[Preferred Stock]
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"),
__________ shares (the "Initial Shares") of the Company's
preferred stock (the "Preferred Stock"). The Company also
grants to the Underwriters, severally and not jointly, the
option described in Section 2(b) to purchase up to _____
additional shares (the "Option Shares") of Preferred Stock
to cover over-allotments. The Company may elect to offer
fractional interests in shares of Preferred Stock, in which
event the Company will provide for the issuance by a
Depositary of receipts evidencing depositary shares that
will represent such fractional interests ("Depositary
Shares"). The shares of Preferred Stock involved in any
such offering are hereinafter referred to as the
"Securities" and, where appropriate herein, reference to the
Securities include the Depositary Shares. Such Securities
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 Securities are
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 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
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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 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 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 purchase price
set forth on Schedule I hereto, of the Securities for which
Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with institutional investors, including
commercial and savings banks,
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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 Securities 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
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 amount of Contract Securities as
the amount of Securities 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
Securities 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) 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 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 9
hereof (such date and time of delivery and payment for the
Securities being herein called the
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"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.
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. Unless otherwise agreed, certificates for the
Option Shares shall be in the form set forth in Schedule I
hereto, and such certificates shall be 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.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of
the Securities, the Company will not file any amendment
of the Registration Statement or supplement (including
the Final Prospectus) to the Basic Prospectus unless
the Company has furnished you a copy for your review
prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, the Company will
cause the Final Prospectus to be filed with the
Commission pursuant to Rule 424 or Rule 434 via the
Electronic Data Gathering, Analysis and Retrieval
System. The Company will advise the Representatives
promptly (i) when the Final Prospectus shall have been
filed with the Commission pursuant to Rule 424 or Rule
434, (ii) when any amendment to the Registration
Statement relating to the Securities shall have become
effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or
amendment of or supplement to the Final Prospectus or
for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the
effectiveness of the Registration Statement or the
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institution or threatening of any proceeding for that
purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to
the Securities is required to be delivered under the
Act, any event occurs as a result of which the Final
Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit
to state any material fact necessary to make the
statements therein in light of the circumstances under
which they were made not misleading, or if it shall be
necessary to amend or supplement the Final Prospectus
to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such
statement or omission or an amendment which will effect
such compliance.
(c) The Company will make generally available to
its security holders and to the Representatives as soon
as practicable, but not later than 60 days after the
close of the period covered thereby, an earnings
statement (in form complying with the provisions of
Rule 158 of the regulations under the Act) covering a
twelve month period beginning not later than the first
day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the
Registration Statement.
(d) The Company will furnish to the
Representatives and counsel for the Underwriters,
without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto
which shall become effective on or prior to the Closing
Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as
many copies of any Preliminary Final Prospectus and the
Final Prospectus and any amendments thereof and
supplements thereto as the Representatives may
reasonably request. The Company will pay the expenses
of printing all documents relating to the offering.
(e) The Company will arrange for the
qualification of the Securities for sale under the laws
of such jurisdictions as the Representatives may
reasonably designate, will maintain such qualifications
in effect so long as required for the distribution of
the Securities and will arrange for the determination
of the legality of the Securities for
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purchase by institutional investors; provided, however, that
the Company shall not be required to qualify to do business in
any jurisdiction where it is not now so qualified or to take
any action which would subject it to general or unlimited
service of process of any jurisdiction where it is not now so
subject.
(f) Until the business day following the Closing
Date, the Company will not, without the consent of the
Representatives, offer or sell, or announce the
offering of, any securities covered by the Registration
Statement or by any other registration statement filed
under the Act.
5. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the
Underwriters' Securities shall be subject to the accuracy of
the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the
date of the effectiveness of any amendment to the
Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by
reference therein) and as of the Closing Date, to the
accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and
to the following additional conditions:
(a) No stop order suspending the effectiveness of
the Registration Statement, as amended from time to
time, shall have been issued and no proceedings for
that purpose shall have been instituted or threatened;
and the Final Prospectus shall have been filed or
mailed for filing with the Commission within the time
period prescribed by the Commission.
(b) The Company shall have furnished to the
Representatives the opinion of Smith Helms Mulliss &
Moore, L.L.P., counsel for the Company, dated the
Closing Date, to the effect of paragraphs (i), (iv) and
(vi) through (xii) below, and the opinion of Paul J.
Polking, General Counsel to the Company, dated the
Closing Date, to the effect of paragraphs (ii), (iii)
and (v) below:
(i) the Company is a duly organized and
validly existing corporation in good standing
under the laws of the State of North Carolina, has
the corporate power and authority to own its
properties and conduct its business as described
in the Final Prospectus, and is duly registered as
a bank holding company under the Bank Holding
Company Act of 1956, as amended; NationsBank,
National Association, NationsBank, National
Association (Carolinas), NationsBank of Florida,
National Association, NationsBank of Georgia,
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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,
amended) nonassessable, and, except as otherwise
as 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) 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
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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 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);
(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
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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;
(x) neither the issue and sale of the
Securities, nor the consummation of any other of
the transactions herein contemplated nor the
fulfillment of the terms hereof or of any Delayed
Delivery Contracts will conflict with, result in a
breach of, or constitute a default under the
articles of incorporation or by-laws of the
Company or, to the best knowledge of such counsel,
the terms of any indenture or other agreement or
instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or
bound, or any order or regulation known to such
counsel to be applicable to the Company or any of
its subsidiaries of any court, regulatory body,
administrative agency, governmental body or
arbitrator having jurisdiction over the Company or
any of its affiliates; and
(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) to Securities 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 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
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shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by
the Chairman of the Board and Chief Executive Officer
or a Senior Vice President and the principal financial
or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such
certificate have carefully examined the Registration
Statement, the Final Prospectus and this Agreement and
that to the best of their knowledge:
(i) the representations and warranties of the
Company in this Agreement are true and correct in
all material respects on and as of the Closing
Date with the same effect as if made on the
Closing Date and the Company has complied with all
the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior
to the Closing Date;
(ii) no stop order suspending the
effectiveness of the Registration Statement, as
amended, has been issued and no proceedings for
that purpose have been instituted or threatened;
and
(iii) since the date of the most recent
financial statements included in the Final
Prospectus, there has been no material adverse
change in the condition (financial or other),
earnings, business or properties of the Company
and its subsidiaries, whether or not arising from
transactions in the ordinary course of business,
except as set forth in or contemplated in the
Final Prospectus.
(e) At the Closing Date, Price Waterhouse LLP
shall have furnished to the Representatives a letter or
letters (which may refer to letters previously
delivered to one or more of the Representatives), dated
as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that
the response, if any, to Item 10 of the Registration
Statement is correct insofar as it relates to them and
stating in effect that:
(i) They are independent accountants within
the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations
thereunder.
(ii) In their opinion, the consolidated
financial statements of the Company and its
subsidiaries audited by them and included or
incorporated by reference in the
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Registration Statement and Prospectus comply as to form in all
material respects with the applicable accounting requirements
of the Act and the regulations thereunder with respect to
registration statements on Form S-3 and the Exchange Act and
the regulations thereunder.
(iii) On the basis of procedures (but not an
audit in accordance with generally accepted auditing
standards) consisting of:
(a) Reading the minutes of the meetings of
the shareholders, the board of directors,
executive committee and audit committee of the
Company and the boards of directors and executive
committees of its subsidiaries as set forth in the
minute books through a specified date not more
than five business days prior to the date of
delivery of such letter;
(b) Performing the procedures specified by
the American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed
consolidated interim financial statements of the
Company and its consolidated subsidiaries included
or incorporated by reference in the Registration
Statement and Prospectus and reading the unaudited
interim financial data, if any, for the period
from the date of the latest balance sheet included
or incorporated by reference in the Registration
Statement and Prospectus to the date of the latest
available interim financial data; and
(c) Making inquiries of certain officials of
the Company who have responsibility for financial
and accounting matters regarding the specific
items for which representations are requested
below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1) the unaudited condensed consolidated
interim financial statements, included or
incorporated by reference in the Registration
Statement and Prospectus, do not comply as to form
in all material respects with the applicable
accounting requirements of the Exchange Act and
the published rules and regulations thereunder;
(2) any material modifications should be
made to the unaudited condensed consolidated
interim financial statements, included or
incorporated by reference in the Registration
Statement and Prospectus, for them to
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be in conformity with generally accepted accounting
principles;
(3) (i) at the date of the latest available
interim financial data and at the specified date
not more than five business days prior to the date
of the delivery of such letter, there was any
change in the capital stock or the long-term debt
(other than scheduled repayments of such debt) or
any decreases in shareholders' equity of the
Company and the subsidiaries on a consolidated
basis as compared with the amounts shown in the
latest balance sheet included or incorporated by
reference in the Registration Statement and the
Prospectus or (ii) for the period from the date of
the latest available financial data to a specified
date not more than five business days prior to the
delivery of such letter, there was any change in
the capital stock or the long-term debt (other
than scheduled repayments of such debt) or any
decreases in shareholders' equity of the Company
and the subsidiaries on a consolidated basis,
except in all instances for changes or decreases
which the Registration Statement and Prospectus
discloses have occurred or may occur, or Price
Waterhouse shall state any specific changes or
decreases.
(iv) The letter shall also state that Price
Waterhouse LLP has carried out certain other specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information
which are included or incorporated by reference in the
Registration Statement and Prospectus and which are
specified by the Representatives and agreed to by Price
Waterhouse LLP, and has found such amounts, percentages
and financial information to be in agreement with the
relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
In addition, at the time this Agreement is
executed, Price Waterhouse LLP shall have furnished to
the Representatives a letter or letters, dated the date
of this Agreement, in form and substance satisfactory
to the Representatives, to the effect set forth in this
paragraph (e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of
which information is given in the Registration
Statement and the Final Prospectus, there shall not
have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (e) of this
Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the
earnings, business or properties of the
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Company and its subsidiaries the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the judgment
of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration
Statement and the Final Prospectus.
(g) Prior to the Closing Date, the Company shall
have furnished to the Representatives such further
information, certificates and documents as the
Representatives may reasonably request.
(h) The Company shall have accepted Delayed
Delivery Contracts in any case where sales of Contract
Securities arranged by the Underwriters have been
approved by the Company.
If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects when
and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives
and their counsel, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice
of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
6. 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 Securities to the
Underwriters, including capital duties, stamp duties and
stock transfer taxes, if any, payable upon issuance of any
of the Securities, the sale of the Securities to the
Underwriters and the fees and expenses of the transfer agent
for the Securities (iv) the fees and disbursements of the
Company's counsel and accountants, (v) the qualification of
the Securities 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,
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and (viii) the fee of the National Association of Securities
Dealers, Inc. and, if applicable, the New York Stock Exchange.
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. Conditions to Purchase of Option Shares. In the
event the Underwriters exercise the option granted in
Section 2(b) 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) or Rule 434 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);
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(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)(v) 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)(v) 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 Securities 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.
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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 Securities as originally filed or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based
upon omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to
reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company
will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in
connection with the preparation thereof, and (ii) such
indemnity with respect to the Basic Prospectus or any
Preliminary Final Prospectus shall not inure to the benefit
of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Securities which
are the subject thereof if such person did not receive a
copy of the Final Prospectus (or the Final Prospectus as
amended or supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the
sale of such Securities to such person in any case where
such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the
Basic Prospectus or any Preliminary Final Prospectus was
corrected in the Final Prospectus (or the Final Prospectus
as amended or supplemented). This indemnity agreement will
be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, and each
person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter,
but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of
such Underwriter through the
-17-
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
-18-
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 Securities specified
in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (y) in no case shall any
Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the
underwriting discount applicable to the Securities purchased
by such Underwriter hereunder and (z) no person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 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
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
-19-
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 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 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.
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
Securities. The provisions of Section 6 and 8 hereof and
-20-
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 8 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.
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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: [Name of Representatives]
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:
Purchase price (include type of funds, 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.
Other provisions:
Closing Date, Time and Location: ____________________
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
Principal Amount
of Securities to
Underwriters be Purchased
-2-
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 Preferred
Stock (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 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 amount of
the Securities as is to be sold to them pursuant to the
Underwriting
-3-
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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