[Common 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 issue and sell to the
underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives
(the "Representatives"), __________ shares (the "Initial
Shares") of the Company's common stock (the "Common Stock").
Such Initial Shares are to be sold to each Underwriter,
acting severally and not jointly, in such amounts as are
listed in Schedule II opposite the name of each Underwriter.
The Company also grants to the Underwriters, severally and
not jointly, the option described in Section 2(c) to
purchase up to _____ additional shares (the "Option Shares";
together with the Initial Shares, the "Shares") of Common
Stock to cover over-allotments. The Common Stock is more
fully described in the Final Prospectus, referred to below.
If the firm or firms listed in Schedule II hereto include
only the firm or firms listed in Schedule I hereto, then the
terms "Underwriters" and "Representatives", as used herein,
each shall be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each
Underwriter, as of the date hereof and as of the date of the
Pricing Agreement (such latter date being hereinafter
referred to as the "Representation Date") that:
(a) The Company meets the requirements for use of
Form S-3 under the Securities Act of 1933 (the "Act")
and has filed with the Securities and Exchange
Commission (the "Commission") a registration statement
on such Form (the file number of which is set forth in
Schedule I hereto), which has become effective, for the
registration under the Act of the Shares. Such
registration statement, as amended
at the date of this Agreement, meets the requirements set
forth in Rule 415(a)(1) under the Act and complies in all
other material respects with said Rule. The Company proposes
to file with the Commission pursuant to Rule 424 or Rule 434
under the Act a supplement to the form of prospectus included
in such registration statement relating to the Shares and the
plan of distribution thereof and has previously advised you of
all further information (financial and other) with respect to
the Company to be set forth therein. Such registration
statement, including the exhibits thereto, as amended at the
date of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus in the form in which
it appears in the Registration Statement is hereinafter called
the "Basic Prospectus"; and such supplemented form of
prospectus, in the form in which it shall be filed with the
Commission pursuant to Rule 424 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, will comply in all material respects
with the applicable requirements of the
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Act, and the Exchange Act and the respective rules thereunder,
(ii) the Registration Statement, as amended as of any such
time, will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein
not misleading, and (iii) the Final Prospectus, as amended or
supplemented as of any such time, will not contain any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration
Statement or the Final Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation of the
Registration Statement and the Final Prospectus.
2. Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company the respective
number of Initial Shares set forth opposite such
Underwriter's name in Schedule II hereto, except that, if
Schedule I hereto provides for the sale of Initial Shares
pursuant to delayed delivery arrangements, the respective
amounts of Initial Shares to be purchased by the
Underwriters shall be set forth in Schedule II hereto, less
the respective amounts of Contract Securities determined as
provided below. Shares to be purchased by the Underwriters
are herein sometimes called the "Underwriters' Securities"
and Shares to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called
"Contract Securities."
If so provided in Schedule I hereto, the Underwriters
are authorized to solicit offers to purchase Initial Shares
from the Company pursuant to delayed delivery contracts
("Delayed Delivery Contracts"), substantially in the form of
Schedule III hereto but with such changes therein as the
Company may authorize or approve. The Underwriters will
endeavor to make such arrangements and, as compensation
therefor, the Company will pay to the Representatives, for
the account of the Underwriters, on the Closing Date, the
purchase price set forth on Schedule I hereto, of the
Initial Shares for which Delayed Delivery Contracts are
made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings
banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. The
Company will make
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Delayed Delivery Contracts in all cases where sales of Contract
Securities arranged by the Underwriters have been approved by the
Company but, except as the Company may otherwise agree, each such
Delayed Delivery Contract must be for not less than the minimum
amount of Initial Shares set forth in Schedule I hereto and the
aggregate amount of Contract Securities may not exceed the maximum
aggregate amount set forth in Schedule I hereto. The Underwriters
will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts. The amount of Initial
Shares to be purchased by each Underwriter as set forth in Schedule
II hereto shall be reduced by an amount which shall bear the same
proportion to the total amount of Contract Securities as the amount
of Initial Shares set forth opposite the name of such Underwriter
bears to the aggregate amount set forth in Schedule II hereto,
except to the extent that you determine that such reduction shall
be otherwise than in such proportion and so advise the Company in
writing; provided, however, that the total amount of Initial Shares
to be purchased by all Underwriters shall be the aggregate amount
set forth in Schedule II hereto, less the aggregate amount of
Contract Securities.
(b) The initial public offering price and the purchase
price of the Initial Shares shall be set forth in a separate
written instrument (the "Pricing Agreement") signed by the
Representatives and the Company, the form of which is
attached hereto as Schedule IV. From and after the
execution and delivery of the Pricing Agreement, this
Agreement shall be deemed to include the Pricing Agreement.
The purchase price per share to be paid by the several
Underwriters for the Initial Shares shall be an amount equal
to the initial public offering price, less an amount per
share to be determined by agreement among the
Representatives and the Company.
(c) In addition, on the basis of the representations
and warranties contained herein, and subject to the terms
and conditions set forth herein, the Company grants an
option to the Underwriters, severally and not jointly, to
purchase up to an additional _______ Option Shares at the
same price per share determined as provided above for the
Initial Shares. The option hereby granted will expire 30
days after the date of the Pricing Agreement, and may be
exercised, in whole or in part (but not more than once),
only for the purpose of covering over-allotments upon notice
by the Representatives to the Company setting forth the
number of Option Shares as to which the several Underwriters
are exercising the option, and the time and date of payment
and delivery thereof. Such time and date of Delivery (the
"Date of Delivery") shall be determined by the
Representatives but shall not be later than seven full
business days after the exercise of such option and not in
any event prior to the Closing Date (as defined below). If
the option is exercised as to all or any portion of the
Option Shares, the Option Shares as to which the
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option is exercised shall be purchased by the Underwriters
severally and not jointly, in proportion to, as nearly as
practicable, their respective Initial Shares underwriting
obligations as set forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for
the Initial Shares shall be made on the date and at the time
specified in the Pricing Agreement, which date and time may
be postponed by agreement between the Representatives and
the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Initial Shares
being herein called the "Closing Date"). Delivery of the
Initial Shares shall be made to the Representatives for the
respective accounts of the several Underwriters against
payment by the several Underwriters through the
Representatives of the purchase price thereof in the manner
set forth in Schedule I hereto. Unless otherwise agreed,
certificates for the Initial Shares 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. 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 Shares, the Company will not file any amendment of
the Registration Statement or supplement (including the
Final Prospectus) to the Basic Prospectus unless the
Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment
or supplement to which you reasonably object. Subject
to the foregoing sentence, the Company will cause the
Final Prospectus to be filed with the Commission
pursuant to Rule 424 or Rule 434 via the Electronic
Data Gathering, Analysis and Retrieval
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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 Shares
shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or
amendment of or supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of
any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of
the qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to
the Shares is required to be delivered under the Act,
any event occurs as a result of which the Final
Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit
to state any material fact necessary to make the
statements therein in light of the circumstances under
which they were made not misleading, or if it shall be
necessary to amend or supplement the Final Prospectus
to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such
statement or omission or an amendment which will effect
such compliance.
(c) The Company will make generally available to
its security holders and to the Representatives as soon
as practicable, but not later than 60 days after the
close of the period covered thereby, an earnings
statement (in form complying with the provisions of
Rule 158 of the regulations under the Act) covering a
twelve month period beginning not later than the first
day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the
Registration Statement.
(d) The Company will furnish to the
Representatives and counsel for the Underwriters,
without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto
which shall become effective on or prior to the Closing
Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as
many copies of any Preliminary Final Prospectus and the
Final Prospectus and any amendments thereof and
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supplements thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company will arrange for the
qualification of the Shares for sale under the laws of
such jurisdictions as the Representatives may
reasonably designate, will maintain such qualifications
in effect so long as required for the distribution of
the Shares and will arrange for the determination of
the legality of the Shares for purchase by
institutional investors; provided, however, that the
Company shall not be required to qualify to do business
in any jurisdiction where it is not now so qualified or
to take any action which would subject it to general or
unlimited service of process of any jurisdiction where
it is not now so subject.
(f) Until the business day following the Closing
Date, the Company will not, without the consent of the
Representatives, offer or sell, or announce the
offering of, any securities covered by the Registration
Statement or by any other registration statement filed
under the Act.
5. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the
Underwriters' Securities shall be subject to the accuracy of
the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the
date of the effectiveness of any amendment to the
Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by
reference therein) and as of the Closing Date, to the
accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and
to the following additional conditions:
(a) No stop order suspending the effectiveness of
the Registration Statement, as amended from time to
time, shall have been issued and no proceedings for
that purpose shall have been instituted or threatened;
and the Final Prospectus shall have been filed or
mailed for filing with the Commission within the time
period prescribed by the Commission.
(b) The Company shall have furnished to the
Representatives the opinion of Smith Helms Mulliss &
Moore, L.L.P., counsel for the Company, dated the
Closing Date, to the effect of paragraphs (i), (iv) and
(vi) through (xii) below, and the opinion of Paul J.
Polking, General Counsel to the Company, dated the
Closing Date, to the effect of paragraphs (ii), (iii)
and (v) below:
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(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,
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 Shares conform in all material
respects to the description thereof contained in
the Final Prospectus;
(v) if the Shares are to be listed on the New
York Stock Exchange, authorization therefor has
been given, subject to official notice of issuance
and evidence of satisfactory distribution, or the
Company has filed a preliminary listing
application and all required supporting documents
with respect to the Initial Shares with the New
York Stock Exchange and such counsel has no reason
to believe that the Initial Shares will not be
authorized for listing, subject to official notice
of issuance and evidence of satisfactory
distribution;
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(vi) to the best knowledge of such counsel,
there is no pending or threatened action, suit or
proceeding before any court or governmental
agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries,
of a character required to be disclosed in the
Registration Statement which is not adequately
disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a
character required to be described in the
Registration Statement or Final Prospectus, or to
be filed as an exhibit, which is not described or
filed as required;
(vii) the Registration Statement has become
effective under the Act; to the best knowledge of
such counsel no stop order suspending the
effectiveness of the Registration Statement has
been issued and no proceedings for that purpose
have been instituted or threatened; the
Registration Statement, the Final Prospectus and
each amendment thereof or supplement thereto
(other than the financial statements and other
financial and statistical information contained
therein or incorporated by reference therein, as
to which such counsel need express no opinion)
comply as to form in all material respects with
the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder;
and such counsel has no reason to believe that the
Registration Statement or any amendment thereof at
the time it became effective contained any untrue
statement of a material fact or omitted to state
any material fact required to be stated therein or
necessary to make the statements therein not
misleading or that the Final Prospectus, as
amended or supplemented, contains any untrue
statement of a material fact or omits to state a
material fact necessary to make the statements
therein, in light of the circumstances under which
they were made, not misleading;
(viii) this Agreement, the Pricing Agreement
and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company
and each constitutes a legal, valid and binding
instrument enforceable against the Company in
accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the
rights of creditors now or hereafter in effect,
and to equitable principles that may limit the
right to specific enforcement of remedies, and
except insofar as the enforceability of the
indemnity and contribution provisions contained in
this Agreement may be limited by federal and state
securities laws, and
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further subject to 12 U.S.C. 1818(b)(6)(D) and similar
bank regulatory powers and to the application of
principles of public policy);
(ix) no consent, approval, authorization or
order of any court or governmental agency or body
is required for the consummation of the
transactions contemplated herein or in any Delayed
Delivery Contracts, except such as have been
obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of
the Shares by the Underwriters and such other
approvals (specified in such opinion) as have been
obtained;
(x) neither the issue and sale of the Shares,
nor the consummation of any other of the
transactions herein contemplated nor the
fulfillment of the terms hereof or of any Delayed
Delivery Contracts will conflict with, result in a
breach of, or constitute a default under the
articles of incorporation or by-laws of the
Company or, to the best knowledge of such counsel,
the terms of any indenture or other agreement or
instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or
bound, or any order or regulation known to such
counsel to be applicable to the Company or any of
its subsidiaries of any court, regulatory body,
administrative agency, governmental body or
arbitrator having jurisdiction over the Company or
any of its affiliates; and
(xi) to the best knowledge and information of
such counsel, each holder of securities of the
Company having rights to the registration of such
securities under the Registration Statement has
waived such rights or such rights have expired by
reason of lapse of time following notification of
the Company's intention to file the Registration
Statement.
(xii) to Initial Shares, any Option Shares as
to which the option granted in Section 2 has been
exercised and the Date of Delivery determined by
the Representatives to be the same as the Closing
Date, have been duly authorized and, when paid for
as contemplated herein, will be duly issued, fully
paid and nonassessable.
In rendering such opinion, such counsel may rely
(A) as to matters involving the application of
laws of any jurisdiction other than the State of
North Carolina or the United States, to the extent
deemed proper and specified in such opinion, upon
the opinion of other
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counsel of good standing believed to be reliable and who
are satisfactory to counsel for the Underwriters; and (B)
as to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and
its subsidiaries and public officials.
(c) The Representatives shall have received from
Stroock & Stroock & Lavan, counsel for the
Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of
the Initial Shares, the Indenture, any Delayed Delivery
Contracts, the Registration Statement, the Final
Prospectus and other related matters as the
Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by
the Chairman of the Board and Chief Executive Officer
or a Senior Vice President and the principal financial
or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such
certificate have carefully examined the Registration
Statement, the Final Prospectus and this Agreement and
that to the best of their knowledge:
(i) the representations and warranties of the
Company in this Agreement are true and correct in
all material respects on and as of the Closing
Date with the same effect as if made on the
Closing Date and the Company has complied with all
the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior
to the Closing Date;
(ii) no stop order suspending the
effectiveness of the Registration Statement, as
amended, has been issued and no proceedings for
that purpose have been instituted or threatened;
and
(iii) since the date of the most recent
financial statements included in the Final
Prospectus, there has been no material adverse
change in the condition (financial or other),
earnings, business or properties of the Company
and its subsidiaries, whether or not arising from
transactions in the ordinary course of business,
except as set forth in or contemplated in the
Final Prospectus.
(e) At the Closing Date, Price Waterhouse LLP
shall have furnished to the Representatives a letter or
letters (which may refer to letters previously
delivered to one or
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more of the Representatives), dated as of the Closing Date, in
form and substance satisfactory to the Representatives,
confirming that the response, if any, to Item 10 of the
Registration Statement is correct insofar as it relates to
them and stating in effect that:
(i) They are independent accountants within
the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations
thereunder.
(ii) In their opinion, the consolidated
financial statements of the Company and its
subsidiaries audited by them and included or
incorporated by reference in the Registration Statement
and Prospectus comply as to form in all material
respects with the applicable accounting requirements of
the Act and the regulations thereunder with respect to
registration statements on Form S-3 and the Exchange
Act and the regulations thereunder.
(iii) On the basis of procedures (but not an
audit in accordance with generally accepted auditing
standards) consisting of:
(a) Reading the minutes of the meetings of
the shareholders, the board of directors,
executive committee and audit committee of the
Company and the boards of directors and executive
committees of its subsidiaries as set forth in the
minute books through a specified date not more
than five business days prior to the date of
delivery of such letter;
(b) Performing the procedures specified by
the American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed
consolidated interim financial statements of the
Company and its consolidated subsidiaries included
or incorporated by reference in the Registration
Statement and Prospectus and reading the unaudited
interim financial data, if any, for the period
from the date of the latest balance sheet included
or incorporated by reference in the Registration
Statement and Prospectus to the date of the latest
available interim financial data; and
(c) Making inquiries of certain officials of
the Company who have responsibility for financial
and accounting matters regarding the specific
items for which representations are requested
below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
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(1) the unaudited condensed consolidated
interim financial statements, included or
incorporated by reference in the Registration
Statement and Prospectus, do not comply as to form
in all material respects with the applicable
accounting requirements of the Exchange Act and
the published rules and regulations thereunder;
(2) any material modifications should be
made to the unaudited condensed consolidated
interim financial statements, included or
incorporated by reference in the Registration
Statement and Prospectus, for them to be in
conformity with generally accepted accounting
principles;
(3) (i) at the date of the latest available
interim financial data and at the specified date
not more than five business days prior to the date
of the delivery of such letter, there was any
change in the capital stock or the long-term debt
(other than scheduled repayments of such debt) or
any decreases in shareholders' equity of the
Company and the subsidiaries on a consolidated
basis as compared with the amounts shown in the
latest balance sheet included or incorporated by
reference in the Registration Statement and the
Prospectus or (ii) for the period from the date of
the latest available financial data to a specified
date not more than five business days prior to the
delivery of such letter, there was any change in
the capital stock or the long-term debt (other
than scheduled repayments of such debt) or any
decreases in shareholders' equity of the Company
and the subsidiaries on a consolidated basis,
except in all instances for changes or decreases
which the Registration Statement and Prospectus
discloses have occurred or may occur, or Price
Waterhouse shall state any specific changes or
decreases.
(iv) The letter shall also state that Price
Waterhouse LLP has carried out certain other specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information
which are included or incorporated by reference in the
Registration Statement and Prospectus and which are
specified by the Representatives and agreed to by Price
Waterhouse LLP, and has found such amounts, percentages
and financial information to be in agreement with the
relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
In addition, at the time this Agreement is
executed, Price Waterhouse LLP shall have furnished to
the Representatives a letter or letters, dated the date
of this
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Agreement, in form and substance satisfactory to the
Representatives, to the effect set forth in this paragraph (e)
and in Schedule I hereto.
(f) Subsequent to the respective dates as of
which information is given in the Registration
Statement and the Final Prospectus, there shall not
have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (e) of this
Section 5 or (ii) any change, or any development
involving a prospective change, in or affecting the
earnings, business or properties of the Company and its
subsidiaries the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the judgment of
the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the
offering or the delivery of the Shares as contemplated
by the Registration Statement and the Final Prospectus.
(g) Prior to the Closing Date, the Company shall
have furnished to the Representatives such further
information, certificates and documents as the
Representatives may reasonably request.
(h) The Company shall have accepted Delayed
Delivery Contracts in any case where sales of Contract
Securities arranged by the Underwriters have been
approved by the Company.
If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects when
and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives
and their counsel, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice
of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
6. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations
under this Agreement, including (i) the printing and filing
of the Registration Statement as originally filed and of
each amendment thereto, (ii) the copying of this Agreement
and the Pricing Agreement, (iii) the preparation, issuance
and delivery of the certificates for the Shares to the
Underwriters, including capital duties, stamp duties and
stock transfer taxes, if any, payable upon issuance of any
of the Shares, the sale of the Shares to the Underwriters
and the fees and expenses of the transfer agent for the
Shares (iv) the fees and disbursements of the Company's
counsel and accountants, (v) the qualification of
-14-
the Shares under state securities laws in accordance with the
provisions of Section 4(e), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of
the Blue Sky Survey, (vi) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally
filed and of each amendment thereto, of the preliminary
prospectuses, and of the Prospectuses and any amendments or
supplements thereto, (vii) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey, and (viii) the fee
of the National Association of Securities Dealers, Inc. and, if
applicable, the New York Stock Exchange.
If the sale of the Shares provided for herein is not
consummated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied
or because of any refusal, inability or failure on the part
of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default
by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Shares.
7. Conditions to Purchase of Option Shares. In the
event the Underwriters exercise the option granted in
Section 2(c) hereof to purchase all or any portion of the
Option Shares and the Date of Delivery determined by the
Representatives pursuant to Section 2 is later than the
Closing Date, the obligations of the several Underwriters to
purchase and pay for the Option Shares that they shall have
respectively agreed to purchase hereunder are subject to the
accuracy of the representations and warranties of the
Company contained herein, to the performance by the Company
of its obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of
the Registration Statement, as amended from time to
time, shall have been issued and no proceedings for
that purpose shall have been instituted or threatened;
and any required filing of the Final Prospectus
pursuant to Rule 424(b) 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,
-15-
to the same effect as the opinion required by Section
5(b);
(ii) the favorable opinion of Paul Polking,
Esq., General Counsel to the Company, in form and
substance satisfactory to counsel for the
Underwriters, to the same effect as the opinion
required by Section 5(b);
(iii) the favorable opinion of Stroock &
Stroock & Lavan, counsel for the Underwriters, to
the same effect as the opinion required by Section
5(c);
(iv) a certificate, of the Chairman of the
Board and Chief Executive Officer or Senior Vice
President of the Company and of the principal
financial or accounting officer of the Company
with respect to the matters set forth in Section
5(d);
(v) a letter from Price Waterhouse, in form
and substance satisfactory to the Underwriters,
substantially the same in scope and substance as
the letter furnished to the Underwriters pursuant
to Section 5(e) except that the "specified date"
in the letter furnished pursuant to this Section
7(b)(iv) shall be a date not more than five days
prior to the Date of Delivery; and
(vi) Subsequent to the respective dates as
of which information is given in the Registration
Statement and the Final Prospectus, there shall
not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph
(b)(iv) of this Section 7 or (ii) any change, or
any development involving a prospective change, in
or affecting the earnings, business or properties
of the Company and its subsidiaries the effect of
which, in any case referred to in clause (i) or
(ii) above, is, in the judgment of the
Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with
the offering or the delivery of the Shares as
contemplated by the Registration Statement and the
Final Prospectus.
(vii) such other information, certificates
and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 7
shall not have been fulfilled in all material respects when
and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives
and their counsel, this
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Agreement and all obligations of the Underwriters hereunder may be
canceled at, or at any time prior to, the Date of Delivery by the
Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in
writing.
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and
each person who controls any Underwriter within the meaning
of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration
of the Shares as originally filed or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based
upon omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to
reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company
will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for use in
connection with the preparation thereof, and (ii) such
indemnity with respect to the Basic Prospectus or any
Preliminary Final Prospectus shall not inure to the benefit
of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased the Shares which are
the subject thereof if such person did not receive a copy of
the Final Prospectus (or the Final Prospectus as amended or
supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of
such Shares to such person in any case where such delivery
is required by the Act and the untrue statement or omission
of a material fact contained in the Basic Prospectus or any
Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or
supplemented). This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of
its officers
-17-
who signs the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Company
to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on
behalf of such Underwriter through the Representatives specifically
for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition
to any liability which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth in the last
paragraph of the cover page and under the heading "Underwriting" or
"Plan of Distribution" in any Preliminary Final Prospectus or the
Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion
in the documents referred to in the foregoing indemnity, and you,
as the Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any
action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under
this Section 8, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than
under this Section 8. In case any such action is brought
against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein,
and, to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume
the defense thereof, with counsel satisfactory to such
indemnified party; provided, however, that if the defendants
in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are
different from or additional to those available to the
indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party
shall not
-18-
be liable for the expenses of more than one separate counsel,
approved by the Representatives in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that if clause
(i) or (iii) is applicable, such liability shall be only in respect
of the counsel referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 8 is due in accordance with
its terms but is for any reason held by a court to be
unavailable from the Company on the grounds of policy or
otherwise, the Company and the Underwriters shall contribute
to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which
the Company and one or more of the Underwriters may be
subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage
that the underwriting discount bears to the sum of such
discount and the purchase price of the 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
-19-
other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Shares agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Shares set forth
opposite their names in Schedule II hereto bear to the
aggregate amount of Shares set forth opposite the names of
all the remaining Underwriters) the Shares which the
defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the
aggregate amount of Shares which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed
10% of the aggregate amount of Shares set forth in Schedule
II hereto, the remaining Underwriters shall have the right
to purchase all, but shall not be under any obligation to
purchase any, of the Shares, and if such nondefaulting
Underwriters do not purchase all the Shares, this Agreement
will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by
any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding seven
days, as the Representatives shall determine in order that
the required changes in the Registration Statement and the
Final Prospectus or in any other documents or arrangements
may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any,
to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the
Representatives, by notice given to the Company prior to
delivery of and payment for the Shares, if prior to such
time (i) trading in securities generally on the New York
Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange,
(ii) a banking moratorium shall have been declared either by
Federal, Florida, Georgia, 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 Shares.
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties,
indemnities and other statements of the Company or its
officers and of the
-20-
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the
Shares. The provisions of Section 7 and 8 hereof and this Section
11 shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telegraphed
and confirmed to them, at the address specified in Schedule
I hereto, with a copy to: Stroock & Stroock & Lavan, Seven
Hanover Square, New York, New York 10004-2696, Attn: James
R. Tanenbaum; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at NationsBank
Corporate Center, Charlotte, North Carolina 28255, attention
of the Secretary, with a copy to each of: NationsBank
Corporation, NationsBank Corporate Center, Legal Department,
NC 1007-20-01, Charlotte, North Carolina 28255, Attn: Paul
J. Polking, General Counsel; and Smith Helms Mulliss &
Moore, L.L.P., 227 North Tryon Street, Charlotte, North
Carolina 28202, Attn: Boyd C. Campbell, Jr.
13. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 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.
-21-
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.
-22-
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
Initial Shares 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 Common
Stock (the "Shares") offered by the Company's Final
Prospectus dated , 19 , receipt of a copy of
which is hereby acknowledged, at a purchase price of % of
the principal amount thereof, plus accrued interest, if any,
thereon from , 19 , to the date of payment
and delivery, and on the further terms and conditions set
forth in this contract.
Payment for
the Shares to be purchased by the undersigned shall be made
on or before 11:00 A.M. on the Delivery Date to or upon the
order of the Company in New York Clearing House (next day)
funds, at your office or at such other place as shall be
agreed between the Company and the undersigned upon delivery
to the undersigned of the Shares in definitive fully
registered form and in such authorized denominations and
registered in such names as the undersigned may request by
written or telegraphic communication addressed to the
Company not less than five full business days prior to the
Delivery Date. If no request is received, the Shares will
be registered in the name of the undersigned and issued in a
denomination equal to the aggregate amount of Shares to be
purchased by the undersigned on the Delivery Date.
The
obligation of the undersigned to take delivery of and make
payment for Shares on the Delivery Date, and the obligation
of the Company to sell and deliver Shares on the Delivery
Date, shall be subject to the conditions (and neither party
shall incur any liability by reason of the failure thereof)
that (1) the purchase of Shares to be made by the
undersigned, which purchase the undersigned represents is
not prohibited on the date hereof, shall not on the Delivery
Date be prohibited under the laws of the jurisdiction to
which the undersigned is subject, and (2) the Company, on or
before the Delivery Date, shall have sold to certain
underwriters (the "Underwriters") such amount of the Shares
as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Final Prospectus mentioned
above. Promptly after completion of
-3-
such sale to the Underwriters, the Company will mail or deliver to
the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith. The
obligation of the undersigned to take delivery of and make payment
for the Shares, and the obligation of the Company to cause the
Shares to be sold and delivered, shall not be affected by the
failure of any purchaser to take delivery of and make payment for
the Shares pursuant to other contracts similar to this contract.
This contract
will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be
assignable by either party hereto without the written
consent of the other.
It is
understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and,
without limiting the foregoing, need not be on the first
come, first served basis. If this contract is acceptable to
the Company, it is required that the Company sign the form
of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between
the Company and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
This
agreement shall be governed by and construed in accordance
with the internal laws of the State of New York, without
giving effect to principles of conflict of laws.
Very truly yours,
_____________________________
(Name of Purchaser)
BY:____________________________
(Signature and Title of Officer)
________________________________
(Address)
Accepted:
NATIONSBANK CORPORATION
By:____________________________
(Authorized Signature)
-4-
SCHEDULE IV
_________ Shares
NATIONSBANK CORPORATION
(a North Carolina corporation)
Common Stock
PRICING AGREEMENT
__________ __, 199_
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Purchase Agreement,
dated _____________ __, 199_ (the "Underwriting Agreement"),
relating to the purchase by the several Underwriters named
in Schedule I thereto, for whom you are acting as
representatives (the "Representatives"), of the above shares
of Common Stock (the "Initial Shares"), of NationsBank
Corporation (the "Company").
We confirm that the Closing Time (as defined
in Section 2 of the Purchase Agreement) shall be at 9:30
A.M., New York City time, on __________ __, 199_ at the
offices of Stroock & Stroock & Lavan, Seven Hanover Square,
New York, New York 10004.
Pursuant to Section 2 of the Underwriting
Agreement, the Company agrees with each Underwriter as
follows:
1. The initial public offering price per
share for the Initial Shares, determined as provided in said
Section 2, shall be $__.__.
2. The purchase price per share for the
Initial Shares to be paid by the several Underwriters shall
be $__.__, being an amount equal to the initial public
offering price set forth above less $_.__ per share.
-1-
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to
the Company a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with
its terms.
Very truly yours,
NATIONSBANK CORPORATION
By:_____________________
CONFIRMED AND ACCEPTED:
as of the date first above written:
By:
By:________________________________
For themselves and as Representatives of the other
Underwriters named in Schedule A hereto.
SCHEDULE A
-3-