As filed with the Securities and Exchange Commission on December 29, 1998
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BankAmerica 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 28255
Charlotte, North Carolina (Zip Code)
(Address of Principal Executive Offices)
Take Ownership!
The BankAmerica Global Associate Stock Option Program
(Full Title of the Plan)
PAUL J. POLKING, ESQ.
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)
CALCULATION OF REGISTRATION
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be To be Price Offering Registration
Registered Registered Per Unit(1) Price(1) Fee
- ----------- ---------- ----------- ------------- -------------
Common 50,000,000
Stock shares $60.1875 $3,009,375,000 $836,607
(1) Determined on the basis of the average of the high and low
prices of the Common Stock reported in the consolidated
reporting system on December 21, 1998 in accordance with
Rule 457(c) under the Securities Act of 1933, as amended
(the "Securities Act"), solely for the purpose of
calculating the registration fee pursuant to Rule 457(h)
under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by the Registrant or
its predecessor, NationsBank Corporation ("NationsBank"), with
the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and are incorporated by reference herein:
(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, June 30, 1998 and
September 30, 1998;
(c) The Registrant's Current Reports on Form 8-K filed
January 14, 1998, January 22, 1998, February 3, 1998, March 13,
1998, March 23, 1998, April 15, 1998, April 16, 1998, April 17,
1998 (amended by Form 8-K/A-1 filed April 24, 1998, Form 8-K/A-2
filed May 18, 1998, and Form 8-K/A-3 filed August 17, 1998), May
6, 1998, May 13, 1998, July 7, 1998, July 13, 1998, July 23,
1998, September 28, 1998 (amended by Form 8-K/A filed September
28, 1998), October 9, 1998, October 19, 1998, November 16, 1998,
November 18, 1998 and December 16, 1998; and
(d) The description of the Registrant's Common Stock
contained in its registration statement filed pursuant to Section
12 of the Exchange Act, and any amendment or report filed for the
purpose of updating such description, including the Registrant's
Current Report on Form 8-K filed September 28, 1998, as amended.
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 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 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
participant in Take Ownership! The BankAmerica Global Associate
Stock Option Program, on the written or oral request of any such
person, a copy of any or all of the documents incorporated herein
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, Corporate Personnel Executive, BankAmerica Corporation,
100 North Tryon Street, Charlotte, North Carolina 28255.
Telephone requests may be directed to (704) 386-5000.
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, pursuant to the Agreement and Plan of
Reorganization dated as of April 10, 1998 (the "Merger
Agreement") between the Registrant and the former BankAmerica
Corporation ("old BankAmerica"), for six years after September
30, 1998 (the date of the consummation of the merger of old
BankAmerica with and into the Registrant (the "Merger")), the
Registrant will indemnify directors, officers and employees of
old BankAmerica, NationsBank, 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
six years after September 30, 1998 and with respect to events
occurring prior to the consummation of 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, old BankAmerica or their respective
subsidiaries.
Pursuant to the Merger Agreement, for six years after
September 30, 1998, the Registrant will also use its best efforts
to cause the directors and officers of old BankAmerica and
NationsBank 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 persons for whose benefit indemnification shall or
may be made.
Item 8. Exhibits.
The following exhibits are filed with this Registration
Statement:
Exhibit No. Description of Exhibit
5 Opinion of Paul J. Polking, Esq., General Counsel of
the Registrant, as to the legality of the securities
being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Paul J. Polking, Esq., General Counsel of
the Registrant (included in Exhibit 5).
24 Power of Attorney and Certified Resolution.
99 Take Ownership! The BankAmerica Global Associate Stock
Option Program.
Item 9. Undertakings.
(a) The 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 of 1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of this Registration
Statement (or the most recent posteffective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
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%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) to include any material information
with respect to the plan of distribution not previously
disclosed in this Registration Statement or any material
change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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 Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in this 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 of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the provisions described in Item 6 above, 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 Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the 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 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 Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the City of Charlotte, State of North Carolina, on December 29,
1998.
BANKAMERICA CORPORATION
By: */s/ Hugh L. McColl, Jr.
Hugh L. McColl, Jr.
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
*/s/ Hugh L. McColl, Jr. Chairman of the Board, December 29, 1998
Hugh L. McColl, Jr. Chief Executive Officer
and Director
(Principal Executive Officer)
*/s/ James H. Hance, Jr. Vice Chairman and December 29, 1998
James H. Hance, Jr. Chief Financial Officer
(Principal Financial Officer)
*/s/ Marc D. Oken Executive Vice December 29, 1998
Marc D. Oken President and
Principal Financial
Executive
(Principal Accounting Officer)
*/s/ Charles W. Coker Director December 29, 1998
Charles W. Coker
*/s/ Timm F. Crull Director December 29, 1998
Timm F. Crull
*/s/ Alan T. Dickson Director December 29, 1998
Alan T. Dickson
*/s/ Kathleen Feldstein Director December 29, 1998
Kathleen Feldstein
*/s/ Paul Fulton Director December 29, 1998
Paul Fulton
*/s/ Donald E. Guinn Director December 29, 1998
Donald E. Guinn
*/s/ C. Ray Holman Director December 29, 1998
C. Ray Holman
*/s/ W. W. Johnson Director December 29, 1998
W. W. Johnson
*/s/ Walter E. Massey Director December 29, 1998
Walter E. Massey
*/s/Richard M. Rosenberg Director December 29, 1998
Richard M. Rosenberg
*/s/ O. Temple Sloan, Jr.Director December 29, 1998
O. Temple Sloan, Jr.
*/s/ Meredith R. Spangler Director December 29, 1998
Meredith R. Spangler
*/s/ A. Michael Spence Director December 29, 1998
A. Michael Spence
*/s/ Ronald Townsend Director December 29, 1998
Ronald Townsend
Director December __, 1998
Solomon D. Trujillo
*/s/ Jackie M. Ward Director December 29, 1998
Jackie M. Ward
*/s/ Virgil R. Williams Director December 29, 1998
Virgil R. Williams
*/s/ Shirley Young Director December 29, 1998
Shirley Young
*By: /s/ Charles M. Berger
Charles M. Berger
Attorney-in-Fact
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
5 Opinion of Paul J. Polking, Esq., General Counsel of
the Registrant, as to the legality of the securities
being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Paul J. Polking, Esq., General Counsel of
the Registrant (included in Exhibit 5).
24 Power of Attorney and Certified Resolution.
99 Take Ownership! The BankAmerica Global Associate Stock
Option Program.
Paul J. Polking
Executive Vice President and General Counsel
Bank of America Corporation
100 North Tryon Street, NC1-007-20-01
Charlotte, NC 28255
Exhibit 5
December 29, 1998
Board of Directors
BankAmerica Corporation
100 North Tryon Street
Charlotte, North Carolina 28255
Ladies and Gentlemen:
In connection with the proposed registration under the Securities
Act of 1933, as amended, of 50,000,000 shares (the "Shares") of
the common stock of BankAmerica Corporation (the "Common Stock")
to be issued pursuant to the terms of Take Ownership! The
BankAmerica Global Associate Stock Option Program (the "Plan"),
I have examined such corporate records and other documents,
including the Registration Statement on Form S-8 relating to the
Shares (the "Registration Statement"), and have reviewed such
matters of law as I have deemed necessary or appropriate for this
opinion. Based on such examination and review, it is my opinion
that the Shares have been duly and validly authorized and, when
issued and paid for in accordance with and upon the terms and
conditions of the Plan, will be validly issued, fully paid and
nonassessable.
I consent to be named in the Registration Statement as the
attorney who passed upon the legality of the Shares, and to the
filing of a copy of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Paul J. Polking
Paul J. Polking
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 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. We also consent to the incorporation by
reference of our report dated November 13, 1998, which appears on
page 44 of the BankAmerica Corporation Current Report on Form 8-K
filed November 16, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Charlotte, North Carolina
December 29, 1998
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 of BankAmerica Corporation, a Delaware corporation
and the surviving corporation in the merger of a predecessor company
of the same name (the former BankAmerica Corporation) and NationsBank
(DE) Corporation, to be dated December 29, 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
December 29, 1998
Exhibit 24
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of BankAmerica
Corporation, and the several undersigned Officers and Directors
thereof whose signatures appear below, hereby makes, constitutes
and appoints Charles M. Berger and James W. Kiser, and each of
them acting individually, its, his and her true and lawful
attorneys with power to act without any other and with full power
of substitution, to execute, deliver and file in its, his and her
name and on its, his and her behalf, and in each of the
undersigned Officer's and Director's capacity or capacities as
shown below, (a) one or more Registration Statements of
BankAmerica Corporation on Form S-8 relating to the issuance of
up to 120,000,000 shares of the Common Stock of BankAmerica
Corporation pursuant to Take Ownership! The BankAmerica Global
Associate Stock Option Program and any and all documents in
support thereof or supplemental thereto and any and all
amendments, including any and all post-effective amendments, to
the foregoing (hereinafter called the "Registration Statements"),
and (b) such registration statements, petitions, applications,
consents to service of process or other instruments, any and all
documents in support thereof or supplemental thereto, and any and
all amendments or supplements to the foregoing, as may be
necessary or advisable to qualify or register the securities
covered by said Registration Statements under such securities
laws, regulations or requirements as may be applicable; and each
of BankAmerica Corporation and said Officers and Directors hereby
grants to said attorneys, and to each of them, full power and
authority to do and perform each and every act and thing
whatsoever as said attorneys or attorney may deem necessary or
advisable to carry out fully the intent of this power of attorney
to the same extent and with the same effect as BankAmerica
Corporation might or could do, and as each of said Officers and
Directors might or could do personally in his or her capacity or
capacities as aforesaid, and each of BankAmerica Corporation and
said Officers and Directors hereby ratifies and confirms all acts
and things which said attorneys or attorney might do or cause to
be done by virtue of this power of attorney and its, his or her
signature as the same may be signed by said attorneys or
attorney, or any of them, to any or all of the following (and/or
any and all amendments and supplements to any or all thereof):
such Registration Statements under the Securities Act of 1933, as
amended, and all such registration statements, petitions,
applications, consents to service of process and other
instruments, and any and all documents in support thereof or
supplemental thereto, under such securities laws, regulations and
requirements as may be applicable.
IN WITNESS WHEREOF, BankAmerica Corporation has caused this
power of attorney to be signed on its behalf, and each of the
undersigned Officers and Directors in the capacity or capacities
noted has hereunto set his or her hand as of the date indicated
below.
BANKAMERICA CORPORATION
By: /s/ Hugh L. McColl, Jr.
Hugh L. McColl, Jr.
Chairman of the Board
and Chief Executive Officer
Dated: October 28, 1998
Signature Title Date
/s/ Hugh L. McColl, Jr. Chairman of the Board, October 28, 1998
Hugh L. McColl, Jr. Chief Executive Officer
and Director
(Principal Executive Officer)
/s/ James H. Hance, Jr. Vice Chairman and October 28, 1998
James H. Hance, Jr. Chief Financial Officer
(Principal Financial Officer)
/s/ Marc D. Oken Executive Vice October 28, 1998
Marc D. Oken President and
Principal Financial
Executive
(Principal Accounting Officer)
/s/ Charles W. Coker Director October 28, 1998
Charles W. Coker
Director October __, 1998
David A. Coulter
/s/ Timm F. Crull Director October 28, 1998
Timm F. Crull
/s/ Alan T. Dickson Director October 28, 1998
Alan T. Dickson
/s/ Kathleen Feldstein Director October 28, 1998
Kathleen Feldstein
/s/ Paul Fulton Director October 28, 1998
Paul Fulton
/s/ Donald E. Guinn Director October 28, 1998
Donald E. Guinn
/s/ C. Ray Holman Director October 28, 1998
C. Ray Holman
/s/ W.W. Johnson Director October 28, 1998
W. W. Johnson
/s/ Walter E. Massey Director October 28, 1998
Walter E. Massey
/s/ Richard M. Rosenberg Director October 28, 1998
Richard M. Rosenberg
/s/ O. Temple Sloan, Jr. Director October 28, 1998
O. Temple Sloan, Jr.
/s/ Meredith R. Spangler Director October 28, 1998
Meredith R. Spangler
/s/ A. Michael Spence Director October 28, 1998
A. Michael Spence
/s/ Ronald Townsend Director October 28, 1998
Ronald Townsend
Director October __, 1998
Solomon D. Trujillo
/s/ Jackie M. Ward Director October 28, 1998
Jackie M. Ward
/s/ Virgil R. Williams Director October 28, 1998
Virgil R. Williams
/s/ Shirley Young Director October 28, 1998
Shirley Young
BankAmerica Corporation
Extract of Board of Director Resolutions
September 23, 1998
RESOLVED, that James W. Kiser and Charles M. Berger be, and
each of them with full power to act without the other hereby is,
authorized and empowered to sign the aforesaid Registration
Statements [relating to Take Ownership! The BankAmerica Global
Associate Stock Option Program] and any amendment or amendments
thereto (including any post-effective amendments) on behalf of
and as attorneys for the Corporation and on behalf of and as
attorneys for any of the following: the principal executive
officer, the principal financial officer, the principal
accounting officer and any other officer of the Corporation.
CERTIFICATE OF SECRETARY
I, ALLISON L. GILLIAM, Assistant Secretary of BankAmerica
Corporation, a corporation duly organized and existing under the
laws of the State of Delaware, do hereby certify that the
foregoing is a true and correct extract of resolutions duly
adopted by a majority of the entire Board of Directors of said
Corporation at a meeting of said Board of Directors held on
September 23, 1998, at which meeting a quorum was present and
acted throughout and that said resolution is in full force and
effect and has not been amended or rescinded as of the date
hereof.
IN WITNESS WHEREOF, I have hereupon set my hand and affixed
the seal of said corporation this 29th day of December, 1998.
(SEAL)
/s/ Allison L. Gilliam
Allison L. Gilliam
Assistant Secretary
TAKE OWNERSHIP!
THE BANKAMERICA GLOBAL
ASSOCIATE STOCK OPTION PROGRAM
Effective October 1, 1998
Contents
Page
Article 1. Establishment, Purpose, and Duration . . . . . . . .1
1.1 Reorganization Agreement . . . . . . . . . . . . . . .1
1.2 Establishment of the Plan. . . . . . . . . . . . . . .1
1.3 Purpose of the Plan. . . . . . . . . . . . . . . . . .1
1.4 Effective Date and Term of Plan. . . . . . . . . . . .1
Article 2. Definitions. . . . . . . . . . . . . . . . . . . . .2
2.1 Associate. . . . . . . . . . . . . . . . . . . . . . .2
2.2 Award. . . . . . . . . . . . . . . . . . . . . . . . .2
2.3 Beneficial Owner or Beneficial Ownership . . . . . . .2
2.4 Board or Board of Directors. . . . . . . . . . . . . .2
2.5 Change in Control. . . . . . . . . . . . . . . . . . .2
2.6 Code . . . . . . . . . . . . . . . . . . . . . . . . .3
2.7 Company. . . . . . . . . . . . . . . . . . . . . . . .4
2.8 Disability . . . . . . . . . . . . . . . . . . . . . .4
2.9 Effective Date . . . . . . . . . . . . . . . . . . . .4
2.10 Eligible Associate . . . . . . . . . . . . . . . . . .4
2.11 Exchange Act . . . . . . . . . . . . . . . . . . . . .4
2.12 Fair Market Value. . . . . . . . . . . . . . . . . . .4
2.13 Grant Date . . . . . . . . . . . . . . . . . . . . . .4
2.14 Option . . . . . . . . . . . . . . . . . . . . . . . .4
2.15 Participant. . . . . . . . . . . . . . . . . . . . . .4
2.16 Person . . . . . . . . . . . . . . . . . . . . . . . .5
2.17 Plan . . . . . . . . . . . . . . . . . . . . . . . . .5
2.18 Plan Administrator . . . . . . . . . . . . . . . . . .5
2.19 Retirement . . . . . . . . . . . . . . . . . . . . . .5
2.20 Service Center . . . . . . . . . . . . . . . . . . . .5
2.21 Shares . . . . . . . . . . . . . . . . . . . . . . . .5
2.22 Stock Appreciation Right or SAR. . . . . . . . . . . .5
2.23 Subsidiary . . . . . . . . . . . . . . . . . . . . . .5
2.24 United States. . . . . . . . . . . . . . . . . . . . .5
Article 3. Amendment and Administration . . . . . . . . . . . .6
3.1 Amendment, Modification, and Termination . . . . . . .6
3.2 Awards Previously Granted. . . . . . . . . . . . . . .6
3.3 Plan Administrator . . . . . . . . . . . . . . . . . .6
Article 4. Shares Subject to the Plan . . . . . . . . . . . . .7
4.1 Number of Shares Available for Grants. . . . . . . . .7
4.2 Lapsed Awards. . . . . . . . . . . . . . . . . . . . .7
4.3 Adjustments in Authorized Shares . . . . . . . . . . .7
4.4 Source of Shares . . . . . . . . . . . . . . . . . . .7
Article 5. Award of Options . . . . . . . . . . . . . . . . . .8
5.1 Award of Options on Grant Date . . . . . . . . . . . .8
5.2 Eligible Associates. . . . . . . . . . . . . . . . . .8
5.3 Number of Option Shares Awarded. . . . . . . . . . . .8
5.4 Option Price . . . . . . . . . . . . . . . . . . . . .8
5.5 Expiration Date of Option. . . . . . . . . . . . . . .9
5.6 Option Vesting . . . . . . . . . . . . . . . . . . . .9
5.7 Exercise after Termination or Death. . . . . . . . . 10
5.8 Option Statements. . . . . . . . . . . . . . . . . . 11
5.9 Exercise of Option . . . . . . . . . . . . . . . . . 11
Article 6. Non-U.S. Associates. . . . . . . . . . . . . . . . 13
6.1 Applicability. . . . . . . . . . . . . . . . . . . . 13
6.2 Schedule of Countries Where Awards Are Feasible. . . 13
6.3 Terms of Option and SAR. . . . . . . . . . . . . . . 13
6.4 Stock Appreciation Rights. . . . . . . . . . . . . . 13
6.5 Special Terms. . . . . . . . . . . . . . . . . . . . 13
6.6 No Acquired Rights . . . . . . . . . . . . . . . . . 14
Article 7. Other Provisions . . . . . . . . . . . . . . . . . 15
7.1 Nontransferability of Awards . . . . . . . . . . . . 15
7.2 Rights as a Shareholder. . . . . . . . . . . . . . . 15
7.3 Employment . . . . . . . . . . . . . . . . . . . . . 15
7.4 Withholding Taxes. . . . . . . . . . . . . . . . . . 15
7.5 Indemnification. . . . . . . . . . . . . . . . . . . 15
7.6 Successors . . . . . . . . . . . . . . . . . . . . . 15
Article 8. Legal Construction . . . . . . . . . . . . . . . . 16
8.1 Gender and Number. . . . . . . . . . . . . . . . . . 16
8.2 Severability . . . . . . . . . . . . . . . . . . . . 16
8.3 Requirements of Law. . . . . . . . . . . . . . . . . 16
8.4 Governing Law. . . . . . . . . . . . . . . . . . . . 16
8.5 Entire Plan. . . . . . . . . . . . . . . . . . . . . 16
TAKE OWNERSHIP!
THE BANKAMERICA GLOBAL
ASSOCIATE STOCK OPTION PROGRAM
Article 1. Establishment, Purpose, and Duration
1.1 Reorganization Agreement. NationsBank Corporation, a
North Carolina corporation (the "Company"), entered into an
Agreement and Plan of Reorganization with BankAmerica
Corporation, a Delaware corporation ("BankAmerica"), dated April
10, 1998 (the "Reorganization Agreement"). Pursuant to the
Reorganization Agreement, the Company was reincorporated as a
Delaware corporation and, following such reincorporation,
BankAmerica merged into the Company and the Company was renamed
"BankAmerica Corporation." References in this document to the
Company include the Delaware corporation resulting from the
consummation of the transactions contemplated by the
Reorganization Agreement.
1.2 Establishment of the Plan. The Company hereby
establishes Take Ownership! The BankAmerica Global Associate
Stock Option Program (the "Plan"). The Plan provides for the
grant of Options, and the grant of Stock Appreciation Rights in
certain countries, to Eligible Associates of the Company and its
Subsidiaries, as such terms are defined below.
1.3 Purpose of the Plan. The purpose of the Plan is to
advance the interests of the Company and its shareholders by
giving substantially all Associates of the Company and its
Subsidiaries a stake in the Company's future growth in order to
further create a culture of ownership and excellence among all
Associates which will foster teamwork and customer service.
1.4 Effective Date and Term of Plan. The Plan shall be
effective as of October 1, 1998 and Awards may be granted to
Eligible Associates on and after that date. Unless the Board of
Directors of the Company shall approve an extension or renewal of
the Plan for such additional term as it may determine, no Awards
shall be granted after September 30, 2001. However, all Awards
granted under the Plan prior to such date shall remain in effect
until such Awards shall have been satisfied, terminated, paid
out, or expired, in accordance with the Plan and the terms of
such Awards.
Article 2. Definitions
The following terms, when written with initial capital
letters, will have the meanings stated below:
2.1 "Associate" means a common law employee of the Company
or any Subsidiary who is identified as an employee in the
personnel records of such entity.
2.2 "Award" means the grant of an Option or SAR under the
Plan.
2.3 "Beneficial Owner" or "Beneficial Ownership" shall have
the meaning ascribed to such term in Rule 13d-3 of the General
Rules and Regulations under the Exchange Act.
2.4 "Board" or "Board of Directors" means the Board of
Directors of the Company.
2.5 "Change in Control" of the Company means, and shall be
deemed to have occurred upon, any of the following events:
(a) The acquisition by any Person of Beneficial
Ownership of twenty-five percent (25%) or more of either:
(i) The then-outstanding Shares (the "Outstanding
Shares"); or
(ii) The combined voting power of the
then-outstanding voting securities of the Company entitled to
vote generally in the election of Directors (the "Outstanding
Voting Securities");
PROVIDED, HOWEVER, that the following acquisitions shall not
constitute a Change in Control for purposes of this subparagraph
(a): (A) any acquisition directly from the Company, (B) any
acquisition by the Company or any of its Subsidiaries, (C) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any of its
Subsidiaries, or (D) any acquisition by any corporation pursuant
to a transaction which complies with clauses (i), (ii) and (iii)
of subparagraph (c) below; or
(b) Individuals who, as of the Effective Date,
constitute the Board of Directors (the "Incumbent Board") cease
for any reason to constitute at least a majority of the Board of
Directors; provided, however, that any individual who becomes a
Director subsequent to the Effective Date and whose election, or
whose nomination for election by the Company's shareholders, to
the Board of Directors was either (i) approved by a vote of at
least a majority of the Directors then comprising the Incumbent
Board or (ii) recommended by a Nominating Committee comprised
entirely of Directors who are then Incumbent Board members 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 either an actual or threatened election contest (as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act), other actual or threatened solicitation of proxies
or consents or an actual or threatened tender offer; or
(c) Approval by the Company's shareholders of a
reorganization, merger, or consolidation or sale or other
disposition of all or substantially all of the assets of the
Company (a "Business Combination"), in each case, unless
following such Business Combination, (i) all or substantially all
of the Persons who were the Beneficial Owners, respectively, of
the Outstanding Shares and Outstanding Voting Securities
immediately prior to such Business Combination own, directly or
indirectly, more than fifty percent (50%) 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 the Business Combination
(including, without limitation, a corporation which as a result
of such transaction owns the Company or all or substantially all
of the Company'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 Shares and Outstanding Voting Securities, as the case
may be (provided, however, that for purposes of this clause (i),
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 Shares or Outstanding 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), (ii)
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 the Business
Combination) beneficially owns, directly or indirectly,
twenty-five percent (25%) or more of, respectively, the then
outstanding shares of common stock of the corporation resulting
from the Business Combination or the combined voting power of the
then outstanding voting securities of such corporation unless
such Person owned twenty-five percent (25%) or more of the
Outstanding Shares or Outstanding Voting Securities immediately
prior to the Business Combination and (iii) 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 at the time of the execution of the initial
agreement, or the action of the Board, providing for such
Business Combination; or
(d) Approval by the Company's shareholders of a
complete liquidation or dissolution of the Company.
Notwithstanding the foregoing, a Change in Control
shall not be deemed to have occurred for purposes of this Plan as
a result of the transactions contemplated by the Reorganization
Agreement referred to in Section 1.1.
2.6 "Code" means the Internal Revenue Code of 1986, as
amended from time to time. References to the Code shall include
the valid and binding governmental regulations, court decisions
and other regulatory and judicial authority issued or rendered
thereunder.
2.7 "Company" means BankAmerica Corporation, a Delaware
corporation (which is the resulting entity upon consummation of
the transactions contemplated by the Reorganization Agreement
referred to in Section 1.1), and any successor as provided in
Section 7.6. Prior to the Effective Date, Company means
NationsBank Corporation, a North Carolina corporation and the
Delaware corporation resulting from its reincorporation.
2.8 "Disability" means (a) "disability" as defined from
time to time under any long-term disability plan of the Company
or Subsidiary or (b) the expiration of an extended medical
absence under the medical separation policy of the Company or
Subsidiary, to the extent such policy is applicable to the
Participant under the personnel policy of the Participant's
employer.
2.9 "Effective Date" means October 1, 1998.
2.10 "Eligible Associate" means, with respect to a
particular Grant Date, an Associate described in Section 5.2.
2.11 "Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, or any successor act thereto.
2.12 "Fair Market Value" of a Share on any date means the
closing price of a Share as reflected in the report of composite
trading of New York Stock Exchange listed securities for that day
(or, if no Shares were publicly traded on that day, the
immediately preceding day that Shares were so traded) published
in THE WALL STREET JOURNAL [EASTERN EDITION] or in any other
publication selected by the Plan Administrator; PROVIDED,
HOWEVER, that if the Shares are misquoted or omitted by the
selected publication(s), the Plan Administrator shall directly
solicit the information from officials of the stock exchanges or
from other informed independent market sources. If Shares shall
not have been publicly traded for more than ten (10) days
immediately preceding such date, then the Fair Market Value of a
Share shall be determined by the Plan Administrator in such
manner as it shall deem appropriate.
2.13 "Grant Date" means (a) for Associates based in the
United States, the first business day in January 1999, 2000, and
2001, unless the Plan Administrator, with the approval of the
Chief Executive Officer of the Company, determines otherwise, and
(b) for Associates based outside the United States, each date
selected from time to time by the Plan Administrator for the
grant of Awards under the Plan.
2.14 "Option" means an option granted to an Associate to
purchase Shares as described in Article 5 of the Plan.
2.15 "Participant" means an Associate or former Associate,
or the legal representative or estate of an incapacitated or
deceased Associate or former Associate, who has outstanding an
Award granted under the Plan.
2.16 "Person" shall have the meaning ascribed to such term
in Section 3(a)(9) of the Exchange Act and used in Sections 13(d)
and 14(d) thereof, including a "group" as defined in Section
13(d) thereof.
2.17 "Plan" means the plan set forth in this document which,
from and after the Effective Date, shall be known as Take
Ownership! The BankAmerica Global Associate Stock Option Program,
as the same may be amended from time to time.
2.18 "Plan Administrator" means the Principal Corporate
Personnel Officer of the Company and its Subsidiaries.
2.19 "Retirement" means an Associate's termination of
employment with the Company and its Subsidiaries at age 50 or
later, provided the Associate satisfies (a) or (b) below:
(a) The Associate is based in the United States and
(i) qualifies at such time for post-retirement medical benefits
under an employee benefit plan of the Associate's employer or
(ii) is employed by a Subsidiary which does not offer
post-retirement medical benefits, or within an employment
category which is not eligible for such benefits, but the
Associate satisfies such age and service requirements as the Plan
Administrator may, but need not, establish from time to time for
purposes of this definition.
(b) The Associate is based outside the United States
and satisfies the retirement policy of the Associate's employer,
if any, which is applicable to the Associate as determined by the
Plan Administrator from time to time in his or her sole
discretion.
2.20 "Service Center" means the Take Ownership! Service
Center, which is a unit of the Company or Subsidiary or a third
party designated by the Plan Administrator to provide day-to-day
administrative and brokerage services for the Plan.
2.21 "Shares" means the shares of common stock of the
Company.
2.22 "Stock Appreciation Right" or "SAR" means a stock
appreciation right with respect to Shares as described in Article
6.
2.23 "Subsidiary" means any corporation, partnership, joint
venture, affiliate, or other entity in which the Company owns
more than fifty percent (50%) of the voting stock or voting
ownership interest, as applicable, or any other business entity
designated by the Plan Administrator as a Subsidiary for purposes
of the Plan.
2.24 "United States" means the fifty (50) states, Guam,
Puerto Rico and the Virgin Islands.
Article 3. Amendment and Administration
3.1 Amendment, Modification, and Termination. The Company
may, at any time and from time to time, alter, amend, suspend or
terminate the Plan in any respect (except as provided in Section
3.2) by action of the Board or by an instrument in writing
executed by the Plan Administrator. However, no such action by
the Plan Administrator may (a) result in an Award being granted
to an Associate who is then a member of the Policy Committee of
the Company or classified as a salary band 1, 2 or 3 (or similar
classification) Associate, (b) increase the number of shares
reserved for issuance under Section 4.1, (c) materially increase
the benefits conferred upon Eligible Associates under the Plan,
(d) suspend or terminate the Plan, or (e) cause an Award to be
granted after September 30, 2001.
3.2 Awards Previously Granted. No alteration, amendment,
suspension or termination of the Plan shall adversely affect in
any material way any Award previously granted under the Plan,
without the written consent of the Participant holding such
Award. Notwithstanding the preceding sentence, the Company may
alter or amend Section 5.6(d) prior to the date of a Change in
Control.
3.3 Plan Administrator. The Plan shall be administered by
the Plan Administrator. Subject to the provisions of the Plan,
the Plan Administrator shall have the power, authority, and sole
discretion to construe, interpret and administer the Plan,
including, without limitation, the power and authority to make
factual determinations relating to Plan entitlements. The Plan
Administrator may appoint such agents as he or she may deem
necessary for the effective performance of the Plan
Administrator's duties, and may delegate to such agents such
powers and duties, whether ministerial or discretionary, as the
Plan Administrator may deem appropriate. The decisions of the
Plan Administrator upon all matters within the scope of his or
her authority shall be conclusive and binding on all parties,
except to the extent otherwise provided by law.
Article 4. Shares Subject to the Plan
4.1 Number of Shares Available for Awards. One hundred
twenty million (120,000,000) Shares are reserved for issuance
under the Plan.
4.2 Lapsed Awards. If any Award granted under this Plan is
canceled, terminates, expires, or lapses for any reason, any
Shares subject to such Award again shall be available for the
grant of an Award under the Plan, unless provided otherwise under
Section 6.5 with respect to Awards made in a country outside the
United States.
4.3 Adjustments in Authorized Shares. In the event of any
change in corporate capitalization, such as a stock split, or a
corporate transaction, such as any merger, consolidation,
separation, including a spin-off, or other distribution of stock
or property of the Company, any reorganization (whether or not
such reorganization comes within the definition of such term in
Code Section 368) or any partial or complete liquidation of the
Company, such adjustment shall be made in the number and class of
Shares which may be delivered under the Plan and in the number
and class of and/or price of Shares subject to outstanding Awards
granted under the Plan, as may be determined to be appropriate
and equitable by the Plan Administrator, in his or her sole
discretion to prevent dilution or enlargement of rights;
provided, however, that the number of shares subject to any Award
shall always be a whole number.
4.4 Source of Shares. Shares delivered under the Plan may
be original issue shares, treasury stock or shares purchased in
the open market or otherwise, all as determined by the Chief
Financial Officer of the Company (or the Chief Financial
Officer's designee) from time to time.
Article 5. Award of Options
5.1 Award of Options on Grant Date. Each Eligible Associate
shall be awarded an Option on each Grant Date, subject to the
provisions of the Plan and such other terms and conditions as the
Plan Administrator may determine, to purchase the number of
Shares determined under Section 5.3.
5.2 Eligible Associates. Each Associate employed by the
Company or any Subsidiary on a Grant Date who meets all of the
following requirements shall be an Eligible Associate with
respect to an Option granted on that Grant Date:
(a) The Associate is based within the United States.
(b) The Associate has satisfied all minimum service
requirements specified by the Plan Administrator.
(c) The Associate is not then a member of the Policy
Committee of the Company or classified as a salary band 1, 2 or 3
(or similar classification as determined by the Plan
Administrator) Associate.
(d) The Associate is not employed within a Subsidiary,
or unit or division of one or more Subsidiaries or is in a group
or class of Associates which the Plan Administrator has
determined to be ineligible for such Grant Date.
5.3 Number of Option Shares Awarded. The Plan
Administrator, with the approval of the Chief Executive Officer
of the Company, shall determine, for each Grant Date, the number
of Shares which may be purchased under the Option granted to each
Eligible Associate. The Plan Administrator may make such
determination based on the salary band, grade or job
classification of the Eligible Associate, or on such other
factors as he or she deems appropriate.
No Eligible Associate shall be granted more than one Option
on a given Grant Date, regardless of whether on a Grant Date such
Eligible Associate is employed in more than one capacity by the
Company or any Subsidiary. Any change in an Eligible Associate's
salary band, grade, job classification or other factor after a
Grant Date shall not affect the Option granted to such Eligible
Associate on such Grant Date or any rights thereunder except as
provided in the following sentence or as otherwise expressly
provided in the Plan. If an Eligible Associate has not been
assigned a salary band, grade or job classification, or is in the
process of changing his or her salary band, grade or job
classification, the Plan Administrator shall have final authority
to determine the appropriate salary band, grade or job
classification applicable to the Associate for purposes of the
Plan for the Grant Date.
5.4 Option Price. The purchase price per Share that must be
paid to the Company upon the exercise of an Option shall be one
hundred percent (100%) of the Fair Market Value of a Share on the
Grant Date of the Option.
5.5 Expiration Date of Option. Each Option shall expire on
the fifth anniversary of the Grant Date of the Option, or, in the
event of the Participant's termination of employment with the
Company and its Subsidiaries (including termination due to the
Participant's Retirement or death), such earlier date as
specified in this Article. The Company, the Plan Administrator
and the Service Center shall have no obligation to notify a
Participant or his or her estate or legal representative of the
impending or actual expiration of an Option.
5.6 Option Vesting.
(a) Vesting Schedule. Each Option granted to an
Associate shall become vested and exercisable as follows:
(i) One-fourth of the Shares subject to the
Option shall become vested and exercisable on the first
anniversary of the Grant Date for the Option, provided the
Associate remains in continuous employment with the Company and
its Subsidiaries until that date.
(ii) An additional one-fourth of the Shares
subject to the Option shall become vested and exercisable on the
second anniversary of the Grant Date for the Option, provided the
Associate remains in continuous employment with the Company and
its Subsidiaries until that date.
(iii) The remaining Shares subject to the
Option shall become vested and exercisable on the third
anniversary of the Grant Date for the Option, provided the
Associate remains in continuous employment with the Company and
its Subsidiaries until that date.
(b) Option Exercisable in Full Upon Termination Due to
Retirement, Death or Disability. Each Option granted to an
Associate shall become fully (100%) vested and exercisable upon
the occurrence of any of the following events, provided the
Option was granted one year (365 days) or more prior to the
occurrence of the event:
(i) The Associate's employment with the Company
and its Subsidiaries ends as a result of the Associate's
Retirement.
(ii) The Associate's employment with the Company
and its Subsidiaries ends as a result of the Associate's death.
(iii) The Associate's employment with the
Company and its Subsidiaries ends as a result of the Associate's
Disability.
(c) Option Exercisable in Part Upon Termination Due to
Workforce Reduction, Realignment or Similar Measure or
Divestiture. Each Option granted to an Associate shall become
vested and exercisable to the extent provided below upon the
occurrence of any of the following events, provided the Option
was granted one year (365 days) or more prior to the occurrence
of the event:
(i) The Associate's employment with the Company
and its Subsidiaries ends as a result of a workforce reduction,
realignment or similar measure as determined by the Plan
Administrator and (A) the Associate receives severance pay under
the Associate Transition Program (or any successor program) upon
termination of employment, or (B) if not eligible to receive such
severance pay, the Associate is notified in writing by an
authorized officer of the Company or Subsidiary that the
termination is as a result of such action. Upon termination of an
Associate's employment under the circumstances described in the
preceding sentence, each Option shall become vested and
exercisable to the extent the Option would have become vested and
exercisable on the next anniversary of the Grant Date, had the
Associate's employment continued until such date.
(ii) The Associate's employment with the Company
and its Subsidiaries ends as a result of a sale of assets or the
stock of a Subsidiary as determined by the Plan Administrator,
provided that the Associate is notified in writing by an
authorized officer of the Company or Subsidiary that the
termination is as a result of such sale. Upon termination of an
Associate's employment under the circumstances described in the
preceding sentence, each Option shall become vested and
exercisable to the extent the Option would have become vested and
exercisable on the next anniversary of the Grant Date, had the
Associate's employment continued until such date.
(d) Option Exercisable in Full Upon Change in Control.
Each Option granted to an Associate shall become fully (100%)
vested and exercisable upon the occurrence of a Change in
Control.
(e) Forfeiture. To the extent an Option is not vested
under this Section 5.6, it shall be cancelled immediately upon
the Associate's termination of employment with the Company and
its Subsidiaries. Options previously vested under this Section
5.6 may be forfeited pursuant to the provisions of Section
5.7(d).
5.7 Exercise after Termination or Death.
(a) Exercise after Termination of Employment Other
Than for Retirement, Death or Gross Misconduct. Upon termination
of an Associate's employment with the Company and its
Subsidiaries for any reason (including, without limitation, due
to the Associate's Disability), other than termination on account
of Retirement, death, or gross misconduct, each Option to the
extent then vested and exercisable shall remain vested and
exercisable for a period of ninety (90) calendar days following
the last day of employment, but not to exceed the fifth
anniversary of the Grant Date of the Option. The Option shall be
cancelled immediately upon the expiration of such period.
(b) Exercise After Retirement. Upon termination of an
Associate's employment with the Company and its Subsidiaries due
to the Associate's Retirement, each Option shall remain vested
and exercisable for a period of one year (365 days) following the
last day of employment, but not to exceed the fifth anniversary
of the Grant Date of the Option. The Option shall be cancelled
immediately upon the expiration of such period.
(c) Exercise After Death. Upon termination of an
Associate's employment with the Company and its Subsidiaries due
to the Associate's death, each Option shall remain vested and
exercisable for a period of one year (365 days) following the
date of the Associate's death, but not to exceed the fifth
anniversary of the Grant Date of the Option. The Option shall be
cancelled immediately upon the expiration of such period.
(d) Termination Involving Gross Misconduct. If an
Associate is terminated by the Company or any Subsidiary for
cause for gross misconduct as determined by the Plan
Administrator, each Option granted to such Associate shall be
immediately cancelled upon such termination of employment. Gross
misconduct includes, but is not limited to, acts of dishonesty,
such as theft, embezzlement, and falsification of the Company's
or Subsidiary's records with intent to deceive; breach of trust;
knowing violation of rules established by the Company or the
Subsidiary; and any crime determined by the Company or the
Subsidiary to result in termination of employment.
(e) Effect of Return to Employment. If a Participant
returns to employment with the Company or any Subsidiary during
the applicable post-termination exercise period, then the Option
shall continue to be exercisable to the extent vested at the
beginning of such period, but the Option shall not thereafter be
restored or further vest for any reason.
5.8 Option Statements. Each grant of an Option shall be
evidenced by an Option statement in such form as the Plan
Administrator may from time to time determine. Each Option
statement shall specify the number of Shares subject to the
Option, the Option price and such other information as the Plan
Administrator shall determine.
5.9 Exercise of Option. A Participant may exercise some or
all of the Shares then vested and exercisable under an Option.
The Plan Administrator may establish procedures (including
procedures restricting the frequency or method of exercise)
governing the exercise of Options. In general, subject to such
specific provisions, a Participant shall exercise an Option as
follows:
(a) Types of Exercise. The Participant shall submit an
Option exercise request to the Service Center specifying the
Option and number of Shares being exercised. The exercise request
shall also specify which of the following types of exercise the
Participant is making:
(i) A regular Option exercise.
(ii) An Option exercise and sale of all Shares
being purchased through the Option exercise.
(iii) An Option exercise and sale of
sufficient shares to cover the Option price (and applicable
withholding taxes and transaction fees) of the Shares being
purchased through the Option exercise, with the remainder of the
Shares to be issued to the Participant.
(b) Regular Option Exercise. If the Participant
requests a regular Option exercise under (a)(i) above, the
Participant shall deliver the full Option price in cash (together
with an amount sufficient to pay applicable withholding taxes and
any transaction fee) to the Service Center at the time of
exercise. The Service Center shall immediately transfer such
funds to the Company. As soon as practicable thereafter, the
Shares shall be delivered to the Participant.
(c) Option Exercise and Sale of Shares. If the
Participant requests an Option exercise and sale of Shares under
(a)(ii) or (iii) above, the Service Center shall sell the
applicable number of Shares as soon as practicable following
receipt of such request and, upon settlement of the trade,
transfer to the Company an amount equal to the Option price for
the Shares being purchased through the Option exercise. As soon
as practicable thereafter, the Shares or proceeds from the sale
of Shares, as applicable (in either case less applicable
withholding taxes and any transaction fees), shall be delivered
to the Participant.
(d) Restrictions on Exercise. The Plan Administrator
may establish from time to time procedures for restricting the
exercise of Awards on any given day as the result of excessive
volume of exercise requests or any other problem in the
established system for processing Award exercise requests.
Article 6. Non-U.S. Associates
6.1 Applicability. This Article shall apply to each
Associate who would qualify as an Eligible Associate, except for
the fact that the Associate does not meet the requirements of
Section 5.2(a).
6.2 Schedule of Countries Where Awards Are Feasible. The
Plan Administrator shall determine, in his or her sole
discretion, whether it is feasible under local law, custom and
practice to grant Awards under the Plan to Associates described
in Section 6.1 in each country outside the United States on each
Grant Date. The Plan Administrator shall approve a schedule
specifying by country whether an Option or SAR is to be granted
under this Article. The schedule may differentiate among
categories of Associates (including international assignees) and
locations within a country.
6.3 Terms of Option and SAR. If the Plan Administrator has
determined on the schedule described in Section 6.2 that it is
feasible to grant an Option or SAR at a non-U.S. location for a
Grant Date, each Associate under this Article specified in the
schedule shall be granted an Option or SAR, as applicable, on
such Grant Date. Each such Option shall be granted under and
shall be subject to the terms in Article 5 as though the
Associate were an Eligible Associate, except for such
modifications or additional terms and conditions as the Plan
Administrator deems appropriate under Section 6.5. Each SAR shall
be subject to Section 6.4.
6.4 Stock Appreciation Rights. An SAR shall confer on the
holder a right to receive payment from the Company, upon
exercise, equal to the product of (a) multiplied by (b) below:
(a) The difference between the Fair Market Value of a
Share on the date of exercise over the Fair Market Value of a
Share on the Grant Date of the SAR.
(b) The number of Shares with respect to which the SAR
is exercised.
SARs shall be settled in cash, unless the Plan Administrator
determines that settlement should be in Shares. Each SAR shall be
subject to Sections 5.5 through 5.8, as though the reference to
the term "Option" in such section were a reference to the term
"SAR," except for such modifications or additional terms and
conditions as the Plan Administrator deems appropriate under
Section 6.5. The Participant shall exercise an SAR by submitting
an SAR exercise request to the Service Center in the same manner
as a request for an Option exercise and sale of all Shares being
exercised.
6.5 Special Terms. In order to facilitate the making of any
Award under this Article, the Plan Administrator may provide for
such modifications and additional terms and conditions ("special
terms") in Awards to Participants who are employed by the Company
or any Subsidiary outside the United States (or who are foreign
nationals temporarily within the United States) as the Plan
Administrator may consider necessary or appropriate to
accommodate differences in local law, policy or custom or to
facilitate administration of the Plan. The special terms may
provide that the grant of an Award is subject to (a) applicable
governmental or regulatory approval or other compliance with
local legal requirements and/or (b) the execution by the
Participant and return to the Service Center of a written
instrument in the form specified by the Plan Administrator. In
the event such conditions are not satisfied, the grant shall be
void. The Plan Administrator may approve such appendices or
supplements to or amendments, restatements, sub-plans, or
alternative versions of the Plan as he or she may consider
necessary or appropriate for purposes of implementing any special
terms, without thereby affecting the terms of the Plan as in
effect for any other purpose.
6.6 No Acquired Rights. No individual in any country shall
have any right to receive an Award, except as expressly provided
for under the Plan. All Awards made at any time are subject to
the prior approval of the Plan Administrator.
Article 7. Other Provisions
7.1 Nontransferability of Awards. No Award may be sold.
transferred, pledged, assigned, or otherwise alienated or
hypothecated, voluntarily or involuntarily, other than by will or
by the laws of descent and distribution, and any attempt to do so
shall be void. Notwithstanding anything contained in the
preceding sentence, the Company shall have the right to offset
from the exercise of any Award any amounts due and owing from the
Participant to the Company or any Subsidiary to the extent
permitted by law.
An Award granted to a Participant shall be exercisable
during his or her lifetime only by such Participant or, in the
event the Participant becomes legally incapacitated, the
Participant's legal representative. After a Participant's death,
an Award shall be exercisable by any person that may be empowered
to do so under the deceased Participant's will, or if the
Participant failed to make a testamentary disposition of the
Award or shall die intestate, by such Participant's administrator
or other legal representative with appropriate powers under
applicable law.
7.2 Rights as a Shareholder. A Participant granted an Award
shall have no rights as a shareholder of the Company with respect
to the Shares covered by such Award except to the extent that
Shares are issued to the Participant upon the exercise of the
Award.
7.3 Employment. Nothing in the Plan shall interfere with or
limit in any way the right of the Company and its Subsidiaries to
terminate any Participant's employment at any time, nor confer
upon any Participant any right to continue in the employ of the
Company or any Subsidiary.
For purposes of this Plan, a Participant's move between the
Company and a Subsidiary, or between Subsidiaries, shall not be
deemed to be a termination of employment. However, termination of
employment shall be deemed to occur upon a change in ownership of
the Participant's employer such that the Participant's employer
ceases to be the Company or one of its Subsidiaries.
7.4 Withholding Taxes. The Company shall have the right to
deduct or withhold from the proceeds of any exercise of an Award,
including the delivery of Shares, an amount sufficient to cover
withholding required by law for any federal, state or local taxes
(including, without limitation, social insurance or other payroll
levies outside the United States) or to take such other action as
may be necessary to satisfy any such withholding obligations.
Where Shares are used to satisfy required tax withholding, such
shares shall be valued at the Fair Market Value as of the
exercise date of the applicable Award.
7.5 Indemnification. Provisions for the indemnification of
officers and directors of the Company and its Subsidiaries in
connection with the administration of the Plan shall be as set
forth in the Company's Certificate of Incorporation and Bylaws as
in effect from time to time.
7.6 Successors. All obligations of the Company under the
Plan with respect to Awards granted shall be binding on any
successor to the Company, whether the existence of such successor
is the result of a direct or indirect purchase, merger,
consolidation, or otherwise, of all or substantially all of the
business and/or assets of the Company.
Article 8. Legal Construction
8.1 Gender and Number. Unless the context plainly indicates
otherwise, words in any gender include the other genders and the
singular includes the plural and vice versa.
8.2 Severability. In the event any provision of the Plan
shall be held illegal or invalid for any reason, the illegality
or invalidity shall not affect the remaining parts of the Plan,
and the Plan shall be construed and enforced as if the illegal or
invalid provision had not been included.
8.3 Requirements of Law. The granting of Awards and the
issuance of Shares under the Plan shall be subject to all
applicable laws, rules, and regulations, and to such approvals by
any governmental agencies or national securities exchanges as may
be required.
8.4 Governing Law. To the extent not preempted by Federal
law, the Plan, and all Awards made under the Plan, shall be
construed in accordance with and governed by the laws of the
State of Delaware.
8.5 Entire Plan. This document is a complete statement of
the Plan. As of its Effective Date this document supersedes all
prior plans, representations and proposals, written or oral,
relating to the matters set forth herein. The Company shall not
be bound by or liable to any person for any representation,
promise or inducement made by any employee or agent of it which
is not embodied in this document or in any authorized written
amendment to the Plan.
