EXHIBIT 99.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BANKAMERICA CORPORATION
BankAmerica Corporation, a corporation organized
and existing under the laws of the State of Delaware (the
"Corporation"), hereby certifies that (i) the Certificate of
Incorporation of the Corporation was originally filed on July 31,
1998, (ii) the Corporation was originally incorporated under the
name "NationsBank (DE) Corporation," which name was changed to
"NationsBank Corporation" on September 25, 1998 and to
"BankAmerica Corporation" on September 30, 1998, (iii) this
Amended and Restated Certificate of Incorporation has been duly
adopted in accordance with Sections 242 and 245 of the General
Corporation Law of the State of Delaware, and (iv) the Amended
and Restated Certificate of Incorporation of the Corporation is
hereby amended and restated to read in its entirety as follows:
1. The name of the Corporation is Bank of America
Corporation.
2. The purposes for which the Corporation is organized are
to engage in any lawful act or activity for which corporations
may be organized and incorporated under the General Corporation
Law of the State of Delaware.
3. The number of shares, par value $.01 per share, the
Corporation is authorized to issue is Five Billion One Hundred
Million (5,100,000,000), divided into the following classes:
Class Number of Shares
Common 5,000,000,000
Preferred 100,000,000
The class of common ("Common Stock") has unlimited
voting rights and, after satisfaction of claims, if any, of the
holders of preferred shares, is entitled to receive the net
assets of the Corporation upon distribution.
The Board of Directors of the Corporation shall have
full power and authority to establish one or more series within
the class of preferred shares (the "Preferred Shares"), to define
the designations, preferences, limitations and relative rights
(including conversion rights) of shares within such class and to
determine all variations between series.
The Board of Directors of the Corporation has
designated, established and authorized the following series of
Preferred Shares:
(a) 7% Cumulative Redeemable Preferred Stock, Series B.
A. Designation.
The designation of this series is "7% Cumulative
Redeemable Preferred Stock, Series B" (hereinafter referred to as
the "Series B Preferred Stock") and the number of shares
constituting such series is Thirty-Five Thousand Forty-Five
(35,045). Shares of Series B Preferred Stock shall have a stated
value of $100.00 per share.
B. Dividends.
The holders of record of the shares of the Series B
Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors of the Corporation, out of any
funds legally available for such purpose, cumulative cash
dividends at an annual dividend rate per share of 7% of the
stated value thereof, which amount is $7.00 per annum, per share,
and no more. Such dividends shall be payable each calendar
quarter at the rate of $1.75 per share on such dates as shall be
fixed by resolution of the Board of Directors of the Corporation.
The date from which dividends on such shares shall be cumulative
shall be the first day after said shares are issued.
Accumulations of dividends shall not bear interest. No cash
dividend shall be declared, paid or set apart for any shares of
Common Stock unless all dividends on all shares of the Series B
Preferred Stock at the time outstanding for all past dividend
periods and for the then current dividend shall have been paid,
or shall have been declared and a sum sufficient for the payment
thereof, shall have been set apart. Subject to the foregoing
provisions of this paragraph B, cash dividends or other cash
distributions as may be determined by the Board of Directors of
the Corporation may be declared and paid upon the shares of the
Common Stock of the Corporation from time to time out of funds
legally available therefor, and the shares of the Series B
Preferred Stock shall not be entitled to participate in any such
cash dividend or other such cash distribution so declared and
paid or made on such shares of Common Stock.
C. Redemption.
From and after October 31, 1988, any holder may, by
written request, call upon the Corporation to redeem all or any
part of said holder's shares of said Series B Preferred Stock at
a redemption price of $100.00 per share plus accumulated unpaid
dividends to the date said request for redemption is received by
the Corporation and no more (the "Redemption Price"). Any such
request for redemption shall be accompanied by the certificates
for which redemption is requested, duly endorsed or with
appropriate stock power attached, in either case with signature
guaranteed. Upon receipt by the Corporation of any such request
for redemption from any holder of the Series B Preferred Stock,
the Corporation shall forthwith redeem said stock at the
Redemption Price, provided that: (i) full cumulative dividends
have been paid or declared and set apart for payment upon all
shares of any series of preferred stock ranking superior to the
Series B Preferred Stock as to dividends or other distributions
(collectively the "Superior Stock"); and (ii) the Corporation is
not then in default or in arrears with respect to any sinking or
analogous fund or call for tenders obligation or agreement for
the purchase, redemption or retirement of any shares of Superior
Stock. In the event that, upon receipt of a request for
redemption, either or both of the conditions set forth in clauses
(i) and (ii) above are not met, the Corporation shall forthwith
return said request to the submitting shareholder along with a
statement that the Corporation is unable to honor such request
and explanation of the reasons therefor. From and after the
receipt by the Corporation of a request for redemption from any
holder of said Series B Preferred Stock, which request may be
honored consistent with the foregoing provisions, all rights of
such holder in the Series B Preferred Stock for which redemption
is requested shall cease and terminate, except only the right to
receive the Redemption Price thereof, but without interest.
D. Liquidation Preference.
In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the
holders of the Series B Preferred Stock shall be entitled to
receive, subject to the provisions of paragraph G and before any
payment shall be made to the holders of the shares of Common
Stock, the amount of $100.00 per share, plus accumulated
dividends. After payment to the holders of the Series B Preferred
Stock of the full amount as aforesaid, the holders of the Series
B Preferred Stock as such shall have no right or claim to any of
the remaining assets which shall be distributed ratably to the
holders of the Common Stock. If, upon any such liquidation,
dissolution or winding up, the assets available therefor are not
sufficient to permit payments to the holders of Series B
Preferred Stock of the full amount as aforesaid, then subject to
the provisions of paragraph G, the holders of the Series B
Preferred Stock then outstanding shall share ratably in the
distribution of assets in accordance with the sums which would be
payable if such holders were to receive the full amounts as
aforesaid.
E. Sinking Fund.
There shall be no sinking fund applicable to the shares
of Series B Preferred Stock.
F. Conversion.
The shares of Series B Preferred Stock shall not be
convertible into any shares of Common Stock or any other class of
shares, nor exchanged for any shares of Common Stock or any other
class of shares.
G. Superior Stock.
The Corporation may issue stock with preferences
superior or equal to the shares of the Series B Preferred Stock
without the consent of the holders thereof.
H. Voting Rights.
Each share of the Series B Preferred Stock shall be
entitled to equal voting rights, share for share, with each share
of the Common Stock.
(b) ESOP Convertible Preferred Stock, Series C.
The shares of the ESOP Convertible Preferred Stock,
Series C, of the Corporation shall be designated "ESOP
Convertible Preferred Stock, Series C," and the number of shares
constituting such series shall be 3,000,000. The ESOP Convertible
Preferred Stock, Series C, shall hereinafter be referred to as
the "ESOP Preferred Stock."
A. Special Purpose Restricted Transfer Issue.
Shares of ESOP Preferred Stock shall be issued only to
a trustee acting on behalf of an employee stock ownership plan or
other employee benefit plan of the Corporation or any subsidiary
of the Corporation. In the event of any transfer of shares of
ESOP Preferred Stock to any person other than any such plan
trustee or the Corporation, the shares of ESOP Preferred Stock so
transferred, upon such transfer and without any further action by
the Corporation or the holder, shall be automatically converted
into shares of Common Stock on the terms otherwise provided for
the conversion of shares of ESOP Preferred Stock into shares of
Common Stock pursuant to paragraph E hereof and no such
transferee shall have any of the voting powers, preferences and
relative, participating, optional or special rights ascribed to
shares of ESOP Preferred Stock hereunder but, rather, only the
powers and rights pertaining to the Common Stock into which such
shares of ESOP Preferred Stock shall be so converted.
Certificates representing shares of ESOP Preferred Stock shall be
legended to reflect such restrictions on transfer.
Notwithstanding the foregoing provisions of this paragraph A,
shares of ESOP Preferred Stock (i) may be converted into shares
of Common Stock as provided by paragraph E hereof and the shares
of Common Stock issued upon such conversion may be transferred by
the holder thereof as permitted by law and (ii) shall be
redeemable by the Corporation upon the terms and conditions
provided by paragraphs F, G and H hereof.
B. Dividends and Distributions.
(1) Subject to the provisions for adjustment hereinafter set
forth, the holders of shares of ESOP Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available therefor, cash dividends
("Preferred Dividends") in an amount equal to $3.30 per share per
annum, and no more, payable semi-annually, one-half on the first
day of January and one-half on the first day of July of each year
(each a "Dividend Payment Date") to holders of record at the
start of business on such Dividend Payment Date. Preferred
Dividends shall accrue on a daily basis whether or not the
Corporation shall have earnings or surplus at the time, but
Preferred Dividends on the shares of ESOP Preferred Stock for any
period less than a full semi-annual period between Dividend
Payment Dates shall be computed on the basis of a 360-day year of
30-day months. Accumulated but unpaid Preferred Dividends shall
accumulate as of the Dividend Payment Date on which they first
become payable, but no interest shall accrue on accumulated but
unpaid Preferred Dividends.
(2) So long as any ESOP Preferred Stock shall be outstanding, no
dividend shall be declared or paid or set apart for payment on
any other series of stock ranking on a parity with the ESOP
Preferred Stock as to dividends, unless there shall also be or
have been declared and paid or set apart for payment on the ESOP
Preferred Stock, like dividends for all dividend payment periods
of the ESOP Preferred Stock ending on or before the dividend
payment date of such parity stock, ratably in proportion to the
respective amounts of dividends accumulated and unpaid through
such dividend payment period on the ESOP Preferred Stock and
accumulated and unpaid or payable on such parity stock through
the dividend payment period on such parity stock next preceding
such Dividend Payment Date. In the event that full cumulative
dividends on the ESOP Preferred Stock have not been declared and
paid or set apart for payment when due, the Corporation shall not
declare or pay or set apart for payment any dividends or make any
other distributions on, or make any payment on account of the
purchase, redemption or other retirement of any other class of
stock or series thereof of the Corporation ranking, as to
dividends or as to distributions in the event of a liquidation,
dissolution or winding-up of the Corporation, junior to the ESOP
Preferred Stock until full cumulative dividends on the ESOP
Preferred Stock shall have been paid or declared and provided
for; provided, however, that the foregoing shall not apply to (i)
any dividend payable solely in any shares of any stock ranking,
as to dividends or as to distributions in the event of the
liquidation, dissolution or winding-up of the Corporation, junior
to the ESOP Preferred Stock, or (ii) the acquisition of shares of
any stock ranking, as to dividends or as to distributions in the
event of a liquidation, dissolution or winding-up of the
Corporation, junior to the ESOP Preferred Stock either (A)
pursuant to any employee or director incentive or benefit plan or
arrangement (including any employment, severance or consulting
agreement) of the Corporation or any subsidiary of the
Corporation heretofore or hereafter adopted or (B) in exchange
solely for shares of any other stock ranking junior to the ESOP
Preferred Stock.
C. Voting Rights.
The holders of shares of ESOP Preferred Stock shall
have the following voting rights:
(1) The holders of ESOP Preferred Stock shall be entitled to
vote on all matters submitted to a vote of the holders of Common
Stock of the Corporation, voting together with the holders of
Common Stock as one class. Each share of the ESOP Preferred Stock
shall be entitled to the number of votes equal to the number of
shares of Common Stock into which such share of ESOP Preferred
Stock could be converted on the record date for determining the
shareholders entitled to vote, rounded to the nearest whole vote;
it being understood that whenever the "Conversion Ratio" (as
defined in paragraph E hereof) is adjusted as provided in
paragraph I hereof, the voting rights of the ESOP Preferred Stock
shall also be similarly adjusted.
(2) Except as otherwise required by the General Corporation Law
of the State of Delaware or set forth in paragraph C(l), holders
of ESOP Preferred Stock shall have no special voting rights and
their consent shall not be required for the taking of any
corporate action.
D. Liquidation, Dissolution or Winding-Up.
(1) Upon any voluntary or involuntary liquidation, dissolution
or winding-up of the Corporation, the holders of ESOP Preferred
Stock shall be entitled to receive out of the assets of the
Corporation which remain after satisfaction in full of all valid
claims of creditors of the Corporation and which are available
for payment to shareholders and subject to the rights of the
holders of any stock of the Corporation ranking senior to or on a
parity with the ESOP Preferred Stock in respect of distributions
upon liquidation, dissolution or winding-up of the Corporation,
before any amount shall be paid or distributed among the holders
of Common Stock or any other shares ranking junior to the ESOP
Preferred Stock in respect of the distributions upon liquidation,
dissolution or winding-up of the Corporation, liquidating
distributions in the amount of $42.50 per share, plus an amount
equal to all accrued and unpaid dividends thereon to the date
fixed for distribution, and no more. If upon any liquidation,
dissolution or winding-up of the Corporation, the amounts payable
with respect to the ESOP Preferred Stock and any other stock
ranking as to any such distribution on a parity with the ESOP
Preferred Stock are not paid in full, the holders of the ESOP
Preferred Stock and such other stock shall share ratably in any
distribution of assets in proportion to the full respective
preferential amounts to which they are entitled. After payment of
the full amount to which they are entitled as provided by the
foregoing provisions of this paragraph D(l), the holders of
shares of ESOP Preferred Stock shall not be entitled to any
further right or claim to any of the remaining assets of the
Corporation.
(2) Neither the merger or consolidation of the Corporation with
or into any other corporation, nor the merger or consolidation of
any other corporation with or into the Corporation, nor the sale,
transfer or lease of all or any portion of the assets of the
Corporation, shall be deemed to be a dissolution, liquidation or
winding-up of the affairs of the Corporation for purposes of this
paragraph D, but the holders of ESOP Preferred Stock shall
nevertheless be entitled in the event of any such merger or
consolidation to the rights provided by paragraph H hereof.
(3) Written notice of any voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts
distributable to holders of ESOP Preferred Stock in such
circumstances shall be payable, shall be given by first-class
mail, postage prepaid, mailed not less than twenty (20) days
prior to any payment date stated therein, to the holders of ESOP
Preferred Stock, at the address shown on the books of the
Corporation or any transfer agent for the ESOP Preferred Stock.
E. Conversion into Common Stock.
(1) A holder of shares of ESOP Preferred Stock shall be
entitled, at any time prior to the close of business on the date
fixed for redemption of such shares pursuant to paragraph F, G or
H hereof, to cause any or all of such shares to be converted into
shares of Common Stock at a conversion rate equal to the ratio of
1.0 share of ESOP Preferred Stock to 1.68 shares of Common Stock
(as adjusted as hereinafter provided, the "Conversion Ratio").
The Conversion Ratio set forth above is subject to adjustment
pursuant to this Certificate of Incorporation.
(2) Any holder of shares of ESOP Preferred Stock desiring to
convert such shares into shares of Common Stock shall surrender
the certificate or certificates representing the shares of ESOP
Preferred Stock being converted, duly assigned or endorsed for
transfer to the Corporation (or accompanied by duly executed
stock powers relating thereto), at the principal executive office
of the Corporation or the offices of the transfer agent for the
ESOP Preferred Stock or such office or offices in the continental
United States of an agent for conversion as may from time to time
be designated by notice to the holders of the ESOP Preferred
Stock by the Corporation or the transfer agent for the ESOP
Preferred Stock, accompanied by written notice of conversion.
Such notice of conversion shall specify (i) the number of shares
of ESOP Preferred Stock to be converted and the name or names in
which such holder wishes the certificate or certificates for
Common Stock and for any shares of ESOP Preferred Stock not to be
so converted to be issued, and (ii) the address to which such
holder wishes delivery to be made of such new certificates to be
issued upon such conversion.
(3) Upon surrender of a certificate representing a share or
shares of ESOP Preferred Stock for conversion, the Corporation
shall issue and send by hand delivery (with receipt to be
acknowledged) or by first-class mail, postage prepaid, to the
holder thereof or to such holder's designee, at the address
designated by such holder, a certificate or certificates for the
number of shares of Common Stock to which such holder shall be
entitled upon conversion. In the event that there shall have been
surrendered a certificate or certificates representing shares of
ESOP Preferred Stock, only part of which are to be converted, the
Corporation shall issue and deliver to such holder or such
holder's designee a new certificate or certificates representing
the number of shares of ESOP Preferred Stock which shall not have
been converted.
(4) The issuance by the Corporation of shares of Common Stock
upon a conversion of shares of ESOP Preferred Stock into shares
of Common Stock made at the option of the holder thereof shall be
effective as of the earlier of (i) the delivery to such holder or
such holder's designee of the certificate or certificates
representing the shares of Common Stock issued upon conversion
thereof or (ii) the commencement of business on the second
business day after the surrender of the certificate or
certificates for the shares of ESOP Preferred Stock to be
converted, duly assigned or endorsed for transfer to the
corporation (or accompanied by duly executed stock powers
relating thereto) as provided hereby. On and after the effective
date of conversion, the person or persons entitled to receive the
Common Stock issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such shares of
Common Stock, but no allowance or adjustment shall be made in
respect of dividends payable to holders of Common Stock in
respect of any period prior to such effective date. The
Corporation shall not be obligated to pay any dividends which
shall have been declared and shall be payable to holders of
shares of ESOP Preferred Stock on a Dividend Payment Date if such
Dividend Payment Date for such dividend shall coincide with or be
on or subsequent to the effective date of conversion of such
shares.
(5) The Corporation shall not be obligated to deliver to holders
of ESOP Preferred Stock any fractional share or shares of Common
Stock issuable upon any conversion of such shares of ESOP
Preferred Stock, but in lieu thereof may make a cash payment in
respect thereof in any manner permitted by law.
(6) The Corporation shall at all times reserve and keep
available out of its authorized and unissued Common Stock, solely
for issuance upon the conversion of shares of ESOP Preferred
Stock as herein provided, free from any preemptive rights, such
number of shares of Common Stock as shall from time to time be
issuable upon the conversion of all shares of ESOP Preferred
Stock then outstanding. The Corporation shall prepare and shall
use its best efforts to obtain and keep in force such
governmental or regulatory permits or other authorizations as may
be required by law, and shall comply with all requirements as to
registration or qualification of the Common Stock, in order to
enable the Corporation lawfully to issue and deliver to each
holder of record of ESOP Preferred Stock such number of shares of
its Common Stock as shall from time to time be sufficient to
effect the conversion of all shares of ESOP Preferred Stock then
outstanding and convertible into shares of Common Stock.
F. Redemption At the Option of the Corporation.
(1) The ESOP Preferred Stock shall be redeemable, in whole or in
part, at the option of the Corporation at any time, at a
redemption price per share (except as to redemption pursuant to
paragraph F(3)) of $42.83 prior to July 1, 1999 and $42.50
thereafter, plus, in each case, an amount equal to all accrued
and unpaid dividends thereon to the date fixed for redemption.
Payment of the redemption price shall be made by the Corporation
in cash or shares of Common Stock, or a combination thereof, as
permitted by paragraph F(5). From and after the date fixed for
redemption, dividends on shares of ESOP Preferred Stock called
for redemption will cease to accrue, such shares will no longer
be deemed to be outstanding and all rights in respect of such
shares of the Corporation shall cease, except the right to
receive the redemption price. If less than all of the outstanding
shares of ESOP Preferred Stock are to be redeemed, the
Corporation shall either redeem a portion of the shares of each
holder determined pro rata based on the number of shares held by
each holder or shall select the shares to be redeemed by lot, as
may be determined by the Board of Directors of the Corporation.
(2) Unless otherwise required by law, notice of redemption will
be sent to the holders of ESOP Preferred Stock at the address
shown on the books of the Corporation or any transfer agent for
the ESOP Preferred Stock by first-class mail, postage prepaid,
mailed not less than twenty (20) days nor more than sixty (60)
days prior to the redemption date. Each such notice shall state:
(i) the redemption date; (ii) the total number of shares of the
ESOP Preferred Stock to be redeemed and, if fewer than all the
shares held by such holder are to be redeemed, the number of such
shares to be redeemed from such holder; (iii) the redemption
price; (iv) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price;
(v) that dividends on the shares to be redeemed will cease to
accrue on such redemption date; and (vi) the conversion rights of
the shares to be redeemed, the period within which conversion
rights may be exercised, and the Conversion Ratio and number of
shares of Common Stock issuable upon conversion of a share of
ESOP Preferred Stock at the time. These notice provisions may be
supplemented if necessary in order to comply with optional
redemption provisions for preferred stock which may be required
under the Internal Revenue Code of 1986, as amended, or the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"). Upon surrender of the certificates for any shares so
called for redemption and not previously converted (properly
endorsed or assigned for transfer, if the Board of Directors of
the Corporation shall so require and the notice shall so state),
such shares shall be redeemed by the Corporation at the date
fixed for redemption and at the applicable redemption price set
forth in this paragraph F.
(3) In the event of a change in the federal tax law of the
United States of America which has the effect of precluding the
Corporation from claiming any of the tax deductions for dividends
paid on the ESOP Preferred Stock when such dividends are used as
provided under Section 404(k)(2) of the Internal Revenue Code of
1986, as amended and in effect on the date shares of ESOP
Preferred Stock are initially issued, the Corporation may, within
180 days following the effective date of such tax legislation and
implementing regulations of the Internal Revenue Service, if any,
in its sole discretion and notwithstanding anything to the
contrary in paragraph F(l), elect to redeem any or all such
shares for the amount payable in respect of the shares upon
liquidation of the Corporation pursuant to paragraph D.
(4) In the event the C&S/Sovran Retirement Savings, ESOP and
Profit Sharing Plan (as amended, together with any successor
plan, the "Plan") is terminated, the Corporation shall,
notwithstanding anything to the contrary in paragraph F(l),
redeem all shares of ESOP Preferred Stock for the amount payable
in respect of the shares upon redemption of the ESOP Preferred
Stock pursuant to paragraph F(1) hereof.
(5) The Corporation, at its option, may make payment of the
redemption price required upon redemption of shares of ESOP
Preferred Stock in cash or in shares of Common Stock, or in a
combination of such shares and cash, any such shares to be valued
for such purpose at their Fair Market Value (as defined in
paragraph I(7) hereof).
G. Other Redemption Rights.
Shares of ESOP Preferred Stock shall be redeemed by the
Corporation at a price which is the greater of the Conversion
Value (as defined in paragraph I) of the ESOP Preferred Stock on
the date fixed for redemption or a redemption price of $42.50 per
share plus accrued and unpaid dividends thereon to the date fixed
for redemption, for shares of Common Stock (any such shares of
Common Stock to be valued for such purpose as provided by
paragraph F(5) hereof), at the option of the holder, at any time
and from time to time upon notice to the Corporation given not
less than five (5) business days prior to the date fixed by the
Corporation in such notice for such redemption, when and to the
extent necessary (i) to provide for distributions required to be
made under, or to satisfy an investment election provided to
participants in accordance with, the Plan to participants in the
Plan or (ii) to make payment of principal, interest or premium
due and payable (whether as scheduled or upon acceleration) on
any indebtedness incurred by the holder or Trustee under the Plan
for the benefit of the Plan.
H. Consolidation, Merger, etc.
(1) In the event that the Corporation shall consummate any
consolidation or merger or similar transaction, however named,
pursuant to which the outstanding shares of Common Stock are by
operation of law exchanged solely for or changed, reclassified or
converted solely into stock of any successor or resulting company
(including the Corporation and any company that directly or
indirectly owns all of the outstanding capital stock of such
successor or resulting company) that constitutes "qualifying
employer securities" with respect to a holder of ESOP Preferred
Stock within the meaning of Section 409(1) of the Internal
Revenue Code of 1986, as amended, and Section 407(d)(5) of ERISA,
or any successor provisions of law, and, if applicable, for a
cash payment in lieu of fractional shares, if any, the shares of
ESOP Preferred Stock of such holder shall be assumed by and shall
become preferred stock of such successor or resulting company,
having in respect of such company insofar as possible the same
powers, preferences and relative, participating, optional or
other special rights (including the redemption rights provided by
paragraphs F, G and H hereof), and the qualifications,
limitations or restrictions thereon, that the ESOP Preferred
Stock had immediately prior to such transaction, except that
after such transaction each share of the ESOP Preferred Stock
shall be convertible, otherwise on the terms and conditions
provided by paragraph E hereof, into the qualifying employer
securities so receivable by a holder of the number of shares of
Common Stock into which such shares of ESOP Preferred Stock could
have been converted immediately prior to such transaction if such
holder of Common Stock failed to exercise any rights of election
to receive any kind or amount of stock, securities, cash or other
property (other than such qualifying employer securities and a
cash payment, if applicable, in lieu of fractional shares)
receivable upon such transaction (provided that, if the kind or
amount of qualifying employer securities receivable upon such
transaction is not the same for each non-electing share, then the
kind and amount of qualifying employer securities receivable upon
such transaction for each non-electing share shall be the kind
and amount so receivable per share by a plurality of the non-
electing shares). The rights of the ESOP Preferred Stock as
preferred stock of such successor or resulting company shall
successively be subject to adjustments pursuant to paragraph I
hereof after any such transaction as nearly equivalent to the
adjustments provided for by such paragraph prior to such
transaction. The Corporation shall not consummate any such
merger, consolidation or similar transaction unless all then
outstanding shares of the ESOP Preferred Stock shall be assumed
and authorized by the successor or resulting company as
aforesaid.
(2) In the event that the Corporation shall consummate any
consolidation or merger or similar transaction, however named,
pursuant to which the outstanding shares of Common Stock are by
operation of law exchanged for or changed, reclassified or
converted into other stock or securities or cash or any other
property, or any combination thereof, other than any such
consideration which is constituted solely of qualifying employer
securities (as referred to in paragraph H(l)) and cash payments,
if applicable, in lieu of fractional shares, all outstanding
shares of ESOP Preferred Stock shall, without any action on the
part of the Corporation or any holder thereof (but subject to
paragraph H(3)), be deemed converted by virtue of such merger,
consolidation or similar transaction immediately prior to such
consummation into the number of shares of Common Stock into which
such shares of ESOP Preferred Stock could have been converted at
such time, and each share of ESOP Preferred Stock shall, by
virtue of such transaction and on the same terms as apply to the
holders of Common Stock, be converted into or exchanged for the
aggregate amount of stock, securities, cash or other property
(payable in like kind) receivable by a holder of the number of
shares of Common Stock into which such shares of ESOP Preferred
Stock could have been converted immediately prior to such
transaction if such holder of Common Stock failed to exercise any
rights of election as to the kind or amount of stock, securities,
cash or other property receivable upon such transaction (provided
that, if the kind or amount of stock, securities, cash or other
property receivable upon such transaction is not the same for
each non-electing share, then the kind and amount of stock,
securities, cash or other property receivable upon such
transaction for each non-electing share shall be the kind and
amount so receivable per share by a plurality of the non-electing
shares).
(3) In the event the Corporation shall enter into any agreement
providing for any consolidation or merger or similar transaction
described in paragraph H(2), then the Corporation shall as soon
as practicable thereafter (and in any event at least ten (10)
business days before consummation of such transaction) give
notice of such agreement and the material terms thereof to each
holder of ESOP Preferred Stock and each such holder shall have
the right to elect, by written notice to the Corporation, to
receive, upon consummation of such transaction (if and when such
transaction is consummated), from the Corporation or the
successor of the Corporation, in redemption and retirement of
such ESOP Preferred Stock, a cash payment equal to the amount
payable in respect of shares of ESOP Preferred Stock upon
redemption pursuant to paragraph F(l) hereof. No such notice of
redemption shall be effective unless given to the Corporation
prior to the close of business on the second business day prior
to consummation of such transaction, unless the Corporation or
the successor of the Corporation shall waive such prior notice,
but any notice of redemption so given prior to such time may be
withdrawn by notice of withdrawal given to the Corporation prior
to the close of business on the second business day prior to
consummation of such transaction.
I. Anti-dilution Adjustments.
(1) In the event the Corporation shall, at any time or from time
to time while any of the shares of the ESOP Preferred Stock are
outstanding, (i) pay a dividend or make a distribution in respect
of the Common Stock in shares of Common Stock, (ii) subdivide the
outstanding shares of Common Stock, or (iii) combine the
outstanding shares of Common Stock into a smaller number of
shares, in each case whether by reclassification of shares,
recapitalization of the Corporation (including a recapitalization
effected by a merger or consolidation to which paragraph H hereof
does not apply) or otherwise, the Conversion Ratio in effect
immediately prior to such action shall be adjusted by multiplying
such Conversion Ratio by the fraction the numerator of which is
the number of shares of Common Stock outstanding immediately
before such event and the denominator of which is the number of
shares of Common Stock outstanding immediately after such event.
An adjustment made pursuant to this paragraph I(1) shall be given
effect, upon payment of such a dividend or distribution, as of
the record date for the determination of shareholders entitled to
receive such dividend or distribution (on a retroactive basis)
and in the case of a subdivision or combination shall become
effective immediately as of the effective date thereof.
(2) In the event that the Corporation shall, at any time or from
time to time while any of the shares of ESOP Preferred Stock are
outstanding, issue to holders of shares of Common Stock as a
dividend or distribution, including by way of a reclassification
of shares or a recapitalization of the Corporation, any right or
warrant to purchase shares of Common Stock (but not including as
such a right or warrant any security convertible into or
exchangeable for shares of Common Stock) at a purchase price per
share less than the Fair Market Value (as hereinafter defined) of
a share of Common Stock on the date of issuance of such right or
warrant, then, subject to the provisions of paragraphs I(5) and
I(6), the Conversion Ratio shall be adjusted by multiplying such
Conversion Ratio by the fraction the numerator of which shall be
the number of shares of Common Stock outstanding immediately
before such issuance of rights or warrants plus the number of
shares of Common Stock which could be purchased at the Fair
Market Value of a share of Common Stock at the time of such
issuance for the maximum aggregate consideration payable upon
exercise in full of all such rights or warrants and the
denominator of which shall be the number of shares of Common
Stock outstanding immediately before such issuance of rights or
warrants plus the maximum number of shares of Common Stock that
could be acquired upon exercise in full of all such rights and
warrants.
(3) In the event the Corporation shall, at any time and from
time to time while any of the shares of ESOP Preferred Stock are
outstanding, issue, sell or exchange shares of Common Stock
(other than pursuant to any right or warrant to purchase or
acquire shares of Common Stock (including as such a right or
warrant any security convertible into or exchangeable for shares
of Common Stock) and other than pursuant to any dividend
reinvestment plan or employee or director incentive or benefit
plan or arrangement, including any employment, severance or
consulting agreement, of the Corporation or any subsidiary of the
Corporation heretofore or hereafter adopted) for a consideration
having a Fair Market Value on the date of such issuance, sale or
exchange less than the Fair Market Value of such shares on the
date of such issuance, sale or exchange, then, subject to the
provisions of paragraphs I(5) and (6), the Conversion Ratio shall
be adjusted by multiplying such Conversion Ratio by the fraction
the numerator of which shall be the sum of (i) the Fair Market
Value of all the shares of Common Stock outstanding on the day
immediately preceding the first public announcement of such
issuance, sale or exchange plus (ii) the Fair Market Value of the
consideration received by the Corporation in respect of such
issuance, sale or exchange of shares of Common Stock, and the
denominator of which shall be the product of (i) the Fair Market
Value of a share of Common Stock on the day immediately preceding
the first public announcement of such issuance, sale or exchange
multiplied by (ii) the sum of the number of shares of Common
Stock outstanding on such day plus the number of shares of Common
Stock so issued, sold or exchanged by the Corporation. In the
event the Corporation shall, at any time or from time to time
while any shares of ESOP Preferred Stock are outstanding, issue,
sell or exchange any right or warrant to purchase or acquire
shares of Common Stock (including as such a right or warrant any
security convertible into or exchangeable for shares of Common
Stock), other than any such issuance to holders of shares of
Common Stock as a dividend or distribution (including by way of a
reclassification of shares or a recapitalization of the
Corporation) and other than pursuant to any dividend reinvestment
plan or employee or director incentive or benefit plan or
arrangement (including any employment, severance or consulting
agreement) of the Corporation or any subsidiary of the
Corporation heretofore or hereafter adopted, for a consideration
having a Fair Market Value on the date of such issuance, sale or
exchange less than the Non-Dilutive Amount (as hereinafter
defined), then, subject to the provisions of paragraphs I(5) and
(6), the Conversion Ratio shall be adjusted by multiplying such
Conversion Ratio by a fraction the numerator of which shall be
the sum of (a) the Fair Market Value of all the shares of Common
Stock outstanding on the day immediately preceding the first
public announcement of such issuance, sale or exchange plus (b)
the Fair Market Value of the consideration received by the
Corporation in respect of such issuance, sale or exchange of such
right or warrant plus (c) the Fair Market Value at the time of
such issuance of the consideration which the Corporation would
receive upon exercise in full of all such rights or warrants, and
the denominator of which shall be the product of (a) the Fair
Market Value of a share of Common Stock on the day immediately
preceding the first public announcement of such issuance, sale or
exchange multiplied by (b) the sum of the number of shares of
Common Stock outstanding on such day plus the maximum number of
shares of Common Stock which could be acquired pursuant to such
right or warrant at the time of the issuance, sale or exchange of
such right or warrant (assuming shares of Common Stock could be
acquired pursuant to such right or warrant at such time).
(4) In the event the Corporation shall, at any time or from time
to time while any of the shares of ESOP Preferred Stock are
outstanding, make any Extraordinary Distribution (as hereinafter
defined) in respect of the Common Stock, whether by dividend,
distribution, reclassification of shares or recapitalization of
the Corporation (including a recapitalization or reclassification
effected by a merger or consolidation to which paragraph H hereof
does not apply) or effect a Pro Rata Repurchase (as hereinafter
defined) of Common Stock, the Conversion Ratio in effect
immediately prior to such Extraordinary Distribution or Pro Rata
Repurchase shall, subject to paragraphs I(5) and (6), be adjusted
by multiplying such Conversion Ratio by a fraction the numerator
of which shall be (a) the product of (i) the number of shares of
Common Stock outstanding immediately before such Extraordinary
Distribution or Pro Rata Repurchase multiplied by (ii) the Fair
Market Value (as herein defined) of a share of Common Stock on
the Valuation Date (as hereinafter defined) with respect to an
Extraordinary Distribution, or on the applicable expiration date
(including all extensions thereof) of any tender offer which is a
Pro Rata Repurchase, or on the date of purchase with respect to
any Pro Rata Repurchase which is not a tender offer, as the case
may be, minus (b) the Fair Market Value of the Extraordinary
Distribution or the aggregate purchase price of the Pro Rata
Repurchase, as the case may be, and the denominator of which
shall be the product of (i) the number of shares of Common Stock
outstanding immediately before such Extraordinary Distribution or
Pro Rata Repurchase minus, in the case of a Pro Rata Repurchase,
the number of shares of Common Stock repurchased by the
Corporation multiplied by (ii) the Fair Market Value of a share
of Common Stock on the record date with respect to an
Extraordinary Distribution or on the applicable expiration date
(including all extensions thereof) of any tender offer which is a
Pro Rata Repurchase or on the date of purchase with respect to
any Pro Rata Repurchase which is not a tender offer, as the case
may be. The Corporation shall send each holder of ESOP Preferred
Stock (x) notice of its intent to make any Extraordinary
Distribution and (y) notice of any offer by the Corporation to
make a Pro Rata Repurchase, in each case at the same time as, or
as soon as practicable after, such offer is first communicated
(including by announcement of a record date in accordance with
the rules of any stock exchange on which the Common Stock is
listed or admitted to trading) to holders of Common Stock. Such
notice shall indicate the intended record date and the amount and
nature of such dividend or distribution, or the number of shares
subject to such offer for a Pro Rata Repurchase and the purchase
price payable by the Corporation pursuant to such offer, as well
as the Conversion Ratio and the number of shares of Common Stock
into which a share of ESOP Preferred Stock may be converted at
such time.
(5) Notwithstanding any other provisions of this paragraph I,
the Corporation shall not be required to make any adjustment of
the Conversion Ratio unless such adjustment would require an
increase or decrease of at least one percent (1%) in the
Conversion Ratio. Any lesser adjustment shall be carried forward
and shall be made no later than the time of, and together with,
the next subsequent adjustment which, together with any
adjustment or adjustments so carried forward, shall amount to an
increase or decrease of at least one percent (1%) in the
Conversion Ratio.
(6) If the Corporation shall make any dividend or distribution
on the Common Stock or issue any Common Stock, other capital
stock or other security of the Corporation or any rights or
warrants to purchase or acquire any such security, which
transaction does not result in an adjustment to the Conversion
Ratio pursuant to the foregoing provisions of this paragraph I,
the Board of Directors of the Corporation shall consider whether
such action is of such a nature that an adjustment to the
Conversion Ratio should equitably be made in respect of such
transaction. If in such case the Board of Directors of the
Corporation determines that the adjustment to the Conversion
Ratio should be made, an adjustment shall be made effective as of
such date, as determined by the Board of Directors of the
Corporation. The determination of the Board of Directors of the
Corporation as to whether an adjustment to the Conversion Ratio
should be made pursuant to the foregoing provisions of this
paragraph I(6), and, if so, as to what adjustment should be made
and when, shall be final and binding on the Corporation and all
shareholders of the Corporation. The Corporation shall be
entitled to make such additional adjustments in the Conversion
Ratio, in addition to those required by the foregoing provisions
of this paragraph I, as shall be necessary in order that any
dividend or distribution in shares of capital stock of the
Corporation, subdivision, reclassification or combination of
shares of stock of the Corporation or any recapitalization of the
Corporation shall not be taxable to holders of the Common Stock.
(7) For purposes of this paragraph I, the following definitions
shall apply:
"Conversion Value" shall mean the Fair Market
Value of the aggregate number of shares of Common Stock
into which a share of ESOP Preferred Stock is
convertible.
"Extraordinary Distribution" shall mean any
dividend or other distribution (effected while any of
the shares of ESOP Preferred Stock are outstanding) (a)
of cash, where the aggregate amount of such cash
dividend and distribution together with the amount of
all cash dividends and distributions made during the
preceding period of 12 months, when combined with the
aggregate amount of all Pro Rata Repurchases (for this
purpose, including only that portion of the aggregate
purchase price of such Pro Rata Repurchase which is in
excess of the Fair Market Value of the Common Stock
repurchased as determined on the applicable expiration
date (including all extensions thereof) of any tender
offer or exchange offer which is a Pro Rata Repurchase,
or the date of purchase with respect to any other Pro
Rata Repurchase which is not a tender offer or exchange
offer made during such period), exceeds Twelve and One-
Half percent (12.5%) of the aggregate Fair Market Value
of all shares of Common Stock outstanding on the record
date for determining the shareholders entitled to
receive such Extraordinary Distribution and (b) any
shares of capital stock of the Corporation (other than
shares of Common Stock), other securities of the
Corporation (other than securities of the type referred
to in paragraph I(2)), evidence of indebtedness of the
Corporation or any other person or any other property
(including shares of any subsidiary of the
Corporation), or any combination thereof. The Fair
Market Value of an Extraordinary Distribution for
purposes of paragraph I(4) shall be the sum of the Fair
Market Value of such Extraordinary Distribution plus
the amount of any cash dividends which are not
Extraordinary Distributions made during such twelve-
month period and not previously included in the
calculation of an adjustment pursuant to paragraph
I(4).
"Fair Market Value" shall mean, as to shares of
Common Stock or any other class of capital stock or
securities of the Corporation or any other issuer
which are publicly traded, the average of the Current
Market Prices (as hereinafter defined) of such shares
or securities for each day of the Adjustment Period
(as hereinafter defined). "Current Market Price" of
publicly traded shares of Common Stock or any other
class of capital stock or other security of the
Corporation or any other issuer for a day shall mean
the last reported sales price, regular way, or, in case
no sale takes place on such day, the average of the
reported closing bid and asked prices, regular way, in
either case as reported on the New York Stock Exchange
Composite Tape or, if such security is not listed or
admitted to trading on the New York Stock Exchange, on
the principal national securities exchange on which
such security is listed or admitted to trading or, if
not listed or admitted to trading on any national
securities exchange, on The Nasdaq National Market or,
if such security is not quoted on Nasdaq, the average
of the closing bid and asked prices on each such day
in the over-the-counter market as reported by Nasdaq
or, if bid and asked prices for such security on each
such day shall not have been reported through Nasdaq,
the average of the bid and asked prices for such day as
furnished by any New York Stock Exchange member firm
selected for such purpose by the Board of Directors of
the Corporation or a committee thereof on each trading
day during the Adjustment Period. "Adjustment Period"
shall mean the period of five (5) consecutive trading
days preceding the date as of which the Fair Market
Value of a security is to be determined. The "Fair
Market Value" of any security which is not publicly
traded or of any other property shall mean the fair
value thereof as determined by an independent
investment banking or appraisal firm experienced in the
valuation of such securities or property selected in
good faith by the Board of Directors of the
Corporation or a committee thereof, or, if no such
investment banking or appraisal firm is in the good
faith judgment of the Board of Directors or such
committee available to make such determination, as
determined in good faith by the Board of Directors of
the Corporation or such committee.
"Non-Dilutive Amount" in respect of an issuance,
sale or exchange by the Corporation of any right or
warrant to purchase or acquire shares of Common Stock
(including any security convertible into or
exchangeable for shares of Common Stock) shall mean
the remainder of (a) the product of the Fair Market
Value of a share of Common Stock on the day preceding
the first public announcement of such issuance, sale or
exchange multiplied by the maximum number of shares of
Common Stock which could be acquired on such date upon
the exercise in full of such rights and warrants
(including upon the conversion or exchange of all such
convertible or exchangeable securities), whether or
not exercisable (or convertible or exchangeable) at
such date, minus (b) the aggregate amount payable
pursuant to such right or warrant to purchase or
acquire such maximum number of shares of Common Stock;
provided, however, that in no event shall the Non-
Dilutive Amount be less than zero. For purposes of the
foregoing sentence, in the case of a security
convertible into or exchangeable for shares of Common
Stock, the amount payable pursuant to a right or
warrant to purchase or acquire shares of Common Stock
shall be the Fair Market Value of such security on the
date of the issuance, sale or exchange of such
security by the Corporation.
"Pro Rata Repurchase" shall mean any purchase of
shares of Common Stock by the Corporation or any
subsidiary thereof, whether for cash, shares of
capital stock of the Corporation, other securities of
the Corporation, evidences of indebtedness of the
Corporation or any other person or any other property
(including shares of a subsidiary of the Corporation),
or any combination thereof, effected while any of the
shares of ESOP Preferred Stock are outstanding,
pursuant to any tender offer or exchange offer subject
to Section 13(e) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or any successor
provision of law, or pursuant to any other offer
available to substantially all holders of Common
Stock; provided, however, that no purchase of shares by
the Corporation or any subsidiary thereof made in open
market transactions shall be deemed a Pro Rata
Repurchase. For purposes of this paragraph I(7),
shares shall be deemed to have been purchased by the
Corporation or any subsidiary thereof "in open market
transactions" if they have been purchased
substantially in accordance with the requirements of
Rule 10b-18 as in effect under the Exchange Act, on
the date shares of ESOP Preferred Stock are initially
issued by the Corporation or on such other terms and
conditions as the Board of Directors of the Corporation
or a committee thereof shall have determined are
reasonably designed to prevent such purchases from
having a material effect on the trading market for the
Common Stock.
"Valuation Date" with respect to an Extraordinary
Distribution shall mean the date that is five (5)
business days prior to the record date for such
Extraordinary Distribution.
(8) Whenever an adjustment to the Conversion Ratio is required
pursuant hereto, the Corporation shall forthwith place on file
with the transfer agent for the Common Stock and the ESOP
Preferred Stock if there be one, and with the Secretary of the
Corporation, a statement signed by two officers of the
Corporation, stating the adjusted Conversion Ratio determined as
provided herein and the voting rights (as appropriately adjusted)
of the ESOP Preferred Stock. Such statement shall set forth in
reasonable detail such facts as shall be necessary to show the
reason and the manner of computing such adjustment, including any
determination of Fair Market Value involved in such computation.
Promptly after each adjustment to the Conversion Ratio and the
related voting rights of the ESOP Preferred Stock, the
Corporation shall mail a notice thereof to each holder of shares
of the ESOP Preferred Stock.
J. Ranking; Retirement of Shares.
(1) The ESOP Preferred Stock shall rank (a) senior to the Common
Stock as to the payment of dividends and the distribution of
assets on liquidation, dissolution and winding-up of the
Corporation and (b) unless otherwise provided in the Articles of
Incorporation of the Corporation or an amendment to such Articles
of Incorporation relating to a subsequent series of Preferred
Shares, junior to all other series of Preferred Shares as to the
payment of dividends and the distribution of assets on
liquidation, dissolution or winding-up.
(2) Any shares of ESOP Preferred Stock acquired by the
Corporation by reason of the conversion or redemption of such
shares as provided hereby, or otherwise so acquired, shall be
retired as shares of ESOP Preferred Stock and restored to the
status of authorized but unissued shares of Preferred Shares,
undesignated as to series, and may thereafter be reissued as part
of a new series of such Preferred Shares as permitted by law.
K. Miscellaneous.
(1) All notices referred to herein shall be in writing, and all
notices hereunder shall be deemed to have been given upon the
earlier of receipt thereof or three (3) business days after the
mailing thereof if sent by registered mail (unless first-class
mail shall be specifically permitted for such notice under the
terms hereof) with postage prepaid, addressed: (a) if to the
Corporation, to its office at Bank of America Corporate Center,
Charlotte, North Carolina 28255 (Attention: Treasurer) or to the
transfer agent for the ESOP Preferred Stock, or other agent of
the Corporation designated as permitted hereby or (b) if to any
holder of the ESOP Preferred Stock or Common Stock, as the case
may be, to such holder at the address of such holder as listed in
the stock record books of the Corporation (which may include the
records of any transfer agent for the ESOP Preferred Stock or
Common Stock, as the case may be) or (c) to such other address as
the Corporation or any such holder, as the case may be, shall
have designated by notice similarly given.
(2) The term "Common Stock" as used herein means the
Corporation's Common Stock, as the same existed at the date of
filing of the Amendment to the Corporation's Articles of
Incorporation relating to the ESOP Preferred Stock or any other
class of stock resulting from successive changes or
reclassification of such Common Stock consisting solely of
changes in par value, or from par value to no par value. In the
event that, at any time as a result of an adjustment made
pursuant to paragraph I hereof, the holder of any share of the
ESOP Preferred Stock upon thereafter surrendering such shares for
conversion shall become entitled to receive any shares or other
securities of the Corporation other than shares of Common Stock,
the Conversion Ratio in respect of such other shares or
securities so receivable upon conversion of shares of ESOP
Preferred Stock shall thereafter be adjusted, and shall be
subject to further adjustment from time to time, in a manner and
on terms as nearly equivalent as practicable to the provisions
with respect to Common Stock contained in paragraph I hereof, and
the provisions of paragraphs A through H, J, and K hereof with
respect to the Common Stock shall apply on like or similar terms
to any such other shares or securities.
(3) The Corporation shall pay any and all stock transfer and
documentary stamp taxes that may be payable in respect of any
issuance or delivery of shares of ESOP Preferred Stock or shares
of Common Stock or other securities issued on account of ESOP
Preferred Stock pursuant hereto or certificates representing such
shares or securities. The Corporation shall not, however, be
required to pay any such tax which may be payable in respect of
any transfer involved in the issuance or delivery of shares of
ESOP Preferred Stock or Common Stock or other securities in a
name other than that in which the shares of ESOP Preferred Stock
with respect to which such shares or other securities are issued
or delivered were registered, or in respect of any payment to any
person with respect to any such shares or securities other than a
payment to the registered holder thereof, and shall not be
required to make any such issuance, delivery or payment unless
and until the person otherwise entitled to such issuance,
delivery or payment has paid to the Corporation the amount of any
such tax or has established, to the satisfaction of the
Corporation, that such tax has been paid or is not payable.
(4) In the event that a holder of shares of ESOP Preferred Stock
shall not by written notice designate the name in which shares of
Common Stock to be issued upon conversion of such shares should
be registered or to whom payment upon redemption of shares of
ESOP Preferred Stock should be made or the address to which the
certificate or certificates representing such shares, or such
payment, should be sent, the Corporation shall be entitled to
register such shares, and make such payment, in the name of the
holder of such ESOP Preferred Stock as shown on the records of
the Corporation and to send the certificate or certificates
representing such shares, or such payment, to the address of such
holder shown on the records of the Corporation.
(5) The Corporation may appoint, and from time to time discharge
and change, a transfer agent for the ESOP Preferred Stock. Upon
any such appointment or discharge of a transfer agent, the
Corporation shall send notice thereof by first-class mail,
postage prepaid, to each holder of record of ESOP Preferred
Stock.
(c) $2.50 Cumulative Convertible Preferred Stock, Series BB.
A. Designation.
The designation of this series is "$2.50 Cumulative
Convertible Preferred Stock, Series BB" (hereinafter referred to
as the "Series BB Preferred Stock"), and the initial number of
shares constituting such series shall be 20,000,000, which number
may be increased or decreased (but not below the number of shares
then outstanding) from time to time by the Board of Directors.
The Series BB Preferred Stock shall rank prior to each of the
Common Stock, the Series B Preferred Stock and the ESOP Preferred
Stock with respect to the payment of dividends and the
distribution of assets.
B. Dividend Rights.
(1) The holders of shares of Series BB Preferred Stock shall be
entitled to receive, when and as declared by the Board of
Directors, out of funds legally available therefor, cumulative
preferential cash dividends, accruing from January 1, 1998, at
the annual rate of $2.50 per share, and no more, payable
quarterly on the first day of January, April, July and October of
each year (each of the quarterly periods ending on the last day
of March, June, September and December being hereinafter referred
to as a "dividend period"). Dividends on the Series BB Preferred
Stock shall first become payable on the first day of January,
April, July or October, as the case may be, next following the
date of issuance; provided, however, that if the first dividend
period ends within 20 days of the date of issuance, such initial
dividend shall be payable at the completion of the first full
dividend period.
(2) Dividends on shares of Series BB Preferred Stock shall be
cumulative from January 1, 1998, whether or not there shall be
funds legally available for the payment thereof. Accumulations of
dividends on the Series BB Preferred Stock shall not bear
interest. The Corporation shall not (i) declare or pay or set
apart for payment any dividends or distributions on any stock
ranking as to dividends junior to the Series BB Preferred Stock
(other than dividends paid in shares of such junior stock) or
(ii) make any purchase or redemption of, or any sinking fund
payment for the purchase or redemption of, any stock ranking as
to dividends junior to the Series BB Preferred Stock (other than
a purchase or redemption made by issue or delivery of such junior
stock) unless all dividends payable on all outstanding shares of
Series BB Preferred Stock for all past dividend periods shall
have been paid in full or declared and a sufficient sum set apart
for payment thereof; provided, however, that any moneys
theretofore deposited in any sinking fund with respect to any
preferred stock of the Corporation in compliance with the
provisions of such sinking fund may thereafter be applied to the
purchase or redemption of such preferred stock in accordance with
the terms of such sinking fund regardless of whether at the time
of such application all dividends payable on all outstanding
shares of Series BB Preferred Stock for all past dividend periods
shall have been paid in full or declared and a sufficient sum set
apart for payment thereof.
(3) All dividends declared on shares of Series BB Preferred
Stock and any other class of preferred stock or series thereof
ranking on a parity as to dividends with the Series BB Preferred
Stock shall be declared pro rata, so that the amounts of
dividends declared on the Series BB Preferred Stock and such
other preferred stock for the same dividend period, or for the
dividend period of the Series BB Preferred Stock ending within
the dividend period of such other stock, shall, in all cases,
bear to each other the same ratio that accrued dividends on the
shares of Series BB Preferred Stock and such other stock bear to
each other.
C. Liquidation Preference.
(1) In the event of any liquidation, dissolution or winding up
of the affairs of the Corporation, whether voluntary or
involuntary, the holders of Series BB Preferred Stock shall be
entitled to receive out of the assets of the Corporation
available for distribution to shareholders an amount equal to $25
per share plus an amount equal to accrued and unpaid dividends
thereon to and including the date of such distribution, and no
more, before any distribution shall be made to the holders of any
class of stock of the Corporation ranking junior to the Series BB
Preferred Stock as to the distribution of assets.
(2) In the event the assets of the Corporation available for
distribution to shareholders upon any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary
or involuntary, shall be insufficient to pay in full the amounts
payable with respect to the Series BB Preferred Stock and any
other shares of preferred stock of the Corporation ranking on a
parity with the Series BB Preferred Stock as to the distribution
of assets, the holders of Series BB Preferred Stock and the
holders of such other preferred stock shall share ratably in any
distribution of assets of the Corporation in proportion to the
full respective preferential amounts to which they are entitled.
(3) The merger or consolidation of the Corporation into or with
any other corporation, the merger or consolidation of any other
corporation into or with the Corporation or the sale of the
assets of the Corporation substantially as an entirety shall not
be deemed a liquidation, dissolution or winding up of the affairs
of the Corporation within the meaning of this paragraph C.
D. Redemption.
(1) The Corporation, at its option, may redeem all or any shares
of the Series BB Preferred Stock at any time at a redemption
price (the "Redemption Price") consisting of the sum of (i) $25
per share and (ii) an amount equal to accrued and unpaid
dividends thereon to and including the date of redemption.
(2) If less than all the outstanding shares of Series BB
Preferred Stock are to be redeemed, the shares to be redeemed
shall be selected pro rata as nearly as practicable or by lot, as
the Board of Directors may determine.
(3) Notice of any redemption shall be given by first class mail,
postage prepaid, mailed not less than 60 nor more than 90 days
prior to the date fixed for redemption to the holders of record
of the shares of Series BB Preferred Stock to be redeemed, at
their respective addresses appearing on the books of the
Corporation. Notice so mailed shall be conclusively presumed to
have been duly given whether or not actually received. Such
notice shall state: (1) the date fixed for redemption; (2) the
Redemption Price; (3) the right of the holders of Series BB
Preferred Stock to convert such stock into Common Stock until the
close of business on the 15th day prior to the redemption date
(or the next succeeding business day, if the 15th day is not a
business day); (4) if less than all the shares held by such
holder are to be redeemed, the number of shares to be redeemed
from such holder; and (5) the place(s) where certificates for
such shares are to be surrendered for payment of the Redemption
Price. If such notice is mailed as aforesaid, and if on or before
the date fixed for redemption funds sufficient to redeem the
shares called for redemption are set aside by the Corporation in
trust for the account of the holders of the shares to be
redeemed, notwithstanding the fact that any certificate for
shares called for redemption shall not have been surrendered for
cancellation, on and after the redemption date the shares
represented thereby so called for redemption shall be deemed to
be no longer outstanding, dividends thereon shall cease to
accrue, and all rights of the holders of such shares as
shareholders of the corporation shall cease, except the right to
receive the Redemption Price, without interest, upon surrender of
the certificate(s) representing such shares. Upon surrender in
accordance with the aforesaid notice of the certificate(s) for
any shares so redeemed (duly endorsed or accompanied by
appropriate instruments of transfer, if so required by the
Corporation in such notice), the holders of record of such shares
shall be entitled to receive the Redemption Price, without
interest.
(4) At the option of the Corporation, if notice of redemption is
mailed as aforesaid, and if prior to the date fixed for
redemption funds sufficient to pay in full the Redemption Price
are deposited in trust, for the account of the holders of the
shares to be redeemed, with a bank or trust company named in such
notice doing business in the Borough of Manhattan, the City of
New York, State of New York or the City of Charlotte, State of
North Carolina and having capital, surplus and undivided profits
of at least $3 million, which bank or trust company also may be
the Transfer Agent and/or Paying Agent for the Series BB
Preferred Stock, notwithstanding the fact that any certificate
for shares called for redemption shall not have been surrendered
for cancellation, on and after such date of deposit the shares
represented thereby so called for redemption shall be deemed to
be no longer outstanding, and all rights of the holders of such
shares as shareholders of the Corporation shall cease, except the
right of the holders thereof to convert such shares in accordance
with the provisions of paragraph F at any time prior to the close
of business on the 15th day prior to the redemption date (or the
next succeeding business day, if the 15th day is not a business
day), and the right of the holders thereof to receive out of the
funds so deposited in trust the Redemption Price, without
interest, upon surrender of the certificate(s) representing such
shares. Any funds so deposited with such bank or trust company in
respect of shares of Series BB Preferred Stock converted before
the close of business on the 15th day prior to the redemption
date (or the next succeeding business day, if the 15th day is not
a business day) shall be returned to the Corporation upon such
conversion. Any funds so deposited with such a bank or trust
company which shall remain unclaimed by the holders of shares
called for redemption at the end of six years after the
redemption date shall be repaid to the Corporation, on demand,
and thereafter the holder of any such shares shall look only to
the Corporation for the payment, without interest, of the
Redemption Price.
(5) Any provisions of paragraph D or E to the contrary
notwithstanding, in the event that any quarterly dividend payable
on the Series BB Preferred Stock shall be in arrears and until
all such dividends in arrears shall have been paid or declared
and set apart for payment, the Corporation shall not redeem any
shares of Series BB Preferred Stock unless all outstanding shares
of Series BB Preferred Stock are simultaneously redeemed and
shall not purchase or otherwise acquire any shares of Series BB
Preferred Stock except in accordance with a purchase offer made
by the Corporation on the same terms to all holders of record of
Series BB Preferred Stock for the purchase of all outstanding
shares thereof.
E. Purchase by the Corporation.
(1) Except as provided in paragraph D(5), the Corporation shall
be obligated to purchase shares of Series BB Preferred Stock
tendered by the holder thereof for purchase hereunder, at a
purchase price consisting of the sum of (i) $25 per share and
(ii) an amount equal to accrued and unpaid dividends thereon to
and including the date of purchase. In order to exercise his
right to require the Corporation to purchase his shares of Series
BB Preferred Stock, the holder thereof shall surrender the
Certificate(s) therefor duly endorsed if the Corporation shall so
require or accompanied by appropriate instruments of transfer
satisfactory to the Corporation, at the office of the Transfer
Agent(s) for the Series BB Preferred Stock, or at such other
office as may be designated by the Corporation, together with
written notice that such holder irrevocably elects to sell such
shares to the Corporation. Shares of Series BB Preferred Stock
shall be deemed to have been purchased by the Corporation
immediately prior to the close of business on the date such
shares are tendered for sale to the Corporation and notice of
election to sell the same is received by the Corporation in
accordance with the foregoing provisions. As of such date the
shares so tendered for sale shall be deemed to be no longer
outstanding, dividends thereon shall cease to accrue and all
rights of the holder of such shares as a shareholder of the
Corporation shall cease, except the right to receive the purchase
price.
F. Conversion Rights.
The holders of shares of Series BB Preferred Stock
shall have the right, at their option, to convert such shares
into shares of Common Stock on the following terms and
conditions:
(1) Shares of Series BB Preferred Stock shall be convertible at
any time into fully paid and nonassessable shares of Common Stock
(calculated as to each conversion to the nearest 1/1,000 of a
share) at the initial rate of 6.17215 shares of Common Stock for
each share of Series BB Preferred Stock surrendered for
conversion (the "Conversion Rate"). The Conversion Rate shall be
subject to adjustment from time to time as hereinafter provided.
No payment or adjustment shall be made on account of any accrued
and unpaid dividends on shares of Series BB Preferred Stock
surrendered for conversion prior to the record date for the
determination of shareholders entitled to such dividends or on
account of any dividends on the Common Stock issued upon such
conversion subsequent to the record date for the determination of
shareholders entitled to such dividends. If any shares of Series
BB Preferred Stock shall be called for redemption, the right to
convert the shares designated for redemption shall terminate at
the close of business on the 15th day prior to the redemption
date (or the next succeeding business day, if the 15th day is not
a business day) unless default be made in the payment of the
Redemption Price. In the event of default in the payment of the
Redemption Price, the right to convert the shares designated for
redemption shall terminate at the close of business on the
business day immediately preceding the date that such default is
cured.
(2) In order to convert shares of Series BB Preferred Stock into
Common Stock, the holder thereof shall surrender the
certificate(s) therefor, duly endorsed if the Corporation shall
so require, or accompanied by appropriate instruments of transfer
satisfactory to the Corporation, at the office of the Transfer
Agent(s) for the Series BB Preferred Stock, or at such other
office as may be designated by the Corporation, together with
written notice that such holder irrevocably elects to convert
such shares. Such notice shall also state the name(s) and
address(es) in which such holder wishes the certificate(s) for
the shares of Common Stock issuable upon conversion to be issued.
As soon as practicable after receipt of the certificate(s)
representing the shares of Series BB Preferred Stock to be
converted and the notice of election to convert the same, the
Corporation shall issue and deliver at said office a certificate
or certificates for the number of whole shares of Common Stock
issuable upon conversion of the shares of Series BB Preferred
Stock surrendered for conversion, together with a cash payment in
lieu of any fraction of a share, as hereinafter provided, to the
person(s) entitled to receive the same. Shares of Series BB
Preferred Stock shall be deemed to have been converted
immediately prior to the close of business on the date such
shares are surrendered for conversion and notice of election to
convert the same is received by the Corporation in accordance
with the foregoing provisions, and the person(s) entitled to
receive the Common Stock issuable upon such conversion shall be
deemed for all purposes as record holder(s) of such Common Stock
as of such date.
(3) No fractional shares of Common Stock shall be issued upon
conversion of any shares of Series BB Preferred Stock. If more
than one share of Series BB Preferred Stock is surrendered at one
time by the same holder, the number of full shares issuable upon
conversion thereof shall be computed on the basis of the
aggregate number of shares so surrendered. If the conversion of
any shares of Series BB Preferred Stock results in a fractional
share of Common Stock, the Corporation shall pay cash in lieu
thereof in an amount equal to such fraction multiplied times the
closing price of the Common Stock on the date on which the shares
of Series BB Preferred Stock were duly surrendered for
conversion, or if such date is not a trading date, on the next
succeeding trading date. The closing price of the Common Stock
for any day shall mean the last reported sales price regular way
on such day or, in case no such sale takes place on such day, the
average of the reported closing bid and asked prices, regular
way, on the New York Stock Exchange, or, if the Common Stock is
not then listed on such Exchange, on the principal national
securities exchange on which the Common Stock is listed for
trading, or, if not then listed for trading on any national
securities exchange, the average of the closing bid and asked
prices of the Common Stock as furnished by the National Quotation
Bureau, Inc., or if the National Quotation Bureau, Inc. ceases to
furnish such information, by a comparable independent securities
quotation service.
(4) In the event the Corporation shall at any time (i) pay a
dividend or make a distribution to holders of Common Stock in
shares of Common Stock, (ii) subdivide its outstanding shares of
Common Stock into a larger number of shares, or (iii) combine its
outstanding shares of Common Stock into a smaller number of
shares, the Conversion Rate in effect at the time of the record
date for such dividend or distribution or the effective date of
such subdivision or combination shall be adjusted so that the
holder of any shares of Series BB Preferred Stock surrendered for
conversion after such record date or effective date shall be
entitled to receive the number of shares of Common Stock which he
would have owned or have been entitled to receive immediately
following such record date or effective date had such shares of
Series BB Preferred Stock been converted immediately prior
thereto.
(5) Whenever the Conversion Rate shall be adjusted as herein
provided (i) the Corporation shall forthwith keep available at
the office of the Transfer Agent(s) for the Series BB Preferred
Stock a statement describing in reasonable detail the adjustment,
the facts requiring such adjustment and the method of calculation
used; and (ii) the Corporation shall cause to be mailed by first
class mail, postage prepaid, as soon as practicable to each
holder of record of shares of Series BB Preferred Stock a notice
stating that the Conversion Rate has been adjusted and setting
forth the adjusted Conversion Rate.
(6) In the event of any consolidation of the Corporation with or
merger of the Corporation into any other corporation (other than
a merger in which the Corporation is the surviving corporation)
or a sale of the assets of the Corporation substantially as an
entirety, the holder of each share of Series BB Preferred Stock
shall have the right, after such consolidation, merger or sale to
convert such share into the number and kind of shares of stock or
other securities and the amount and kind of property receivable
upon such consolidation, merger or sale by a holder of the number
of shares of Common Stock issuable upon conversion of such share
of Series BB Preferred Stock immediately prior to such
consolidation, merger or sale. Provision shall be made for
adjustments in the Conversion Rate which shall be as nearly
equivalent as may be practicable to the adjustments provided for
in paragraph F(4). The provisions of this paragraph F(6) shall
similarly apply to successive consolidations, mergers and sales.
(7) The Corporation shall pay any taxes that may be payable in
respect of the issuance of shares of Common Stock upon conversion
of shares of Series BB Preferred Stock, but the Corporation shall
not be required to pay any taxes which may be payable in respect
of any transfer involved in the issuance of shares of Common
Stock in a name other than that in which the shares of Series BB
Preferred Stock so converted are registered, and the Corporation
shall not be required to issue or deliver any such shares unless
and until the person(s) requesting such issuance shall have paid
to the Corporation the amount of any such taxes, or shall have
established to the satisfaction of the Corporation that such
taxes have been paid.
(8) The Corporation shall at all times reserve and keep
available out of its authorized but unissued Common Stock the
full number of shares of Common Stock issuable upon the
conversion of all shares of Series BB Preferred Stock then
outstanding.
(9) In the event that:
(i) The Corporation shall declare a dividend or any other
distribution on its Common Stock, payable otherwise than in cash
out of retained earnings; or
(ii) The Corporation shall authorize the granting to the holders
of its Common Stock of rights to subscribe for or purchase any
shares of capital stock of any class or of any other rights; or
(iii) The Corporation shall propose to effect any
consolidation of the Corporation with or merger of the
Corporation with or into any other corporation or a sale of the
assets of the company substantially as an entirety which would
result in an adjustment under paragraph F(6),
the Corporation shall cause to be mailed to the holders of record
of Series BB Preferred Stock at least 20 days prior to the
applicable date hereinafter specified a notice stating (x) the
date on which a record is to be taken for the purpose of such
dividend, distribution or rights or, if a record is not to be
taken, the date as of which the holders of Common Stock of record
to be entitled to such dividend, distribution or rights are to be
determined or (y) the date on which such consolidation, merger or
sale is expected to become effective, and the date as of which it
is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such consolidation, merger or
sale. Failure to give such notice, or any defect therein, shall
not affect the legality or validity of such dividend,
distribution, consolidation, merger or sale.
G. Voting Rights.
Holders of Series BB Preferred Stock shall have no
voting rights except as required by law and as follows: in the
event that any quarterly dividend payable on the Series BB
Preferred Stock is in arrears, the holders of Series BB Preferred
Stock shall be entitled to vote together with the holders of
Common Stock at the Corporation's next meeting of shareholders
and at each subsequent meeting of shareholders unless all
dividends in arrears have been paid or declared and set apart for
payment prior to the date of such meeting. For the purpose of
this paragraph G, each holder of Series BB Preferred Stock shall
be entitled to cast the number of votes equal to the number of
whole shares of Common Stock into which his Series BB Preferred
Stock is then convertible.
H. Reacquired Shares.
Shares of Series BB Preferred Stock converted,
redeemed, or otherwise purchased or acquired by the Corporation
shall be restored to the status of authorized but unissued shares
of preferred stock without designation as to series.
I. No Sinking Fund.
Shares of Series BB Preferred Stock are not subject to
the operation of a sinking fund.
4. The address of the Corporation's registered office in
the State of Delaware is Corporation Trust Center, 1209 Orange
Street in the City of Wilmington, County of New Castle. The name
of the Corporation's registered agent at such address is The
Corporation Trust Company.
5. No holder of any stock of the Corporation of any class now
or hereafter authorized shall have any preemptive right to
purchase, subscribe for, or otherwise acquire any shares of stock
of the Corporation of any class now or hereafter authorized, or
any securities exchangeable for or convertible into any such
shares, or any warrants or other instruments evidencing rights or
options to subscribe for, purchase or otherwise acquire any such
shares whether such shares, securities, warrants or other
instruments be unissued, or issued and thereafter acquired by the
Corporation.
6. To the fullest extent permitted by the General Corporation
Law of the State of Delaware, as the same exists or may hereafter
be amended, a director of the Corporation shall not be personally
liable to the Corporation, its shareholders or otherwise for
monetary damage for breach of his duty as a director. Any repeal
or modification of this Article shall be prospective only and
shall not adversely affect any limitation on the personal
liability of a director of the Corporation existing at the time
of such repeal or modification.
7. In furtherance and not in limitation of the powers conferred
by law, the Board of Directors of the Corporation is expressly
authorized and empowered to make, alter and repeal the Bylaws of
the Corporation by a majority vote at any regular or special
meeting of the Board of Directors or by written consent, subject
to the power of the stockholders of the Corporation to alter or
repeal any Bylaws made by the Board of Directors.
8. The Corporation reserves the right at any time from time to
time to amend or repeal any provision contained in this
Certificate of Incorporation, and to add any other provisions
authorized by the laws of the State of Delaware at the time in
force; and all rights, preferences and privileges conferred upon
stockholders, directors or any other persons by and pursuant to
this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the rights reserved in
this Article.
9. Unless and except to the extent that the Bylaws of the
Corporation shall so require, the election of directors of the
Corporation need not be by written ballot.
10. Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called
annual or special meeting of stockholders of the Corporation or
may be effected by consent in writing in lieu of a meeting of
such stockholders only if consents are signed by all stockholders
of the Corporation entitled to vote on such action.
IN WITNESS WHEREOF, BankAmerica Corporation has
caused this Amended and Restated Certificate of Incorporation to
be signed by Hugh L. McColl, Jr., its Chairman of the Board and
Chief Executive Officer, and attested to by James W. Kiser, its
Secretary, this 28th day of April, 1999.
BANKAMERICA CORPORATION
By: /s/ Hugh L. McColl, Jr.
Hugh L. McColl, Jr.
Chairman of the Board and
Chief Executive Officer
ATTEST:
By: /s/ James W. Kiser
James W. Kiser
Secretary