so mailed or delivered.
This agreement shall be governed by and construed in
accordance with the internal laws of the State of New York,
without giving effect to principles of conflict of laws.
Very truly yours,
_____________________________
(Name of Purchaser)
BY: ________________________________
(Signature and Title of Officer)
________________________________
(Address)
Accepted:
NATIONSBANK CORPORATION
By:____________________________
(Authorized Signature) SCHEDULE IV
_________ Shares
NATIONSBANK CORPORATION
(a North Carolina corporation)
Common Stock
PRICING AGREEMENT
__________ __, 1995
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Purchase Agreement, dated
_____________ __, 1995 (the "Underwriting Agreement"), relating
to the purchase by the several Underwriters named in Schedule I
thereto, for whom you are acting as representatives (the
"Representatives"), of the above shares of Common Stock (the
"Initial Shares"), of NationsBank Corporation (the "Company").
We confirm that the Closing Time (as defined in Section
2 of the Purchase Agreement) shall be at 9:30 A.M., New York City
time, on __________ __, 1995 at the offices of Stroock & Stroock
& Lavan, Seven Hanover Square, New York, New York 10004.
Pursuant to Section 2 of the Underwriting Agreement,
the Company agrees with each Underwriter as follows:
1. The initial public offering price per share for the
Initial Shares, determined as provided in said Section 2, shall
be $__.__.
2. The purchase price per share for the Initial Shares
to be paid by the several Underwriters shall be $__.__, being an
amount equal to the initial public offering price set forth above
less $_.__ per share.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
NATIONSBANK CORPORATION
By:_____________________
CONFIRMED AND ACCEPTED:
as of the date first above written:
By:
By:________________________________
For themselves and as Representatives of the other Underwriters
named in Schedule A hereto.
SCHEDULE A