As filed with the Securities and Exchange Commission on October 22, 1998
Registration No. 333-60553
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 4 ON
FORM S-8
TO REGISTRATION STATEMENT ON FORM S-4
UNDER THE SECURITIES ACT OF 1933
BankAmerica Corporation
(Successor to NationsBank Corporation)
(Exact name of registrant as specified in its charter)
Delaware 56-0906609
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
100 North Tryon Street
Charlotte, North Carolina 28255
(Address of principal executive offices, including zip code)
CONTINENTAL BANK CORPORATION 1982 PERFORMANCE, RESTRICTED
STOCK AND STOCK OPTION PLAN
(Full title of the plan)
PAUL J. POLKING, ESQ.
Executive Vice President
and General Counsel
BankAmerica Corporation
100 North Tryon Street
Charlotte, North Carolina 28255
(Name and address of agent for service)
(704) 386-5000
(Telephone number, including area code,
of agent for service)
Copy To:
BOYD C. CAMPBELL, JR.
Smith Helms Mulliss & Moore, L.L.P.
201 North Tryon Street
Charlotte, North Carolina 28202
Tel (704) 343-2000
Fax (704) 334-8467
This Post-Effective Amendment No. 4 covers shares of the
Registrant's Common Stock originally registered on the Registration
Statement on Form S-4 to which this is an amendment. The
registration fees in respect of such shares of Common Stock were
paid at the time of the original filing of the Registration
Statement on Form S-4 relating to such Common Stock.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents constituting the Prospectus (the "Prospectus") of
BankAmerica Corporation (the "Registrant") with respect to this
Post-Effective Amendment No. 4 on Form S-8 to the Registration
Statement on Form S-4 of the Registrant are kept on file at the
offices of the Registrant in accordance with Rule 428 promulgated
pursuant to the Securities Act of 1933, as amended (the "Securities
Act"). The Registrant will provide without charge to participants
in the Continental Bank Corporation 1982 Performance, Restricted
Stock and Stock Option Plan (the "Plan"), on the written or oral
request of any such person, a copy of any or all of the documents
constituting the Prospectus. Written requests for such copies
should be directed to Charles J. Cooley, Principal Corporate
Personnel Officer, BankAmerica Corporation, 100 North Tryon Street,
Charlotte, North Carolina 28255. Telephone requests may be directed
to (704) 386-5000.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been hereto filed by the
Registrant with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), are incorporated by reference herein
and in the Prospectus constituting a part of this Registration
Statement:
(a) The Registrant's Annual Report on Form 10-K for the
year ended December 31, 1997;
(b) The Registrant's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1998 and June 30, 1998;
(c) The Registrant's Current Reports on Form 8-K filed on
January 14, 1998, January 22, 1998, February 3, 1998, March 13,
1998, March 23, 1998, April 15, 1998, April 16, 1998, April 17,
1998 (as amended on April 24, 1998, May 18, 1998, and August
17, 1998), May 6, 1998, May 13, 1998, July 7, 1998, July 13,
1998, July 23, 1998, September 28, 1998 (as amended on
September 28, 1998), October 9, 1998 and October 19, 1998; and
(d) The description of the Registrant's Common Stock
contained in Registrant's Current Report on Form 8-K filed
September 28, 1998 (as amended on September 28, 1998), pursuant
to Section 12 of the Exchange Act, and any amendment or report
filed for the purpose of updating such description.
All documents filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the effectiveness of this Registration Statement and
prior to the filing of a post-effective amendment hereto that either
indicates that all securities offered hereby have been sold or
deregisters all securities then remaining unsold shall be deemed to
be incorporated by reference in this Registration Statement and the
Prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement
and the Prospectus to the extent that a statement contained herein
or in any other subsequently filed document that also is or is
deemed to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
The Registrant will provide without charge to each person to
whom the Prospectus constituting a part of this Registration
Statement is delivered, on the written or oral request of any such
person, a copy of any or all of the documents incorporated herein
and in the Prospectus by reference (other than exhibits to such
documents which are not specifically incorporated by reference in
such documents). Written requests for such copies should be
directed to Charles J. Cooley, Principal Corporate Personnel
Officer, BankAmerica Corporation, 100 North Tryon Street, Charlotte,
North Carolina 28255. Telephone requests may be directed to
(704) 386-5000.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Registrant's Common Stock to be issued in
connection with the Plan has been passed upon by Paul J. Polking,
Esq., Executive Vice President and General Counsel of the
Registrant, Charlotte, North Carolina. As of the date of this Post-Effective
Amendment No. 4 on Form S-8, Mr. Polking beneficially
owned approximately 137,000 shares of the Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the Delaware General
Corporation Law (the "DGCL") empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the
fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such
person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit
by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit if such person
acted in accordance with the above standards, except that no
indemnification may be made in respect to any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery
or the court in which the action or suit was brought shall determine
upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnification for such expenses which the
Court of Chancery or such other court shall deem proper.
Section 145 of the DGCL further provides that, to the extent
that a director or officer of a corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding
referred to in subsections (a) and (b) of Section 145, or in the
defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him or her in connection therewith; and
that indemnification provided by, or granted pursuant to, Section
145 shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled. Section 145 further
empowers the corporation to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him or her and incurred by
him or her in any such capacity, or arising out of such person's
status as such, whether or not the corporation would have the power
to indemnify such person against such liabilities under Section 145
of the DGCL.
Section 102(b)(7) of the DGCL provides that provisions in a
corporation's certificate of incorporation eliminating or limiting
the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director shall not eliminate or limit the liability of a director
for (i) any breach of the director's duty of loyalty to the
corporation or its stockholders; (ii) acts or omissions not in good
faith or which involved intentional misconduct or a knowing
violation of law; (iii) willful or negligent unlawful payment of a
dividend or stock purchase or redemption; or (iv) any transaction
from which the director derived an improper personal benefit.
The Restated Certificate of Incorporation of the Registrant
prevents the recovery by the Registrant of monetary damages against
its directors to the fullest extent permitted by the DGCL. In
accordance with the provisions of the DGCL, the Bylaws of the
Registrant provide that, in addition to the indemnification of
directors and officers otherwise provided by the DGCL, the
Registrant shall, under certain circumstances, indemnify its
directors, executive officers and certain other designated officers
against any and all liability and litigation expense, including
reasonable attorneys' fees, arising out of their status or
activities as directors and officers, except for liability or
litigation expense incurred on account of activities that were at
the time known or believed by such director or officer to be in
conflict with the best interests of the Registrant. Pursuant to
such Bylaws and as authorized by statute, the Registrant may also
maintain insurance on behalf of its directors and officers against
liability asserted against such persons in such capacity whether or
not such directors or officers have the right to indemnification
pursuant to the Bylaws or otherwise.
In addition, the Agreement and Plan of Reorganization by and
between BankAmerica Corporation and NationsBank Corporation, dated
as of April 10, 1998 (the "Merger Agreement"), provides that the
Registrant will, for the six-year period ending September 30, 2004,
indemnify directors, officers and employees of BankAmerica
Corporation, NationsBank Corporation or any of their respective
subsidiaries against certain liabilities in connection with such
persons' status as such or in connection with the Merger Agreement
or any of the transactions contemplated thereby. Pursuant to the
Merger Agreement, the Registrant will also, for the six-year period
ending September 30, 2004 and with respect to events occurring prior
to the consummation of the merger contemplated thereby (the
"Merger"), honor all rights to indemnification and limitations of
liability existing in favor of the foregoing persons as provided in
the governing documents of NationsBank Corporation, BankAmerica
Corporation or their respective subsidiaries.
Pursuant to the Merger Agreement, for the six-year period
ending September 30, 2004, the Registrant will also use its best
efforts to cause the directors and officers of BankAmerica
Corporation and NationsBank Corporation to be covered by a
directors' and officers' liability insurance policy with respect to
acts or omissions occurring prior to the consummation of the Merger.
The foregoing is only a general summary of certain aspects of
Delaware law dealing with indemnification of directors and officers
and does not purport to be complete. It is qualified in its
entirety by reference to the relevant statutes which contain
detailed specific provisions regarding the circumstances under which
and the person for whose benefit indemnification shall or may be
made.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by
reference in this Registration Statement.
Exhibit No. Description of Exhibit
5.1 Opinion of Paul J. Polking, Esq. as to the
legality of the securities.*
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Paul J. Polking, Esq. (included
in Exhibit 5.1).*
24.1 Power of Attorney and Certified
Resolutions.*
99.1 Continental Bank Corporation 1982
Performance, Restricted Stock and Stock
Option Plan.
____________________
* Previously filed as an exhibit to the Registrant's Registration
Statement on Form S-4 to which this is Post-Effective Amendment
No. 4.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3,
Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than
payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy
as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly
caused this Post-Effective Amendment No. 4 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Charlotte, State of North Carolina,
on October 21, 1998.
BANKAMERICA CORPORATION
By: *
Hugh L. McColl, Jr.
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 4 to the Registration Statement has been
signed by the following persons in the capacities and on the dates
indicated.
Signature Title Date
*
Hugh L. McColl, Jr. Chairman of the Board, Chief
Executive Officer and Director October 21, 1998
*
James H. Hance, Jr. Vice Chairman and Chief October 21, 1998
Financial Officer (Principal
Financial Officer)
*
Marc D. Oken Executive Vice President and October 21, 1998
Principal Financial Executive
(Principal Accounting Officer)
/S/ DAVID A. COULTER
David A. Coulter President and Director October 21, 1998
Charles W. Coker Director October __, 1998
Timm F. Crull Director October __, 1998
*
Alan T. Dickson Director October 21 1998
Kathleen Feldstein Director October __, 1998
*
Paul Fulton Director October 21, 1998
Donald E. Guinn Director October __, 1998
*
C. Ray Holman Director October 21, 1998
*
W. W. Johnson Director October 21, 1998
Walter E. Massey Director October __, 1998
Richard M. Rosenberg Director October __, 1998
*
O. Temple Sloan, Jr. Director October 21, 1998
*
Meredith R. Spangler Director October 21, 1998
A. Michael Spence Director October __, 1998
*
Ronald Townsend Director October 21, 1998
Solomon D. Trujillo Director October __, 1998
*
Jackie M. Ward Director October 21, 1998
*
Virgil R. Williams Director October 21, 1998
Shirley Young Director October __, 1998
*By: /s/ CHARLES M. BERGER
Charles M. Berger
Attorney-in-Fact
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
5.1 Opinion of Paul J. Polking, Esq. as to the
legality of the securities.*
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Paul J. Polking, Esq. (included
in Exhibit 5.1).*
24.1 Power of Attorney and Certified
Resolutions.*
99.1 Continental Bank Corporation 1982
Performance, Restricted Stock and Stock
Option Plan.
____________________
* Previously filed as an exhibit to the Registrant's
Registration Statement on Form S-4 to which this is Post-Effective
Amendment No. 4.
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Post-Effective
Amendment No. 4 on Form S-8 to Registration Statement on Form S-4
(No. 333-60553) of BankAmerica Corporation, a Delaware corporation and
successor, by reincorporation and subsequent name change, to NationsBank
Corporation, of our report dated January 9, 1998, which appears on page
46 of the NationsBank Corporation Annual Report on Form 10-K for the year
ended December 31, 1997. We also consent to the incorporation by reference
of our report dated April 13, 1998, which appears on page 75 of the
NationsBank Corporation Current Report on Form 8-K filed April 16, 1998.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Charlotte, North Carolina
October 20, 1998
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Post-Effective
Amendment No. 4 on Form S-8 to Registration Statement on Form S-4
(Registration No. 333-60553) of BankAmerica Corporation, a Delaware corporation
and the surviving corporation in the merger of a prececessor company of the
same name (the former BankAmerica Corporation) and NationsBank (DE) Corporation,
to be dated October 21, 1998, of our report dated January 20, 1998, with respect
to the consolidated financial statements of the former BankAmerica Corporation,
incorporated by reference in its Annual Report on Form 10-K for the year
ended December 31, 1997, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Francisco, California
October 19, 1998
CONTINENTAL BANK CORPORATION
1982 PERFORMANCE, RESTRICTED STOCK
AND STOCK OPTION PLAN
As amended
Last Amended November 3, 1997
CONTINENTAL BANK CORPORATION
1982 PERFORMANCE RESTRICTED STOCK
AND STOCK OPTION PLAN
1. PURPOSE. The purpose of the 1982 Performance,
Restricted Stock and Stock Option Plan (the "Plan") of
Continental Bank Corporation (the "Company") is to promote the
long-term financial interests of the Company by (i) rewarding key
executives of the Company and its Subsidiaries (as defined below)
for their contributions to the success of the Company,
(ii) attracting and encouraging long service by key executives
possessing outstanding abilities, (iii) providing competitive
incentive compensation in the form of incentive stock options,
non-qualified stock options, stock appreciation rights and
restricted stock; and (iv) furthering the identity of interests
of key executives with those of the Company's stockholders
through opportunities for increased stock ownership and awards
based on corporate performance. The term "Subsidiary" means any
corporation of which the Company owns or controls, directly or
indirectly, 50 percent or more of the outstanding shares of stock
normally entitled to vote for the election of directors.
2. ADMINISTRATION. The Plan shall be administered,
construed and interpreted by a Committee of not less than three
members, which, subject to the following provisions of this
Section 2, shall be the Compensation Committee of the Board of
Directors of the Company until such Board of Directors determines
otherwise. No member of the Committee shall be eligible, or
within one year prior to such membership shall have been
eligible, for selection as a person to whom stock may be awarded
or allocated or to whom stock options or stock appreciation
rights may be granted under the Plan or any other plan of the
Company (or of any of its affiliates) entitling participants
therein to acquire stock, stock options or stock appreciation
rights of the Company (or of any of its affiliates) . The
decision of a majority of the members of the Committee shall
constitute the decision of the Committee and the Committee may
act either at a meeting at which a majority of the members of the
Committee is present, or by writing signed by all members of the
Committee. The Committee shall have the sole, final and
conclusive authority to interpret the Plan. Notwithstanding the
foregoing provisions of this Section 2, the Chairman of the
Company shall exercise all authority otherwise delegated to the
Committee under the Plan with respect to stock options, stock
appreciation rights and Restricted Stock (as described in Section
8) awarded to, or held by, person who, at the time such authority
is exercised, are not subject to Section 16(a) or Section 16(b)
of the Securities Exchange Act of 1934.
3. PARTICIPATION. The Committee shall, from time to time,
determine and designate the officers (including officers who are
members of the Board of Directors) and other key employees of the
Company and its Subsidiaries who shall be Participants in the
Plan and the number of stock options, stock appreciation rights
and shares of Restricted Stock to be awarded to each such
Participant. In making any such award the Committee shall take
into account the past performance of the Company and its
Subsidiaries, the Participant's contributions to such
performance, the capacity of the Participant to contribute in a
substantial measure to such performance in the future, and such
other factors as the Committee may consider relevant.
4. STOCK SUBJECT TO PLAN. Shares of stock subject to the
Plan shall be shares of the Company's common stock, par value $4
per share ("Common Stock") . Subject to adjustment as provided
in Section 11, the aggregate number of shares of Common Stock
which may be delivered under the Plan shall not exceed 4,000,000
shares. Any shares subject to any grant which terminates by
expiration, cancellation, forfeiture, surrender or otherwise
without the issuance of shares or without payment therefore or,
in the case of Restricted Stock, without vesting shall again be
available for future grants under the Plan. Either authorized
and unissued shares or treasury shares may be delivered under the
Plan; provided, however, that unissued shares shall not be
awarded as Restricted Stock to any Participant who has been
employed by the Company and its Subsidiaries for less than one
year, unless the Committee expressly determines, after
consideration of all other remuneration paid or payable to the
Participant, that the services already rendered to the Company
and its Subsidiaries by the Participant for which he is being
awarded Restricted Stock have a value of not less than the par
value of the shares awarded to him.
5. TERMS OF OPTION. Each option granted pursuant to the
Plan shall be evidenced by a Stock Option Agreement between the
Company and the Participant, and shall be subject to the
following terms and conditions, and to such other terms and
conditions not inconsistent therewith as the Committee may deem
appropriate in each case:
(a) OPTION PRICE. The price at which a share of Common
Stock may be purchased pursuant to the exercise of an
option shall be determined by the Committee at the time
such option is granted, but shall not be less than the
greater of (i) the fair market value, as determined by
the Committee, of a share of Common Stock on the date
of grant or (ii) the par value of such stock.
(b) PERIOD FOR EXERCISE OF OPTION. The option or any part
thereof shall become exercisable at such date or dates
as shall be fixed by the Committee at the time such
option is granted or at such earlier time as may
subsequently be determined by the Committee; provided
that an incentive stock option granted prior to January
1, 1987, by its terms, shall not be exercisable while
there is outstanding, within the meaning of Section
422A(b)(7) of the Internal Revenue Code of 1954, any
other incentive stock option which was granted to the
Participant before the granting of the option and which
other incentive stock option is for the purchase of
shares of stock in the Company, in a corporation which
at the time of the granting of the other incentive
stock option was a parent or subsidiary corporation of
the Company, or in a predecessor corporation of any
such corporations.
(c) PURCHASE OF SHARES. The option price of each share of
Common Stock purchased upon exercise of an option shall
be paid in full at the time of exercise, which payment
shall be in cash or, unless otherwise determined by the
Committee, by delivery of shares of Common Stock having
a fair market value equal to the option price, or by a
combination of such shares and cash. Each option may
be exercised in whole or in part, at any time or from
time to time, during the period such option is
exercisable, except that no option may be exercised for
less than fifty shares of stock, unless the exercise
for a lesser number of shares will exhaust such option.
(d) TERMINATION OF OPTION. Except as otherwise provided
for below, any option granted pursuant to the Plan
shall terminate not more than ten years after the date
on which such option is granted. If a Participant
ceases to be an employee of the Company or any
Subsidiary for any reason other than retirement or
death, any option granted to him pursuant to the Plan
shall forthwith terminate. A leave of absence approved
by the Committee, or a transfer of employment from the
Company to any Subsidiary or from a Subsidiary to the
Company or any other Subsidiary, shall not constitute a
cessation of employment. If any Participant ceases to
be an employee of the Company or a Subsidiary by reason
of a retirement which entitles him to pension benefits,
other than a deferred vested pension, under any pension
plan then maintained by the Company or a Subsidiary,
any option granted to him pursuant to the Plan may be
exercised by him within three years after the date of
his retirement (but not later than ten years after the
date such option was granted) to the full extent such
option was exercisable on the date of such cessation.
In the event of the death of a Participant while in the
employ of the Company or a Subsidiary or within three
years after the date of his retirement, any option
which had not previously terminated may be exercised
within three years after the date of his death by his
estate or by the person or persons entitled thereto by
will or by applicable laws of descent and
distribution, to the full extent such option was
exercisable on the date of his death; provided,
however, that an incentive stock option may not be
exercised after the expiration of ten years from the
date the option was granted.
(e) LIMITATION ON AMOUNT OF INCENTIVE STOCK OPTIONS. The
aggregate fair market value (determined at the time the
option is granted) of the shares with respect to which
incentive stock options granted after December 31, 1986
are exercisable for the first time by any Participant
in any calendar year under this Plan and each other
stock option plan of the Company and any parent and
subsidiary corporations shall not exceed $100,000.
(f) DEFERRAL OF OPTION GAIN. The Committee may permit a
Participant to elect to defer the receipt of the shares
of Common Stock upon exercise of an option under such
rules as the Committee may determine in its sole
discretion. If such an election is made, upon exercise
of the option, the Company shall not direct the
Company's transfer agent to register the shares of
Common Stock in the name of the Participant until the
date determined under the Committee's rules and the
Participant's election.
6. STOCK APPRECIATION RIGHTS. The Committee may, in its
discretion, grant a stock appreciation right to any Participant
under the Plan. Each stock appreciation right shall be evidenced
by a Stock Appreciation Rights Agreement between the Company and
the Participant, and shall relate to and be associated with all
or any part of a specific option. A stock appreciation right may
be granted either at the time of the grant of the related option
or at any time thereafter. A stock appreciation right shall be
exercisable only if the fair market value of a share of Common
Stock exceeds the option price for the related option and then
shall be exercisable to the extent, and only to the extent, that
the related option is exercisable. The Committee may at the time
of granting any stock appreciation right add such additional
conditions and limitations to the stock appreciation right as it
shall deem advisable, including, but not limited to, limitations
on the period or periods within which the stock appreciation
right shall be exercisable and the maximum amount of appreciation
to be recognized with regard to such stock appreciation right.
In the case of Participants who are subject to Section 16(a) and
Section 16(b) of the Securities Exchange Act of 1934, the
Committee may at any time add such additional conditions and
limitations to such stock appreciation right which, in its
discretion, the Committee deems necessary or desirable in order
to comply with Section 16(a) or Section 16(b) and the rules and
regulations thereunder, or in order to obtain any exemption
therefrom. A stock appreciation right shall entitle the
Participant to whom it is granted (including his estate or other
successor in interest upon his death as provided in the last
sentence of paragraph 5(d)) the right to elect, so long as such
stock appreciation right is exercisable and subject to such limitations
as the Committee shall have imposed, to surrender any then exercisable
portion of his related option, in whole or in part, and receive
from the Company in exchange, without any payment of cash (except
for applicable employee withholding taxes), that number of shares
of Common Stock having an aggregate fair market value on the date
of surrender equal to the product of (i) the excess of the fair
market value of a share of Common Stock on the date of surrender
over the per share option price under such option and (ii) the
number of shares of Common Stock subject to such option or
portion thereof which is surrendered. Any option or portion
thereof which is surrendered shall no longer be exercisable. The
Committee, in its sole discretion, may allow the Company to
settle all or part of the Company's obligation arising out of the
exercise of a stock appreciation right by the payment of cash
equal to the aggregate fair market value of the shares of Common
Stock the Company would otherwise be obligated to deliver.
7. TRANSFERABILITY. Options and stock appreciation rights
are not transferable except by will or the laws of descent and
distribution. Options and stock appreciation rights may be
exercised during the lifetime of the Participant only by the
Participant and, after the death of the Participant, only as
provided in paragraph 5(d).
8. TERMS AND CONDITIONS OF RESTRICTED STOCK AWARDS. All
shares of Common Stock awarded to Participants under the Plan
("Restricted Stock") shall be subject to the following terms and
conditions and to such other terms and conditions, not
inconsistent with the Plan, as shall be prescribed by the
Committee in its sole discretion:
(a) RESTRICTED PERIOD. Shares of Restricted Stock awarded
to Participants may not be sold, assigned, transferred,
pledged or otherwise encumbered during a "Restricted
Period" commencing on the date of the award and ending
on the September 30th coincident with or next following
the fourth anniversary thereof, or such later date as
the Committee may designate at the time of the award,
subject to the following:
(i) Except as otherwise provided by the Committee at
the time of an award of Restricted Stock, if a
Participant's employment with the Company and its
Subsidiaries is terminated by reason of his death,
disability (as determined by the Committee) or a
retirement which entitles him to pension benefits
other than a deferred vested pension under a
pension plan then maintained by the Company or a
Subsidiary, then the Restricted Period shall end
as of the date of such termination with respect to
such number of shares (disregarding any fractional
shares) of Restricted Stock granted to him under
such prior award as is proportionate to the ratio
of (A) the number of whole calendar months elapsed
between the date of the award and the date of such
termination to (B) the number of whole calendar
months in the original Restricted Period
(ii) The Committee may, at the time of an award or at
any time thereafter, reduce or terminate the
Restricted Period otherwise applicable to all or
any portion of any Restricted Stock award;
provided, however, that no such reduction under
this subparagraph (i) shall be applicable to
Restricted Stock held by a Participant who
voluntarily terminates his employment within one
year of the date such Restricted Stock was
awarded. For purposes of this subparagraph (ii),
termination of employment by reason of disability
(as determined by the Committee) or mandatory
retirement shall not be deemed a voluntary
termination.
Subject to the provisions of paragraphs (b) and (f)
next below, at the end of the Restricted Period for any
shares of Restricted Stock, such shares will be
transferred free of all restrictions to the Participant
or, in the event of his death, to the beneficiary or
beneficiaries designated by the Participant under this
Plan or, if none, to his estate. Delivery of shares in
accordance with the preceding sentence shall be made
within the thirty-day period following the end of the
Restricted Period.
(b) FORFEITURES. Except as otherwise provided in
subparagraph 8(a) (i) and subject to the rights of the
Committee under subparagraph 8 (a) (ii), a Participant
shall forfeit all shares of Restricted Stock and all
dividends and interest accumulated in accordance with
the provisions of Section 9 if his employment with the
Company and its Subsidiaries is terminated prior to the
last day of the applicable Restricted Period.
(c) CERTIFICATES DEPOSITED WITH COMPANY. Each certificate
issued in respect of shares of Restricted Stock awarded
under the Plan shall be registered in the name of the
Participant and deposited with the Company. Each such
certificate shall bear the following (or a similar)
legend:
"The transferability of this certificate and the
shares of stock represented hereby are subject to the
terms and conditions (including forfeiture) contained
in the Continental Bank Corporation 1982 Performance,
Restricted Stock and Stock Option Plan and an Agreement
entered into between the registered owner and
Continental Bank Corporation. A copy of such Plan and
Agreement is on file at the principal office of
Continental Bank Corporation at 231 South LaSalle
Street, Chicago, Illinois 60697."
(d) RESTRICTED STOCK AGREEMENT. The Participant shall
enter into an Agreement with the Company in a form
specified by the Committee agreeing to the terms and
conditions of the award and such other matters as the
Committee shall, in its sole discretion, determine.
(e) STOCKHOLDER RIGHTS. Subject to the foregoing
restrictions and to the provisions of Section 9, each
Participant shall have all the rights of a stockholder
with respect to his shares of Restricted Stock,
including, but not limited to, the right to vote such
share.
(f) SUBSTITUTION OF RIGHTS. Prior to the end of the
Restricted Period with respect to any shares of
Restricted Stock awarded to a Participant, the
Committee may, with the consent of the Participant,
substitute an unsecured obligation of the Company to
pay cash or stock (of such reasonable terms and
conditions as the Committee may, in its sole
discretion, determine) in lieu of its obligations under
this Section 8 and under Section 9 to deliver
unrestricted shares of Common Stock plus accrued
dividends and interest.
9. DIVIDENDS. Except as otherwise provided by the
Committee, dividends, including stock dividends, shall be accrued
on each share of Restricted Stock from the date as of which it is
awarded and, if such share has not been forfeited, shall be paid
to the Participant, or in the event of his death to his estate,
as of the last day of the Restricted Period with respect to such
share. Such dividends shall not be held in a separate fund or
separately invested. Upon delivery of such dividends, interest
shall be paid by the Company on the amount of cash dividends
withheld, including cash dividends on stock dividends, at a rate
equal to the rate of interest payable on amounts deferred under
the Continental Bank Corporation Deferred Incentive Plan, as such
rate may be adjusted from time to time.
10. COMPLIANCE WITH APPLICABLE LAWS. Notwithstanding any
other provision of the Plan, the Committee may subject shares of
Common Stock awarded under the Plan to such conditions,
limitations or restrictions as the Committee determines to be
necessary or desirable to comply with any law or regulation or
with the requirements of any securities exchange.
11. CHANGES IN CAPITALIZATION, SIMILAR CHANGES AND CHANGES
IN CONTROL. In the event of any change in the outstanding shares
of Common stock by reason of any stock dividend or split,
recapitalization, merger, consolidation, combination or exchange
of shares or other similar corporate change, the maximum
aggregate number and class of shares which may be delivered under
the Plan and the option price under and the number and class of
shares covered by outstanding options and stock appreciation
rights shall be equitably adjusted by the Committee. Such
determination of the Committee shall be conclusive; provided that
in no event shall the Committee adjust the option price of the
stock to a price less than the par value of the stock on the date
of the adjustment. Furthermore, if there is an adjustment in the
number of shares, no fraction of a share shall be delivered upon
any exercise of an option or with respect to any Restricted
Stock; and, if an adjustment of the option price shall result in
a fraction of one cent, a full cent shall be included in such
price in lieu of such fraction. Any shares of stock or other
securities received by a Participant with respect to Restricted
Stock will be subject to the same restrictions and shall be
deposited with the Company. If the company shall be consolidated
or merged with another corporation, any stock, securities or
other property which any Participant is entitled to receive by
reason of his ownership of the shares of Restricted Stock shall
be deposited with the Company or its successor. Subject to the
provisions of Section 8, such stock, securities or other property
shall also be subject to the same restrictions as such Restricted
Stock, and shall bear an appropriate legend similar in form to
the legend set forth in paragraph 8(c). Notwithstanding the
foregoing provisions of this Section 11, or any other provision
of the Plan, other than Section 14, the Committee may, in its
sole discretion, at the time of any award or grant under the Plan
or at any time thereafter, provide for the acceleration of rights
under any grant or award in the event of a change in control of
the Company and may establish the conditions under which such a
change in control will be deemed to have occurred.
12. WITHHOLDING TAX. The Company shall have the right to
withhold with respect to any payments made to Participants under
the Plan any taxes required by law to be withheld because of such
payments.
13. EMPLOYEES' AND PARTICIPANTS' RIGHTS. No employee or
other person shall have any claim or right to be awarded stock
options, stock appreciation rights or Restricted Stock under the
Plan except as the Committee shall have conferred in its
discretion in the administration of the Plan. Participation in
the Plan shall not confer upon any Participant any right with
respect to continuation of employment by the Company or a
Subsidiary, nor interfere with the right of the Company or such
Subsidiary to terminate at any time employment of any
Participant.
14. AMENDMENT AND TERMINATION. The Board of Directors may
amend, suspend or terminate the Plan or any portion thereof at
any time. The Compensation Committee of the Board of Directors,
or any successor thereto designated by the Board of Directors in
accordance with the provisions of Section 2, may amend the Plan
to the extent necessary for the efficient administration of the
Plan, or to make it practically workable or to conform to the
provisions of any federal or State law or regulation.
Notwithstanding the foregoing provisions of this Section 14, in
no event shall any amendment be made without stockholder approval
which shall:
(a) increase the total number of shares which may be
awarded under Section 4 of the Plan (subject to
adjustment in accordance with Section 11);
(b) reduce the option price under any option below the fair
market value of the stock subject to the option
determined as of the date of grant;
(c) extend the period during which an option or stock
appreciation right may be exercised beyond the period
provided in paragraph 5(d); or
(d) withdraw the administration of the Plan from the
Committee.
The Plan shall terminate automatically on April 26, 1993. In no
event may any amendment, suspension or termination impair the
rights of any Participant, without his consent, in any stock
option, stock appreciation right or Restricted Stock previously
awarded under the Plan.
15. EFFECTIVE DATE. This Plan shall be effective as of
January 1, 1982 subject to the approval by the affirmative vote
of a majority of the shares present or represented by proxy at
the Annual Meeting of Stockholders to be held on April 26, 1982
or any adjournment thereof. All awards of stock options, stock
appreciation rights and Restricted Stock are subject to such
approval and, notwithstanding any other provision of the Plan, if
such stockholder approval is not obtained, all such awards as
well as dividends paid or payable with respect to Restricted
Stock shall be forfeited.
The following provision was added to the plan by the BAC
Board of Directors on August 7, 1995. For purposes of this
provision, "BankAmerica" means BankAmerica Corporation and
"Company" means BankAmerica and its subsidiaries collectively.
Notwithstanding any other provision in the Plan, the
following shall apply in the event of a Change in Control, as
defined below, in BankAmerica:
CHANGE IN CONTROL means that one of the following events has
occurred:
(i) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"))
(a "Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then outstanding shares of common stock of
BankAmerica (the "Outstanding BankAmerica Common Stock") or (ii)
the combined voting power of the then outstanding voting
securities of BankAmerica entitled to vote generally in the
election of directors (the "Outstanding BankAmerica Voting
Securities"); provided, however, that for purposes of this
subsection (a), the following acquisitions shall not constitute a
Change of Control: (i) any acquisition directly from BankAmerica
(ii) any acquisition by BankAmerica, (iii) any acquisition by
any employee benefit plan (or related trust) sponsored or
maintained by the Company or (iv) any acquisition by any
corporation pursuant to a transaction which complies with clauses
(A), (B) and (C) of subsection (iii) below.
(ii) Individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by
BankAmerica's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board.
(iii) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or
substantially all of the assets of BankAmerica or its principal
Subsidiary (a "Business Combination"), in each case, unless,
following such Business Combination, (A) all or substantially all
of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding BankAmerica Common Stock and
Outstanding BankAmerica Voting Securities immediately prior to
such Business Combination beneficially own, directly or
indirectly, more than 80% of, respectively, the then outstanding
shares of common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction
owns BankAmerica or all or substantially all of BankAmerica's
assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding
BankAmerica Common Stock and Outstanding BankAmerica Voting
Securities, as the case may be, (provided, however, that, for the
purposes of this clause (A), any shares of common stock or voting
securities of such resulting corporation received by such
beneficial owners in such Business Combination other than as the
result of such beneficial owners' ownership of Outstanding
BankAmerica Common Stock or Outstanding BankAmerica Voting
Securities immediately prior to such Business Combination shall
not be considered to be owned by such beneficial owners for the
purposes of calculating their percentage of ownership of the
outstanding common stock and voting power of the resulting
corporation), (B) no Person (excluding any corporation resulting
from such Business Combination or any employee benefit plan (or
related trust) of the Company or such corporation resulting from
such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then
outstanding voting securities of such corporation unless such
Person owned 20% or more of the Outstanding BankAmerica Common
Stock or Outstanding BankAmerica Voting Securities immediately
prior to the Business Combination and (C) at least a majority of
the members of the board of directors of the corporation
resulting from such Business Combination were members of the
Incumbent Board (or, in the case of BankAmerica's principal
Subsidiary, the corresponding board of directors) at the time of
the execution of the initial agreement, or of the action of the
Board, providing for such Business Combination.
(iv) Approval by the shareholders of BankAmerica of a
complete liquidation or dissolution of BankAmerica.
(a) All outstanding stock options and stock appreciation
rights under the Plan shall be immediately exercisable in full if
BankAmerica undergoes a Change in Control.
(b) (intentionally left blank)
(c) (intentionally left blank]
(d) The Company shall have the right to deduct from any
settlement of any stock option or stock appreciation right an
amount sufficient to cover withholding required by law for any
federal, state or local taxes, or to take such other action as
may be necessary to satisfy any such withholding obligation.
The resolution adding the above provision provided that no
modification, suspension, amendment or termination of the Plan
may be made which would adversely affect the rights of any
employee or former employee under the amendment with respect to
any stock option or stock appreciation right granted under the
Plan prior to the date of such modification, suspension,
amendment or termination.
