[Debt Securities]
NATIONSBANK CORPORATION
UNDERWRITING AGREEMENT
New York, New York
____________, 199_
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 ____________ between the
Company and ____________, 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
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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
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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)
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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.
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(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
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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, National Association
(Carolinas), 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 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 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
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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
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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
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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
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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;
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(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
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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
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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
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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
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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
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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
-17-
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.
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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:
By:__________________________
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
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SCHEDULE I
Underwriting Agreement dated ___________, 199_
Registration Statement No. 33-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include type of funds and accrued
interest or amortization, if applicable): ______%; in
federal (same day) funds or wire transfer to an account
previously designated to the Representatives by the
Company or, if agreed to by the Representatives and the
Company, by certified or official bank check or checks.
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: ____________, New York
City time, Office of Stroock & Stroock & Lavan
Listing:
Delayed Delivery Arrangements:
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
Principal Amount
of Securities to
Underwriters be Purchased
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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
-3-
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)
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