As filed with the Securities and Exchange Commission on September 28, 1998
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
September 25, 1998
NATIONSBANK CORPORATION
(To be renamed "BankAmerica Corporation")
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
1-6523
(Commission File Number)
56-0906609
(IRS Employer Identification No.)
NationsBank Corporate Center
Charlotte, North Carolina
(Address of principal executive offices)
28255
(Zip Code)
(704) 386-5000
(Registrant's telephone number, including area code)
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ITEM 5. OTHER EVENTS.
A. MATTERS RELATED TO THE DELAWARE REINCORPORATION AND BANKAMERICA MERGER.
Effective September 25, 1998, NationsBank Corporation, a North Carolina
corporation ("NationsBank"), was reincorporated from North Carolina to Delaware
by forming a new, wholly owned Delaware subsidiary named NationsBank (DE)
Corporation ("NationsBank (DE)"), having no assets or liabilities other than
nominal assets or liabilities, and merging NationsBank with and into NationsBank
(DE) (the "Reincorporation Merger"), with NationsBank (DE) as the surviving
corporation in the Reincorporation Merger and being named "NationsBank
Corporation." The Reincorporation Merger was consummated in accordance with the
terms and conditions of the Plan of Reincorporation Merger by and between
NationsBank and NationsBank (DE), dated as of August 3, 1998 (the
"Reincorporation Merger Agreement"). Pursuant to the Reincorporation Merger
Agreement, NationsBank (DE) acquired all of the assets and assumed all the
liabilities and obligations of NationsBank.
As previously announced, NationsBank and BankAmerica Corporation, a
Delaware corporation ("BankAmerica"), have entered into an Agreement and Plan of
Reorganization, dated as of April 10, 1998 (the "Merger Agreement"), pursuant to
which BankAmerica will merge with and into NationsBank (DE) (the "Merger"), with
NationsBank (DE) as the surviving corporation in the Merger. In connection with
the Merger, NationsBank (DE) will change its name to "BankAmerica Corporation."
(The surviving corporation is referred to as the "Registrant" hereinafter.) The
Reincorporation Merger and the Merger were approved by the shareholders of
NationsBank at a Special Meeting of Shareholders held on September 24, 1998. The
Merger was approved by the shareholders of BankAmerica at a Special Meeting of
Shareholders held on September 24, 1998. A copy of the press release announcing
NationsBank's shareholder approval is filed as Exhibit 99.1 to this Current
Report on Form 8-K. The Merger is expected to close on September 30, 1998.
Pursuant to the Merger Agreement, upon consummation of the Merger on
September 30, 1998 (the "Effective Date"), each share of BankAmerica common
stock, $1.5625 par value per share (the "BankAmerica Common Stock"), will be
converted into the right to receive 1.1316 shares (the "Exchange Ratio") of the
Registrant's common stock ("Registrant Common Stock"), with cash in lieu of
fractional shares. The Registrant's Registration Statement on Form S-4
(Registration No. 333-60553), which was declared effective by the Securities and
Exchange Commission on August 4, 1998 (the "Registration Statement"), sets forth
certain information regarding the Merger, the Registrant, NationsBank and
BankAmerica.
The Registrant is the successor issuer to NationsBank under Rule 12g-3(a)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The
Registrant's Common Stock is, therefore, deemed registered under Section 12(b)
of the Exchange Act.
B. DESCRIPTION OF REGISTRANT COMMON STOCK.
The following is an updated description of Registrant Common Stock, which
has been previously filed with the Securities and Exchange Commission under the
Exchange Act, and updated and amended from time to time. To the extent the
following description is inconsistent with prior filings, it modifies and
supersedes such filings.
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GENERAL
Prior to the Reincorporation Merger, the Registrant was a North Carolina
corporation governed by its North Carolina Articles of Incorporation (the
"NationsBank Articles") and Bylaws (the "NationsBank Bylaws") and the North
Carolina Business Corporation Act (the "NCBCA"). The Registrant is now a
Delaware corporation governed by its Delaware Amended and Restated Certificate
of Incorporation (the "Registrant's Certificate") and Bylaws, which will become
effective on September 30, 1998 (the "Registrant's Bylaws"), and the Delaware
General Corporation Law (the "DGCL"). A copy of the Registrant's Certificate and
the Registrant's Bylaws are filed as Exhibits 3.1 and 3.2 to this Current Report
on Form 8-K.
The Registrant's Certificate is substantially the same as the NationsBank
Articles, except as described herein, including the fact that the authorized
capitalization of the Registrant was increased. The authorized capital stock of
the Registrant now consists of 5,000,000,000 shares of Registrant Common Stock,
par value $0.01 per share, and 100,000,000 shares of Registrant Preferred Stock.
As of July 29, 1998, there were issued and outstanding 962,509,438 shares of
NationsBank Common Stock and 1,988,134 shares of NationsBank Preferred Stock,
which were converted in the Reincorporation Merger into the same number of
shares of Registrant Common Stock and Registrant Preferred Stock as were then
outstanding, and 686,450,826 shares of BankAmerica Common Stock, which will be
converted in the Merger at the Exchange Ratio into approximately 776,787,755
shares of Registrant Common Stock. As of July 29, 1998, 105,907,211 shares of
NationsBank Common Stock were reserved for issuance under various employee and
director benefit plans of NationsBank and upon conversion of the 6.25%
Convertible Debentures, due 2011, the NationsBank ESOP Preferred Stock or
NationsBank Series BB Preferred Stock, and pursuant to the NationsBank
SharesDirect Plan. Also, as of July 29, 1998, there were 129,213,998 shares of
BankAmerica Common Stock (equivalent to 146,218,560 shares of Registrant Common
Stock at the Exchange Ratio) reserved for issuance under various employee
benefit plans of BankAmerica and pursuant to the BankAmerica Shareholder
Investment Plan. After taking into account the shares reserved as described
above, the Registrant will have approximately 3,000,000,000 authorized shares of
Registrant Common Stock available for other corporate purposes as of the
Effective Time. The availability for issue of shares by the directors of the
Registrant without further action by shareholders (except as may be required by
applicable stock exchange requirements) would enable the Board of the Registrant
to consider additional transactions, including mergers and acquisitions, in
which shares of the Registrant are to be issued, and could also be viewed as
enabling the directors to take certain actions, including issuing shares,
warrants or rights to acquire shares which might make it more difficult for
persons seeking to obtain control of the Registrant. The Registrant has no
current plans to issue any shares other than as described herein, pursuant to
the Merger Agreement and employee benefit plans of the Registrant.
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REGISTRANT COMMON STOCK
GENERAL. Registrant Common Stock is listed on the New York Stock Exchange
and the Pacific Stock Exchange and will begin trading on October 1 under the
symbol "NBC." Registrant Common Stock is also listed on the London Stock
Exchange and certain shares of Registrant Common Stock are listed on the Tokyo
Stock Exchange.
ChaseMellon Shareholder Services, L.L.C. is the transfer agent and
registrar for the Registrant Common Stock.
VOTING AND OTHER RIGHTS. The holders of Registrant Common Stock are
entitled to one vote per share. Directors are to be elected by a plurality of
the votes cast, and shareholders do not have the right to cumulate their votes
in the election of directors. In general, a majority of votes cast with respect
to a matter will be sufficient to authorize action upon routine matters;
however, (i) amendments to the Registrant's Certificate must be approved by the
affirmative vote of the holders of a majority of the voting power of the
outstanding voting shares and the affirmative vote of the holders of a majority
of the outstanding shares of each class entitled to vote thereon as a class, and
(ii) a merger or dissolution of the Registrant, or the sale of all or
substantially all of its assets, must be approved by the affirmative vote of the
holders of a majority of the voting power of the outstanding voting shares.
In the event of liquidation, holders of Registrant Common Stock would be
entitled to receive pro rata any assets legally available for distribution to
shareholders of the Registrant with respect to shares held by them, subject to
any prior rights of any Registrant Preferred Stock (as described below) then
outstanding.
Registrant Common Stock does not have any preemptive rights, redemption
privileges, sinking fund privileges or conversion rights. The shares of
Registrant Common Stock are fully paid and nonassessable.
DIVIDENDS. The holders of Registrant Common Stock are entitled to receive
such dividends as the Registrant's Board of Directors may declare out of funds
legally available for such payments. The payment of dividends by the Registrant
is subject to the restrictions of Delaware law applicable to the declaration of
dividends by a corporation. A corporation generally may not authorize and make
dividends if, after giving effect thereto, it would be unable to meet its debts
as they become due in the usual course of business or if the corporation's total
assets would be less than the sum of its total liabilities plus the amount that
would be needed, if it were to be dissolved at the time of distribution, to
satisfy claims upon dissolution of shareholders who have preferential rights
superior to the rights of the holders of its common stock. In addition, the
payment of dividends to shareholders is subject to any prior rights of
outstanding preferred stock.
As a bank holding company, the ability of the Registrant to pay dividends
will be affected by the ability of its banking subsidiaries to pay dividends.
The ability of such banking subsidiaries,
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as well as of the Registrant, to pay dividends in the future currently is, and
could be further, influenced by bank regulatory requirements and capital
guidelines.
REGISTRANT PREFERRED STOCK
The Registrant has authorized 100,000,000 shares of Registrant Preferred
Stock and may issue such preferred stock in one or more series, each with such
preferences, limitations, designations, conversion rights, voting rights,
distribution rights, voluntary and involuntary liquidation rights and other
rights as it may determine. NationsBank had designated (i) 35,045 shares of
Series B Preferred Stock, of which 8,836 shares were issued and outstanding as
of July 29, 1998, (ii) 3,000,000 shares of ESOP Preferred Stock, of which
1,972,730 shares were issued and outstanding as of July 29, 1998 and (iii)
20,000,000 shares of Series BB Preferred Stock, of which 6,568 shares were
issued and outstanding as of July 29, 1998. In the Reincorporation Merger, the
Registrant designated mirror classes of preferred stock and converted each share
of NationsBank Preferred Stock into a share of Registrant Preferred Stock with
identical preferences, rights and designations (except that the Registrant
Preferred Stock was issued under and governed by Delaware law instead of North
Carolina law).
THE FOLLOWING ARE SUMMARIES OF THE REGISTRANT SERIES B PREFERRED STOCK,
REGISTRANT ESOP PREFERRED STOCK, AND REGISTRANT SERIES BB PREFERRED STOCK, WHICH
SUMMARIES DESCRIBE THEIR MATERIAL PROVISIONS AND ARE QUALIFIED IN THEIR ENTIRETY
BY REFERENCE TO THEIR COMPLETE TERMS CONTAINED IN THE REGISTRANT'S CERTIFICATE.
REGISTRANT ESOP PREFERRED STOCK
All shares of Registrant ESOP Preferred Stock are held by the trustee of
the ESOP Trust under the Registrant's 401(k) Plan. Registrant ESOP Preferred
Stock ranks senior to Registrant Common Stock and junior to Registrant Series B
Preferred Stock with respect to dividends and distributions upon liquidation.
PREFERENTIAL RIGHTS. Shares of Registrant ESOP Preferred Stock have no
preemptive or preferential rights to purchase or subscribe for shares of
Registrant capital stock of any class, and are not subject to any sinking fund
or other obligation of Registrant to repurchase or retire the series, except as
discussed below.
DIVIDENDS. Each share of Registrant ESOP Preferred Stock is entitled to an
annual dividend, subject to certain adjustments, of $3.30 per share, payable
semiannually. Unpaid dividends accumulate as of the date on which they first
became payable, without interest. So long as any shares of Registrant ESOP
Preferred Stock are outstanding, no dividend may be declared, paid or set apart
for payment on any other series of stock ranking on a parity with Registrant
ESOP Preferred Stock as to dividends, unless like dividends have been declared
and paid, or set apart for payment, on Registrant ESOP Preferred Stock for all
dividend payment periods ending on or before the dividend payment date for such
parity stock, ratably in proportion to their
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respective amounts of accumulated and unpaid dividends. The Registrant generally
may not declare, pay or set apart for payment any dividends (except for, among
other things, dividends payable solely in shares of stock ranking junior to
Registrant ESOP Preferred Stock as to dividends or upon liquidation) on, make
any other distribution on, or make payment on account of the purchase,
redemption or other retirement of, any other class or series of Registrant
capital stock ranking junior to Registrant ESOP Preferred Stock as to dividends
or upon liquidation, until full cumulative dividends on the Registrant ESOP
Preferred Stock have been declared and paid or set apart for payment when due.
VOTING RIGHTS. A holder of Registrant ESOP Preferred Stock is entitled to
vote on all matters submitted to a vote of the holders of Registrant Common
Stock and votes together with the holders of Registrant Common Stock as one
class. Except as otherwise required by applicable law, the holder of Registrant
ESOP Preferred Stock has no special voting rights. To the extent that the holder
of such shares is entitled to vote, each share is entitled to the number of
votes equal to the number of shares of Registrant Common Stock into which such
share of Registrant ESOP Preferred Stock could be converted on the record date
for determining the shareholders entitled to vote, rounded to the nearest whole
vote.
Shares of the Registrant ESOP Preferred Stock are convertible into
Registrant Common Stock at a conversion rate equal to 1.68 shares of Registrant
Common Stock per share of Registrant ESOP Preferred Stock, subject to certain
customary anti-dilution adjustments. Accordingly, each share of Registrant ESOP
Preferred Stock is entitled to two votes on all matters submitted to a vote of
shareholders.
DISTRIBUTIONS. In the event of any voluntary or involuntary dissolution,
liquidation or winding-up of Registrant, a holder of the Registrant ESOP
Preferred Stock will be entitled to receive out of the assets of the Registrant
available for distribution to shareholders, subject to the rights of the holders
of any Registrant Preferred Stock ranking senior to or on a parity with
Registrant ESOP Preferred Stock as to distributions upon liquidation,
dissolution or winding-up but before any amount will be paid or distributed
among the holders of Registrant Common Stock or any other shares ranking junior
to Registrant ESOP Preferred Stock as to such distributions, liquidating
distributions of $42.50 per share plus all accrued and unpaid dividends thereon
to the date fixed for distribution. If, upon any voluntary or involuntary
dissolution, liquidation or winding-up of the Registrant, the amounts payable
with respect to Registrant ESOP Preferred Stock and any other stock ranking on a
parity therewith as to any such distribution are not paid in full, the holder of
Registrant ESOP Preferred Stock and such other stock will share ratably in any
distribution of assets in proportion to the full respective preferential amounts
to which they are entitled. After payment of the full amount of the liquidating
distribution to which it is entitled, a holder of Registrant ESOP Preferred
Stock will not be entitled to any further distribution of assets by the
Registrant. Neither a merger or consolidation of the Registrant with or into any
other corporation, nor a merger or consolidation of any other corporation with
or into the Registrant nor a sale, transfer or lease of all or any portion of
the Registrant's assets, will be deemed to be a dissolution, liquidation or
winding-up of the Registrant.
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REDEMPTION. Registrant ESOP Preferred Stock is redeemable, in whole or in
part, at the option of the Registrant, at any time. The redemption price for the
shares of Registrant ESOP Preferred Stock will depend upon the time of
redemption. Specifically, the redemption price for the 12-month period that
began on July 1, 1998 is $42.83 per share and, on and after July 1, 1999, the
redemption price will be $42.50 per share. The redemption price may be paid in
cash or shares of Registrant Common Stock. In each case, the redemption price
also must include all accrued and unpaid dividends to the date of redemption. To
the extent that Registrant ESOP Preferred Stock is treated as Tier 1 capital for
bank regulatory purposes, the approval of the Federal Reserve Board may be
required for redemption of Registrant ESOP Preferred Stock.
The Registrant is required to redeem shares of Registrant ESOP Preferred
Stock at the option of the holder of such shares to the extent necessary either
to provide for distributions required to be made under the Registrant's 401(k)
Plan or to make payments of principal, interest or premium due and payable on
any indebtedness incurred by the holder of the shares for the benefit of the
ESOP Trust under the Registrant's 401(k) Plan. The redemption price in such case
will be the greater of $42.50 per share plus accrued and unpaid dividends to the
date of redemption or the fair market value of the aggregate number of shares of
Registrant Common Stock into which a share of Registrant ESOP Preferred Stock
then is convertible.
REGISTRANT SERIES B PREFERRED STOCK
PREFERENTIAL RIGHTS. The Registrant may, without the consent of holders of
Registrant Series B Preferred Stock, issue preferred stock with superior or
equal rights or preferences. The shares of Registrant Series B Preferred Stock
rank prior to Registrant ESOP Preferred Stock and Registrant Common Stock.
DIVIDENDS. Holders of shares of Registrant Series B Preferred Stock are
entitled to receive, when and as declared by the Registrant Board, out of any
funds legally available for such purpose, cumulative cash dividends at an annual
dividend rate per share of 7% of the stated value thereof, payable quarterly.
Dividends on Registrant Series B Preferred Stock are cumulative, and no cash
dividends can be declared or paid on any shares of Registrant Common Stock
unless full cumulative dividends on Registrant Series B Preferred Stock have
been paid or declared and funds sufficient for the payment thereof set apart.
VOTING RIGHTS. Each share of Registrant Series B Preferred Stock has equal
voting rights, share for share, with each share of Registrant Common Stock.
LIQUIDATION RIGHTS. In the event of the dissolution, liquidation or
winding up of the Registrant, the holders of Registrant Series B Preferred Stock
are entitled to receive, after payment of the full liquidation preference on
shares of any class of preferred stock ranking superior to Registrant Series B
Preferred Stock (if any such shares are then outstanding) but before any
distribution on shares of Registrant Common Stock, liquidating dividends of $100
per share plus accumulated dividends.
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REDEMPTION. Shares of Registrant Series B Preferred Stock are redeemable,
in whole or in part, at the option of the holders thereof, at the redemption
price of $100 per share plus accumulated dividends, provided that (i) full
cumulative dividends have been paid, or declared and funds sufficient for
payment set apart, upon any class or series of preferred stock ranking superior
to Registrant Series B Preferred Stock; and (ii) the Registrant is not then in
default or arrears with respect to any sinking or analogous fund or call for
tenders obligation or agreement for the purchase or any class or series of
preferred stock ranking superior to Registrant Series B Preferred Stock.
REGISTRANT SERIES BB PREFERRED STOCK
DIVIDENDS. Holders of the Registrant Series BB Preferred Stock are
entitled to receive, when and as declared by the Registrant Board, out of assets
of the Registrant legally available for payment, an annual dividend of $2.50 per
share. Dividends are payable quarterly on January 1, April 1, July 1, and
October 1 of each year. Dividends on the Registrant Series BB Preferred Stock
are cumulative from the date of issue. Each dividend is payable to holders of
record as it appears on the stock register of the Registrant on the record dates
fixed by the Registrant Board. No interest, or sum of money in lieu of interest,
is payable in respect of any dividend payment or payments on the Registrant
Series BB Preferred Stock which may be in arrears.
CONVERSION RIGHTS. Subject to the terms and conditions set forth below,
holders of shares of Registrant Series BB Preferred Stock have the right, at
their option, to convert such shares into shares of Registrant Common Stock at
any time into fully paid and nonassessable shares of Registrant Common Stock
(calculated as to each conversion to the nearest 1/1,000 of a share) at the rate
of 6.17215 shares of Registrant Common Stock for each share of Registrant Series
BB Preferred Stock surrendered for conversion (the "Conversion Rate"). The
Conversion Rate is subject to adjustment from time to time to reflect Registrant
Common Stock splits and similar alterations in Registrant Common Stock.
REDEMPTION. Shares of Registrant Series BB Preferred Stock are redeemable
at the option of the Registrant, in whole or in part, at a redemption price of
$25 per share plus accrued and unpaid dividends to the redemption date. Shares
of Registrant Series BB Preferred Stock are not subject to a sinking fund.
LIQUIDATION RIGHTS. In the event of any liquidation, dissolution or
winding up of the affairs of the Registrant, whether voluntary or involuntary,
holders of Registrant Series BB Preferred Stock will be entitled to receive out
of the assets of the Registrant available for distribution to shareholders an
amount equal to $25 per share plus an amount equal to accrued and unpaid
dividends thereon to and including the date of such distribution, and no more,
before any distribution will be made to the holders of any class of stock of the
Registrant ranking junior to the Registrant Series BB Preferred Stock as to the
distribution of assets.
VOTING. Holders of Registrant Series BB Preferred Stock have no voting
rights except as required by law or if any quarterly dividend payable on the
Registrant Series BB Preferred Stock
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is in arrears, in which case holders of Registrant Series BB Preferred Stock are
entitled to vote together with the holders of Registrant Common Stock at the
next meeting of Registrant Shareholders and at each subsequent meeting of
Registrant Shareholders unless all dividends in arrears have been paid or
declared and set apart for payment prior to the date of the meeting. In those
cases where holders of Registrant Series BB Preferred Stock are entitled to
vote, each holder is entitled to cast the number of votes equal to the number of
whole shares of Registrant Common Stock into which his or her Registrant Series
BB Preferred Stock is then convertible.
EFFECTIVE LAW
The rights of holders of Registrant Common Stock and Registrant Preferred
Stock are dependent, directly or indirectly, on applicable state and federal
statutes and regulations which are subject to change from time to time. The
Registrant has not undertaken to update the foregoing description in each case
where such a change may affect the rights of shareholders.
C. Share Repurchase
The Registrant has announced its intent to repurchase up to 20 million
shares of Registrant Common Stock in the open market or in private transactions.
A copy of the press release announcing the repurchase is filed as Exhibit 99.2
to this Current Report on Form 8-K.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
The following exhibits are filed herewith:
EXHIBIT NO. DESCRIPTION OF EXHIBIT
3.1 Amended and Restated Certificate of Incorporation of
the Registrant.
3.2 Bylaws of the Registrant.
99.1 Press release dated September 24, 1998 announcing
shareholder approval
99.2 Press release dated September 24, 1998 announcing
intent to repurchase up to 20 million shares of common
stock
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NATIONSBANK CORPORATION
By: /s/ TERESA M. BRENNER
_____________________________
Teresa M. Brenner
Assistant General Counsel
Dated: September 28, 1998
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EXHIBIT INDEX
Exhibit No. Description of Exhibit
- ----------- ----------------------
3.1 Amended and Restated Certificate of
Incorporation of the Registrant.
3.2 Bylaws of the Registrant.
99.1 Press release dated September 24, 1998 announcing
shareholder approval
99.2 Press release dated September 24, 1998 announcing
intent to repurchase up to 20 million shares of common
stock
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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NATIONSBANK (DE) CORPORATION
NationsBank (DE) Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies
that (i) the Certificate of Incorporation of the Corporation was originally
filed on July 31, 1998, (ii) this Amended and Restated Certificate of
Incorporation has been duly adopted in accordance with Sections 242 and 245 of
the General Corporation Law of the State of Delaware, and (iii) the Certificate
of Incorporation of the Corporation is hereby amended to read in its entirety as
follows:
1. The name of the Corporation is NationsBank (DE)
Corporation.
2. The purposes for which the Corporation is organized are to
engage in any lawful act or activity for which corporations may be organized and
incorporated under the General Corporation Law of the State of Delaware.
3. The number of shares, par value $.01 per share, the
Corporation is authorized to issue is Five Billion One Hundred Million
(5,100,000,000), divided into the following classes:
Class Number of Shares
- --------------------------------------------------------- ------------------
Common.................................................. 5,000,000,000
Preferred............................................... 100,000,000
The class of common ("Common Stock") has unlimited voting rights
and, after satisfaction of claims, if any, of the holders of preferred shares,
is entitled to receive the net assets of the Corporation upon distribution.
The Board of Directors of the Corporation shall have full power and
authority to establish one or more series within the class of preferred shares
(the "Preferred Shares"), to define the designations, preferences, limitations
and relative rights (including conversion rights) of shares within such class
and to determine all variations between series.
The Board of Directors of the Corporation has designated,
established and authorized the following series of Preferred Shares:
(a) 7% Cumulative Redeemable Preferred Stock, Series B.
A. Designation.
The designation of this series is "7% Cumulative Redeemable
Preferred Stock, Series B" (hereinafter referred to as the "Series B Preferred
Stock") and the number of shares constituting such series is Thirty-Five
Thousand Forty-Five (35,045). Shares of Series B Preferred Stock shall have a
stated value of $100.00 per share.
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B. Dividends.
The holders of record of the shares of the Series B Preferred Stock
shall be entitled to receive, when and as declared by the Board of Directors of
the Corporation, out of any funds legally available for such purpose, cumulative
cash dividends at an annual dividend rate per share of 7% of the stated value
thereof, which amount is $7.00 per annum, per share, and no more. Such dividends
shall be payable each calendar quarter at the rate of $1.75 per share on such
dates as shall be fixed by resolution of the Board of Directors of the
Corporation. The date from which dividends on such shares shall be cumulative
shall be the first day after said shares are issued. Accumulations of dividends
shall not bear interest. No cash dividend shall be declared, paid or set apart
for any shares of Common Stock unless all dividends on all shares of the Series
B Preferred Stock at the time outstanding for all past dividend periods and for
the then current dividend shall have been paid, or shall have been declared and
a sum sufficient for the payment thereof, shall have been set apart. Subject to
the foregoing provisions of this paragraph B, cash dividends or other cash
distributions as may be determined by the Board of Directors of the Corporation
may be declared and paid upon the shares of the Common Stock of the Corporation
from time to time out of funds legally available therefor, and the shares of the
Series B Preferred Stock shall not be entitled to participate in any such cash
dividend or other such cash distribution so declared and paid or made on such
shares of Common Stock.
C. Redemption.
From and after October 31, 1988, any holder may, by written request,
call upon the Corporation to redeem all or any part of said holder's shares of
said Series B Preferred Stock at a redemption price of $100.00 per share plus
accumulated unpaid dividends to the date said request for redemption is received
by the Corporation and no more (the "Redemption Price"). Any such request for
redemption shall be accompanied by the certificates for which redemption is
requested, duly endorsed or with appropriate stock power attached, in either
case with signature guaranteed. Upon receipt by the Corporation of any such
request for redemption from any holder of the Series B Preferred Stock, the
Corporation shall forthwith redeem said stock at the Redemption Price, provided
that: (i) full cumulative dividends have been paid or declared and set apart for
payment upon all shares of any series of preferred stock ranking superior to the
Series B Preferred Stock as to dividends or other distributions (collectively
the "Superior Stock"); and (ii) the Corporation is not then in default or in
arrears with respect to any sinking or analogous fund or call for tenders
obligation or agreement for the purchase, redemption or retirement of any shares
of Superior Stock. In the event that, upon receipt of a request for redemption,
either or both of the conditions set forth in clauses (i) and (ii) above are not
met, the Corporation shall forthwith return said request to the submitting
shareholder along with a statement that the Corporation is unable to honor such
request and explanation of the reasons therefor. From and after the receipt by
the Corporation of a request for redemption from any holder of said Series B
Preferred Stock, which request may be honored consistent with the foregoing
provisions, all rights of such holder in the Series B Preferred Stock for which
redemption is requested shall cease and terminate, except only the right to
receive the Redemption Price thereof, but without interest.
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D. Liquidation Preference.
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of the Series B
Preferred Stock shall be entitled to receive, subject to the provisions of
paragraph G and before any payment shall be made to the holders of the shares of
Common Stock, the amount of $100.00 per share, plus accumulated dividends. After
payment to the holders of the Series B Preferred Stock of the full amount as
aforesaid, the holders of the Series B Preferred Stock as such shall have no
right or claim to any of the remaining assets which shall be distributed ratably
to the holders of the Common Stock. If, upon any such liquidation, dissolution
or winding up, the assets available therefor are not sufficient to permit
payments to the holders of Series B Preferred Stock of the full amount as
aforesaid, then subject to the provisions of paragraph G, the holders of the
Series B Preferred Stock then outstanding shall share ratably in the
distribution of assets in accordance with the sums which would be payable if
such holders were to receive the full amounts as aforesaid.
E. Sinking Fund.
There shall be no sinking fund applicable to the shares of Series B
Preferred Stock.
F. Conversion.
The shares of Series B Preferred Stock shall not be convertible into
any shares of Common Stock or any other class of shares, nor exchanged for any
shares of Common Stock or any other class of shares.
G. Superior Stock.
The Corporation may issue stock with preferences superior or equal
to the shares of the Series B Preferred Stock without the consent of the holders
thereof.
H. Voting Rights.
Each share of the Series B Preferred Stock shall be entitled to
equal voting rights, share for share, with each share of the Common Stock.
(b) ESOP Convertible Preferred Stock, Series C.
The shares of the ESOP Convertible Preferred Stock, Series C, of the
Corporation shall be designated "ESOP Convertible Preferred Stock, Series C,"
and the number of shares constituting such series shall be 3,000,000. The ESOP
Convertible Preferred Stock, Series C, shall hereinafter be referred to as the
"ESOP Preferred Stock."
A. Special Purpose Restricted Transfer Issue.
Shares of ESOP Preferred Stock shall be issued only to a trustee
acting on behalf of an employee stock ownership plan or other employee benefit
plan of the Corporation or any subsidiary of the Corporation. In the event of
any transfer of shares of ESOP Preferred Stock to
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any person other than any such plan trustee or the Corporation, the shares of
ESOP Preferred Stock so transferred, upon such transfer and without any further
action by the Corporation or the holder, shall be automatically converted into
shares of Common Stock on the terms otherwise provided for the conversion of
shares of ESOP Preferred Stock into shares of Common Stock pursuant to paragraph
E hereof and no such transferee shall have any of the voting powers, preferences
and relative, participating, optional or special rights ascribed to shares of
ESOP Preferred Stock hereunder but, rather, only the powers and rights
pertaining to the Common Stock into which such shares of ESOP Preferred Stock
shall be so converted. Certificates representing shares of ESOP Preferred Stock
shall be legended to reflect such restrictions on transfer. Notwithstanding the
foregoing provisions of this paragraph A, shares of ESOP Preferred Stock (i) may
be converted into shares of Common Stock as provided by paragraph E hereof and
the shares of Common Stock issued upon such conversion may be transferred by the
holder thereof as permitted by law and (ii) shall be redeemable by the
Corporation upon the terms and conditions provided by paragraphs F, G and H
hereof.
B. Dividends and Distributions.
(1) Subject to the provisions for adjustment hereinafter set forth,
the holders of shares of ESOP Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available therefor, cash dividends ("Preferred Dividends") in an amount equal to
$3.30 per share per annum, and no more, payable semi-annually, one-half on the
first day of January and one-half on the first day of July of each year (each a
"Dividend Payment Date") to holders of record at the start of business on such
Dividend Payment Date. Preferred Dividends shall accrue on a daily basis whether
or not the Corporation shall have earnings or surplus at the time, but Preferred
Dividends on the shares of ESOP Preferred Stock for any period less than a full
semi-annual period between Dividend Payment Dates shall be computed on the basis
of a 360-day year of 30-day months. Accumulated but unpaid Preferred Dividends
shall accumulate as of the Dividend Payment Date on which they first become
payable, but no interest shall accrue on accumulated but unpaid Preferred
Dividends.
(2) So long as any ESOP Preferred Stock shall be outstanding, no
dividend shall be declared or paid or set apart for payment on any other series
of stock ranking on a parity with the ESOP Preferred Stock as to dividends,
unless there shall also be or have been declared and paid or set apart for
payment on the ESOP Preferred Stock, like dividends for all dividend payment
periods of the ESOP Preferred Stock ending on or before the dividend payment
date of such parity stock, ratably in proportion to the respective amounts of
dividends accumulated and unpaid through such dividend payment period on the
ESOP Preferred Stock and accumulated and unpaid or payable on such parity stock
through the dividend payment period on such parity stock next preceding such
Dividend Payment Date. In the event that full cumulative dividends on the ESOP
Preferred Stock have not been declared and paid or set apart for payment when
due, the Corporation shall not declare or pay or set apart for payment any
dividends or make any other distributions on, or make any payment on account of
the purchase, redemption or other retirement of any other class of stock or
series thereof of the Corporation ranking, as to dividends or as to
distributions in the event of a liquidation, dissolution or winding-up of the
Corporation, junior to the ESOP Preferred Stock until full cumulative dividends
on the ESOP Preferred Stock shall have been paid or declared and provided for;
provided, however, that the foregoing shall not apply to
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(i) any dividend payable solely in any shares of any stock ranking, as to
dividends or as to distributions in the event of the liquidation, dissolution or
winding-up of the Corporation, junior to the ESOP Preferred Stock, or (ii) the
acquisition of shares of any stock ranking, as to dividends or as to
distributions in the event of a liquidation, dissolution or winding-up of the
Corporation, junior to the ESOP Preferred Stock either (A) pursuant to any
employee or director incentive or benefit plan or arrangement (including any
employment, severance or consulting agreement) of the Corporation or any
subsidiary of the Corporation heretofore or hereafter adopted or (B) in exchange
solely for shares of any other stock ranking junior to the ESOP Preferred Stock.
C. Voting Rights.
The holders of shares of ESOP Preferred Stock shall have the
following voting rights:
(1) The holders of ESOP Preferred Stock shall be entitled to vote on
all matters submitted to a vote of the holders of Common Stock of the
Corporation, voting together with the holders of Common Stock as one class. Each
share of the ESOP Preferred Stock shall be entitled to the number of votes equal
to the number of shares of Common Stock into which such share of ESOP Preferred
Stock could be converted on the record date for determining the shareholders
entitled to vote, rounded to the nearest whole vote; it being understood that
whenever the "Conversion Ratio" (as defined in paragraph E hereof) is adjusted
as provided in paragraph I hereof, the voting rights of the ESOP Preferred Stock
shall also be similarly adjusted.
(2) Except as otherwise required by the General Corporation Law of
the State of Delaware or set forth in paragraph C(l), holders of ESOP Preferred
Stock shall have no special voting rights and their consent shall not be
required for the taking of any corporate action.
D. Liquidation, Dissolution or Winding-Up.
(1) Upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation, the holders of ESOP Preferred Stock shall be
entitled to receive out of the assets of the Corporation which remain after
satisfaction in full of all valid claims of creditors of the Corporation and
which are available for payment to shareholders and subject to the rights of the
holders of any stock of the Corporation ranking senior to or on a parity with
the ESOP Preferred Stock in respect of distributions upon liquidation,
dissolution or winding-up of the Corporation, before any amount shall be paid or
distributed among the holders of Common Stock or any other shares ranking junior
to the ESOP Preferred Stock in respect of the distributions upon liquidation,
dissolution or winding-up of the Corporation, liquidating distributions in the
amount of $42.50 per share, plus an amount equal to all accrued and unpaid
dividends thereon to the date fixed for distribution, and no more. If upon any
liquidation, dissolution or winding-up of the Corporation, the amounts payable
with respect to the ESOP Preferred Stock and any other stock ranking as to any
such distribution on a parity with the ESOP Preferred Stock are not paid in
full, the holders of the ESOP Preferred Stock and such other stock shall share
ratably in any distribution of assets in proportion to the full respective
preferential amounts to which they are entitled. After payment of the full
amount to which they are entitled as provided by the foregoing provisions of
this para-
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graph D(l), the holders of shares of ESOP Preferred Stock shall not be
entitled to any further right or claim to any of the remaining assets of the
Corporation.
(2) Neither the merger or consolidation of the Corporation with or
into any other corporation, nor the merger or consolidation of any other
corporation with or into the Corporation, nor the sale, transfer or lease of all
or any portion of the assets of the Corporation, shall be deemed to be a
dissolution, liquidation or winding-up of the affairs of the Corporation for
purposes of this paragraph D, but the holders of ESOP Preferred Stock shall
nevertheless be entitled in the event of any such merger or consolidation to the
rights provided by paragraph H hereof.
(3) Written notice of any voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, stating the payment date or dates
when, and the place or places where, the amounts distributable to holders of
ESOP Preferred Stock in such circumstances shall be payable, shall be given by
first-class mail, postage prepaid, mailed not less than twenty (20) days prior
to any payment date stated therein, to the holders of ESOP Preferred Stock, at
the address shown on the books of the Corporation or any transfer agent for the
ESOP Preferred Stock.
E. Conversion into Common Stock.
(1) A holder of shares of ESOP Preferred Stock shall be entitled, at
any time prior to the close of business on the date fixed for redemption of such
shares pursuant to paragraph F, G or H hereof, to cause any or all of such
shares to be converted into shares of Common Stock at a conversion rate equal to
the ratio of 1.0 share of ESOP Preferred Stock to 1.68 shares of Common Stock
(as adjusted as hereinafter provided, the "Conversion Ratio"). The Conversion
Ratio set forth above is subject to adjustment pursuant to this Certificate of
Incorporation.
(2) Any holder of shares of ESOP Preferred Stock desiring to convert
such shares into shares of Common Stock shall surrender the certificate or
certificates representing the shares of ESOP Preferred Stock being converted,
duly assigned or endorsed for transfer to the Corporation (or accompanied by
duly executed stock powers relating thereto), at the principal executive office
of the Corporation or the offices of the transfer agent for the ESOP Preferred
Stock or such office or offices in the continental United States of an agent for
conversion as may from time to time be designated by notice to the holders of
the ESOP Preferred Stock by the Corporation or the transfer agent for the ESOP
Preferred Stock, accompanied by written notice of conversion. Such notice of
conversion shall specify (i) the number of shares of ESOP Preferred Stock to be
converted and the name or names in which such holder wishes the certificate or
certificates for Common Stock and for any shares of ESOP Preferred Stock not to
be so converted to be issued, and (ii) the address to which such holder wishes
delivery to be made of such new certificates to be issued upon such conversion.
(3) Upon surrender of a certificate representing a share or shares
of ESOP Preferred Stock for conversion, the Corporation shall issue and send by
hand delivery (with receipt to be acknowledged) or by first-class mail, postage
prepaid, to the holder thereof or to such holder's designee, at the address
designated by such holder, a certificate or certificates for the number of
shares of Common Stock to which such holder shall be entitled upon conversion.
In the event that there shall have been surrendered a certificate or
certificates representing shares of
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ESOP Preferred Stock, only part of which are to be converted, the Corporation
shall issue and deliver to such holder or such holder's designee a new
certificate or certificates representing the number of shares of ESOP Preferred
Stock which shall not have been converted.
(4) The issuance by the Corporation of shares of Common Stock upon a
conversion of shares of ESOP Preferred Stock into shares of Common Stock made at
the option of the holder thereof shall be effective as of the earlier of (i) the
delivery to such holder or such holder's designee of the certificate or
certificates representing the shares of Common Stock issued upon conversion
thereof or (ii) the commencement of business on the second business day after
the surrender of the certificate or certificates for the shares of ESOP
Preferred Stock to be converted, duly assigned or endorsed for transfer to the
corporation (or accompanied by duly executed stock powers relating thereto) as
provided hereby. On and after the effective date of conversion, the person or
persons entitled to receive the Common Stock issuable upon such conversion shall
be treated for all purposes as the record holder or holders of such shares of
Common Stock, but no allowance or adjustment shall be made in respect of
dividends payable to holders of Common Stock in respect of any period prior to
such effective date. The Corporation shall not be obligated to pay any dividends
which shall have been declared and shall be payable to holders of shares of ESOP
Preferred Stock on a Dividend Payment Date if such Dividend Payment Date for
such dividend shall coincide with or be on or subsequent to the effective date
of conversion of such shares.
(5) The Corporation shall not be obligated to deliver to holders of
ESOP Preferred Stock any fractional share or shares of Common Stock issuable
upon any conversion of such shares of ESOP Preferred Stock, but in lieu thereof
may make a cash payment in respect thereof in any manner permitted by law.
(6) The Corporation shall at all times reserve and keep available
out of its authorized and unissued Common Stock, solely for issuance upon
the conversion of shares of ESOP Preferred Stock as herein provided, free from
any preemptive rights, such number of shares of Common Stock as shall from time
to time be issuable upon the conversion of all shares of ESOP Preferred Stock
then outstanding. The Corporation shall prepare and shall use its best efforts
to obtain and keep in force such governmental or regulatory permits or other
authorizations as may be required by law, and shall comply with all requirements
as to registration or qualification of the Common Stock, in order to enable the
Corporation lawfully to issue and deliver to each holder of record of ESOP
Preferred Stock such number of shares of its Common Stock as shall from time to
time be sufficient to effect the conversion of all shares of ESOP Preferred
Stock then outstanding and convertible into shares of Common Stock.
F. Redemption At the Option of the Corporation.
(1) The ESOP Preferred Stock shall be redeemable, in whole or in
part, at the option of the Corporation at any time, at a redemption price per
share (except as to redemption pursuant to paragraph F(3)) of $42.83 prior to
July 1, 1999 and $42.50 thereafter, plus, in each case, an amount equal to all
accrued and unpaid dividends thereon to the date fixed for redemption. Payment
of the redemption price shall be made by the Corporation in cash or shares of
Common Stock, or a combination thereof, as permitted by paragraph F(5). From and
after the
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date fixed for redemption, dividends on shares of ESOP Preferred Stock called
for redemption will cease to accrue, such shares will no longer be deemed to be
outstanding and all rights in respect of such shares of the Corporation shall
cease, except the right to receive the redemption price. If less than all of the
outstanding shares of ESOP Preferred Stock are to be redeemed, the Corporation
shall either redeem a portion of the shares of each holder determined pro rata
based on the number of shares held by each holder or shall select the shares to
be redeemed by lot, as may be determined by the Board of Directors of the
Corporation.
(2) Unless otherwise required by law, notice of redemption will be
sent to the holders of ESOP Preferred Stock at the address shown on the books of
the Corporation or any transfer agent for the ESOP Preferred Stock by
first-class mail, postage prepaid, mailed not less than twenty (20) days nor
more than sixty (60) days prior to the redemption date. Each such notice shall
state: (i) the redemption date; (ii) the total number of shares of the ESOP
Preferred Stock to be redeemed and, if fewer than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (iii) the redemption price; (iv) the place or places where certificates
for such shares are to be surrendered for payment of the redemption price; (v)
that dividends on the shares to be redeemed will cease to accrue on such
redemption date; and (vi) the conversion rights of the shares to be redeemed,
the period within which conversion rights may be exercised, and the Conversion
Ratio and number of shares of Common Stock issuable upon conversion of a share
of ESOP Preferred Stock at the time. These notice provisions may be supplemented
if necessary in order to comply with optional redemption provisions for
preferred stock which may be required under the Internal Revenue Code of 1986,
as amended, or the Employee Retirement Income Security Act of 1974, as amended
("ERISA"). Upon surrender of the certificates for any shares so called for
redemption and not previously converted (properly endorsed or assigned for
transfer, if the Board of Directors of the Corporation shall so require and the
notice shall so state), such shares shall be redeemed by the Corporation at the
date fixed for redemption and at the applicable redemption price set forth in
this paragraph F.
(3) In the event of a change in the federal tax law of the United
States of America which has the effect of precluding the Corporation from
claiming any of the tax deductions for dividends paid on the ESOP Preferred
Stock when such dividends are used as provided under Section 404(k)(2) of the
Internal Revenue Code of 1986, as amended and in effect on the date shares of
ESOP Preferred Stock are initially issued, the Corporation may, within 180 days
following the effective date of such tax legislation and implementing
regulations of the Internal Revenue Service, if any, in its sole discretion and
notwithstanding anything to the contrary in paragraph F(l), elect to redeem any
or all such shares for the amount payable in respect of the shares upon
liquidation of the Corporation pursuant to paragraph D.
(4) In the event the C&S/Sovran Retirement Savings, ESOP and Profit
Sharing Plan (as amended, together with any successor plan, the "Plan") is
terminated, the Corporation shall, notwithstanding anything to the contrary in
paragraph F(l), redeem all shares of ESOP Preferred Stock for the amount payable
in respect of the shares upon redemption of the ESOP Preferred Stock pursuant to
paragraph F(1) hereof.
(5) The Corporation, at its option, may make payment of the
redemption price required upon redemption of shares of ESOP Preferred Stock in
cash or in shares of Common
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Stock, or in a combination of such shares and cash, any such shares to be valued
for such purpose at their Fair Market Value (as defined in paragraph I(7)
hereof).
G. Other Redemption Rights.
Shares of ESOP Preferred Stock shall be redeemed by the Corporation
at a price which is the greater of the Conversion Value (as defined in paragraph
I) of the ESOP Preferred Stock on the date fixed for redemption or a redemption
price of $42.50 per share plus accrued and unpaid dividends thereon to the date
fixed for redemption, for shares of Common Stock (any such shares of Common
Stock to be valued for such purpose as provided by paragraph F(5) hereof), at
the option of the holder, at any time and from time to time upon notice to the
Corporation given not less than five (5) business days prior to the date fixed
by the Corporation in such notice for such redemption, when and to the extent
necessary (i) to provide for distributions required to be made under, or to
satisfy an investment election provided to participants in accordance with, the
Plan to participants in the Plan or (ii) to make payment of principal, interest
or premium due and payable (whether as scheduled or upon acceleration) on any
indebtedness incurred by the holder or Trustee under the Plan for the benefit of
the Plan.
H. Consolidation, Merger, etc.
(1) In the event that the Corporation shall consummate any
consolidation or merger or similar transaction, however named, pursuant to which
the outstanding shares of Common Stock are by operation of law exchanged solely
for or changed, reclassified or converted solely into stock of any successor or
resulting company (including the Corporation and any company that directly or
indirectly owns all of the outstanding capital stock of such successor or
resulting company) that constitutes "qualifying employer securities" with
respect to a holder of ESOP Preferred Stock within the meaning of Section 409(1)
of the Internal Revenue Code of 1986, as amended, and Section 407(d)(5) of
ERISA, or any successor provisions of law, and, if applicable, for a cash
payment in lieu of fractional shares, if any, the shares of ESOP Preferred Stock
of such holder shall be assumed by and shall become preferred stock of such
successor or resulting company, having in respect of such company insofar as
possible the same powers, preferences and relative, participating, optional or
other special rights (including the redemption rights provided by paragraphs F,
G and H hereof), and the qualifications, limitations or restrictions thereon,
that the ESOP Preferred Stock had immediately prior to such transaction, except
that after such transaction each share of the ESOP Preferred Stock shall be
convertible, otherwise on the terms and conditions provided by paragraph E
hereof, into the qualifying employer securities so receivable by a holder of the
number of shares of Common Stock into which such shares of ESOP Preferred Stock
could have been converted immediately prior to such transaction if such holder
of Common Stock failed to exercise any rights of election to receive any kind or
amount of stock, securities, cash or other property (other than such qualifying
employer securities and a cash payment, if applicable, in lieu of fractional
shares) receivable upon such transaction (provided that, if the kind or amount
of qualifying employer securities receivable upon such transaction is not the
same for each non-electing share, then the kind and amount of qualifying
employer securities receivable upon such transaction for each non-electing share
shall be the kind and amount so receivable per share by a plurality of the
non-electing shares). The rights of the ESOP Preferred Stock as preferred stock
of such successor or resulting company shall successively be subject to
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adjustments pursuant to paragraph I hereof after any such transaction as nearly
equivalent to the adjustments provided for by such paragraph prior to such
transaction. The Corporation shall not consummate any such merger, consolidation
or similar transaction unless all then outstanding shares of the ESOP Preferred
Stock shall be assumed and authorized by the successor or resulting company as
aforesaid.
(2) In the event that the Corporation shall consummate any
consolidation or merger or similar transaction, however named, pursuant to which
the outstanding shares of Common Stock are by operation of law exchanged for or
changed, reclassified or converted into other stock or securities or cash or any
other property, or any combination thereof, other than any such consideration
which is constituted solely of qualifying employer securities (as referred to in
paragraph H(l)) and cash payments, if applicable, in lieu of fractional shares,
all outstanding shares of ESOP Preferred Stock shall, without any action on the
part of the Corporation or any holder thereof (but subject to paragraph H(3)),
be deemed converted by virtue of such merger, consolidation or similar
transaction immediately prior to such consummation into the number of shares of
Common Stock into which such shares of ESOP Preferred Stock could have been
converted at such time, and each share of ESOP Preferred Stock shall, by virtue
of such transaction and on the same terms as apply to the holders of Common
Stock, be converted into or exchanged for the aggregate amount of stock,
securities, cash or other property (payable in like kind) receivable by a holder
of the number of shares of Common Stock into which such shares of ESOP Preferred
Stock could have been converted immediately prior to such transaction if such
holder of Common Stock failed to exercise any rights of election as to the kind
or amount of stock, securities, cash or other property receivable upon such
transaction (provided that, if the kind or amount of stock, securities, cash or
other property receivable upon such transaction is not the same for each
non-electing share, then the kind and amount of stock, securities, cash or other
property receivable upon such transaction for each non-electing share shall be
the kind and amount so receivable per share by a plurality of the non-electing
shares).
(3) In the event the Corporation shall enter into any agreement
providing for any consolidation or merger or similar transaction described in
paragraph H(2), then the Corporation shall as soon as practicable thereafter
(and in any event at least ten (10) business days before consummation of such
transaction) give notice of such agreement and the material terms thereof to
each holder of ESOP Preferred Stock and each such holder shall have the right to
elect, by written notice to the Corporation, to receive, upon consummation of
such transaction (if and when such transaction is consummated), from the
Corporation or the successor of the Corporation, in redemption and retirement of
such ESOP Preferred Stock, a cash payment equal to the amount payable in respect
of shares of ESOP Preferred Stock upon redemption pursuant to paragraph F(l)
hereof. No such notice of redemption shall be effective unless given to the
Corporation prior to the close of business on the second business day prior to
consummation of such transaction, unless the Corporation or the successor of the
Corporation shall waive such prior notice, but any notice of redemption so given
prior to such time may be withdrawn by notice of withdrawal given to the
Corporation prior to the close of business on the second business day prior to
consummation of such transaction.
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I. Anti-dilution Adjustments.
(1) In the event the Corporation shall, at any time or from time to
time while any of the shares of the ESOP Preferred Stock are outstanding, (i)
pay a dividend or make a distribution in respect of the Common Stock in shares
of Common Stock, (ii) subdivide the outstanding shares of Common Stock, or (iii)
combine the outstanding shares of Common Stock into a smaller number of shares,
in each case whether by reclassification of shares, recapitalization of the
Corporation (including a recapitalization effected by a merger or consolidation
to which paragraph H hereof does not apply) or otherwise, the Conversion Ratio
in effect immediately prior to such action shall be adjusted by multiplying such
Conversion Ratio by the fraction the numerator of which is the number of shares
of Common Stock outstanding immediately before such event and the denominator of
which is the number of shares of Common Stock outstanding immediately after such
event. An adjustment made pursuant to this paragraph I(1) shall be given effect,
upon payment of such a dividend or distribution, as of the record date for the
determination of shareholders entitled to receive such dividend or distribution
(on a retroactive basis) and in the case of a subdivision or combination shall
become effective immediately as of the effective date thereof.
(2) In the event that the Corporation shall, at any time or from
time to time while any of the shares of ESOP Preferred Stock are outstanding,
issue to holders of shares of Common Stock as a dividend or distribution,
including by way of a reclassification of shares or a recapitalization of the
Corporation, any right or warrant to purchase shares of Common Stock (but not
including as such a right or warrant any security convertible into or
exchangeable for shares of Common Stock) at a purchase price per share less than
the Fair Market Value (as hereinafter defined) of a share of Common Stock on the
date of issuance of such right or warrant, then, subject to the provisions of
paragraphs I(5) and I(6), the Conversion Ratio shall be adjusted by multiplying
such Conversion Ratio by the fraction the numerator of which shall be the number
of shares of Common Stock outstanding immediately before such issuance of rights
or warrants plus the number of shares of Common Stock which could be purchased
at the Fair Market Value of a share of Common Stock at the time of such issuance
for the maximum aggregate consideration payable upon exercise in full of all
such rights or warrants and the denominator of which shall be the number of
shares of Common Stock outstanding immediately before such issuance of rights or
warrants plus the maximum number of shares of Common Stock that could be
acquired upon exercise in full of all such rights and warrants.
(3) In the event the Corporation shall, at any time and from time to
time while any of the shares of ESOP Preferred Stock are outstanding, issue,
sell or exchange shares of Common Stock (other than pursuant to any right or
warrant to purchase or acquire shares of Common Stock (including as such a right
or warrant any security convertible into or exchangeable for shares of Common
Stock) and other than pursuant to any dividend reinvestment plan or employee or
director incentive or benefit plan or arrangement, including any employment,
severance or consulting agreement, of the Corporation or any subsidiary of the
Corporation heretofore or hereafter adopted) for a consideration having a Fair
Market Value on the date of such issuance, sale or exchange less than the Fair
Market Value of such shares on the date of such issuance, sale or exchange,
then, subject to the provisions of paragraphs I(5) and (6), the Conversion Ratio
shall be adjusted by multiplying such Conversion Ratio by the fraction the
numerator of which shall be the sum of (i) the Fair Market Value of all the
shares of Common Stock outstanding on the day
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immediately preceding the first public announcement of such issuance, sale or
exchange plus (ii) the Fair Market Value of the consideration received by the
Corporation in respect of such issuance, sale or exchange of shares of Common
Stock, and the denominator of which shall be the product of (i) the Fair Market
Value of a share of Common Stock on the day immediately preceding the first
public announcement of such issuance, sale or exchange multiplied by (ii) the
sum of the number of shares of Common Stock outstanding on such day plus the
number of shares of Common Stock so issued, sold or exchanged by the
Corporation. In the event the Corporation shall, at any time or from time to
time while any shares of ESOP Preferred Stock are outstanding, issue, sell or
exchange any right or warrant to purchase or acquire shares of Common Stock
(including as such a right or warrant any security convertible into or
exchangeable for shares of Common Stock), other than any such issuance to
holders of shares of Common Stock as a dividend or distribution (including by
way of a reclassification of shares or a recapitalization of the Corporation)
and other than pursuant to any dividend reinvestment plan or employee or
director incentive or benefit plan or arrangement (including any employment,
severance or consulting agreement) of the Corporation or any subsidiary of the
Corporation heretofore or hereafter adopted, for a consideration having a Fair
Market Value on the date of such issuance, sale or exchange less than the
Non-Dilutive Amount (as hereinafter defined), then, subject to the provisions of
paragraphs I(5) and (6), the Conversion Ratio shall be adjusted by multiplying
such Conversion Ratio by a fraction the numerator of which shall be the sum of
(a) the Fair Market Value of all the shares of Common Stock outstanding on the
day immediately preceding the first public announcement of such issuance, sale
or exchange plus (b) the Fair Market Value of the consideration received by the
Corporation in respect of such issuance, sale or exchange of such right or
warrant plus (c) the Fair Market Value at the time of such issuance of the
consideration which the Corporation would receive upon exercise in full of all
such rights or warrants, and the denominator of which shall be the product of
(a) the Fair Market Value of a share of Common Stock on the day immediately
preceding the first public announcement of such issuance, sale or exchange
multiplied by (b) the sum of the number of shares of Common Stock outstanding on
such day plus the maximum number of shares of Common Stock which could be
acquired pursuant to such right or warrant at the time of the issuance, sale or
exchange of such right or warrant (assuming shares of Common Stock could be
acquired pursuant to such right or warrant at such time).
(4) In the event the Corporation shall, at any time or from time to
time while any of the shares of ESOP Preferred Stock are outstanding, make any
Extraordinary Distribution (as hereinafter defined) in respect of the Common
Stock, whether by dividend, distribution, reclassification of shares or
recapitalization of the Corporation (including a recapitalization or
reclassification effected by a merger or consolidation to which paragraph H
hereof does not apply) or effect a Pro Rata Repurchase (as hereinafter defined)
of Common Stock, the Conversion Ratio in effect immediately prior to such
Extraordinary Distribution or Pro Rata Repurchase shall, subject to paragraphs
I(5) and (6), be adjusted by multiplying such Conversion Ratio by a fraction the
numerator of which shall be (a) the product of (i) the number of shares of
Common Stock outstanding immediately before such Extraordinary Distribution or
Pro Rata Repurchase multiplied by (ii) the Fair Market Value (as herein defined)
of a share of Common Stock on the Valuation Date (as hereinafter defined) with
respect to an Extraordinary Distribution, or on the applicable expiration date
(including all extensions thereof) of any tender offer which is a Pro Rata
Repurchase, or on the date of purchase with respect to any Pro Rata Repurchase
which is not a tender
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offer, as the case may be, minus (b) the Fair Market Value of the Extraordinary
Distribution or the aggregate purchase price of the Pro Rata Repurchase, as the
case may be, and the denominator of which shall be the product of (i) the number
of shares of Common Stock outstanding immediately before such Extraordinary
Distribution or Pro Rata Repurchase minus, in the case of a Pro Rata Repurchase,
the number of shares of Common Stock repurchased by the Corporation multiplied
by (ii) the Fair Market Value of a share of Common Stock on the record date with
respect to an Extraordinary Distribution or on the applicable expiration date
(including all extensions thereof) of any tender offer which is a Pro Rata
Repurchase or on the date of purchase with respect to any Pro Rata Repurchase
which is not a tender offer, as the case may be. The Corporation shall send each
holder of ESOP Preferred Stock (x) notice of its intent to make any
Extraordinary Distribution and (y) notice of any offer by the Corporation to
make a Pro Rata Repurchase, in each case at the same time as, or as soon as
practicable after, such offer is first communicated (including by announcement
of a record date in accordance with the rules of any stock exchange on which the
Common Stock is listed or admitted to trading) to holders of Common Stock. Such
notice shall indicate the intended record date and the amount and nature of such
dividend or distribution, or the number of shares subject to such offer for a
Pro Rata Repurchase and the purchase price payable by the Corporation pursuant
to such offer, as well as the Conversion Ratio and the number of shares of
Common Stock into which a share of ESOP Preferred Stock may be converted at such
time.
(5) Notwithstanding any other provisions of this paragraph I, the
Corporation shall not be required to make any adjustment of the Conversion Ratio
unless such adjustment would require an increase or decrease of at least one
percent (1%) in the Conversion Ratio. Any lesser adjustment shall be carried
forward and shall be made no later than the time of, and together with, the next
subsequent adjustment which, together with any adjustment or adjustments so
carried forward, shall amount to an increase or decrease of at least one percent
(1%) in the Conversion Ratio.
(6) If the Corporation shall make any dividend or distribution on
the Common Stock or issue any Common Stock, other capital stock or other
security of the Corporation or any rights or warrants to purchase or acquire any
such security, which transaction does not result in an adjustment to the
Conversion Ratio pursuant to the foregoing provisions of this paragraph I, the
Board of Directors of the Corporation shall consider whether such action is of
such a nature that an adjustment to the Conversion Ratio should equitably be
made in respect of such transaction. If in such case the Board of Directors of
the Corporation determines that the adjustment to the Conversion Ratio should be
made, an adjustment shall be made effective as of such date, as determined by
the Board of Directors of the Corporation. The determination of the Board of
Directors of the Corporation as to whether an adjustment to the Conversion Ratio
should be made pursuant to the foregoing provisions of this paragraph I(6), and,
if so, as to what adjustment should be made and when, shall be final and binding
on the Corporation and all shareholders of the Corporation. The Corporation
shall be entitled to make such additional adjustments in the Conversion Ratio,
in addition to those required by the foregoing provisions of this paragraph I,
as shall be necessary in order that any dividend or distribution in shares of
capital stock of the Corporation, subdivision, reclassification or combination
of shares of stock of the Corporation or any recapitalization of the Corporation
shall not be taxable to holders of the Common Stock.
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(7) For purposes of this paragraph I, the following definitions
shall apply:
"Conversion Value" shall mean the Fair Market Value of
the aggregate number of shares of Common Stock into which a share of
ESOP Preferred Stock is convertible.
"Extraordinary Distribution" shall mean any dividend or other
distribution (effected while any of the shares of ESOP Preferred
Stock are outstanding) (a) of cash, where the aggregate amount of
such cash dividend and distribution together with the amount of all
cash dividends and distributions made during the preceding period of
12 months, when combined with the aggregate amount of all Pro Rata
Repurchases (for this purpose, including only that portion of the
aggregate purchase price of such Pro Rata Repurchase which is in
excess of the Fair Market Value of the Common Stock repurchased as
determined on the applicable expiration date (including all
extensions thereof) of any tender offer or exchange offer which is a
Pro Rata Repurchase, or the date of purchase with respect to any
other Pro Rata Repurchase which is not a tender offer or exchange
offer made during such period), exceeds Twelve and One-Half percent
(12.5%) of the aggregate Fair Market Value of all shares of Common
Stock outstanding on the record date for determining the
shareholders entitled to receive such Extraordinary Distribution and
(b) any shares of capital stock of the Corporation (other than
shares of Common Stock), other securities of the Corporation (other
than securities of the type referred to in paragraph I(2)), evidence
of indebtedness of the Corporation or any other person or any other
property (including shares of any subsidiary of the Corporation), or
any combination thereof. The Fair Market Value of an Extraordinary
Distribution for purposes of paragraph I(4) shall be the sum of the
Fair Market Value of such Extraordinary Distribution plus the amount
of any cash dividends which are not Extraordinary Distributions made
during such twelve-month period and not previously included in the
calculation of an adjustment pursuant to paragraph I(4).
"Fair Market Value" shall mean, as to shares of Common Stock
or any other class of capital stock or securities of the Corporation
or any other issuer which are publicly traded, the average of the
Current Market Prices (as hereinafter defined) of such shares or
securities for each day of the Adjustment Period (as hereinafter
defined). "Current Market Price" of publicly traded shares of Common
Stock or any other class of capital stock or other security of the
Corporation or any other issuer for a day shall mean the last
reported sales price, regular way, or, in case no sale takes place
on such day, the average of the reported closing bid and asked
prices, regular way, in either case as reported on the New York
Stock Exchange Composite Tape or, if such security is not listed or
admitted to trading on the New York Stock Exchange, on the principal
national securities exchange on which such security is listed or
admitted to trading or, if not listed or admitted to trading on any
national securities exchange, on The Nasdaq National Market or, if
such security is not quoted on Nasdaq, the average of the closing
bid and asked prices on each such day in the over-the-counter market
as reported by
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<PAGE>
Nasdaq or, if bid and asked prices for such security on each
such day shall not have been reported through Nasdaq, the average
of the bid and asked prices for such day as furnished by any
New York Stock Exchange member firm selected for such purpose by the
Board of Directors of the Corporation or a committee thereof on each
trading day during the Adjustment Period. "Adjustment Period" shall
mean the period of five (5) consecutive trading days preceding the
date as of which the Fair Market Value of a security is to be
determined. The "Fair Market Value" of any security which is not
publicly traded or of any other property shall mean the fair value
thereof as determined by an independent investment banking or
appraisal firm experienced in the valuation of such securities or
property selected in good faith by the Board of Directors of the
Corporation or a committee thereof, or, if no such investment
banking or appraisal firm is in the good faith judgment of the Board
of Directors or such committee available to make such determination,
as determined in good faith by the Board of Directors of the
Corporation or such committee.
"Non-Dilutive Amount" in respect of an issuance, sale or
exchange by the Corporation of any right or warrant to purchase or
acquire shares of Common Stock (including any security convertible
into or exchangeable for shares of Common Stock) shall mean the
remainder of (a) the product of the Fair Market Value of a share of
Common Stock on the day preceding the first public announcement of
such issuance, sale or exchange multiplied by the maximum number of
shares of Common Stock which could be acquired on such date upon the
exercise in full of such rights and warrants (including upon the
conversion or exchange of all such convertible or exchangeable
securities), whether or not exercisable (or convertible or
exchangeable) at such date, minus (b) the aggregate amount payable
pursuant to such right or warrant to purchase or acquire such
maximum number of shares of Common Stock; provided, however, that in
no event shall the Non-Dilutive Amount be less than zero. For
purposes of the foregoing sentence, in the case of a security
convertible into or exchangeable for shares of Common Stock, the
amount payable pursuant to a right or warrant to purchase or acquire
shares of Common Stock shall be the Fair Market Value of such
security on the date of the issuance, sale or exchange of such
security by the Corporation.
"Pro Rata Repurchase" shall mean any purchase of shares of
Common Stock by the Corporation or any subsidiary thereof, whether
for cash, shares of capital stock of the Corporation, other
securities of the Corporation, evidences of indebtedness of the
Corporation or any other person or any other property (including
shares of a subsidiary of the Corporation), or any combination
thereof, effected while any of the shares of ESOP Preferred Stock
are outstanding, pursuant to any tender offer or exchange offer
subject to Section 13(e) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any successor provision of law, or
pursuant to any other offer available to substantially all holders
of Common Stock; provided, however, that no purchase of shares by
the Corporation or any subsidiary thereof made in open market
transactions shall be deemed a
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<PAGE>
Pro Rata Repurchase. For purposes of this paragraph I(7),
shares shall be deemed to have been purchased by the Corporation
or any subsidiary thereof "in open market transactions" if
they have been purchased substantially in accordance with
the requirements of Rule 10b-18 as in effect under the
Exchange Act, on the date shares of ESOP Preferred Stock are
initially issued by the Corporation or on such other terms and
conditions as the Board of Directors of the Corporation or a
committee thereof shall have determined are reasonably designed to
prevent such purchases from having a material effect on the trading
market for the Common Stock.
"Valuation Date" with respect to an Extraordinary Distribution
shall mean the date that is five (5) business days prior to the
record date for such Extraordinary Distribution.
(8) Whenever an adjustment to the Conversion Ratio is required
pursuant hereto, the Corporation shall forthwith place on file with the transfer
agent for the Common Stock and the ESOP Preferred Stock if there be one, and
with the Secretary of the Corporation, a statement signed by two officers of the
Corporation, stating the adjusted Conversion Ratio determined as provided herein
and the voting rights (as appropriately adjusted) of the ESOP Preferred Stock.
Such statement shall set forth in reasonable detail such facts as shall be
necessary to show the reason and the manner of computing such adjustment,
including any determination of Fair Market Value involved in such computation.
Promptly after each adjustment to the Conversion Ratio and the related voting
rights of the ESOP Preferred Stock, the Corporation shall mail a notice thereof
to each holder of shares of the ESOP Preferred Stock.
J. Ranking; Retirement of Shares.
(1) The ESOP Preferred Stock shall rank (a) senior to the Common
Stock as to the payment of dividends and the distribution of assets on
liquidation, dissolution and winding-up of the Corporation and (b) unless
otherwise provided in the Articles of Incorporation of the Corporation or an
amendment to such Articles of Incorporation relating to a subsequent series of
Preferred Shares, junior to all other series of Preferred Shares as to the
payment of dividends and the distribution of assets on liquidation, dissolution
or winding-up.
(2) Any shares of ESOP Preferred Stock acquired by the Corporation
by reason of the conversion or redemption of such shares as provided hereby, or
otherwise so acquired, shall be retired as shares of ESOP Preferred Stock and
restored to the status of authorized but unissued shares of Preferred Shares,
undesignated as to series, and may thereafter be reissued as part of a new
series of such Preferred Shares as permitted by law.
K. Miscellaneous.
(1) All notices referred to herein shall be in writing, and all
notices hereunder shall be deemed to have been given upon the earlier of receipt
thereof or three (3) business days after the mailing thereof if sent by
registered mail (unless first-class mail shall be specifically permitted for
such notice under the terms hereof) with postage prepaid, addressed: (a) if to
the Cor-
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poration, to its office at NationsBank Corporate Center, Charlotte, North
Carolina 28255 (Attention: Treasurer) or to the transfer agent for the ESOP
Preferred Stock, or other agent of the Corporation designated as permitted
hereby or (b) if to any holder of the ESOP Preferred Stock or Common Stock, as
the case may be, to such holder at the address of such holder as listed in the
stock record books of the Corporation (which may include the records of any
transfer agent for the ESOP Preferred Stock or Common Stock, as the case may be)
or (c) to such other address as the Corporation or any such holder, as the case
may be, shall have designated by notice similarly given.
(2) The term "Common Stock" as used herein means the Corporation's
Common Stock, as the same existed at the date of filing of the Amendment to the
Corporation's Articles of Incorporation relating to the ESOP Preferred Stock or
any other class of stock resulting from successive changes or reclassification
of such Common Stock consisting solely of changes in par value, or from par
value to no par value. In the event that, at any time as a result of an
adjustment made pursuant to paragraph I hereof, the holder of any share of the
ESOP Preferred Stock upon thereafter surrendering such shares for conversion
shall become entitled to receive any shares or other securities of the
Corporation other than shares of Common Stock, the Conversion Ratio in respect
of such other shares or securities so receivable upon conversion of shares of
ESOP Preferred Stock shall thereafter be adjusted, and shall be subject to
further adjustment from time to time, in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to Common Stock
contained in paragraph I hereof, and the provisions of paragraphs A through H,
J, and K hereof with respect to the Common Stock shall apply on like or similar
terms to any such other shares or securities.
(3) The Corporation shall pay any and all stock transfer and
documentary stamp taxes that may be payable in respect of any issuance or
delivery of shares of ESOP Preferred Stock or shares of Common Stock or other
securities issued on account of ESOP Preferred Stock pursuant hereto or
certificates representing such shares or securities. The Corporation shall not,
however, be required to pay any such tax which may be payable in respect of any
transfer involved in the issuance or delivery of shares of ESOP Preferred Stock
or Common Stock or other securities in a name other than that in which the
shares of ESOP Preferred Stock with respect to which such shares or other
securities are issued or delivered were registered, or in respect of any payment
to any person with respect to any such shares or securities other than a payment
to the registered holder thereof, and shall not be required to make any such
issuance, delivery or payment unless and until the person otherwise entitled to
such issuance, delivery or payment has paid to the Corporation the amount of any
such tax or has established, to the satisfaction of the Corporation, that such
tax has been paid or is not payable.
(4) In the event that a holder of shares of ESOP Preferred Stock
shall not by written notice designate the name in which shares of Common Stock
to be issued upon conversion of such shares should be registered or to whom
payment upon redemption of shares of ESOP Preferred Stock should be made or the
address to which the certificate or certificates representing such shares, or
such payment, should be sent, the Corporation shall be entitled to register such
shares, and make such payment, in the name of the holder of such ESOP Preferred
Stock as shown on the records of the Corporation and to send the certificate or
certificates representing
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<PAGE>
such shares, or such payment, to the address of such holder shown on the
records of the Corporation.
(5) The Corporation may appoint, and from time to time discharge and
change, a transfer agent for the ESOP Preferred Stock. Upon any such appointment
or discharge of a transfer agent, the Corporation shall send notice thereof by
first-class mail, postage prepaid, to each holder of record of ESOP Preferred
Stock.
(c) $2.50 Cumulative Convertible Preferred Stock, Series BB.
A. Designation.
The designation of this series is "$2.50 Cumulative Convertible
Preferred Stock, Series BB" (hereinafter referred to as the "Series BB Preferred
Stock"), and the initial number of shares constituting such series shall be
20,000,000, which number may be increased or decreased (but not below the number
of shares then outstanding) from time to time by the Board of Directors. The
Series BB Preferred Stock shall rank prior to each of the Common Stock, the
Series B Preferred Stock and the ESOP Preferred Stock with respect to the
payment of dividends and the distribution of assets.
B. Dividend Rights.
(1) The holders of shares of Series BB Preferred Stock shall be
entitled to receive, when and as declared by the Board of Directors, out of
funds legally available therefor, cumulative preferential cash dividends,
accruing from January 1, 1998, at the annual rate of $2.50 per share, and no
more, payable quarterly on the first day of January, April, July and October of
each year (each of the quarterly periods ending on the last day of March, June,
September and December being hereinafter referred to as a "dividend period").
Dividends on the Series BB Preferred Stock shall first become payable on the
first day of January, April, July or October, as the case may be, next following
the date of issuance; provided, however, that if the first dividend period ends
within 20 days of the date of issuance, such initial dividend shall be payable
at the completion of the first full dividend period.
(2) Dividends on shares of Series BB Preferred Stock shall be
cumulative from January 1, 1998, whether or not there shall be funds legally
available for the payment thereof. Accumulations of dividends on the Series BB
Preferred Stock shall not bear interest. The Corporation shall not (i) declare
or pay or set apart for payment any dividends or distributions on any stock
ranking as to dividends junior to the Series BB Preferred Stock (other than
dividends paid in shares of such junior stock) or (ii) make any purchase or
redemption of, or any sinking fund payment for the purchase or redemption of,
any stock ranking as to dividends junior to the Series BB Preferred Stock (other
than a purchase or redemption made by issue or delivery of such junior stock)
unless all dividends payable on all outstanding shares of Series BB Preferred
Stock for all past dividend periods shall have been paid in full or declared and
a sufficient sum set apart for payment thereof; provided, however, that any
moneys theretofore deposited in any sinking fund with respect to any preferred
stock of the Corporation in compliance with the provisions of such sinking fund
may thereafter be applied to the purchase or redemption of such preferred stock
in
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accordance with the terms of such sinking fund regardless of whether at the
time of such application all dividends payable on all outstanding shares of
Series BB Preferred Stock for all past dividend periods shall have been paid in
full or declared and a sufficient sum set apart for payment thereof.
(3) All dividends declared on shares of Series BB Preferred Stock
and any other class of preferred stock or series thereof ranking on a parity as
to dividends with the Series BB Preferred Stock shall be declared pro rata, so
that the amounts of dividends declared on the Series BB Preferred Stock and such
other preferred stock for the same dividend period, or for the dividend period
of the Series BB Preferred Stock ending within the dividend period of such other
stock, shall, in all cases, bear to each other the same ratio that accrued
dividends on the shares of Series BB Preferred Stock and such other stock bear
to each other.
C. Liquidation Preference.
(1) In the event of any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, the holders of
Series BB Preferred Stock shall be entitled to receive out of the assets of the
Corporation available for distribution to shareholders an amount equal to $25
per share plus an amount equal to accrued and unpaid dividends thereon to and
including the date of such distribution, and no more, before any distribution
shall be made to the holders of any class of stock of the Corporation ranking
junior to the Series BB Preferred Stock as to the distribution of assets.
(2) In the event the assets of the Corporation available for
distribution to shareholders upon any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full the amounts payable with respect to the Series BB
Preferred Stock and any other shares of preferred stock of the Corporation
ranking on a parity with the Series BB Preferred Stock as to the distribution of
assets, the holders of Series BB Preferred Stock and the holders of such other
preferred stock shall share ratably in any distribution of assets of the
Corporation in proportion to the full respective preferential amounts to which
they are entitled.
(3) The merger or consolidation of the Corporation into or with
any other corporation, the merger or consolidation of any other corporation
into or with the Corporation or the sale of the assets of the Corporation
substantially as an entirety shall not be deemed a liquidation, dissolution or
winding up of the affairs of the Corporation within the meaning of this
paragraph C.
D. Redemption.
(1) The Corporation, at its option, may redeem all or any shares of
the Series BB Preferred Stock at any time at a redemption price (the "Redemption
Price") consisting of the sum of (i) $25 per share and (ii) an amount equal to
accrued and unpaid dividends thereon to and including the date of redemption.
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(2) If less than all the outstanding shares of Series BB Preferred
Stock are to be redeemed, the shares to be redeemed shall be selected pro rata
as nearly as practicable or by lot, as the Board of Directors may determine.
(3) Notice of any redemption shall be given by first class mail,
postage prepaid, mailed not less than 60 nor more than 90 days prior to the date
fixed for redemption to the holders of record of the shares of Series BB
Preferred Stock to be redeemed, at their respective addresses appearing on the
books of the Corporation. Notice so mailed shall be conclusively presumed to
have been duly given whether or not actually received. Such notice shall state:
(1) the date fixed for redemption; (2) the Redemption Price; (3) the right of
the holders of Series BB Preferred Stock to convert such stock into Common Stock
until the close of business on the 15th day prior to the redemption date (or the
next succeeding business day, if the 15th day is not a business day); (4) if
less than all the shares held by such holder are to be redeemed, the number of
shares to be redeemed from such holder; and (5) the place(s) where certificates
for such shares are to be surrendered for payment of the Redemption Price. If
such notice is mailed as aforesaid, and if on or before the date fixed for
redemption funds sufficient to redeem the shares called for redemption are set
aside by the Corporation in trust for the account of the holders of the shares
to be redeemed, notwithstanding the fact that any certificate for shares called
for redemption shall not have been surrendered for cancellation, on and after
the redemption date the shares represented thereby so called for redemption
shall be deemed to be no longer outstanding, dividends thereon shall cease to
accrue, and all rights of the holders of such shares as shareholders of the
corporation shall cease, except the right to receive the Redemption Price,
without interest, upon surrender of the certificate(s) representing such shares.
Upon surrender in accordance with the aforesaid notice of the certificate(s) for
any shares so redeemed (duly endorsed or accompanied by appropriate instruments
of transfer, if so required by the Corporation in such notice), the holders of
record of such shares shall be entitled to receive the Redemption Price, without
interest.
(4) At the option of the Corporation, if notice of redemption is
mailed as aforesaid, and if prior to the date fixed for redemption funds
sufficient to pay in full the Redemption Price are deposited in trust, for the
account of the holders of the shares to be redeemed, with a bank or trust
company named in such notice doing business in the Borough of Manhattan, the
City of New York, State of New York or the City of Charlotte, State of North
Carolina and having capital, surplus and undivided profits of at least $3
million, which bank or trust company also may be the Transfer Agent and/or
Paying Agent for the Series BB Preferred Stock, notwithstanding the fact that
any certificate for shares called for redemption shall not have been surrendered
for cancellation, on and after such date of deposit the shares represented
thereby so called for redemption shall be deemed to be no longer outstanding,
and all rights of the holders of such shares as shareholders of the Corporation
shall cease, except the right of the holders thereof to convert such shares in
accordance with the provisions of paragraph F at any time prior to the close of
business on the 15th day prior to the redemption date (or the next succeeding
business day, if the 15th day is not a business day), and the right of the
holders thereof to receive out of the funds so deposited in trust the Redemption
Price, without interest, upon surrender of the certificate(s) representing such
shares. Any funds so deposited with such bank or trust company in respect of
shares of Series BB Preferred Stock converted before the close of business on
the 15th day prior to the redemption date (or the next succeeding business day,
if the 15th day is not a business day) shall be returned to the Corporation upon
such conversion. Any funds so deposited
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with such a bank or trust company which shall remain unclaimed by the holders of
shares called for redemption at the end of six years after the redemption date
shall be repaid to the Corporation, on demand, and thereafter the holder of any
such shares shall look only to the Corporation for the payment, without
interest, of the Redemption Price.
(5) Any provisions of paragraph D or E to the contrary
notwithstanding, in the event that any quarterly dividend payable on the Series
BB Preferred Stock shall be in arrears and until all such dividends in arrears
shall have been paid or declared and set apart for payment, the Corporation
shall not redeem any shares of Series BB Preferred Stock unless all outstanding
shares of Series BB Preferred Stock are simultaneously redeemed and shall not
purchase or otherwise acquire any shares of Series BB Preferred Stock except in
accordance with a purchase offer made by the Corporation on the same terms to
all holders of record of Series BB Preferred Stock for the purchase of all
outstanding shares thereof.
E. Purchase by the Corporation.
(1) Except as provided in paragraph D(5), the Corporation shall be
obligated to purchase shares of Series BB Preferred Stock tendered by the holder
thereof for purchase hereunder, at a purchase price consisting of the sum of (i)
$25 per share and (ii) an amount equal to accrued and unpaid dividends thereon
to and including the date of purchase. In order to exercise his right to require
the Corporation to purchase his shares of Series BB Preferred Stock, the holder
thereof shall surrender the Certificate(s) therefor duly endorsed if the
Corporation shall so require or accompanied by appropriate instruments of
transfer satisfactory to the Corporation, at the office of the Transfer Agent(s)
for the Series BB Preferred Stock, or at such other office as may be designated
by the Corporation, together with written notice that such holder irrevocably
elects to sell such shares to the Corporation. Shares of Series BB Preferred
Stock shall be deemed to have been purchased by the Corporation immediately
prior to the close of business on the date such shares are tendered for sale to
the Corporation and notice of election to sell the same is received by the
Corporation in accordance with the foregoing provisions. As of such date the
shares so tendered for sale shall be deemed to be no longer outstanding,
dividends thereon shall cease to accrue and all rights of the holder of such
shares as a shareholder of the Corporation shall cease, except the right to
receive the purchase price.
F. Conversion Rights.
The holders of shares of Series BB Preferred Stock shall have the
right, at their option, to convert such shares into shares of Common Stock on
the following terms and conditions:
(1) Shares of Series BB Preferred Stock shall be convertible at any
time into fully paid and nonassessable shares of Common Stock (calculated as to
each conversion to the nearest 1/1,000 of a share) at the initial rate of
6.17215 shares of Common Stock for each share of Series BB Preferred Stock
surrendered for conversion (the "Conversion Rate"). The Conversion Rate shall be
subject to adjustment from time to time as hereinafter provided. No payment or
adjustment shall be made on account of any accrued and unpaid dividends on
shares of Series BB Preferred Stock surrendered for conversion prior to the
record date for the determination of shareholders entitled to such dividends or
on account of any dividends on the Common Stock issued upon such conversion
subsequent to the record date for the determination of
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shareholders entitled to such dividends. If any shares of Series BB Preferred
Stock shall be called for redemption, the right to convert the shares designated
for redemption shall terminate at the close of business on the 15th day prior to
the redemption date (or the next succeeding business day, if the 15th day is not
a business day) unless default be made in the payment of the Redemption Price.
In the event of default in the payment of the Redemption Price, the right to
convert the shares designated for redemption shall terminate at the close of
business on the business day immediately preceding the date that such default is
cured.
(2) In order to convert shares of Series BB Preferred Stock into
Common Stock, the holder thereof shall surrender the certificate(s) therefor,
duly endorsed if the Corporation shall so require, or accompanied by appropriate
instruments of transfer satisfactory to the Corporation, at the office of the
Transfer Agent(s) for the Series BB Preferred Stock, or at such other office as
may be designated by the Corporation, together with written notice that such
holder irrevocably elects to convert such shares. Such notice shall also state
the name(s) and address(es) in which such holder wishes the certificate(s) for
the shares of Common Stock issuable upon conversion to be issued. As soon as
practicable after receipt of the certificate(s) representing the shares of
Series BB Preferred Stock to be converted and the notice of election to convert
the same, the Corporation shall issue and deliver at said office a certificate
or certificates for the number of whole shares of Common Stock issuable upon
conversion of the shares of Series BB Preferred Stock surrendered for
conversion, together with a cash payment in lieu of any fraction of a share, as
hereinafter provided, to the person(s) entitled to receive the same. Shares of
Series BB Preferred Stock shall be deemed to have been converted immediately
prior to the close of business on the date such shares are surrendered for
conversion and notice of election to convert the same is received by the
Corporation in accordance with the foregoing provisions, and the person(s)
entitled to receive the Common Stock issuable upon such conversion shall be
deemed for all purposes as record holder(s) of such Common Stock as of such
date.
(3) No fractional shares of Common Stock shall be issued upon
conversion of any shares of Series BB Preferred Stock. If more than one share of
Series BB Preferred Stock is surrendered at one time by the same holder, the
number of full shares issuable upon conversion thereof shall be computed on the
basis of the aggregate number of shares so surrendered. If the conversion of any
shares of Series BB Preferred Stock results in a fractional share of Common
Stock, the Corporation shall pay cash in lieu thereof in an amount equal to such
fraction multiplied times the closing price of the Common Stock on the date on
which the shares of Series BB Preferred Stock were duly surrendered for
conversion, or if such date is not a trading date, on the next succeeding
trading date. The closing price of the Common Stock for any day shall mean the
last reported sales price regular way on such day or, in case no such sale takes
place on such day, the average of the reported closing bid and asked prices,
regular way, on the New York Stock Exchange, or, if the Common Stock is not then
listed on such Exchange, on the principal national securities exchange on which
the Common Stock is listed for trading, or, if not then listed for trading on
any national securities exchange, the average of the closing bid and asked
prices of the Common Stock as furnished by the National Quotation Bureau, Inc.,
or if the National Quotation Bureau, Inc. ceases to furnish such information, by
a comparable independent securities quotation service.
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<PAGE>
(4) In the event the Corporation shall at any time (i) pay a
dividend or make a distribution to holders of Common Stock in shares of Common
Stock, (ii) subdivide its outstanding shares of Common Stock into a larger
number of shares, or (iii) combine its outstanding shares of Common Stock into a
smaller number of shares, the Conversion Rate in effect at the time of the
record date for such dividend or distribution or the effective date of such
subdivision or combination shall be adjusted so that the holder of any shares of
Series BB Preferred Stock surrendered for conversion after such record date or
effective date shall be entitled to receive the number of shares of Common Stock
which he would have owned or have been entitled to receive immediately following
such record date or effective date had such shares of Series BB Preferred Stock
been converted immediately prior thereto.
(5) Whenever the Conversion Rate shall be adjusted as herein
provided (i) the Corporation shall forthwith keep available at the office
of the Transfer Agent(s) for the Series BB Preferred Stock a statement
describing in reasonable detail the adjustment, the facts requiring such
adjustment and the method of calculation used; and (ii) the Corporation shall
cause to be mailed by first class mail, postage prepaid, as soon as practicable
to each holder of record of shares of Series BB Preferred Stock a notice stating
that the Conversion Rate has been adjusted and setting forth the adjusted
Conversion Rate.
(6) In the event of any consolidation of the Corporation with
or merger of the Corporation into any other corporation (other than a merger in
which the Corporation is the surviving corporation) or a sale of the assets of
the Corporation substantially as an entirety, the holder of each share of Series
BB Preferred Stock shall have the right, after such consolidation, merger or
sale to convert such share into the number and kind of shares of stock or other
securities and the amount and kind of property receivable upon such
consolidation, merger or sale by a holder of the number of shares of Common
Stock issuable upon conversion of such share of Series BB Preferred Stock
immediately prior to such consolidation, merger or sale. Provision shall be made
for adjustments in the Conversion Rate which shall be as nearly equivalent as
may be practicable to the adjustments provided for in paragraph F(4). The
provisions of this paragraph F(6) shall similarly apply to successive
consolidations, mergers and sales.
(7) The Corporation shall pay any taxes that may be payable in
respect of the issuance of shares of Common Stock upon conversion of shares of
Series BB Preferred Stock, but the Corporation shall not be required to pay any
taxes which may be payable in respect of any transfer involved in the issuance
of shares of Common Stock in a name other than that in which the shares of
Series BB Preferred Stock so converted are registered, and the Corporation shall
not be required to issue or deliver any such shares unless and until the
person(s) requesting such issuance shall have paid to the Corporation the amount
of any such taxes, or shall have established to the satisfaction of the
Corporation that such taxes have been paid.
(8) The Corporation shall at all times reserve and keep available
out of its authorized but unissued Common Stock the full number of shares of
Common Stock issuable upon the conversion of all shares of Series BB Preferred
Stock then outstanding.
(9) In the event that:
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<PAGE>
(i) The Corporation shall declare a dividend or any other
distribution on its Common Stock, payable otherwise than in cash
out of retained earnings; or
(ii) The Corporation shall authorize the granting to the holders
of its Common Stock of rights to subscribe for or purchase any
shares of capital stock of any class or of any other rights; or
(iii) The Corporation shall propose to effect any consolidation
of the Corporation with or merger of the Corporation with or
into any other corporation or a sale of the assets of the
company substantially as an entirety which would result in an
adjustment under paragraph F(6),
the Corporation shall cause to be mailed to the holders of record of Series BB
Preferred Stock at least 20 days prior to the applicable date hereinafter
specified a notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution or rights or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution or rights are to be determined or (y) the date on
which such consolidation, merger or sale is expected to become effective, and
the date as of which it is expected that holders of Common Stock of record shall
be entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such consolidation, merger or sale. Failure to give
such notice, or any defect therein, shall not affect the legality or validity of
such dividend, distribution, consolidation, merger or sale.
G. Voting Rights.
Holders of Series BB Preferred Stock shall have no voting rights
except as required by law and as follows: in the event that any quarterly
dividend payable on the Series BB Preferred Stock is in arrears, the holders of
Series BB Preferred Stock shall be entitled to vote together with the holders of
Common Stock at the Corporation's next meeting of shareholders and at each
subsequent meeting of shareholders unless all dividends in arrears have been
paid or declared and set apart for payment prior to the date of such meeting.
For the purpose of this paragraph G, each holder of Series BB Preferred Stock
shall be entitled to cast the number of votes equal to the number of whole
shares of Common Stock into which his Series BB Preferred Stock is then
convertible.
H. Reacquired Shares.
Shares of Series BB Preferred Stock converted, redeemed, or
otherwise purchased or acquired by the Corporation shall be restored to the
status of authorized but unissued shares of preferred stock without designation
as to series.
I. No Sinking Fund.
Shares of Series BB Preferred Stock are not subject to the operation
of a sinking fund.
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<PAGE>
4. The address of the Corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of the Corporation's registered agent
at such address is The Corporation Trust Company.
5. No holder of any stock of the Corporation of any class now or
hereafter authorized shall have any preemptive right to purchase, subscribe for,
or otherwise acquire any shares of stock of the Corporation of any class now or
hereafter authorized, or any securities exchangeable for or convertible into any
such shares, or any warrants or other instruments evidencing rights or options
to subscribe for, purchase or otherwise acquire any such shares whether such
shares, securities, warrants or other instruments be unissued, or issued and
thereafter acquired by the Corporation.
6. To the fullest extent permitted by the General Corporation Law of
the State of Delaware, as the same exists or may hereafter be amended, a
director of the Corporation shall not be personally liable to the Corporation,
its shareholders or otherwise for monetary damage for breach of his duty as a
director. Any repeal or modification of this Article shall be prospective only
and shall not adversely affect any limitation on the personal liability of a
director of the Corporation existing at the time of such repeal or modification.
7. In furtherance and not in limitation of the powers conferred by
law, the Board of Directors of the Corporation is expressly authorized and
empowered to make, alter and repeal the By-Laws of the Corporation by a majority
vote at any regular or special meeting of the Board of Directors or by written
consent, subject to the power of the stockholders of the Corporation to alter or
repeal any By-Laws made by the Board of Directors.
8. The Corporation reserves the right at any time from time to time
to amend or repeal any provision contained in this Certificate of Incorporation,
and to add any other provisions authorized by the laws of the State of Delaware
at the time in force; and all rights, preferences and privileges conferred upon
stockholders, directors or any other persons by and pursuant to this Certificate
of Incorporation in its present form or as hereafter amended are granted subject
to the rights reserved in this Article.
9. Unless and except to the extent that the By-Laws of the
Corporation shall so require, the election of directors of the Corporation need
not be by written ballot.
10. Any action required or permitted to be taken by the stockholders
of the Corporation must be effected at a duly called annual or special meeting
of stockholders of the Corporation or may be effected by consent in writing in
lieu of a meeting of such stockholders only if consents are signed by all
stockholders of the Corporation entitled to vote on such action.
IN WITNESS WHEREOF, NationsBank (DE) Corporation has caused this
Restated Certificate of Incorporation to be signed by John E. Mack, its Senior
Vice President, and attested to by James Kiser, its Secretary, this 26th day of
August, 1998.
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<PAGE>
NATIONSBANK (DE) CORPORATION
By: /s/ JOHN E. MACK
----------------------
John E. Mack
Senior Vice President
ATTEST:
By: /s/ JAMES KISER
--------------------
James Kiser
Secretary
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BYLAWS
OF
BANKAMERICA CORPORATION
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS....................................... 1
Section 1. Definitions....................................... 1
Section 2. Cross Reference to the DGCL....................... 2
ARTICLE II OFFICES........................................... 2
Section 1. Principal Place of Business....................... 2
Section 2. Registered Office................................. 2
Section 3. Other Offices..................................... 2
ARTICLE III SHAREHOLDERS...................................... 2
Section 1. Annual Meeting.................................... 2
Section 2. Substitute Annual Meeting......................... 2
Section 3. Special Meetings.................................. 3
Section 4. Place of Meeting.................................. 3
Section 5. Notice of Meeting................................. 3
Section 6. Fixing of Record Date............................. 4
Section 7. Shareholders List................................. 4
Section 8. Quorum............................................ 5
Section 9. Proxies........................................... 5
Section 10. Voting of Shares.................................. 5
Section 11. Voting for Directors.............................. 6
Section 12. Conduct of Meetings............................... 6
Section 13. Advance Notice Provision For Non-Rule 14a-8 Proposals 6
ARTICLE IV BOARD OF DIRECTORS................................ 6
Section 1. General Powers.................................... 6
Section 2. Number and Qualifications......................... 6
Section 3. Terms of Directors................................ 7
Section 4. Removal........................................... 7
Section 5. Vacancies......................................... 7
Section 6. Compensation...................................... 7
Section 7. Executive Committee............................... 7
Section 8. Compensation Committee............................ 8
Section 9. Management Compensation Committee................. 9
Section 10. Audit Committee................................... 10
Section 11. Other Committees.................................. 11
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ARTICLE V MEETINGS OF DIRECTORS............................. 11
Section 1. Regular Meetings.................................. 11
Section 2. Special Meetings.................................. 11
Section 3. Notice............................................ 11
Section 4. Waiver of Notice.................................. 12
Section 5. Quorum............................................ 12
Section 6. Manner of Acting.................................. 12
Section 7. Presumption of Assent............................. 13
Section 8. Conduct of Meetings............................... 13
Section 9. Action Without a Meeting.......................... 13
Section 10. Participation Other Than in Person................ 13
ARTICLE VI OFFICERS.......................................... 14
Section 1. Officers of the Corporation....................... 14
Section 2. Appointment and Term.............................. 14
Section 3. Compensation...................................... 14
Section 4. Resignation and Removal of Officers............... 14
Section 5. Contract Rights of Officers....................... 15
Section 6. Bonds............................................. 15
Section 7. Chief Executive Officer........................... 15
Section 8. Chairman of the Board............................. 15
Section 9. President......................................... 15
Section 10. Vice Chairman..................................... 16
Section 11. Division Presidents............................... 16
Section 12. Managing Directors and Vice Presidents............ 16
Section 13. Secretary......................................... 16
Section 14. Treasurer......................................... 17
Section 15. Assistant Vice Presidents, Assistant Secretaries
and Assistant Treasurers.......................... 17
ARTICLE VII. SHARES AND THEIR TRANSER.......................... 17
Section 1. Shares............................................ 17
Section 2. Stock Transfer Books and Transfer of Shares....... 18
Section 3. Lost Certificates................................. 18
Section 4. Holder of Record.................................. 19
Section 5. Transfer Agent and Registrar, Regulations......... 19
ARTICLE VIII INDEMNIFICATION................................... 19
Section 1. Definitions....................................... 19
Section 2. Indemnification................................... 21
Section 3. Determination..................................... 21
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Section 4. Advance for Expenses.............................. 22
Section 5. Reliance and Consideration........................ 22
Section 6. Insurance......................................... 22
ARTICLE IX GENERAL PROVISIONS................................ 23
Section 1. Execution of Instruments.......................... 22
Section 2. Voting of Shares.................................. 23
Section 3. Distributions..................................... 23
Section 4. Seal.............................................. 24
Section 5. Amendments........................................ 24
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<PAGE>
ARTICLE I
DEFINITIONS
Section 1. Definitions. In these Bylaws, unless otherwise
specifically provided:
(a) "Certificate of Incorporation" means the Certificate of
Incorporation of the Corporation, as amended and restated from
time to time, including any amendments or statements of
classification adopted in connection with the Corporation's
outstanding shares of preferred stock.
(b) "Common Stock" means the common stock of the Corporation.
(c) "Corporation" means NationsBank (DE) Corporation, a Delaware
corporation, and any successor thereto.
(d) "DGCL" means the General Corporation Law of the State of
Delaware, as the same now exists or may hereafter be amended.
(e) "Principal office" means the office (in or out of the State of
Delaware) so designated in the Corporation's annual report
filed pursuant to the DGCL where the principal executive
offices of the Corporation are located.
(f) "Public corporation" means any corporation that has a class of
shares registered under Section 12 of the Securities Exchange
Act of 1934, as amended (15 U.S.C. ss. 781).
(g) "Shares" means the Common Stock and other units into which the
proprietary interests in the Corporation are divided.
(h) "Shareholder" means the person in whose name shares are
registered in the records of the Corporation or the beneficial
owner of shares to the extent of the rights granted by a
nominee certificate on file with the Corporation.
(i) "Voting group" means all shares of one or more classes or
series that under the Certificate of Incorporation or the DGCL
are entitled to vote and be counted together
<PAGE>
collectively on a matter at a meeting of stockholders. All
shares entitled by the Certificate of Incorporation or the
DGCL to vote generally on a matter are for that purpose a
single voting group.
Section 2. Cross-Reference to the DGCL. If any term used in these
Bylaws and not otherwise defined herein is defined for purposes of the DGCL,
such definition shall apply for purposes of these Bylaws, unless the context
shall otherwise clearly require.
ARTICLE II
OFFICES
Section 1. Principal Place of Business. The principal place of
business of the Corporation shall be located in the City of Charlotte, County of
Mecklenburg, State of North Carolina.
Section 2. Registered Office. The registered office of the
Corporation required by the DGCL to be maintained in the State of Delaware is
The Corporation Trust Center, 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of the corporation's registered agent at such
address is The Corporation Trust Company.
Section 3. Other Offices. The Corporation may have offices at such
other places, either within or without the State of Delaware, as the Board of
Directors may from time to time determine or as the affairs of the Corporation
may require from time to time.
ARTICLE III
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders
shall be held during the month of April of each year at a date and an hour fixed
by the Board of Directors for the purpose of electing directors and for the
transaction of such other business as may come before the meeting.
Section 2. Substitute Annual Meeting. If the annual meeting shall
not be held within the period designated by these Bylaws, a substitute annual
meeting may be called in accordance with the provisions of Section 3 of this
Article III. A meeting so called shall be designated and treated for all
purposes as the annual meeting.
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<PAGE>
Section 3. Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by the DGCL, may be
called by the Chairman of the Board, the Chief Executive Officer, the President
or by the Secretary acting under instructions of the Chairman of the Board or
the Chief Executive Officer, or by the Board of Directors.
Section 4. Place of Meeting. The Board of Directors or the Chairman
of the Board, the Chief Executive Officer or the President of the Corporation,
or the Secretary acting under instructions of the Chairman of the Board, the
Chief Executive Officer or President may designate any place, either within or
without the State of Delaware, as the place of meeting for any annual meeting of
stockholders or for any special meeting of stockholders called by the Board of
Directors or the Chairman of the Board, the Chief Executive Officer or President
or Secretary. If no designation is made, or if a special meeting of stockholders
is otherwise called, the place of meeting shall be the principal place of
business of the Corporation in the State of North Carolina.
Section 5. Notice of Meeting. Written or printed notice stating the
date, time and place of the meeting shall be delivered not less than 10 nor more
than 60 days before the date of the meeting, either personally or by mail, to
each stockholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be effective when deposited in the United States mail
with postage thereon prepaid and correctly addressed to the stockholder at such
stockholder's address as shown in the Corporation's current record of
stockholders.
In the case of an annual or substitute annual meeting, the notice of
meeting need not specifically state the business to be transacted thereat unless
it is a matter, other than election of directors, on which the vote of
stockholders is expressly required by the provisions of the DGCL. In the case of
a special meeting, the notice of meeting shall state the purpose or purposes for
which the meeting is called.
If a meeting is adjourned to a date more than 30 days after the date
fixed for the original meeting, or if a new record date is fixed for the
adjourned meeting, or if the new date, time or place for an adjourned meeting is
not announced at the meeting before adjournment, notice of the adjourned meeting
shall be given as in the case of an original meeting. Otherwise, it is not
necessary to give any notice of the adjourned meeting other than by announcement
at the meeting at which the adjournment is taken.
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<PAGE>
Section 6. Fixing of Record Date. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or stockholders entitled to receive payment of any
dividend or other distribution, or in order to make a determination of
stockholders for any other proper purpose, the Board of Directors may fix in
advance a date for any such determination of stockholders, such date in any case
to be not more than 60 days and, in case of a meeting of stockholders, not less
than 10 days prior to the date on which the particular action, requiring such
determination of stockholders, is to be taken. If no record date is fixed for
the determination of stockholders entitled to notice of or to vote at a meeting
of stockholders, or for determination of the stockholders entitled to receive
payment of a dividend or other distribution, the close of business on the day
before the first notice is delivered to stockholders or the date on which the
resolution of the Board of Directors declaring or authorizing such dividend or
distribution is adopted, as the case may be, shall be the record date for such
determination. When a determination of stockholders entitled to vote at any
meeting of stockholders has been made as provided in this section, such
determination shall apply to any adjournment thereof unless the Board of
Directors fixes a new record date, which it must do if the meeting is adjourned
to a date more than 120 days after the date fixed for the original meeting.
Section 7. Shareholders List. After the record date for a meeting
of stockholders is fixed or determined, the officer or agent having charge of
the stock transfer books for shares of the Corporation shall prepare an
alphabetical list of the names of all stockholders of the Corporation who are
entitled to notice of such stockholders meeting. The list will be arranged by
voting group (and within each voting group by class or series of shares) and
show the address of and number of shares held by each stockholder. Such
stockholders list will be available for inspection by any stockholder, beginning
two business days after notice of the meeting is given for which the list was
prepared (and at least 10 days before such meeting) and continuing through the
meeting, at the Corporation's principal place of business or at a place
identified in the meeting notice in the city where the meeting will be held. A
stockholder, or a stockholder's agent or attorney, is entitled on written demand
to inspect and, subject to compliance with the applicable provisions of the
DGCL, to copy the list, during regular business hours and at the stockholder's
expense, during the period it is available for inspection. Such list shall also
be available at the meeting of stockholders, and any stockholder, or such
stockholder's agent or attorney, is entitled to inspect the list at any time
during the meeting or any adjournment thereof.
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<PAGE>
Section 8. Quorum. A majority of the votes entitled to be cast on a
particular matter by a voting group constitutes a quorum of that voting group
for action on that matter unless the DGCL provides otherwise. Shares entitled to
vote as a separate voting group may take action on a matter at a meeting of
stockholders only if a quorum of those shares exists with respect to that
matter, except that, in the absence of a quorum at the opening of any meeting of
stockholders, such meeting may be adjourned from time to time by the vote of a
majority of the shares voting on the motion to adjourn. Once a share is
represented for any purpose at a meeting, it is deemed present for quorum
purposes for the remainder of the meeting and for any adjournment of that
meeting unless a new record date is or must be set for that adjourned meeting.
Section 9. Proxies. A stockholder may vote his or her shares in
person or by proxy. A stockholder may appoint a proxy to vote or otherwise act
for the stockholder by signing an appointment form, either personally or by such
stockholder's attorney-in-fact. A telegram, telex, facsimile or other form of
wire or wireless communication appearing to have been transmitted by a
stockholder, or a photocopy or equivalent reproduction of a writing appointing
one or more proxies, shall be deemed a valid appointment form within the meaning
of these Bylaws.
An appointment of a proxy is effective when received by the
Secretary or other officer or agent authorized to tabulate votes. An appointment
is valid for 11 months unless a different period is expressly provided in the
appointment form. An appointment of a proxy is revocable by the stockholder
unless the appointment form conspicuously states that it is irrevocable and the
appointment is coupled with an interest, which may include any such interest
specified in the DGCL.
Section 10..Voting of Shares. Each outstanding share of Common Stock
is entitled to one vote on each matter voted on at a stockholders meeting. Other
shares are entitled to vote only as provided in the Certificate of Incorporation
or the DGCL. If a quorum exists, action on a matter (other than election of
directors) by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless the
Certificate of Incorporation or the DGCL requires a greater number of
affirmative votes. Classes or series of shares shall not be entitled to vote
separately by voting group unless expressly required by the Certificate of
Incorporation or as otherwise provided in the DGCL.
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<PAGE>
Section 11. Voting for Directors. The directors of the Corporation
shall be elected by a plurality of the votes cast by the shares entitled to vote
in the election at the meeting at which a quorum is present unless otherwise
provided in the Certificate of Incorporation. The stockholders do not have a
right to cumulate their votes for directors.
Section 12. Conduct of Meetings. The Chairman of the Board shall
preside at each meeting of stockholders or, in the Chairman's absence, the Chief
Executive Officer shall preside. At the request of the Chairman of the Board or
the Chief Executive Officer, in both their absences, such other officer as the
Board of Directors shall designate shall preside at any such meeting. In the
absence of a presiding officer determined in accordance with the preceding
sentence, any person may be designated to preside at a stockholders meeting by a
plurality vote of the shares represented and entitled to vote at the meeting.
The Secretary or, in the absence or at the request of the Secretary, any person
designated by the person presiding at a stockholders meeting shall act as
secretary of such meeting.
Section 13. Advance Notice Provision For Non-Rule 14a-8 Proposals.
Any stockholder proposal to be submitted outside the processes of Rule 14a-8
under the Securities Exchange Act of 1934, as amended, must be received by the
Secretary of the Corporation no later than seventy-five (75) days before the
date the Corporation mailed its proxy materials for the prior year's annual
meeting of stockholders.
ARTICLE IV
BOARD OF DIRECTORS
Section 1. General Powers. All corporate powers shall be exercised
by or under the authority of, and the business and affairs of the Corporation
shall be managed under the direction of, its Board of Directors, except as
otherwise provided in the Certificate of Incorporation or permitted under the
DGCL.
Section 2. Number and Qualifications. The number of directors of
the Corporation shall be not less than 5 nor more than 30, which number may be
fixed or changed from time to time, within the minimum and maximum, by the Board
of Directors. Directors need not be residents of the State of Delaware or
stockholders of the Corporation. A director of the Corporation shall at all
times meet all statutory and regulatory qualifications for a director of a
publicly held bank holding company.
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<PAGE>
Section 3. Terms of Directors. The terms of all directors shall
expire at the next annual stockholders meeting following their election. A
decrease in the number of directors does not shorten an incumbent director's
term. The term of a director elected to fill a vacancy shall expire at the next
stockholders meeting at which directors are elected. Despite the expiration of a
director's term, however, such director shall continue to serve until the
director's successor is elected and qualified.
Section 4. Removal. Any director may be removed at any time with or
without cause by a vote of the stockholders if the number of votes cast to
remove such director exceeds the number of votes cast not to remove him or her
unless otherwise provided in the Certificate of Incorporation. A director may
not be removed by the stockholders at a meeting unless the notice of the meeting
states that the purpose, or one of the purposes, of the meeting is removal of
the director. If any directors are so removed, new directors may be elected at
the same meeting.
Any director may be removed by the Board of Directors if a director
no longer meets the qualification requirements of Section 2 of this Article IV
or as otherwise prescribed by law.
Section 5. Vacancies. Except in those instances where the
Certificate of Incorporation provides otherwise, the Board of Directors may fill
a vacancy on the Board of Directors. A vacancy that will occur at a specific
later date (by reason of a resignation effective at a later date or otherwise)
may be filled before the vacancy occurs, but the new director may not take
office until the vacancy occurs.
Section 6. Compensation. The Board of Directors may provide for the
compensation of directors for their services as such and may provide for the
payment or reimbursement of any or all expenses reasonably incurred by them in
attending meetings of the Board or of any committee of the Board or in the
performance of their other duties as directors. Nothing herein contained,
however, shall prevent any director from serving the corporation in any other
capacity or receiving compensation therefor.
Section 7. Executive Committee. The Board of Directors, by
resolution adopted by a majority of the number of directors fixed in the manner
provided in Section 2 of this Article IV, may designate five or more directors
who shall constitute the Executive Committee of the Corporation. The Executive
Committee, between meetings of the Board of Directors and subject to such
limitations as may be required by law or imposed by resolution of the Board of
Directors, shall have and may exercise all of the
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<PAGE>
authority of the Board of Directors in the management of the Corporation. The
designation of the Executive Committee and the delegation thereto of authority
shall not operate to relieve the Board of Directors, or any member thereof, of
any responsibility or liability imposed upon it or such director by law.
Meetings of the Executive Committee may be held at any time on call
of its Chairman or any two members of the Committee. A majority of the members
shall constitute a quorum at all meetings. The Executive Committee shall keep
minutes of its proceedings and shall report its actions to the next succeeding
meeting of the Board of Directors.
Section 8. Compensation Committee. The Board of Directors, by
resolution adopted by a majority of the number of Directors fixed in the manner
provided in Section 2 of this Article IV, may designate three or more directors
who shall not be otherwise employed by the Corporation or its subsidiaries who
shall constitute the Compensation Committee of the Corporation.
The Compensation Committee shall provide overall guidance with
respect to the establishment, maintenance and administration of the
Corporation's compensation programs and employee benefit plans.
The Compensation Committee shall review and approve the annual
compensation, including salary, incentive compensation and other benefits,
direct and indirect, for officers who serve as executive officers of the
Corporation. The Compensation Committee shall also approve and adopt proposals
related to any employee benefit plan of the Corporation or its subsidiaries in
which any officer participates who also serves as an executive officer of the
Corporation, including proposals for the adoption, amendment, modification or
termination of such plans. As to the salary, incentive compensation and other
benefits, direct and indirect, for the Chief Executive Officer of the
Corporation and of all other officers of the Corporation who are also Directors
of the Corporation, the Compensation Committee shall submit recommendations to
the Executive Committee for review and concurrence prior to their submission to
the Board of Directors for approval.
The Compensation Committee shall have such other purposes and such
other powers as the Board of Directors may from time to time determine.
Meetings of the Compensation Committee shall be held quarterly or at
any time on call of the Chairman of the Compensation Committee. A majority of
the members shall constitute a quorum at all meetings. The Compensation
Committee shall keep minutes of its
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<PAGE>
proceedings and shall report its actions in writing to the next succeeding
meeting of the Board of Directors.
As used herein, the term "executive officer" means those officers of
the Corporation who are designated as such from time to time.
The Compensation Committee may in its discretion delegate to the
Management Compensation Committee any of its powers and authority set forth in
this Section 8 with respect to any executive officer of the Corporation who is
not a "named executive officer" of the Corporation within the meaning of Item
402 of Regulation S-K promulgated under the Securities Act of 1933 and the
Securities Exchange Act of 1934.
Section 9. Management Compensation Committee. The Board of
Directors, by resolution adopted by a majority of the Directors fixed in the
manner provided in Section 2 of this Article IV, may designate the Chief
Executive Officer and such other officers as it deems appropriate to constitute
the members of a Management Compensation Committee. The Chief Executive Officer
shall be the Chairman of the Management Compensation Committee.
The Management Compensation Committee shall have the authority to
establish the titles and the compensation, including salaries, incentive
compensation and other benefits, direct and indirect, for all employees of the
Corporation and its subsidiaries who are not officers and for all officers of
the Corporation and its subsidiaries who do not serve as executive officers of
the Corporation. In connection with its duties, the Management Compensation
Committee shall approve all annual compensation budgets, all employee benefits
plans, the salary guidelines for positions and all incentive compensation plans
for such employees and officers of the Corporation and its subsidiaries.
The Management Compensation Committee may allocate to a member of
the Management Compensation Committee the authority to establish titles and the
compensation, including salaries, incentive compensation awards pursuant to
incentive compensation plans previously approved by the Management Compensation
Committee, and other benefits for all personnel within such member's area of
functional responsibility except with respect to promotions to the title of
Executive Vice President or its equivalent and except with respect to actions
related to officers in Job Band I. A member of the Management Compensation
Committee may delegate such member's authority with respect to such matters to
one or more officers within such member's area of functional responsibility
pursuant to procedures established by such member from time to time; provided,
however, any such action taken pursuant to any such delegation of authority
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shall be subject to ratification by such member of the Management Compensation
Committee.
The Management Compensation Committee shall make recommendations
from time to time to the Compensation Committee regarding the establishment,
amendment, modification and termination of any employee benefit plans sponsored
by the Corporation and its subsidiaries in which any officer of the Corporation
or its subsidiaries participates who also serves as an executive officer of the
Corporation.
The Management Compensation Committee shall have such other purposes
and such other powers as the Board of Directors may from time to time determine.
Meetings of the Management Compensation Committee shall be held
quarterly or at any time on call of the Chairman of the Management Compensation
Committee. A majority of the members shall constitute a quorum at all meetings.
The Management Compensation Committee shall keep minutes of its proceedings and
shall report its actions to the Compensation Committee.
As used herein, the term "executive officer" means those officers of
the Corporation who are designated as such from time to time.
In accordance with Section 8, the Management Compensation Committee
may be delegated by the Compensation Committee certain of the powers and
authority of the Compensation Committee set forth in Section 8 with respect to
any executive officer of the Corporation who is not a "named executive officer"
of the Corporation within the meaning of Item 402 of Regulation S-K promulgated
under the Securities Act of 1933 and the Securities Exchange Act of 1934.
Section 10. Audit Committee. The Board of Directors, by resolution
adopted by a majority of the number of directors fixed in the manner provided in
Section 2 of this Article IV, shall designate three or more directors who shall
not be otherwise employed by the Corporation or its subsidiaries to constitute
the Audit Committee of the Board.
The Audit Committee shall have such powers and duties as described
from time to time by resolutions of the Board of Directors. The Audit Committee
shall keep minutes of its proceedings and shall report its actions to the next
succeeding meeting of the Board of Directors.
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Section 11. Other Committees. The Board of Directors may create one
or more other committees and appoint members of the Board of Directors to serve
on them. Each committee must have two or more members, who serve at the pleasure
of the Board of Directors. The creation of a committee and appointment of
members of the Board of Directors to it must be approved by the greater of a
majority of all of the directors in office when the action is taken or the
number of directors required by the Certificate of Incorporation for the taking
of action by the Board of Directors. The provisions of the DGCL and these Bylaws
that govern meetings, action without meetings, notice and waiver of notice, and
quorum and voting requirements of the Board of Directors, shall apply to
committees and their members as well. To the extent specified by the Board of
Directors, each committee may exercise the authority of the Board of Directors,
except as to the matters which the DGCL specifically excepts from the authority
of such committees. Nothing contained in this Section shall preclude the Board
of Directors from establishing and appointing any committee, whether of
directors or otherwise, not having or exercising the authority of the Board of
Directors.
ARTICLE V
MEETINGS OF DIRECTORS
Section 1. Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this Bylaw provision
immediately after, and at the same place as, the annual meeting of the
stockholders. In addition, the Board of Directors may provide, by resolution,
the date, time and place, either within or without the State of North Carolina,
for the holding of additional regular meetings.
Section 2. Special Meetings. Special meetings of the Board of
Directors may be held at any date, time and place upon the call of the Chairman
of the Board, the Chief Executive Officer or the President or of the Secretary
acting under instructions from the Chairman of the Board or the Chief Executive
Officer or the President, or upon the call of any three directors. Special
meetings may be held at any date, time and place and without special notice by
unanimous consent of the directors.
Section 3. Notice. The person or persons calling a special meeting
of the Board of Directors shall, at least two days before the meeting, give
notice thereof by any usual means of communication. Such notice may be
communicated, without limitation, in person; by telephone, telegraph, teletype
or other form of wire or wireless communication, or by facsimile transmission;
or by mail or private carrier. Written notice of a directors meeting is
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effective at the earliest of the following:
(a) when received;
(b) upon its deposit in the United States mail, as evidenced by
the postmark, if mailed with postage thereon prepaid and
correctly addressed;
(c) if by facsimile, by acknowledgment of the facsimile; or
(d) on the date shown on the confirmation of delivery issued by a
private carrier, if sent by private carrier to the address of
the director last known to the Corporation.
Oral notice is effective when actually communicated to the director. Notice of
an adjourned meeting of directors need not be given if the time and place are
fixed at the meeting adjourning and if the period of adjournment does not exceed
ten days in any one adjournment. The notice of any meeting of directors need not
describe the purpose of the meeting unless otherwise required by the DGCL.
Section 4. Waiver of Notice. A director may waive any notice
required by the DGCL, the Certificate of Incorporation or these Bylaws before or
after the date and time stated in the notice. The waiver must be in writing,
signed by the director entitled to the notice, and filed with the minutes or
corporate records, except that, notwithstanding the foregoing requirement of
written notice, a director's attendance at or participation in a meeting waives
any required notice to the director of the meeting unless the director at the
beginning of the meeting (or promptly upon the director's arrival) expressly
objects to holding the meeting or transacting business at the meeting and does
not thereafter vote for or assent to action taken at the meeting.
Section 5. Quorum. A majority of the number of directors in office
immediately before the meeting begins, shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors, but if less
than such majority is present at a meeting, a majority of directors present may
adjourn the meeting from time to time without further notice.
Section 6. Manner of Acting. The act of the majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors, except as otherwise provided by the DGCL. The vote of a
majority of all of the directors in office when the action is taken shall be
required for the creation of a committee and the appointment of members of the
Board of Directors to it.
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Section 7. Presumption of Assent. A director of the Corporation who
is present at a meeting of the Board of Directors or a committee of the Board of
Directors when corporate action is taken shall be deemed to have assented to the
action taken unless the director expressly objects at the beginning of the
meeting (or promptly upon the director's arrival) to holding it or transacting
business at the meeting, unless the director's contrary vote is recorded or such
director's dissent or abstention from the action shall be entered in the minutes
of the meeting or unless the director shall file written notice of dissent or
abstention to such action with the person acting as secretary of the meeting
before the adjournment thereof or shall forward such dissent by registered mail
to the Secretary of the Corporation immediately after adjournment of the
meeting. Such right of dissent or abstention shall not apply to a director who
voted in favor of the action taken.
Section 8. Conduct of Meetings. The Chairman or the Chief Executive
Officer shall preside at all meetings of the Board of Directors; provided,
however, that in the absence or at the request of the Chairman of the Board, or
if there shall not be a person holding such offices, the person selected to
preside at a meeting of directors by a vote of a majority of the directors
present shall preside at such meeting. The Secretary, or in the absence or at
the request of the Secretary, any person designated by the person presiding at a
meeting of the Board of Directors, shall act as secretary of such meeting.
Section 9. Action Without a Meeting. Any action required or
permitted to be taken at a Board of Directors meeting may be taken without a
meeting if the action is taken by all members of the Board. The action must be
evidenced by one or more written consents signed by each director before or
after such action, describing the action taken, which consent or consents shall
be included in the minutes or filed with the corporate records. Action taken as
provided in this Section is effective when the last director signs the consent,
unless the consent specifies a different effective date. A consent signed
pursuant to this Section has the effect of a meeting vote and may be described
as such in any document.
Section 10. Participation Other Than in Person. The Board of
Directors may permit any or all directors to participate in a regular or special
meeting by, or conduct the meeting through the use of, any means of
communication by which all directors participating may simultaneously hear each
other during the meeting. A director participating in a meeting by this means is
deemed to be present in person at such meeting.
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ARTICLE VI
OFFICERS
Section 1. Officers of the Corporation. The officers of the
Corporation may include a Chairman of the Board, a Chief Executive Officer, a
President, one or more Vice Chairmen, one or more Division Presidents, one or
more Executive Vice Presidents, one or more Senior Vice Presidents, one or more
Vice Presidents, a Secretary, a Treasurer, and such other officers, assistant
officers and agents, as may be appointed from time to time by or under the
authority of the Board of Directors including that authority vested under
Section 8 or 9 of Article IV hereof. The same individual may simultaneously hold
more than one office in the Corporation, but no individual may act in more than
one capacity where action of two or more officers is required. The title of any
officer may include any additional designation descriptive of such officer's
duties as the Board of Directors may prescribe.
Section 2. Appointment and Term. The officers of the Corporation
shall be appointed by the Board of Directors or by a committee or an officer
authorized by the Board of Directors to appoint one or more officers or
assistant officers; provided, however, that no officer may be authorized to
appoint the Chairman of the Board, the Chief Executive Officer or the President.
Each officer shall hold office until his or her death, resignation, retirement,
removal or disqualification or until such officer's successor is elected and
qualified.
Section 3. Compensation. The compensation of all officers of the
Corporation shall be fixed by or under the authority of the Board of Directors
or in accordance with Sections 8 and 9 of Article IV hereof. No officer shall be
prevented from receiving such salary by reason of the fact that such officer is
also a director.
Section 4. Resignation and Removal of Officers. An officer may
resign at any time by communicating such officer's resignation to the
Corporation. A resignation is effective when it is communicated unless it
specifies in writing a later effective date. If a resignation is made effective
at a later date and the Corporation accepts the future effective date, the Board
of Directors may fill the pending vacancy before the effective date if the Board
of Directors provides that the successor does not take office until the
effective date. The Board of Directors, by the affirmative vote of a majority of
its members, may remove the Chairman of the Board, the Chief Executive Officer
or the President whenever in its judgment the best interest of the Corporation
would be served thereby. In addition, the Board of Directors or a committee or
an officer authorized by the Board of Directors may remove any
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other officer at any time with or without cause. A vacancy in any office because
of death, resignation, removal, disqualification or otherwise, may be filled by
the directors or in accordance with Section 8 or 9 of Article IV hereof for the
unexpired portion of the term.
Section 5. Contract Rights of Officers. The appointment of an
officer does not itself create contract rights. An officer's removal does not
itself affect the officer's contract rights, if any, with the Corporation, and
an officer's resignation does not itself affect the Corporation's contract
rights, if any, with the officer.
Section 6. Bonds. The Board of Directors may by resolution require
any officer, agent or employee of the Corporation to give bond to the
Corporation, with sufficient sureties, conditioned on the faithful performance
of the duties of the applicable office or position, and to comply with such
other conditions as may from time to time be required by the Board of Directors.
Such bonds may be scheduled or blanket form and the premiums shall be paid by
the Corporation.
Section 7. Chief Executive Officer. The Board of Directors may
appoint a Chief Executive Officer. The Chief Executive Officer shall, subject to
the direction and control of the Board of Directors, supervise and control the
business and affairs of the Corporation. In general the Chief Executive Officer
shall perform all duties incident to the position of chief executive officer or
as may be prescribed by the Board of Directors or these Bylaws from time to
time.
Section 8. Chairman of the Board. The Board of Directors may
appoint from among its members an officer designated as the Chairman of the
Board, but the appointment of a Chairman of the Board shall not be required. If
a Chairman of the Board shall be appointed, then the Chairman of the Board shall
have such other duties and authority as may be prescribed by the Board of
Directors from time to time. In general the Chairman of the Board shall perform
all duties incident to the position of chairman of the board or as may be
prescribed by the Board of Directors or these Bylaws from time to time.
Section 9. President. The Board of Directors may appoint a
President. The President shall perform the duties and exercise the powers of
that office and, in addition, the President shall perform such other duties and
shall have such other authority as the Board of Directors shall prescribe. In
general the President shall perform all duties incident to the position of
president and or as may be prescribed by the Board of Directors or these
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Bylaws from time to time. The Board of Directors shall, if it deems such action
necessary or desirable, designate the officer of the Corporation who is to
perform the duties of the President in the event of such officer's absence or
inability to act.
Section 10. Vice Chairman. The Board of Directors may appoint one or
more officers designated as the Vice Chairman, but the appointment of one or
more Vice Chairmen shall not be required. If one or more Vice Chairmen shall be
appointed, then one or more Vice Chairmen shall have such duties and authority
as may be prescribed by the Board of Directors from time to time.
Section 11. Division Presidents. The Board of Directors may appoint
one or more officers designated as Division Presidents, but the appointment of
one or more Division Presidents shall not be required. If one or more Division
Presidents shall be appointed, then the Division President(s) shall have such
duties and authority as may be prescribed by the Board of Directors from time to
time.
Section 12. Managing Directors and Vice Presidents. The Board of
Directors may appoint one or more Managing Directors and one or more Vice
Presidents. Categories of Vice Presidents may include, but are not limited to,
Group Executive Vice Presidents, Executive Vice Presidents, Senior Vice
Presidents, and Assistant Vice Presidents. The Board of Directors may create
categories of Managing Directors. Each Managing Director and each Vice President
shall have such duties and authorities as may be described by the Board of
Directors or by the officer to whom such Managing Director or Vice President
reports.
Section 13. Secretary. The Secretary shall: (a) keep the minutes of
meetings of the stockholders and of the Board of Directors in one or more books
provided for that purpose; (b) have the responsibility and authority to maintain
and authenticate the records of the Corporation; (c) see that all notices are
duly given in accordance with the provisions of these Bylaws or as required by
law; (d) be custodian of the corporate records and of the seal of the
Corporation and see that the seal of the Corporation is affixed to all documents
the execution of which on behalf of the Corporation under its seal is duly
authorized; (e) keep a register of the post office address of each stockholder
which shall be furnished to the Secretary by such stockholder; (f) sign with the
Chairman of the Board, Chief Executive Officer or President, certificates for
shares of the Corporation, the issuance of which shall have been authorized by
resolution of the Board of Directors; (g) have general charge of the stock
transfer books of the Corporation; and (h) in general
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perform all duties incident to the office of the Secretary and such other duties
as from time to time may be assigned to the Secretary by the Chief Executive
Officer of the Corporation, the Board of Directors or a committee under these
Bylaws.
Section 14. Treasurer. The Treasurer shall: (a) have charge and
custody of all funds and securities of the Corporation; receive and give
receipts for moneys due and payable to the Corporation from any source
whatsoever, and deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with the provisions of Section 4 of Article VII; and (b) in general perform all
of the duties incident to the office of Treasurer and such other duties as from
time to time may be assigned to the Treasurer by the Chief Executive Officer of
the Corporation, the Board of Directors or a committee under these Bylaws.
Section 15. Assistant Vice Presidents, Assistant Secretaries and
Assistant Treasurers. The Assistant Vice Presidents, Assistant Secretaries and
Assistant Treasurers, if any, shall, in the event of the death or inability or
refusal to act of the Secretary or the Treasurer, respectively, have all the
powers and perform all of the duties of those offices, and they shall, in
general, perform such duties as shall be assigned to them by the Secretary or
the Treasurer, respectively, or by the Chief Executive Officer of the
Corporation or the Board of Directors.
ARTICLE VII
SHARES AND THEIR TRANSFER
Section 1. Shares. Shares of the Corporation may but need not
be represented by certificates.
When shares are represented by certificates, the Corporation shall
issue such certificates in such form as shall be required by the DGCL and as
determined by the Board of Directors, to every stockholder for the fully paid
shares owned by such stockholder. Each certificate shall be signed by, or shall
bear the facsimile signature of, the Chairman of the Board, the Chief Executive
Officer or the President and the Secretary or an Assistant Secretary of the
Corporation and may bear the corporate seal of the Corporation or its facsimile.
All certificates for the Corporation's shares shall be consecutively numbered or
otherwise identified. The name and address of the person to whom the shares
represented by a certificate are issued, with the number of shares and date of
issue, shall be entered on the stock transfer books of the Corporation. Such
information may be stored or retained on discs, tapes, cards or any other
approved storage device relating to data
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processing equipment; provided that such device is capable of reproducing all
information contained therein in legible and understandable form, for inspection
by stockholders or for any other corporate purpose.
When shares are not represented by certificates, then within a
reasonable time after the issuance or transfer of such shares, the Corporation
shall send the stockholder to whom such shares have been issued or transferred a
written statement of the information required by the DGCL to be on certificates.
Section 2. Stock Transfer Books and Transfer of Shares. The
Corporation, or its agent, shall keep a book or set of books to be known as the
stock transfer books of the Corporation, containing the name of each stockholder
of record, together with such stockholder's address and the number and class or
series of shares held by such stockholder. Transfer of shares of the Corporation
represented by certificates shall be made on the stock transfer books of the
Corporation only upon surrender of the certificates for the shares sought to be
transferred by the holder of record thereof or by such holder's duly authorized
agent, transferee or legal representative, who shall furnish proper evidence of
authority to transfer with the Secretary. All certificates surrendered for
transfer shall be canceled before new certificates for the transferred shares
shall be issued.
If shares of the Corporation:
(1) are in custody of a clearing corporation or of a custodian
bank or a nominee of either subject to the instructions of the
clearing corporation; and
(2) are in bearer form or endorsed in blank by an appropriate
person or registered in the name of the clearing corporation
or custodian bank or a nominee of either; and
(3) are shown on the account of a transferor or pledgor on the
books of the clearing corporation;
then in addition to other methods, a transfer or pledge of the shares or any
interest therein may be effected by the making of appropriate entries on the
books of the clearing corporation reducing the account of the transferor or
pledgor and increasing the account of the transferee or pledgee by the number of
shares transferred or pledged.
Section 3. Lost Certificates. The Board of Directors or an officer
so authorized by the Board may authorize the issuance of a new certificate in
place of a certificate claimed to have been lost, destroyed or mutilated, upon
receipt of an affidavit of such fact from the persons claiming
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the loss or destruction and any other documentation satisfactory to the Board of
Directors or such officer. At the discretion of the party reviewing such claim,
any such claimant may be required to give the Corporation a bond in such sum as
it may direct to indemnify against the loss from any claim with respect to the
certificate claimed to have been lost or destroyed.
Section 4. Holder of Record. Except as otherwise required by the
DGCL, the Corporation may treat the person in whose name the shares stand of
record on its books as the absolute owner of the shares and the person
exclusively entitled to receive notification and distributions, to vote, and to
otherwise exercise the rights, powers and privileges of ownership of such
shares.
Section 5. Transfer Agent and Registrar; Regulations. The
Corporation may, if and whenever the Board of Directors so determines, maintain
in the State of Delaware or any other state of the United States, one or more
transfer offices or agencies and also one or more registry offices which
officers and agencies may establish rules and regulations for the issue,
transfer and registration of certificates. No certificates for shares of stock
of the Corporation in respect of which a Transfer Agent and Registrar shall have
been designated shall be valid unless countersigned by such Transfer Agent and
registered by such Registrar. The Board may also make such additional rules and
regulations as it may deem expedient concerning the issue, transfer and
registration of certificates.
ARTICLE VIII
INDEMNIFICATION
Section 1. Definitions. For purposes of this Article VIII, the
following definitions shall apply:
(a) The "Corporation" shall include any subsidiary corporation,
as well as any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation
or merger which, if its separate existence had continued,
would have had the power to indemnify its directors or
officers, so that any person who is or was a director or
officer of such constituent corporation, or is or was
serving at the request of such constituent corporation as a
director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this
section with respect to the resulting or surviving
corporation as such person would have with respect to
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such constituent corporation if its separate existence had
continued.
(b) "Director" means an individual who is or was a director of
the Corporation or an individual who, while a director of
the Corporation, is or was serving at the Corporation's
request as a director, officer, partner, trustee, employee
or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan,
or other enterprise. A director is considered to be
serving an employee benefit plan at the Corporation's
request if such director's duties to the Corporation also
impose duties on, or otherwise involve services by, the
director to the plan or to participants in or beneficiaries
of the plan. "Director" includes, unless the context
requires otherwise, the estate or personal representative
of a director.
(c) "Expenses" means expenses of every kind incurred in defending
a proceeding, including counsel fees.
(d) "Indemnified Officer" shall mean all of the Corporation's
past, present, and future duly elected or appointed
officers, including all individuals listed on the officer's
payroll files of the Corporation or any of the
Corporation's subsidiary companies notwithstanding any
absence of title, and each other officer of the Corporation
who is designated by the Board of Directors from time to
time as an Indemnified Officer. An Indemnified Officer
shall be entitled to indemnification hereunder to the same
extent as a director, including, without limitation,
indemnification with respect to service by the Indemnified
Officer at the Corporation's request as a director,
officer, partner, trustee, employee or agent of another
foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise.
(e) "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed
with respect to an employee benefit plan) or reasonable
expenses incurred with respect to a proceeding.
(f) "Proceeding" means any threatened, pending, or completed
action, suit or proceeding, whether civil, criminal,
administrative or investigative, whether formal
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or informal, and any appeal therein (and any inquiry or
investigation that could lead to such a proceeding).
Section 2. Indemnification. In addition to the indemnification
otherwise provided by law and subject to any other requirements under applicable
law, the Corporation shall indemnify and hold harmless its Directors and
Indemnified Officers (as defined herein) against all liability and expenses,
including reasonable attorney's fees, in any proceeding (including without
limitation a proceeding brought by or on behalf of the Corporation itself)
arising out of their status as directors or officers, or their service at the
Corporation's request as a director, officer, partner, trustee, employee or
agent of another foreign or domestic corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, or their activities in any
such capacity; provided, however, that the Corporation shall not indemnify a
Director or Indemnified Officer against liability or litigation expense that
such person may incur on account of activities of such person which at the time
taken were known or believed by him or her to be in conflict with the best
interests of the Corporation. The Corporation shall also indemnify each Director
and Indemnified Officer for reasonable costs, expenses and attorneys' fees
incurred in connection with the enforcement of the rights to indemnification
granted herein, if it is determined in accordance with Section 3 of this Article
VIII that the Director or Indemnified Officer is entitled to indemnification
hereunder.
Section 3. Determination. Any indemnification under Section 2 of
this Article VIII shall be paid by the Corporation in a specific case only after
a determination that the Director or Indemnified Officer has met the standard of
conduct set forth in such Section 2. Subject to any other requirements under
applicable law, such determination shall be made:
(a) by the Board of Directors by a majority vote of Directors not
at the time parties to the proceeding, even though less than a
quorum;
(b) by a majority vote of a committee duly designated by the Board
of Directors (in which designation Directors who are parties
may participate), consisting solely of two or more Directors
not at the time parties to the proceeding;
(c) if there are no Directors not at the time parties to the
proceeding, or if such Directors so direct, by independent
legal counsel selected by the Board of Directors or its
committee; or
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(d) by the stockholders, but shares owned by or voted under the
control of Directors who are at the time parties to the
proceeding may not be voted on the determination.
The Board of Directors shall take all such action as may be
necessary and appropriate to enable the Corporation to pay the indemnification
required by this Article VIII.
Section 4. Advance for Expenses. The expenses incurred by a
Director or Indemnified Officer in defending a proceeding may be paid by the
Corporation in advance of the final disposition of such proceeding as authorized
by the Board of Directors in the specific case upon receipt of an undertaking by
or on behalf of the Director or Indemnified Officer to repay such amount unless
it shall ultimately be determined that such person is entitled to be indemnified
by the Corporation against such expenses. Subject to receipt of such
undertaking, the Corporation shall make reasonable periodic advances for
expenses pursuant to this Section, unless the Board of Directors shall
determine, in the manner provided in Section 3 of this Article VIII and based on
the facts then known, that indemnification under this Article is or will be
precluded.
Section 5. Reliance and Consideration. Any Director or Indemnified
Officer who at any time after the adoption of this Article VIII serves or has
served in any of the aforesaid capacities for or on behalf of the Corporation
shall be deemed to be doing or to have done so in reliance upon, and as
consideration for, the right of indemnification provided herein. Such right,
however, shall not be exclusive of any other rights to which such person may be
entitled apart from the provisions of this Article VIII. No amendment,
modification or repeal of this Article VIII shall adversely affect the right of
any Director or Indemnified Officer to indemnification hereunder with respect to
any activities occurring prior to the time of such amendment, modification or
repeal.
Section 6. Insurance. The Corporation may purchase and maintain
insurance on behalf of its Directors, officers, employees and agents and those
persons who were serving at the request of the Corporation in any capacity in
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against or incurred by such
person in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify such person
against such liability under the provisions of this Article VIII or otherwise.
Any full or partial payment made by an insurance company under any insurance
policy covering any Director, officer, employee or agent made to or on behalf of
a person entitled to indemnification under this Article VIII shall relieve the
Corporation of its liability for
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indemnification provided for in this Article or otherwise to the extent of such
payment, and no insurer shall have a right of subrogation against the
Corporation with respect to such payment.
ARTICLE IX
GENERAL PROVISIONS
Section 1. Execution of Instruments. All agreements, indentures,
mortgages, deeds, conveyances, transfers, contracts, checks, notes, drafts, loan
documents, letters of credit, master agreements, swap agreements, guarantees,
certificates, declarations, receipts, discharges, releases, satisfactions,
settlements, petitions, schedules, accounts, affidavits, bonds, undertakings,
proxies and other instruments or documents may be signed, executed,
acknowledged, verified, attested, delivered or accepted on behalf of the
Corporation by the Chairman of the Board, the Chief Executive Officer, the
President, any Vice Chairman, any Division President, any Managing Director, any
Vice President, any Assistant Vice President, or any individual who is listed on
the Corporation's Officer's payroll file in a position equal to any of the
aforementioned officer positions, or such other officers, employees or agents as
the Board of Directors or any of such designated officers or individuals may
direct. The provisions of this Section 1 are supplementary to any other
provision of these Bylaws and shall not be construed to authorize execution of
instruments otherwise dictated by law.
Section 2. Voting of Shares. The Chairman of the Board, the Chief
Executive Officer the President, any Vice Chairman, any Division President, any
Executive Vice President, any Managing Director, the Secretary, the Treasurer,
or such other officers, employees or agents as the Board of Directors or such
designated officers may direct are authorized to vote, represent and exercise on
behalf of the Corporation all rights incident to any and all shares of any other
corporations or associations standing in the name of the Corporation. The
authority herein granted to said individual to vote or represent on behalf of
the Corporation any and all shares held by the Corporation in any other
corporations or associations may be exercised either by the individual in person
or by any duly executed proxy or power of attorney.
Section 3. Distributions. The Board of Directors may from time to
time authorize, and the Corporation may pay or distribute, dividends or other
distributions on its outstanding shares in such manner and upon such terms and
conditions as are permitted by the Certificate of Incorporation or the DGCL.
-23-
<PAGE>
Section 4. Seal. The Board of Directors shall provide a corporate
seal which shall be circular in form and shall have inscribed thereon the name
of the Corporation and the words "corporate seal." In the execution on behalf of
the Corporation of any instrument, document, writing, notice or paper, it shall
not be necessary to affix the corporate seal of the Corporation thereon, and any
such instrument, document, writing, notice or paper when executed without said
seal affixed thereon shall be of the same force and effect and as binding on the
Corporation as if said corporate seal had been affixed thereon in each instance.
Section 5. Amendments. The Board of Directors may amend or repeal
these Bylaws and may adopt new Bylaws by the affirmative vote of a majority of
the directors then holding office at any regular or special meeting of the Board
of Directors. The stockholders of the Corporation may also amend or repeal these
Bylaws and may adopt new Bylaws.
-24-
FOR IMMEDIATE RELEASE
September 24, 1998
Contact: Investors Susan Carr (704-386-8059) or
Kevin Stitt (704-386-5667)
Media Bob Stickler (704-386-8465)
NATIONSBANK SHAREHOLDERS OVERWHELMINGLY APPROVE
MERGER WITH BANKAMERICA
CHARLOTTE, NC, September 24, 1998 -- NationsBank Corporation shareholders today
overwhelmingly approved the company's merger with BankAmerica Corporation.
Almost 98 percent of the shares voted were in favor of the merger.
At their meeting today in San Francisco, BankAmerica Corporation shareholders
also approved the merger, which the companies said would be completed after the
close of business on September 30, 1998.
Specifically, NationsBank's shareholders approved a plan of reorganization in
which NationsBank Corporation is reincorporated as a Delaware company. The new
holding company, to be renamed BankAmerica Corporation, would issue 1.1316 new
shares for each share held by current BankAmerica stockholders. Current
NationsBank stockholders would automatically own shares in the new company.
<PAGE>
"We are excited to create the premier U.S. bank with leadership positions in
many of the nation's fastest growing markets," said Hugh L. McColl Jr.,
NationsBank chief executive "The new company will have wider, more diversified
sources of revenues, greater efficiency and an enhanced ability to serve our
customers. Our mission now is to create compelling value for our customers, our
communities, our associates and our shareholders."
McColl will be chairman and chief executive officer of the new company, which is
to be based in Charlotte, N.C.
NationsBank shareholders today also approved an amendment to the NationsBank
Corporation Key Employee Stock Plan, which will be the stock plan of the
combined company following the reincorporation and merger.
NationsBank Corporation, with $308 billion in assets, is the third largest U.S.
bank with full-service operations in 15 states and the District of Columbia.
NationsBank provides financial products and services to 18 million households
and 1 million businesses as well as institutional investors and government
agencies throughout the United States and in major markets around the world. The
company's shares (Symbol: NB) are listed on the New York Stock Exchange.
Beginning October 1, the stock symbol will become BAC.
WWW.NATIONSBANK.COM
FOR IMMEDIATE RELEASE
September 24, 1998
Contact: Investors Susan Carr (704-386-8059) or
Kevin Stitt (704-386-5667)
Media Bob Stickler (704-386-8465)
NATIONSBANK DIRECTORS APPROVE SHARE REPURCHASE
CHARLOTTE, NC, September 24, 1998 - The NationsBank Corporation Board of
Directors has approved the purchase of up to 20 million shares of the company's
common stock in the open market or through private transactions.
The amount represents about 2 percent of the company's outstanding common
shares.
The company emphasized that the program would not affect its pending merger with
BankAmerica Corporation, which is to be accounted for as a pooling of interests.
NationsBank Corporation, with $308 billion in assets, is the third largest U.S.
bank with full-service operations in 15 states and the District of Columbia.
NationsBank provides financial products and services to 18 million households
and 1 million businesses as well as institutional investors and government
agencies throughout the United States and in major markets around the world. The
company's shares (Symbol: NB) are listed on the New York Stock Exchange.
WWW.NATIONSBANK.COM
