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):
April 28, 1999
BANK OF AMERICA 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.)
100 North Tryon Street
Charlotte, North Carolina
(Address of principal executive offices)
28255
(Zip Code)
(704) 386-5000
(Registrant's telephone number, including area code)
BANKAMERICA CORPORATION
(Former name, if changed since last report)
ITEM 5. OTHER EVENTS.
Change of Corporate Name. On April 28, 1999, BankAmerica
Corporation, the registrant (the "Registrant"), filed its Amended
and Restated Certificate of Incorporation with the Delaware
Secretary of State, changing the name of the company from
"BankAmerica Corporation" to "Bank of America Corporation." The
corporate name change was approved by the Registrant's
stockholders earlier that day at the Registrant's Annual Meeting
of Stockholders in Charlotte, North Carolina. Copies of the
Registrant's Amended and Restated Certificate of Incorporation
and the Registrant's Amended and Restated Bylaws are filed as
Exhibits 99.1 and 99.2, respectively, to this Current Report on
Form 8-K. A copy of the press release announcing the name change
is filed as Exhibit 99.3 to this Current Report on Form 8-K.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
The following exhibits are filed herewith:
EXHIBIT NO. DESCRIPTION OF EXHIBIT
99.1 Amended and Restated Certificate of
Incorporation of Registrant, as in effect on
the date hereof.
99.2 Amended and Restated Bylaws of Registrant,
as in effect on the date hereof.
99.3 Press Release dated April 28, 1999 with
respect to Registrant's corporate name change.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, as amended, the Registrant has duly caused this report
to be signed on its behalf by the undersigned hereunto duly
authorized.
BANK OF AMERICA CORPORATION
By: /s/ Charles M. Berger
Charles M. Berger
Associate General Counsel
Dated: May 7, 1999
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT
99.1 Amended and Restated Certificate of
Incorporation of Registrant, as in effect on the date
hereof.
99.2 Amended and Restated Bylaws of Registrant,
as in effect on the date hereof.
99.3 Press Release dated April 28, 1999 with
respect to Registrant's corporate name
change.
EXHIBIT 99.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BANKAMERICA CORPORATION
BankAmerica Corporation, a corporation organized
and existing under the laws of the State of Delaware (the
"Corporation"), hereby certifies that (i) the Certificate of
Incorporation of the Corporation was originally filed on July 31,
1998, (ii) the Corporation was originally incorporated under the
name "NationsBank (DE) Corporation," which name was changed to
"NationsBank Corporation" on September 25, 1998 and to
"BankAmerica Corporation" on September 30, 1998, (iii) this
Amended and Restated Certificate of Incorporation has been duly
adopted in accordance with Sections 242 and 245 of the General
Corporation Law of the State of Delaware, and (iv) the Amended
and Restated Certificate of Incorporation of the Corporation is
hereby amended and restated to read in its entirety as follows:
1. The name of the Corporation is Bank of America
Corporation.
2. The purposes for which the Corporation is organized are
to engage in any lawful act or activity for which corporations
may be organized and incorporated under the General Corporation
Law of the State of Delaware.
3. The number of shares, par value $.01 per share, the
Corporation is authorized to issue is Five Billion One Hundred
Million (5,100,000,000), divided into the following classes:
Class Number of Shares
Common 5,000,000,000
Preferred 100,000,000
The class of common ("Common Stock") has unlimited
voting rights and, after satisfaction of claims, if any, of the
holders of preferred shares, is entitled to receive the net
assets of the Corporation upon distribution.
The Board of Directors of the Corporation shall have
full power and authority to establish one or more series within
the class of preferred shares (the "Preferred Shares"), to define
the designations, preferences, limitations and relative rights
(including conversion rights) of shares within such class and to
determine all variations between series.
The Board of Directors of the Corporation has
designated, established and authorized the following series of
Preferred Shares:
(a) 7% Cumulative Redeemable Preferred Stock, Series B.
A. Designation.
The designation of this series is "7% Cumulative
Redeemable Preferred Stock, Series B" (hereinafter referred to as
the "Series B Preferred Stock") and the number of shares
constituting such series is Thirty-Five Thousand Forty-Five
(35,045). Shares of Series B Preferred Stock shall have a stated
value of $100.00 per share.
B. Dividends.
The holders of record of the shares of the Series B
Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors of the Corporation, out of any
funds legally available for such purpose, cumulative cash
dividends at an annual dividend rate per share of 7% of the
stated value thereof, which amount is $7.00 per annum, per share,
and no more. Such dividends shall be payable each calendar
quarter at the rate of $1.75 per share on such dates as shall be
fixed by resolution of the Board of Directors of the Corporation.
The date from which dividends on such shares shall be cumulative
shall be the first day after said shares are issued.
Accumulations of dividends shall not bear interest. No cash
dividend shall be declared, paid or set apart for any shares of
Common Stock unless all dividends on all shares of the Series B
Preferred Stock at the time outstanding for all past dividend
periods and for the then current dividend shall have been paid,
or shall have been declared and a sum sufficient for the payment
thereof, shall have been set apart. Subject to the foregoing
provisions of this paragraph B, cash dividends or other cash
distributions as may be determined by the Board of Directors of
the Corporation may be declared and paid upon the shares of the
Common Stock of the Corporation from time to time out of funds
legally available therefor, and the shares of the Series B
Preferred Stock shall not be entitled to participate in any such
cash dividend or other such cash distribution so declared and
paid or made on such shares of Common Stock.
C. Redemption.
From and after October 31, 1988, any holder may, by
written request, call upon the Corporation to redeem all or any
part of said holder's shares of said Series B Preferred Stock at
a redemption price of $100.00 per share plus accumulated unpaid
dividends to the date said request for redemption is received by
the Corporation and no more (the "Redemption Price"). Any such
request for redemption shall be accompanied by the certificates
for which redemption is requested, duly endorsed or with
appropriate stock power attached, in either case with signature
guaranteed. Upon receipt by the Corporation of any such request
for redemption from any holder of the Series B Preferred Stock,
the Corporation shall forthwith redeem said stock at the
Redemption Price, provided that: (i) full cumulative dividends
have been paid or declared and set apart for payment upon all
shares of any series of preferred stock ranking superior to the
Series B Preferred Stock as to dividends or other distributions
(collectively the "Superior Stock"); and (ii) the Corporation is
not then in default or in arrears with respect to any sinking or
analogous fund or call for tenders obligation or agreement for
the purchase, redemption or retirement of any shares of Superior
Stock. In the event that, upon receipt of a request for
redemption, either or both of the conditions set forth in clauses
(i) and (ii) above are not met, the Corporation shall forthwith
return said request to the submitting shareholder along with a
statement that the Corporation is unable to honor such request
and explanation of the reasons therefor. From and after the
receipt by the Corporation of a request for redemption from any
holder of said Series B Preferred Stock, which request may be
honored consistent with the foregoing provisions, all rights of
such holder in the Series B Preferred Stock for which redemption
is requested shall cease and terminate, except only the right to
receive the Redemption Price thereof, but without interest.
D. Liquidation Preference.
In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the
holders of the Series B Preferred Stock shall be entitled to
receive, subject to the provisions of paragraph G and before any
payment shall be made to the holders of the shares of Common
Stock, the amount of $100.00 per share, plus accumulated
dividends. After payment to the holders of the Series B Preferred
Stock of the full amount as aforesaid, the holders of the Series
B Preferred Stock as such shall have no right or claim to any of
the remaining assets which shall be distributed ratably to the
holders of the Common Stock. If, upon any such liquidation,
dissolution or winding up, the assets available therefor are not
sufficient to permit payments to the holders of Series B
Preferred Stock of the full amount as aforesaid, then subject to
the provisions of paragraph G, the holders of the Series B
Preferred Stock then outstanding shall share ratably in the
distribution of assets in accordance with the sums which would be
payable if such holders were to receive the full amounts as
aforesaid.
E. Sinking Fund.
There shall be no sinking fund applicable to the shares
of Series B Preferred Stock.
F. Conversion.
The shares of Series B Preferred Stock shall not be
convertible into any shares of Common Stock or any other class of
shares, nor exchanged for any shares of Common Stock or any other
class of shares.
G. Superior Stock.
The Corporation may issue stock with preferences
superior or equal to the shares of the Series B Preferred Stock
without the consent of the holders thereof.
H. Voting Rights.
Each share of the Series B Preferred Stock shall be
entitled to equal voting rights, share for share, with each share
of the Common Stock.
(b) ESOP Convertible Preferred Stock, Series C.
The shares of the ESOP Convertible Preferred Stock,
Series C, of the Corporation shall be designated "ESOP
Convertible Preferred Stock, Series C," and the number of shares
constituting such series shall be 3,000,000. The ESOP Convertible
Preferred Stock, Series C, shall hereinafter be referred to as
the "ESOP Preferred Stock."
A. Special Purpose Restricted Transfer Issue.
Shares of ESOP Preferred Stock shall be issued only to
a trustee acting on behalf of an employee stock ownership plan or
other employee benefit plan of the Corporation or any subsidiary
of the Corporation. In the event of any transfer of shares of
ESOP Preferred Stock to any person other than any such plan
trustee or the Corporation, the shares of ESOP Preferred Stock so
transferred, upon such transfer and without any further action by
the Corporation or the holder, shall be automatically converted
into shares of Common Stock on the terms otherwise provided for
the conversion of shares of ESOP Preferred Stock into shares of
Common Stock pursuant to paragraph E hereof and no such
transferee shall have any of the voting powers, preferences and
relative, participating, optional or special rights ascribed to
shares of ESOP Preferred Stock hereunder but, rather, only the
powers and rights pertaining to the Common Stock into which such
shares of ESOP Preferred Stock shall be so converted.
Certificates representing shares of ESOP Preferred Stock shall be
legended to reflect such restrictions on transfer.
Notwithstanding the foregoing provisions of this paragraph A,
shares of ESOP Preferred Stock (i) may be converted into shares
of Common Stock as provided by paragraph E hereof and the shares
of Common Stock issued upon such conversion may be transferred by
the holder thereof as permitted by law and (ii) shall be
redeemable by the Corporation upon the terms and conditions
provided by paragraphs F, G and H hereof.
B. Dividends and Distributions.
(1) Subject to the provisions for adjustment hereinafter set
forth, the holders of shares of ESOP Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available therefor, cash dividends
("Preferred Dividends") in an amount equal to $3.30 per share per
annum, and no more, payable semi-annually, one-half on the first
day of January and one-half on the first day of July of each year
(each a "Dividend Payment Date") to holders of record at the
start of business on such Dividend Payment Date. Preferred
Dividends shall accrue on a daily basis whether or not the
Corporation shall have earnings or surplus at the time, but
Preferred Dividends on the shares of ESOP Preferred Stock for any
period less than a full semi-annual period between Dividend
Payment Dates shall be computed on the basis of a 360-day year of
30-day months. Accumulated but unpaid Preferred Dividends shall
accumulate as of the Dividend Payment Date on which they first
become payable, but no interest shall accrue on accumulated but
unpaid Preferred Dividends.
(2) So long as any ESOP Preferred Stock shall be outstanding, no
dividend shall be declared or paid or set apart for payment on
any other series of stock ranking on a parity with the ESOP
Preferred Stock as to dividends, unless there shall also be or
have been declared and paid or set apart for payment on the ESOP
Preferred Stock, like dividends for all dividend payment periods
of the ESOP Preferred Stock ending on or before the dividend
payment date of such parity stock, ratably in proportion to the
respective amounts of dividends accumulated and unpaid through
such dividend payment period on the ESOP Preferred Stock and
accumulated and unpaid or payable on such parity stock through
the dividend payment period on such parity stock next preceding
such Dividend Payment Date. In the event that full cumulative
dividends on the ESOP Preferred Stock have not been declared and
paid or set apart for payment when due, the Corporation shall not
declare or pay or set apart for payment any dividends or make any
other distributions on, or make any payment on account of the
purchase, redemption or other retirement of any other class of
stock or series thereof of the Corporation ranking, as to
dividends or as to distributions in the event of a liquidation,
dissolution or winding-up of the Corporation, junior to the ESOP
Preferred Stock until full cumulative dividends on the ESOP
Preferred Stock shall have been paid or declared and provided
for; provided, however, that the foregoing shall not apply to (i)
any dividend payable solely in any shares of any stock ranking,
as to dividends or as to distributions in the event of the
liquidation, dissolution or winding-up of the Corporation, junior
to the ESOP Preferred Stock, or (ii) the acquisition of shares of
any stock ranking, as to dividends or as to distributions in the
event of a liquidation, dissolution or winding-up of the
Corporation, junior to the ESOP Preferred Stock either (A)
pursuant to any employee or director incentive or benefit plan or
arrangement (including any employment, severance or consulting
agreement) of the Corporation or any subsidiary of the
Corporation heretofore or hereafter adopted or (B) in exchange
solely for shares of any other stock ranking junior to the ESOP
Preferred Stock.
C. Voting Rights.
The holders of shares of ESOP Preferred Stock shall
have the following voting rights:
(1) The holders of ESOP Preferred Stock shall be entitled to
vote on all matters submitted to a vote of the holders of Common
Stock of the Corporation, voting together with the holders of
Common Stock as one class. Each share of the ESOP Preferred Stock
shall be entitled to the number of votes equal to the number of
shares of Common Stock into which such share of ESOP Preferred
Stock could be converted on the record date for determining the
shareholders entitled to vote, rounded to the nearest whole vote;
it being understood that whenever the "Conversion Ratio" (as
defined in paragraph E hereof) is adjusted as provided in
paragraph I hereof, the voting rights of the ESOP Preferred Stock
shall also be similarly adjusted.
(2) Except as otherwise required by the General Corporation Law
of the State of Delaware or set forth in paragraph C(l), holders
of ESOP Preferred Stock shall have no special voting rights and
their consent shall not be required for the taking of any
corporate action.
D. Liquidation, Dissolution or Winding-Up.
(1) Upon any voluntary or involuntary liquidation, dissolution
or winding-up of the Corporation, the holders of ESOP Preferred
Stock shall be entitled to receive out of the assets of the
Corporation which remain after satisfaction in full of all valid
claims of creditors of the Corporation and which are available
for payment to shareholders and subject to the rights of the
holders of any stock of the Corporation ranking senior to or on a
parity with the ESOP Preferred Stock in respect of distributions
upon liquidation, dissolution or winding-up of the Corporation,
before any amount shall be paid or distributed among the holders
of Common Stock or any other shares ranking junior to the ESOP
Preferred Stock in respect of the distributions upon liquidation,
dissolution or winding-up of the Corporation, liquidating
distributions in the amount of $42.50 per share, plus an amount
equal to all accrued and unpaid dividends thereon to the date
fixed for distribution, and no more. If upon any liquidation,
dissolution or winding-up of the Corporation, the amounts payable
with respect to the ESOP Preferred Stock and any other stock
ranking as to any such distribution on a parity with the ESOP
Preferred Stock are not paid in full, the holders of the ESOP
Preferred Stock and such other stock shall share ratably in any
distribution of assets in proportion to the full respective
preferential amounts to which they are entitled. After payment of
the full amount to which they are entitled as provided by the
foregoing provisions of this paragraph D(l), the holders of
shares of ESOP Preferred Stock shall not be entitled to any
further right or claim to any of the remaining assets of the
Corporation.
(2) Neither the merger or consolidation of the Corporation with
or into any other corporation, nor the merger or consolidation of
any other corporation with or into the Corporation, nor the sale,
transfer or lease of all or any portion of the assets of the
Corporation, shall be deemed to be a dissolution, liquidation or
winding-up of the affairs of the Corporation for purposes of this
paragraph D, but the holders of ESOP Preferred Stock shall
nevertheless be entitled in the event of any such merger or
consolidation to the rights provided by paragraph H hereof.
(3) Written notice of any voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, stating the payment
date or dates when, and the place or places where, the amounts
distributable to holders of ESOP Preferred Stock in such
circumstances shall be payable, shall be given by first-class
mail, postage prepaid, mailed not less than twenty (20) days
prior to any payment date stated therein, to the holders of ESOP
Preferred Stock, at the address shown on the books of the
Corporation or any transfer agent for the ESOP Preferred Stock.
E. Conversion into Common Stock.
(1) A holder of shares of ESOP Preferred Stock shall be
entitled, at any time prior to the close of business on the date
fixed for redemption of such shares pursuant to paragraph F, G or
H hereof, to cause any or all of such shares to be converted into
shares of Common Stock at a conversion rate equal to the ratio of
1.0 share of ESOP Preferred Stock to 1.68 shares of Common Stock
(as adjusted as hereinafter provided, the "Conversion Ratio").
The Conversion Ratio set forth above is subject to adjustment
pursuant to this Certificate of Incorporation.
(2) Any holder of shares of ESOP Preferred Stock desiring to
convert such shares into shares of Common Stock shall surrender
the certificate or certificates representing the shares of ESOP
Preferred Stock being converted, duly assigned or endorsed for
transfer to the Corporation (or accompanied by duly executed
stock powers relating thereto), at the principal executive office
of the Corporation or the offices of the transfer agent for the
ESOP Preferred Stock or such office or offices in the continental
United States of an agent for conversion as may from time to time
be designated by notice to the holders of the ESOP Preferred
Stock by the Corporation or the transfer agent for the ESOP
Preferred Stock, accompanied by written notice of conversion.
Such notice of conversion shall specify (i) the number of shares
of ESOP Preferred Stock to be converted and the name or names in
which such holder wishes the certificate or certificates for
Common Stock and for any shares of ESOP Preferred Stock not to be
so converted to be issued, and (ii) the address to which such
holder wishes delivery to be made of such new certificates to be
issued upon such conversion.
(3) Upon surrender of a certificate representing a share or
shares of ESOP Preferred Stock for conversion, the Corporation
shall issue and send by hand delivery (with receipt to be
acknowledged) or by first-class mail, postage prepaid, to the
holder thereof or to such holder's designee, at the address
designated by such holder, a certificate or certificates for the
number of shares of Common Stock to which such holder shall be
entitled upon conversion. In the event that there shall have been
surrendered a certificate or certificates representing shares of
ESOP Preferred Stock, only part of which are to be converted, the
Corporation shall issue and deliver to such holder or such
holder's designee a new certificate or certificates representing
the number of shares of ESOP Preferred Stock which shall not have
been converted.
(4) The issuance by the Corporation of shares of Common Stock
upon a conversion of shares of ESOP Preferred Stock into shares
of Common Stock made at the option of the holder thereof shall be
effective as of the earlier of (i) the delivery to such holder or
such holder's designee of the certificate or certificates
representing the shares of Common Stock issued upon conversion
thereof or (ii) the commencement of business on the second
business day after the surrender of the certificate or
certificates for the shares of ESOP Preferred Stock to be
converted, duly assigned or endorsed for transfer to the
corporation (or accompanied by duly executed stock powers
relating thereto) as provided hereby. On and after the effective
date of conversion, the person or persons entitled to receive the
Common Stock issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such shares of
Common Stock, but no allowance or adjustment shall be made in
respect of dividends payable to holders of Common Stock in
respect of any period prior to such effective date. The
Corporation shall not be obligated to pay any dividends which
shall have been declared and shall be payable to holders of
shares of ESOP Preferred Stock on a Dividend Payment Date if such
Dividend Payment Date for such dividend shall coincide with or be
on or subsequent to the effective date of conversion of such
shares.
(5) The Corporation shall not be obligated to deliver to holders
of ESOP Preferred Stock any fractional share or shares of Common
Stock issuable upon any conversion of such shares of ESOP
Preferred Stock, but in lieu thereof may make a cash payment in
respect thereof in any manner permitted by law.
(6) The Corporation shall at all times reserve and keep
available out of its authorized and unissued Common Stock, solely
for issuance upon the conversion of shares of ESOP Preferred
Stock as herein provided, free from any preemptive rights, such
number of shares of Common Stock as shall from time to time be
issuable upon the conversion of all shares of ESOP Preferred
Stock then outstanding. The Corporation shall prepare and shall
use its best efforts to obtain and keep in force such
governmental or regulatory permits or other authorizations as may
be required by law, and shall comply with all requirements as to
registration or qualification of the Common Stock, in order to
enable the Corporation lawfully to issue and deliver to each
holder of record of ESOP Preferred Stock such number of shares of
its Common Stock as shall from time to time be sufficient to
effect the conversion of all shares of ESOP Preferred Stock then
outstanding and convertible into shares of Common Stock.
F. Redemption At the Option of the Corporation.
(1) The ESOP Preferred Stock shall be redeemable, in whole or in
part, at the option of the Corporation at any time, at a
redemption price per share (except as to redemption pursuant to
paragraph F(3)) of $42.83 prior to July 1, 1999 and $42.50
thereafter, plus, in each case, an amount equal to all accrued
and unpaid dividends thereon to the date fixed for redemption.
Payment of the redemption price shall be made by the Corporation
in cash or shares of Common Stock, or a combination thereof, as
permitted by paragraph F(5). From and after the date fixed for
redemption, dividends on shares of ESOP Preferred Stock called
for redemption will cease to accrue, such shares will no longer
be deemed to be outstanding and all rights in respect of such
shares of the Corporation shall cease, except the right to
receive the redemption price. If less than all of the outstanding
shares of ESOP Preferred Stock are to be redeemed, the
Corporation shall either redeem a portion of the shares of each
holder determined pro rata based on the number of shares held by
each holder or shall select the shares to be redeemed by lot, as
may be determined by the Board of Directors of the Corporation.
(2) Unless otherwise required by law, notice of redemption will
be sent to the holders of ESOP Preferred Stock at the address
shown on the books of the Corporation or any transfer agent for
the ESOP Preferred Stock by first-class mail, postage prepaid,
mailed not less than twenty (20) days nor more than sixty (60)
days prior to the redemption date. Each such notice shall state:
(i) the redemption date; (ii) the total number of shares of the
ESOP Preferred Stock to be redeemed and, if fewer than all the
shares held by such holder are to be redeemed, the number of such
shares to be redeemed from such holder; (iii) the redemption
price; (iv) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price;
(v) that dividends on the shares to be redeemed will cease to
accrue on such redemption date; and (vi) the conversion rights of
the shares to be redeemed, the period within which conversion
rights may be exercised, and the Conversion Ratio and number of
shares of Common Stock issuable upon conversion of a share of
ESOP Preferred Stock at the time. These notice provisions may be
supplemented if necessary in order to comply with optional
redemption provisions for preferred stock which may be required
under the Internal Revenue Code of 1986, as amended, or the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"). Upon surrender of the certificates for any shares so
called for redemption and not previously converted (properly
endorsed or assigned for transfer, if the Board of Directors of
the Corporation shall so require and the notice shall so state),
such shares shall be redeemed by the Corporation at the date
fixed for redemption and at the applicable redemption price set
forth in this paragraph F.
(3) In the event of a change in the federal tax law of the
United States of America which has the effect of precluding the
Corporation from claiming any of the tax deductions for dividends
paid on the ESOP Preferred Stock when such dividends are used as
provided under Section 404(k)(2) of the Internal Revenue Code of
1986, as amended and in effect on the date shares of ESOP
Preferred Stock are initially issued, the Corporation may, within
180 days following the effective date of such tax legislation and
implementing regulations of the Internal Revenue Service, if any,
in its sole discretion and notwithstanding anything to the
contrary in paragraph F(l), elect to redeem any or all such
shares for the amount payable in respect of the shares upon
liquidation of the Corporation pursuant to paragraph D.
(4) In the event the C&S/Sovran Retirement Savings, ESOP and
Profit Sharing Plan (as amended, together with any successor
plan, the "Plan") is terminated, the Corporation shall,
notwithstanding anything to the contrary in paragraph F(l),
redeem all shares of ESOP Preferred Stock for the amount payable
in respect of the shares upon redemption of the ESOP Preferred
Stock pursuant to paragraph F(1) hereof.
(5) The Corporation, at its option, may make payment of the
redemption price required upon redemption of shares of ESOP
Preferred Stock in cash or in shares of Common Stock, or in a
combination of such shares and cash, any such shares to be valued
for such purpose at their Fair Market Value (as defined in
paragraph I(7) hereof).
G. Other Redemption Rights.
Shares of ESOP Preferred Stock shall be redeemed by the
Corporation at a price which is the greater of the Conversion
Value (as defined in paragraph I) of the ESOP Preferred Stock on
the date fixed for redemption or a redemption price of $42.50 per
share plus accrued and unpaid dividends thereon to the date fixed
for redemption, for shares of Common Stock (any such shares of
Common Stock to be valued for such purpose as provided by
paragraph F(5) hereof), at the option of the holder, at any time
and from time to time upon notice to the Corporation given not
less than five (5) business days prior to the date fixed by the
Corporation in such notice for such redemption, when and to the
extent necessary (i) to provide for distributions required to be
made under, or to satisfy an investment election provided to
participants in accordance with, the Plan to participants in the
Plan or (ii) to make payment of principal, interest or premium
due and payable (whether as scheduled or upon acceleration) on
any indebtedness incurred by the holder or Trustee under the Plan
for the benefit of the Plan.
H. Consolidation, Merger, etc.
(1) In the event that the Corporation shall consummate any
consolidation or merger or similar transaction, however named,
pursuant to which the outstanding shares of Common Stock are by
operation of law exchanged solely for or changed, reclassified or
converted solely into stock of any successor or resulting company
(including the Corporation and any company that directly or
indirectly owns all of the outstanding capital stock of such
successor or resulting company) that constitutes "qualifying
employer securities" with respect to a holder of ESOP Preferred
Stock within the meaning of Section 409(1) of the Internal
Revenue Code of 1986, as amended, and Section 407(d)(5) of ERISA,
or any successor provisions of law, and, if applicable, for a
cash payment in lieu of fractional shares, if any, the shares of
ESOP Preferred Stock of such holder shall be assumed by and shall
become preferred stock of such successor or resulting company,
having in respect of such company insofar as possible the same
powers, preferences and relative, participating, optional or
other special rights (including the redemption rights provided by
paragraphs F, G and H hereof), and the qualifications,
limitations or restrictions thereon, that the ESOP Preferred
Stock had immediately prior to such transaction, except that
after such transaction each share of the ESOP Preferred Stock
shall be convertible, otherwise on the terms and conditions
provided by paragraph E hereof, into the qualifying employer
securities so receivable by a holder of the number of shares of
Common Stock into which such shares of ESOP Preferred Stock could
have been converted immediately prior to such transaction if such
holder of Common Stock failed to exercise any rights of election
to receive any kind or amount of stock, securities, cash or other
property (other than such qualifying employer securities and a
cash payment, if applicable, in lieu of fractional shares)
receivable upon such transaction (provided that, if the kind or
amount of qualifying employer securities receivable upon such
transaction is not the same for each non-electing share, then the
kind and amount of qualifying employer securities receivable upon
such transaction for each non-electing share shall be the kind
and amount so receivable per share by a plurality of the non-
electing shares). The rights of the ESOP Preferred Stock as
preferred stock of such successor or resulting company shall
successively be subject to adjustments pursuant to paragraph I
hereof after any such transaction as nearly equivalent to the
adjustments provided for by such paragraph prior to such
transaction. The Corporation shall not consummate any such
merger, consolidation or similar transaction unless all then
outstanding shares of the ESOP Preferred Stock shall be assumed
and authorized by the successor or resulting company as
aforesaid.
(2) In the event that the Corporation shall consummate any
consolidation or merger or similar transaction, however named,
pursuant to which the outstanding shares of Common Stock are by
operation of law exchanged for or changed, reclassified or
converted into other stock or securities or cash or any other
property, or any combination thereof, other than any such
consideration which is constituted solely of qualifying employer
securities (as referred to in paragraph H(l)) and cash payments,
if applicable, in lieu of fractional shares, all outstanding
shares of ESOP Preferred Stock shall, without any action on the
part of the Corporation or any holder thereof (but subject to
paragraph H(3)), be deemed converted by virtue of such merger,
consolidation or similar transaction immediately prior to such
consummation into the number of shares of Common Stock into which
such shares of ESOP Preferred Stock could have been converted at
such time, and each share of ESOP Preferred Stock shall, by
virtue of such transaction and on the same terms as apply to the
holders of Common Stock, be converted into or exchanged for the
aggregate amount of stock, securities, cash or other property
(payable in like kind) receivable by a holder of the number of
shares of Common Stock into which such shares of ESOP Preferred
Stock could have been converted immediately prior to such
transaction if such holder of Common Stock failed to exercise any
rights of election as to the kind or amount of stock, securities,
cash or other property receivable upon such transaction (provided
that, if the kind or amount of stock, securities, cash or other
property receivable upon such transaction is not the same for
each non-electing share, then the kind and amount of stock,
securities, cash or other property receivable upon such
transaction for each non-electing share shall be the kind and
amount so receivable per share by a plurality of the non-electing
shares).
(3) In the event the Corporation shall enter into any agreement
providing for any consolidation or merger or similar transaction
described in paragraph H(2), then the Corporation shall as soon
as practicable thereafter (and in any event at least ten (10)
business days before consummation of such transaction) give
notice of such agreement and the material terms thereof to each
holder of ESOP Preferred Stock and each such holder shall have
the right to elect, by written notice to the Corporation, to
receive, upon consummation of such transaction (if and when such
transaction is consummated), from the Corporation or the
successor of the Corporation, in redemption and retirement of
such ESOP Preferred Stock, a cash payment equal to the amount
payable in respect of shares of ESOP Preferred Stock upon
redemption pursuant to paragraph F(l) hereof. No such notice of
redemption shall be effective unless given to the Corporation
prior to the close of business on the second business day prior
to consummation of such transaction, unless the Corporation or
the successor of the Corporation shall waive such prior notice,
but any notice of redemption so given prior to such time may be
withdrawn by notice of withdrawal given to the Corporation prior
to the close of business on the second business day prior to
consummation of such transaction.
I. Anti-dilution Adjustments.
(1) In the event the Corporation shall, at any time or from time
to time while any of the shares of the ESOP Preferred Stock are
outstanding, (i) pay a dividend or make a distribution in respect
of the Common Stock in shares of Common Stock, (ii) subdivide the
outstanding shares of Common Stock, or (iii) combine the
outstanding shares of Common Stock into a smaller number of
shares, in each case whether by reclassification of shares,
recapitalization of the Corporation (including a recapitalization
effected by a merger or consolidation to which paragraph H hereof
does not apply) or otherwise, the Conversion Ratio in effect
immediately prior to such action shall be adjusted by multiplying
such Conversion Ratio by the fraction the numerator of which is
the number of shares of Common Stock outstanding immediately
before such event and the denominator of which is the number of
shares of Common Stock outstanding immediately after such event.
An adjustment made pursuant to this paragraph I(1) shall be given
effect, upon payment of such a dividend or distribution, as of
the record date for the determination of shareholders entitled to
receive such dividend or distribution (on a retroactive basis)
and in the case of a subdivision or combination shall become
effective immediately as of the effective date thereof.
(2) In the event that the Corporation shall, at any time or from
time to time while any of the shares of ESOP Preferred Stock are
outstanding, issue to holders of shares of Common Stock as a
dividend or distribution, including by way of a reclassification
of shares or a recapitalization of the Corporation, any right or
warrant to purchase shares of Common Stock (but not including as
such a right or warrant any security convertible into or
exchangeable for shares of Common Stock) at a purchase price per
share less than the Fair Market Value (as hereinafter defined) of
a share of Common Stock on the date of issuance of such right or
warrant, then, subject to the provisions of paragraphs I(5) and
I(6), the Conversion Ratio shall be adjusted by multiplying such
Conversion Ratio by the fraction the numerator of which shall be
the number of shares of Common Stock outstanding immediately
before such issuance of rights or warrants plus the number of
shares of Common Stock which could be purchased at the Fair
Market Value of a share of Common Stock at the time of such
issuance for the maximum aggregate consideration payable upon
exercise in full of all such rights or warrants and the
denominator of which shall be the number of shares of Common
Stock outstanding immediately before such issuance of rights or
warrants plus the maximum number of shares of Common Stock that
could be acquired upon exercise in full of all such rights and
warrants.
(3) In the event the Corporation shall, at any time and from
time to time while any of the shares of ESOP Preferred Stock are
outstanding, issue, sell or exchange shares of Common Stock
(other than pursuant to any right or warrant to purchase or
acquire shares of Common Stock (including as such a right or
warrant any security convertible into or exchangeable for shares
of Common Stock) and other than pursuant to any dividend
reinvestment plan or employee or director incentive or benefit
plan or arrangement, including any employment, severance or
consulting agreement, of the Corporation or any subsidiary of the
Corporation heretofore or hereafter adopted) for a consideration
having a Fair Market Value on the date of such issuance, sale or
exchange less than the Fair Market Value of such shares on the
date of such issuance, sale or exchange, then, subject to the
provisions of paragraphs I(5) and (6), the Conversion Ratio shall
be adjusted by multiplying such Conversion Ratio by the fraction
the numerator of which shall be the sum of (i) the Fair Market
Value of all the shares of Common Stock outstanding on the day
immediately preceding the first public announcement of such
issuance, sale or exchange plus (ii) the Fair Market Value of the
consideration received by the Corporation in respect of such
issuance, sale or exchange of shares of Common Stock, and the
denominator of which shall be the product of (i) the Fair Market
Value of a share of Common Stock on the day immediately preceding
the first public announcement of such issuance, sale or exchange
multiplied by (ii) the sum of the number of shares of Common
Stock outstanding on such day plus the number of shares of Common
Stock so issued, sold or exchanged by the Corporation. In the
event the Corporation shall, at any time or from time to time
while any shares of ESOP Preferred Stock are outstanding, issue,
sell or exchange any right or warrant to purchase or acquire
shares of Common Stock (including as such a right or warrant any
security convertible into or exchangeable for shares of Common
Stock), other than any such issuance to holders of shares of
Common Stock as a dividend or distribution (including by way of a
reclassification of shares or a recapitalization of the
Corporation) and other than pursuant to any dividend reinvestment
plan or employee or director incentive or benefit plan or
arrangement (including any employment, severance or consulting
agreement) of the Corporation or any subsidiary of the
Corporation heretofore or hereafter adopted, for a consideration
having a Fair Market Value on the date of such issuance, sale or
exchange less than the Non-Dilutive Amount (as hereinafter
defined), then, subject to the provisions of paragraphs I(5) and
(6), the Conversion Ratio shall be adjusted by multiplying such
Conversion Ratio by a fraction the numerator of which shall be
the sum of (a) the Fair Market Value of all the shares of Common
Stock outstanding on the day immediately preceding the first
public announcement of such issuance, sale or exchange plus (b)
the Fair Market Value of the consideration received by the
Corporation in respect of such issuance, sale or exchange of such
right or warrant plus (c) the Fair Market Value at the time of
such issuance of the consideration which the Corporation would
receive upon exercise in full of all such rights or warrants, and
the denominator of which shall be the product of (a) the Fair
Market Value of a share of Common Stock on the day immediately
preceding the first public announcement of such issuance, sale or
exchange multiplied by (b) the sum of the number of shares of
Common Stock outstanding on such day plus the maximum number of
shares of Common Stock which could be acquired pursuant to such
right or warrant at the time of the issuance, sale or exchange of
such right or warrant (assuming shares of Common Stock could be
acquired pursuant to such right or warrant at such time).
(4) In the event the Corporation shall, at any time or from time
to time while any of the shares of ESOP Preferred Stock are
outstanding, make any Extraordinary Distribution (as hereinafter
defined) in respect of the Common Stock, whether by dividend,
distribution, reclassification of shares or recapitalization of
the Corporation (including a recapitalization or reclassification
effected by a merger or consolidation to which paragraph H hereof
does not apply) or effect a Pro Rata Repurchase (as hereinafter
defined) of Common Stock, the Conversion Ratio in effect
immediately prior to such Extraordinary Distribution or Pro Rata
Repurchase shall, subject to paragraphs I(5) and (6), be adjusted
by multiplying such Conversion Ratio by a fraction the numerator
of which shall be (a) the product of (i) the number of shares of
Common Stock outstanding immediately before such Extraordinary
Distribution or Pro Rata Repurchase multiplied by (ii) the Fair
Market Value (as herein defined) of a share of Common Stock on
the Valuation Date (as hereinafter defined) with respect to an
Extraordinary Distribution, or on the applicable expiration date
(including all extensions thereof) of any tender offer which is a
Pro Rata Repurchase, or on the date of purchase with respect to
any Pro Rata Repurchase which is not a tender offer, as the case
may be, minus (b) the Fair Market Value of the Extraordinary
Distribution or the aggregate purchase price of the Pro Rata
Repurchase, as the case may be, and the denominator of which
shall be the product of (i) the number of shares of Common Stock
outstanding immediately before such Extraordinary Distribution or
Pro Rata Repurchase minus, in the case of a Pro Rata Repurchase,
the number of shares of Common Stock repurchased by the
Corporation multiplied by (ii) the Fair Market Value of a share
of Common Stock on the record date with respect to an
Extraordinary Distribution or on the applicable expiration date
(including all extensions thereof) of any tender offer which is a
Pro Rata Repurchase or on the date of purchase with respect to
any Pro Rata Repurchase which is not a tender offer, as the case
may be. The Corporation shall send each holder of ESOP Preferred
Stock (x) notice of its intent to make any Extraordinary
Distribution and (y) notice of any offer by the Corporation to
make a Pro Rata Repurchase, in each case at the same time as, or
as soon as practicable after, such offer is first communicated
(including by announcement of a record date in accordance with
the rules of any stock exchange on which the Common Stock is
listed or admitted to trading) to holders of Common Stock. Such
notice shall indicate the intended record date and the amount and
nature of such dividend or distribution, or the number of shares
subject to such offer for a Pro Rata Repurchase and the purchase
price payable by the Corporation pursuant to such offer, as well
as the Conversion Ratio and the number of shares of Common Stock
into which a share of ESOP Preferred Stock may be converted at
such time.
(5) Notwithstanding any other provisions of this paragraph I,
the Corporation shall not be required to make any adjustment of
the Conversion Ratio unless such adjustment would require an
increase or decrease of at least one percent (1%) in the
Conversion Ratio. Any lesser adjustment shall be carried forward
and shall be made no later than the time of, and together with,
the next subsequent adjustment which, together with any
adjustment or adjustments so carried forward, shall amount to an
increase or decrease of at least one percent (1%) in the
Conversion Ratio.
(6) If the Corporation shall make any dividend or distribution
on the Common Stock or issue any Common Stock, other capital
stock or other security of the Corporation or any rights or
warrants to purchase or acquire any such security, which
transaction does not result in an adjustment to the Conversion
Ratio pursuant to the foregoing provisions of this paragraph I,
the Board of Directors of the Corporation shall consider whether
such action is of such a nature that an adjustment to the
Conversion Ratio should equitably be made in respect of such
transaction. If in such case the Board of Directors of the
Corporation determines that the adjustment to the Conversion
Ratio should be made, an adjustment shall be made effective as of
such date, as determined by the Board of Directors of the
Corporation. The determination of the Board of Directors of the
Corporation as to whether an adjustment to the Conversion Ratio
should be made pursuant to the foregoing provisions of this
paragraph I(6), and, if so, as to what adjustment should be made
and when, shall be final and binding on the Corporation and all
shareholders of the Corporation. The Corporation shall be
entitled to make such additional adjustments in the Conversion
Ratio, in addition to those required by the foregoing provisions
of this paragraph I, as shall be necessary in order that any
dividend or distribution in shares of capital stock of the
Corporation, subdivision, reclassification or combination of
shares of stock of the Corporation or any recapitalization of the
Corporation shall not be taxable to holders of the Common Stock.
(7) For purposes of this paragraph I, the following definitions
shall apply:
"Conversion Value" shall mean the Fair Market
Value of the aggregate number of shares of Common Stock
into which a share of ESOP Preferred Stock is
convertible.
"Extraordinary Distribution" shall mean any
dividend or other distribution (effected while any of
the shares of ESOP Preferred Stock are outstanding) (a)
of cash, where the aggregate amount of such cash
dividend and distribution together with the amount of
all cash dividends and distributions made during the
preceding period of 12 months, when combined with the
aggregate amount of all Pro Rata Repurchases (for this
purpose, including only that portion of the aggregate
purchase price of such Pro Rata Repurchase which is in
excess of the Fair Market Value of the Common Stock
repurchased as determined on the applicable expiration
date (including all extensions thereof) of any tender
offer or exchange offer which is a Pro Rata Repurchase,
or the date of purchase with respect to any other Pro
Rata Repurchase which is not a tender offer or exchange
offer made during such period), exceeds Twelve and One-
Half percent (12.5%) of the aggregate Fair Market Value
of all shares of Common Stock outstanding on the record
date for determining the shareholders entitled to
receive such Extraordinary Distribution and (b) any
shares of capital stock of the Corporation (other than
shares of Common Stock), other securities of the
Corporation (other than securities of the type referred
to in paragraph I(2)), evidence of indebtedness of the
Corporation or any other person or any other property
(including shares of any subsidiary of the
Corporation), or any combination thereof. The Fair
Market Value of an Extraordinary Distribution for
purposes of paragraph I(4) shall be the sum of the Fair
Market Value of such Extraordinary Distribution plus
the amount of any cash dividends which are not
Extraordinary Distributions made during such twelve-
month period and not previously included in the
calculation of an adjustment pursuant to paragraph
I(4).
"Fair Market Value" shall mean, as to shares of
Common Stock or any other class of capital stock or
securities of the Corporation or any other issuer
which are publicly traded, the average of the Current
Market Prices (as hereinafter defined) of such shares
or securities for each day of the Adjustment Period
(as hereinafter defined). "Current Market Price" of
publicly traded shares of Common Stock or any other
class of capital stock or other security of the
Corporation or any other issuer for a day shall mean
the last reported sales price, regular way, or, in case
no sale takes place on such day, the average of the
reported closing bid and asked prices, regular way, in
either case as reported on the New York Stock Exchange
Composite Tape or, if such security is not listed or
admitted to trading on the New York Stock Exchange, on
the principal national securities exchange on which
such security is listed or admitted to trading or, if
not listed or admitted to trading on any national
securities exchange, on The Nasdaq National Market or,
if such security is not quoted on Nasdaq, the average
of the closing bid and asked prices on each such day
in the over-the-counter market as reported by Nasdaq
or, if bid and asked prices for such security on each
such day shall not have been reported through Nasdaq,
the average of the bid and asked prices for such day as
furnished by any New York Stock Exchange member firm
selected for such purpose by the Board of Directors of
the Corporation or a committee thereof on each trading
day during the Adjustment Period. "Adjustment Period"
shall mean the period of five (5) consecutive trading
days preceding the date as of which the Fair Market
Value of a security is to be determined. The "Fair
Market Value" of any security which is not publicly
traded or of any other property shall mean the fair
value thereof as determined by an independent
investment banking or appraisal firm experienced in the
valuation of such securities or property selected in
good faith by the Board of Directors of the
Corporation or a committee thereof, or, if no such
investment banking or appraisal firm is in the good
faith judgment of the Board of Directors or such
committee available to make such determination, as
determined in good faith by the Board of Directors of
the Corporation or such committee.
"Non-Dilutive Amount" in respect of an issuance,
sale or exchange by the Corporation of any right or
warrant to purchase or acquire shares of Common Stock
(including any security convertible into or
exchangeable for shares of Common Stock) shall mean
the remainder of (a) the product of the Fair Market
Value of a share of Common Stock on the day preceding
the first public announcement of such issuance, sale or
exchange multiplied by the maximum number of shares of
Common Stock which could be acquired on such date upon
the exercise in full of such rights and warrants
(including upon the conversion or exchange of all such
convertible or exchangeable securities), whether or
not exercisable (or convertible or exchangeable) at
such date, minus (b) the aggregate amount payable
pursuant to such right or warrant to purchase or
acquire such maximum number of shares of Common Stock;
provided, however, that in no event shall the Non-
Dilutive Amount be less than zero. For purposes of the
foregoing sentence, in the case of a security
convertible into or exchangeable for shares of Common
Stock, the amount payable pursuant to a right or
warrant to purchase or acquire shares of Common Stock
shall be the Fair Market Value of such security on the
date of the issuance, sale or exchange of such
security by the Corporation.
"Pro Rata Repurchase" shall mean any purchase of
shares of Common Stock by the Corporation or any
subsidiary thereof, whether for cash, shares of
capital stock of the Corporation, other securities of
the Corporation, evidences of indebtedness of the
Corporation or any other person or any other property
(including shares of a subsidiary of the Corporation),
or any combination thereof, effected while any of the
shares of ESOP Preferred Stock are outstanding,
pursuant to any tender offer or exchange offer subject
to Section 13(e) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or any successor
provision of law, or pursuant to any other offer
available to substantially all holders of Common
Stock; provided, however, that no purchase of shares by
the Corporation or any subsidiary thereof made in open
market transactions shall be deemed a Pro Rata
Repurchase. For purposes of this paragraph I(7),
shares shall be deemed to have been purchased by the
Corporation or any subsidiary thereof "in open market
transactions" if they have been purchased
substantially in accordance with the requirements of
Rule 10b-18 as in effect under the Exchange Act, on
the date shares of ESOP Preferred Stock are initially
issued by the Corporation or on such other terms and
conditions as the Board of Directors of the Corporation
or a committee thereof shall have determined are
reasonably designed to prevent such purchases from
having a material effect on the trading market for the
Common Stock.
"Valuation Date" with respect to an Extraordinary
Distribution shall mean the date that is five (5)
business days prior to the record date for such
Extraordinary Distribution.
(8) Whenever an adjustment to the Conversion Ratio is required
pursuant hereto, the Corporation shall forthwith place on file
with the transfer agent for the Common Stock and the ESOP
Preferred Stock if there be one, and with the Secretary of the
Corporation, a statement signed by two officers of the
Corporation, stating the adjusted Conversion Ratio determined as
provided herein and the voting rights (as appropriately adjusted)
of the ESOP Preferred Stock. Such statement shall set forth in
reasonable detail such facts as shall be necessary to show the
reason and the manner of computing such adjustment, including any
determination of Fair Market Value involved in such computation.
Promptly after each adjustment to the Conversion Ratio and the
related voting rights of the ESOP Preferred Stock, the
Corporation shall mail a notice thereof to each holder of shares
of the ESOP Preferred Stock.
J. Ranking; Retirement of Shares.
(1) The ESOP Preferred Stock shall rank (a) senior to the Common
Stock as to the payment of dividends and the distribution of
assets on liquidation, dissolution and winding-up of the
Corporation and (b) unless otherwise provided in the Articles of
Incorporation of the Corporation or an amendment to such Articles
of Incorporation relating to a subsequent series of Preferred
Shares, junior to all other series of Preferred Shares as to the
payment of dividends and the distribution of assets on
liquidation, dissolution or winding-up.
(2) Any shares of ESOP Preferred Stock acquired by the
Corporation by reason of the conversion or redemption of such
shares as provided hereby, or otherwise so acquired, shall be
retired as shares of ESOP Preferred Stock and restored to the
status of authorized but unissued shares of Preferred Shares,
undesignated as to series, and may thereafter be reissued as part
of a new series of such Preferred Shares as permitted by law.
K. Miscellaneous.
(1) All notices referred to herein shall be in writing, and all
notices hereunder shall be deemed to have been given upon the
earlier of receipt thereof or three (3) business days after the
mailing thereof if sent by registered mail (unless first-class
mail shall be specifically permitted for such notice under the
terms hereof) with postage prepaid, addressed: (a) if to the
Corporation, to its office at Bank of America Corporate Center,
Charlotte, North Carolina 28255 (Attention: Treasurer) or to the
transfer agent for the ESOP Preferred Stock, or other agent of
the Corporation designated as permitted hereby or (b) if to any
holder of the ESOP Preferred Stock or Common Stock, as the case
may be, to such holder at the address of such holder as listed in
the stock record books of the Corporation (which may include the
records of any transfer agent for the ESOP Preferred Stock or
Common Stock, as the case may be) or (c) to such other address as
the Corporation or any such holder, as the case may be, shall
have designated by notice similarly given.
(2) The term "Common Stock" as used herein means the
Corporation's Common Stock, as the same existed at the date of
filing of the Amendment to the Corporation's Articles of
Incorporation relating to the ESOP Preferred Stock or any other
class of stock resulting from successive changes or
reclassification of such Common Stock consisting solely of
changes in par value, or from par value to no par value. In the
event that, at any time as a result of an adjustment made
pursuant to paragraph I hereof, the holder of any share of the
ESOP Preferred Stock upon thereafter surrendering such shares for
conversion shall become entitled to receive any shares or other
securities of the Corporation other than shares of Common Stock,
the Conversion Ratio in respect of such other shares or
securities so receivable upon conversion of shares of ESOP
Preferred Stock shall thereafter be adjusted, and shall be
subject to further adjustment from time to time, in a manner and
on terms as nearly equivalent as practicable to the provisions
with respect to Common Stock contained in paragraph I hereof, and
the provisions of paragraphs A through H, J, and K hereof with
respect to the Common Stock shall apply on like or similar terms
to any such other shares or securities.
(3) The Corporation shall pay any and all stock transfer and
documentary stamp taxes that may be payable in respect of any
issuance or delivery of shares of ESOP Preferred Stock or shares
of Common Stock or other securities issued on account of ESOP
Preferred Stock pursuant hereto or certificates representing such
shares or securities. The Corporation shall not, however, be
required to pay any such tax which may be payable in respect of
any transfer involved in the issuance or delivery of shares of
ESOP Preferred Stock or Common Stock or other securities in a
name other than that in which the shares of ESOP Preferred Stock
with respect to which such shares or other securities are issued
or delivered were registered, or in respect of any payment to any
person with respect to any such shares or securities other than a
payment to the registered holder thereof, and shall not be
required to make any such issuance, delivery or payment unless
and until the person otherwise entitled to such issuance,
delivery or payment has paid to the Corporation the amount of any
such tax or has established, to the satisfaction of the
Corporation, that such tax has been paid or is not payable.
(4) In the event that a holder of shares of ESOP Preferred Stock
shall not by written notice designate the name in which shares of
Common Stock to be issued upon conversion of such shares should
be registered or to whom payment upon redemption of shares of
ESOP Preferred Stock should be made or the address to which the
certificate or certificates representing such shares, or such
payment, should be sent, the Corporation shall be entitled to
register such shares, and make such payment, in the name of the
holder of such ESOP Preferred Stock as shown on the records of
the Corporation and to send the certificate or certificates
representing such shares, or such payment, to the address of such
holder shown on the records of the Corporation.
(5) The Corporation may appoint, and from time to time discharge
and change, a transfer agent for the ESOP Preferred Stock. Upon
any such appointment or discharge of a transfer agent, the
Corporation shall send notice thereof by first-class mail,
postage prepaid, to each holder of record of ESOP Preferred
Stock.
(c) $2.50 Cumulative Convertible Preferred Stock, Series BB.
A. Designation.
The designation of this series is "$2.50 Cumulative
Convertible Preferred Stock, Series BB" (hereinafter referred to
as the "Series BB Preferred Stock"), and the initial number of
shares constituting such series shall be 20,000,000, which number
may be increased or decreased (but not below the number of shares
then outstanding) from time to time by the Board of Directors.
The Series BB Preferred Stock shall rank prior to each of the
Common Stock, the Series B Preferred Stock and the ESOP Preferred
Stock with respect to the payment of dividends and the
distribution of assets.
B. Dividend Rights.
(1) The holders of shares of Series BB Preferred Stock shall be
entitled to receive, when and as declared by the Board of
Directors, out of funds legally available therefor, cumulative
preferential cash dividends, accruing from January 1, 1998, at
the annual rate of $2.50 per share, and no more, payable
quarterly on the first day of January, April, July and October of
each year (each of the quarterly periods ending on the last day
of March, June, September and December being hereinafter referred
to as a "dividend period"). Dividends on the Series BB Preferred
Stock shall first become payable on the first day of January,
April, July or October, as the case may be, next following the
date of issuance; provided, however, that if the first dividend
period ends within 20 days of the date of issuance, such initial
dividend shall be payable at the completion of the first full
dividend period.
(2) Dividends on shares of Series BB Preferred Stock shall be
cumulative from January 1, 1998, whether or not there shall be
funds legally available for the payment thereof. Accumulations of
dividends on the Series BB Preferred Stock shall not bear
interest. The Corporation shall not (i) declare or pay or set
apart for payment any dividends or distributions on any stock
ranking as to dividends junior to the Series BB Preferred Stock
(other than dividends paid in shares of such junior stock) or
(ii) make any purchase or redemption of, or any sinking fund
payment for the purchase or redemption of, any stock ranking as
to dividends junior to the Series BB Preferred Stock (other than
a purchase or redemption made by issue or delivery of such junior
stock) unless all dividends payable on all outstanding shares of
Series BB Preferred Stock for all past dividend periods shall
have been paid in full or declared and a sufficient sum set apart
for payment thereof; provided, however, that any moneys
theretofore deposited in any sinking fund with respect to any
preferred stock of the Corporation in compliance with the
provisions of such sinking fund may thereafter be applied to the
purchase or redemption of such preferred stock in accordance with
the terms of such sinking fund regardless of whether at the time
of such application all dividends payable on all outstanding
shares of Series BB Preferred Stock for all past dividend periods
shall have been paid in full or declared and a sufficient sum set
apart for payment thereof.
(3) All dividends declared on shares of Series BB Preferred
Stock and any other class of preferred stock or series thereof
ranking on a parity as to dividends with the Series BB Preferred
Stock shall be declared pro rata, so that the amounts of
dividends declared on the Series BB Preferred Stock and such
other preferred stock for the same dividend period, or for the
dividend period of the Series BB Preferred Stock ending within
the dividend period of such other stock, shall, in all cases,
bear to each other the same ratio that accrued dividends on the
shares of Series BB Preferred Stock and such other stock bear to
each other.
C. Liquidation Preference.
(1) In the event of any liquidation, dissolution or winding up
of the affairs of the Corporation, whether voluntary or
involuntary, the holders of Series BB Preferred Stock shall be
entitled to receive out of the assets of the Corporation
available for distribution to shareholders an amount equal to $25
per share plus an amount equal to accrued and unpaid dividends
thereon to and including the date of such distribution, and no
more, before any distribution shall be made to the holders of any
class of stock of the Corporation ranking junior to the Series BB
Preferred Stock as to the distribution of assets.
(2) In the event the assets of the Corporation available for
distribution to shareholders upon any liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary
or involuntary, shall be insufficient to pay in full the amounts
payable with respect to the Series BB Preferred Stock and any
other shares of preferred stock of the Corporation ranking on a
parity with the Series BB Preferred Stock as to the distribution
of assets, the holders of Series BB Preferred Stock and the
holders of such other preferred stock shall share ratably in any
distribution of assets of the Corporation in proportion to the
full respective preferential amounts to which they are entitled.
(3) The merger or consolidation of the Corporation into or with
any other corporation, the merger or consolidation of any other
corporation into or with the Corporation or the sale of the
assets of the Corporation substantially as an entirety shall not
be deemed a liquidation, dissolution or winding up of the affairs
of the Corporation within the meaning of this paragraph C.
D. Redemption.
(1) The Corporation, at its option, may redeem all or any shares
of the Series BB Preferred Stock at any time at a redemption
price (the "Redemption Price") consisting of the sum of (i) $25
per share and (ii) an amount equal to accrued and unpaid
dividends thereon to and including the date of redemption.
(2) If less than all the outstanding shares of Series BB
Preferred Stock are to be redeemed, the shares to be redeemed
shall be selected pro rata as nearly as practicable or by lot, as
the Board of Directors may determine.
(3) Notice of any redemption shall be given by first class mail,
postage prepaid, mailed not less than 60 nor more than 90 days
prior to the date fixed for redemption to the holders of record
of the shares of Series BB Preferred Stock to be redeemed, at
their respective addresses appearing on the books of the
Corporation. Notice so mailed shall be conclusively presumed to
have been duly given whether or not actually received. Such
notice shall state: (1) the date fixed for redemption; (2) the
Redemption Price; (3) the right of the holders of Series BB
Preferred Stock to convert such stock into Common Stock until the
close of business on the 15th day prior to the redemption date
(or the next succeeding business day, if the 15th day is not a
business day); (4) if less than all the shares held by such
holder are to be redeemed, the number of shares to be redeemed
from such holder; and (5) the place(s) where certificates for
such shares are to be surrendered for payment of the Redemption
Price. If such notice is mailed as aforesaid, and if on or before
the date fixed for redemption funds sufficient to redeem the
shares called for redemption are set aside by the Corporation in
trust for the account of the holders of the shares to be
redeemed, notwithstanding the fact that any certificate for
shares called for redemption shall not have been surrendered for
cancellation, on and after the redemption date the shares
represented thereby so called for redemption shall be deemed to
be no longer outstanding, dividends thereon shall cease to
accrue, and all rights of the holders of such shares as
shareholders of the corporation shall cease, except the right to
receive the Redemption Price, without interest, upon surrender of
the certificate(s) representing such shares. Upon surrender in
accordance with the aforesaid notice of the certificate(s) for
any shares so redeemed (duly endorsed or accompanied by
appropriate instruments of transfer, if so required by the
Corporation in such notice), the holders of record of such shares
shall be entitled to receive the Redemption Price, without
interest.
(4) At the option of the Corporation, if notice of redemption is
mailed as aforesaid, and if prior to the date fixed for
redemption funds sufficient to pay in full the Redemption Price
are deposited in trust, for the account of the holders of the
shares to be redeemed, with a bank or trust company named in such
notice doing business in the Borough of Manhattan, the City of
New York, State of New York or the City of Charlotte, State of
North Carolina and having capital, surplus and undivided profits
of at least $3 million, which bank or trust company also may be
the Transfer Agent and/or Paying Agent for the Series BB
Preferred Stock, notwithstanding the fact that any certificate
for shares called for redemption shall not have been surrendered
for cancellation, on and after such date of deposit the shares
represented thereby so called for redemption shall be deemed to
be no longer outstanding, and all rights of the holders of such
shares as shareholders of the Corporation shall cease, except the
right of the holders thereof to convert such shares in accordance
with the provisions of paragraph F at any time prior to the close
of business on the 15th day prior to the redemption date (or the
next succeeding business day, if the 15th day is not a business
day), and the right of the holders thereof to receive out of the
funds so deposited in trust the Redemption Price, without
interest, upon surrender of the certificate(s) representing such
shares. Any funds so deposited with such bank or trust company in
respect of shares of Series BB Preferred Stock converted before
the close of business on the 15th day prior to the redemption
date (or the next succeeding business day, if the 15th day is not
a business day) shall be returned to the Corporation upon such
conversion. Any funds so deposited with such a bank or trust
company which shall remain unclaimed by the holders of shares
called for redemption at the end of six years after the
redemption date shall be repaid to the Corporation, on demand,
and thereafter the holder of any such shares shall look only to
the Corporation for the payment, without interest, of the
Redemption Price.
(5) Any provisions of paragraph D or E to the contrary
notwithstanding, in the event that any quarterly dividend payable
on the Series BB Preferred Stock shall be in arrears and until
all such dividends in arrears shall have been paid or declared
and set apart for payment, the Corporation shall not redeem any
shares of Series BB Preferred Stock unless all outstanding shares
of Series BB Preferred Stock are simultaneously redeemed and
shall not purchase or otherwise acquire any shares of Series BB
Preferred Stock except in accordance with a purchase offer made
by the Corporation on the same terms to all holders of record of
Series BB Preferred Stock for the purchase of all outstanding
shares thereof.
E. Purchase by the Corporation.
(1) Except as provided in paragraph D(5), the Corporation shall
be obligated to purchase shares of Series BB Preferred Stock
tendered by the holder thereof for purchase hereunder, at a
purchase price consisting of the sum of (i) $25 per share and
(ii) an amount equal to accrued and unpaid dividends thereon to
and including the date of purchase. In order to exercise his
right to require the Corporation to purchase his shares of Series
BB Preferred Stock, the holder thereof shall surrender the
Certificate(s) therefor duly endorsed if the Corporation shall so
require or accompanied by appropriate instruments of transfer
satisfactory to the Corporation, at the office of the Transfer
Agent(s) for the Series BB Preferred Stock, or at such other
office as may be designated by the Corporation, together with
written notice that such holder irrevocably elects to sell such
shares to the Corporation. Shares of Series BB Preferred Stock
shall be deemed to have been purchased by the Corporation
immediately prior to the close of business on the date such
shares are tendered for sale to the Corporation and notice of
election to sell the same is received by the Corporation in
accordance with the foregoing provisions. As of such date the
shares so tendered for sale shall be deemed to be no longer
outstanding, dividends thereon shall cease to accrue and all
rights of the holder of such shares as a shareholder of the
Corporation shall cease, except the right to receive the purchase
price.
F. Conversion Rights.
The holders of shares of Series BB Preferred Stock
shall have the right, at their option, to convert such shares
into shares of Common Stock on the following terms and
conditions:
(1) Shares of Series BB Preferred Stock shall be convertible at
any time into fully paid and nonassessable shares of Common Stock
(calculated as to each conversion to the nearest 1/1,000 of a
share) at the initial rate of 6.17215 shares of Common Stock for
each share of Series BB Preferred Stock surrendered for
conversion (the "Conversion Rate"). The Conversion Rate shall be
subject to adjustment from time to time as hereinafter provided.
No payment or adjustment shall be made on account of any accrued
and unpaid dividends on shares of Series BB Preferred Stock
surrendered for conversion prior to the record date for the
determination of shareholders entitled to such dividends or on
account of any dividends on the Common Stock issued upon such
conversion subsequent to the record date for the determination of
shareholders entitled to such dividends. If any shares of Series
BB Preferred Stock shall be called for redemption, the right to
convert the shares designated for redemption shall terminate at
the close of business on the 15th day prior to the redemption
date (or the next succeeding business day, if the 15th day is not
a business day) unless default be made in the payment of the
Redemption Price. In the event of default in the payment of the
Redemption Price, the right to convert the shares designated for
redemption shall terminate at the close of business on the
business day immediately preceding the date that such default is
cured.
(2) In order to convert shares of Series BB Preferred Stock into
Common Stock, the holder thereof shall surrender the
certificate(s) therefor, duly endorsed if the Corporation shall
so require, or accompanied by appropriate instruments of transfer
satisfactory to the Corporation, at the office of the Transfer
Agent(s) for the Series BB Preferred Stock, or at such other
office as may be designated by the Corporation, together with
written notice that such holder irrevocably elects to convert
such shares. Such notice shall also state the name(s) and
address(es) in which such holder wishes the certificate(s) for
the shares of Common Stock issuable upon conversion to be issued.
As soon as practicable after receipt of the certificate(s)
representing the shares of Series BB Preferred Stock to be
converted and the notice of election to convert the same, the
Corporation shall issue and deliver at said office a certificate
or certificates for the number of whole shares of Common Stock
issuable upon conversion of the shares of Series BB Preferred
Stock surrendered for conversion, together with a cash payment in
lieu of any fraction of a share, as hereinafter provided, to the
person(s) entitled to receive the same. Shares of Series BB
Preferred Stock shall be deemed to have been converted
immediately prior to the close of business on the date such
shares are surrendered for conversion and notice of election to
convert the same is received by the Corporation in accordance
with the foregoing provisions, and the person(s) entitled to
receive the Common Stock issuable upon such conversion shall be
deemed for all purposes as record holder(s) of such Common Stock
as of such date.
(3) No fractional shares of Common Stock shall be issued upon
conversion of any shares of Series BB Preferred Stock. If more
than one share of Series BB Preferred Stock is surrendered at one
time by the same holder, the number of full shares issuable upon
conversion thereof shall be computed on the basis of the
aggregate number of shares so surrendered. If the conversion of
any shares of Series BB Preferred Stock results in a fractional
share of Common Stock, the Corporation shall pay cash in lieu
thereof in an amount equal to such fraction multiplied times the
closing price of the Common Stock on the date on which the shares
of Series BB Preferred Stock were duly surrendered for
conversion, or if such date is not a trading date, on the next
succeeding trading date. The closing price of the Common Stock
for any day shall mean the last reported sales price regular way
on such day or, in case no such sale takes place on such day, the
average of the reported closing bid and asked prices, regular
way, on the New York Stock Exchange, or, if the Common Stock is
not then listed on such Exchange, on the principal national
securities exchange on which the Common Stock is listed for
trading, or, if not then listed for trading on any national
securities exchange, the average of the closing bid and asked
prices of the Common Stock as furnished by the National Quotation
Bureau, Inc., or if the National Quotation Bureau, Inc. ceases to
furnish such information, by a comparable independent securities
quotation service.
(4) In the event the Corporation shall at any time (i) pay a
dividend or make a distribution to holders of Common Stock in
shares of Common Stock, (ii) subdivide its outstanding shares of
Common Stock into a larger number of shares, or (iii) combine its
outstanding shares of Common Stock into a smaller number of
shares, the Conversion Rate in effect at the time of the record
date for such dividend or distribution or the effective date of
such subdivision or combination shall be adjusted so that the
holder of any shares of Series BB Preferred Stock surrendered for
conversion after such record date or effective date shall be
entitled to receive the number of shares of Common Stock which he
would have owned or have been entitled to receive immediately
following such record date or effective date had such shares of
Series BB Preferred Stock been converted immediately prior
thereto.
(5) Whenever the Conversion Rate shall be adjusted as herein
provided (i) the Corporation shall forthwith keep available at
the office of the Transfer Agent(s) for the Series BB Preferred
Stock a statement describing in reasonable detail the adjustment,
the facts requiring such adjustment and the method of calculation
used; and (ii) the Corporation shall cause to be mailed by first
class mail, postage prepaid, as soon as practicable to each
holder of record of shares of Series BB Preferred Stock a notice
stating that the Conversion Rate has been adjusted and setting
forth the adjusted Conversion Rate.
(6) In the event of any consolidation of the Corporation with or
merger of the Corporation into any other corporation (other than
a merger in which the Corporation is the surviving corporation)
or a sale of the assets of the Corporation substantially as an
entirety, the holder of each share of Series BB Preferred Stock
shall have the right, after such consolidation, merger or sale to
convert such share into the number and kind of shares of stock or
other securities and the amount and kind of property receivable
upon such consolidation, merger or sale by a holder of the number
of shares of Common Stock issuable upon conversion of such share
of Series BB Preferred Stock immediately prior to such
consolidation, merger or sale. Provision shall be made for
adjustments in the Conversion Rate which shall be as nearly
equivalent as may be practicable to the adjustments provided for
in paragraph F(4). The provisions of this paragraph F(6) shall
similarly apply to successive consolidations, mergers and sales.
(7) The Corporation shall pay any taxes that may be payable in
respect of the issuance of shares of Common Stock upon conversion
of shares of Series BB Preferred Stock, but the Corporation shall
not be required to pay any taxes which may be payable in respect
of any transfer involved in the issuance of shares of Common
Stock in a name other than that in which the shares of Series BB
Preferred Stock so converted are registered, and the Corporation
shall not be required to issue or deliver any such shares unless
and until the person(s) requesting such issuance shall have paid
to the Corporation the amount of any such taxes, or shall have
established to the satisfaction of the Corporation that such
taxes have been paid.
(8) The Corporation shall at all times reserve and keep
available out of its authorized but unissued Common Stock the
full number of shares of Common Stock issuable upon the
conversion of all shares of Series BB Preferred Stock then
outstanding.
(9) In the event that:
(i) The Corporation shall declare a dividend or any other
distribution on its Common Stock, payable otherwise than in cash
out of retained earnings; or
(ii) The Corporation shall authorize the granting to the holders
of its Common Stock of rights to subscribe for or purchase any
shares of capital stock of any class or of any other rights; or
(iii) The Corporation shall propose to effect any
consolidation of the Corporation with or merger of the
Corporation with or into any other corporation or a sale of the
assets of the company substantially as an entirety which would
result in an adjustment under paragraph F(6),
the Corporation shall cause to be mailed to the holders of record
of Series BB Preferred Stock at least 20 days prior to the
applicable date hereinafter specified a notice stating (x) the
date on which a record is to be taken for the purpose of such
dividend, distribution or rights or, if a record is not to be
taken, the date as of which the holders of Common Stock of record
to be entitled to such dividend, distribution or rights are to be
determined or (y) the date on which such consolidation, merger or
sale is expected to become effective, and the date as of which it
is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such consolidation, merger or
sale. Failure to give such notice, or any defect therein, shall
not affect the legality or validity of such dividend,
distribution, consolidation, merger or sale.
G. Voting Rights.
Holders of Series BB Preferred Stock shall have no
voting rights except as required by law and as follows: in the
event that any quarterly dividend payable on the Series BB
Preferred Stock is in arrears, the holders of Series BB Preferred
Stock shall be entitled to vote together with the holders of
Common Stock at the Corporation's next meeting of shareholders
and at each subsequent meeting of shareholders unless all
dividends in arrears have been paid or declared and set apart for
payment prior to the date of such meeting. For the purpose of
this paragraph G, each holder of Series BB Preferred Stock shall
be entitled to cast the number of votes equal to the number of
whole shares of Common Stock into which his Series BB Preferred
Stock is then convertible.
H. Reacquired Shares.
Shares of Series BB Preferred Stock converted,
redeemed, or otherwise purchased or acquired by the Corporation
shall be restored to the status of authorized but unissued shares
of preferred stock without designation as to series.
I. No Sinking Fund.
Shares of Series BB Preferred Stock are not subject to
the operation of a sinking fund.
4. The address of the Corporation's registered office in
the State of Delaware is Corporation Trust Center, 1209 Orange
Street in the City of Wilmington, County of New Castle. The name
of the Corporation's registered agent at such address is The
Corporation Trust Company.
5. No holder of any stock of the Corporation of any class now
or hereafter authorized shall have any preemptive right to
purchase, subscribe for, or otherwise acquire any shares of stock
of the Corporation of any class now or hereafter authorized, or
any securities exchangeable for or convertible into any such
shares, or any warrants or other instruments evidencing rights or
options to subscribe for, purchase or otherwise acquire any such
shares whether such shares, securities, warrants or other
instruments be unissued, or issued and thereafter acquired by the
Corporation.
6. To the fullest extent permitted by the General Corporation
Law of the State of Delaware, as the same exists or may hereafter
be amended, a director of the Corporation shall not be personally
liable to the Corporation, its shareholders or otherwise for
monetary damage for breach of his duty as a director. Any repeal
or modification of this Article shall be prospective only and
shall not adversely affect any limitation on the personal
liability of a director of the Corporation existing at the time
of such repeal or modification.
7. In furtherance and not in limitation of the powers conferred
by law, the Board of Directors of the Corporation is expressly
authorized and empowered to make, alter and repeal the Bylaws of
the Corporation by a majority vote at any regular or special
meeting of the Board of Directors or by written consent, subject
to the power of the stockholders of the Corporation to alter or
repeal any Bylaws made by the Board of Directors.
8. The Corporation reserves the right at any time from time to
time to amend or repeal any provision contained in this
Certificate of Incorporation, and to add any other provisions
authorized by the laws of the State of Delaware at the time in
force; and all rights, preferences and privileges conferred upon
stockholders, directors or any other persons by and pursuant to
this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the rights reserved in
this Article.
9. Unless and except to the extent that the Bylaws of the
Corporation shall so require, the election of directors of the
Corporation need not be by written ballot.
10. Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called
annual or special meeting of stockholders of the Corporation or
may be effected by consent in writing in lieu of a meeting of
such stockholders only if consents are signed by all stockholders
of the Corporation entitled to vote on such action.
IN WITNESS WHEREOF, BankAmerica Corporation has
caused this Amended and Restated Certificate of Incorporation to
be signed by Hugh L. McColl, Jr., its Chairman of the Board and
Chief Executive Officer, and attested to by James W. Kiser, its
Secretary, this 28th day of April, 1999.
BANKAMERICA CORPORATION
By: /s/ Hugh L. McColl, Jr.
Hugh L. McColl, Jr.
Chairman of the Board and
Chief Executive Officer
ATTEST:
By: /s/ James W. Kiser
James W. Kiser
Secretary
EXHIBIT 99.2
BYLAWS
OF
BANK OF AMERICA CORPORATION
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 certificates of designation filed
with the Delaware Secretary of State setting forth
the terms of preferred stock of the Company.
(b) "Common Stock" means the common stock of the
Corporation.
(c) "Corporation" means Bank of America 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) "Shares" means the Common Stock and other units
into which the equity interests in the Corporation
are divided.
(f) "Stockholder" means the person in whose name
Shares are registered in the records of the
Corporation.
(g) "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
together 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 matter 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
STOCKHOLDERS
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. 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 3. 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 4. Notice of Meeting. Except as otherwise
provided herein or required by law, 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
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 meeting, the notice of meeting
need not specifically state the business to be transacted
thereat. 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.
Section 5. 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
of such meeting or on which such action 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 or any other purpose, 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 relating thereto 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.
Section 6. Stockholders List. After the record
date for a meeting of Stockholders is fixed or determined, the
officer or agent having charge of the stock ledger for Shares of
the Corporation shall prepare and make an alphabetical list of
the names of all Stockholders of the Corporation who are entitled
to vote at such Stockholders meeting. The list will show the
address of and number of Shares registered in the name of each
Stockholder. Such Stockholders list will be open for examination
by any Stockholder for any purpose germane to the meeting, for a
period of at least 10 days before such meeting, at a place
identified in the meeting notice in the city where the meeting
will be held or, if not so specified, at the place where the
meeting is to be held. Such list shall also be available at the
meeting of Stockholders, and any Stockholder present is entitled
to inspect the list.
Section 7. 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 8. Proxies. Each Stockholder entitled to
vote at a meeting of Stockholders or to express consent or
dissent to corporate action in writing without a meeting may
authorize another person or persons to act for such Stockholder
by proxy, but no such proxy shall be voted or acted upon after 3
years from its date, unless the proxy provides for a longer
period.
Without limiting the manner in which a Stockholder may
authorize another person or persons to act for such Stockholder
as proxy pursuant to the previous paragraph, the following shall
constitute a valid means by which a Stockholder may grant such
authority:
(1) A Stockholder may execute a writing authorizing
another person or persons to act for such Stockholder as
proxy. Execution may be accomplished by the Stockholder or
such Stockholder's authorized officer, director, employee or
agent signing such writing or causing such person's
signature to be affixed to such writing by any reasonable
means including, but not limited to, by facsimile signature.
(2) A Stockholder may authorize another person or
persons to act for such Stockholder as proxy by transmitting
or authorizing the transmission of a telegram, cablegram, or
other means of electronic transmission to the person who
will be the holder of the proxy or to a proxy solicitation
firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy
to receive such transmission, provided that any such
telegram, cablegram or other means of electronic
transmission must either set forth or be submitted with
information from which it can be determined that the
telegram, cablegram or other electronic transmission was
authorized by the Stockholder. If it is determined that
such telegrams, cablegrams or other electronic transmissions
are valid, the inspectors or, if there are no inspectors,
such other persons making that determination shall specify
the information upon which they relied.
Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to
the previous paragraph of this section may be substituted or used
in lieu of the original writing or transmission for any and all
purposes for which the original writing or transmission could be
used, provided that such copy, facsimile telecommunication or
other reproduction shall be a complete reproduction of the entire
original writing or transmission.
A duly executed proxy shall be irrevocable if it states
that it is irrevocable and if, and only as long as, it is coupled
with an interest sufficient in law to support an irrevocable
power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock
itself or an interest in the corporation generally.
Section 9. Voting of Shares. Except as otherwise
provided by the Certificate of Incorporation, 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 or the Chairman of a meeting) 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.
Section 10. 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.
Section 11. Conduct of Meetings. The Chairman of
the Board shall preside as chairman at each meeting of
Stockholders or, in the Chairman's absence, the Chief Executive
Officer shall so 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 so 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 so 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. The chairman of any
meeting of Stockholders shall determine the order of business and
the procedure at the meeting, including regulation of the manner
of voting and the conduct of discussion. The date and time of
the opening and closing of the polls for each matter upon which
the Stockholders will vote at the meeting shall be announced at
the meeting.
Section 12. 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. 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.
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 the affirmative vote of the
holders of a majority of the Shares then entitled to vote at an
election of directors except that whenever any Voting Group is
entitled to elect one or more directors by the Certificate of
Incorporation, this provision shall apply, in respect to the
removal without cause of a director or directors so elected, to
the Voting Group and not to the vote of the outstanding Shares as
a whole. 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.
Section 5. Vacancies and Newly Created
Directorships. Except in those instances where the Certificate
of Incorporation or applicable law provides otherwise, a majority
of directors then in office, although less than a quorum, or a
sole remaining director, may fill a vacancy or a newly created
directorship 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 by a majority of directors then in office,
including those who have so resigned, 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 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 authority of the Board of Directors in
the management of the Corporation.
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 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 Committee shall administer all plans of the
Corporation that provide for awards of the stock options, stock
appreciation rights, restricted stock or other similar stock-
based awards unless otherwise provided for in the plans.
The Compensation Committee shall have such other
purposes and such other powers as the Board of Directors may from
time to time determine. As used throughout these Bylaws, the
term "executive officer" means those officers of the Corporation
who are designated as such from time to time by the Board.
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 proceedings and shall report its
actions in writing to the next succeeding meeting of the Board of
Directors.
Section 9. Management Compensation Committee. The
Board of Directors, by resolution adopted by a majority of the
Directors 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 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.
Section 10. Audit Committee. The Board of Directors
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.
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 one or more members, who serve at the
pleasure of 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 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 being
adjourned. 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 expressly
objects to holding the meeting or transacting business at the
because the meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Stockholders,
directors or members of a committee of directors need be
specified in any written waiver of notice unless so required by
the Certificate of Incorporation.
Section 5. Quorum. A majority of the number of
directors in office immediately before the meeting begins, but in
no case less than 1/3 of the total number of directors fixed by
the Board of Directors, 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. Except as otherwise
provided in the Certificate of Incorporation or herein, 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.
Section 7. 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 8. 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 describing the action taken, which consent
or consents shall be included in the minutes or filed with the
corporate records.
Section 9. 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.
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; 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 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 or as may be prescribed by the Board of
Directors or these 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, or
President or any Vice President, provided that in lieu of the
Secretary's signature the Treasurer or an Assistant Treasurer or
an Assistant Secretary may sign, 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
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; 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 President and the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer 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 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 or a
statement that the Corporation will furnish such information
without charge to each Stockholder who so requests.
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.
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 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. Any such countersignature may be a facsimile.
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. Right to Indemnification. Each person
who was or is made a party or is threatened to be made a party to
or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or
she is or was a director, officer, or employee of the Corporation
or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of
a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity
while serving as a director, officer, or employee or agent, shall
be indemnified and held harmless by the Corporation to the
fullest extent authorized by the DGCL, as the same exists or may
hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than permitted prior
thereto), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such
indemnification shall continue as to an indemnitee who has ceased
to be a director, officer, employee or agent and shall inure to
the benefit of the indemnitee's heirs, executors and
administrators; provided, however, that, except as provided in
Section 3 of this Article VIII with respect to proceedings to
enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or
part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
Section 2. Right to Advancement of Expenses. The
right to indemnification conferred in this Article shall include
the right to be paid by the Corporation the expenses incurred in
defending any proceeding for which such right to indemnification
is applicable in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the DGCL
requires, an advancement of expenses incurred by an indemnitee in
his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such
indemnitee, including, without limitation, service to an employee
benefit plan) shall be made only upon delivery to the Corporation
of an undertaking (hereinafter an "undertaking"), by or on behalf
of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which
there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be
indemnified for such expenses under this Section or otherwise.
Section 3. Right of Indemnitee to Bring Suit. The
rights to indemnification and to the advancement of expenses
conferred in Sections 1 and 2 of this Article VIII shall be
contract rights. If a claim under Sections 1 and 2 of this
Article VIII is not paid in full by the Corporation within sixty
days after a written claim has been received by the Corporation,
except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be twenty days, the
indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending
such suit. In (i) any suit brought by the indemnitee to enforce
a right to indemnification hereunder (but not in a suit brought
by the indemnitee to enforce a right to an advancement of
expenses) it shall be a defense that, and (ii) in any suit by the
Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for
indemnification set forth in the DGCL. Neither the failure of
the Corporation (including its Board of Directors, independent
legal counsel, or its Stockholders) to have made a determination
prior to the commencement of such suit that indemnification of
the indemnitee is proper in the circumstances because the
indemnitee has met the applicable standard of conduct set forth
in the DGCL, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or
its Stockholders) that the indemnitee has not met such applicable
standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in
the case of such a suit brought by the indemnitee, be a defense
to such suit. In any suit brought by the indemnitee to enforce a
right to indemnification or to an advancement of expenses
hereunder, or by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or
to such advancement of expenses, under this Article or otherwise
shall be on the Corporation.
Section 4. Non-Exclusivity of Rights. The rights
to indemnification and to the advancement of expenses conferred
in this Article shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, the
Corporation's certificate of incorporation, bylaw, agreement,
vote of Stockholders or disinterested directors or otherwise.
Section 5. Insurance. The Corporation may maintain
insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person
against such expense, liability or loss under the DGCL.
Section 6. Indemnification of Agents of the
Corporation. The Corporation may, to the extent authorized from
time to time by the Board of Directors, grant rights to
indemnification, and to the advancement of expenses to any agent
of the Corporation to the fullest extent of the provisions of
this Article with respect to the indemnification and advancement
of expenses of directors and officers of the Corporation.
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, powers of attorney, 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 and the DGCL.
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 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.
EXHIBIT 99.3
FOR IMMEDIATE RELEASE
April 28, 1999
Contact: Investors Susan Carr (704-386-8059)
Kevin Stitt (704-386-5667)
Media Bob Stickler (704-386-8465)
BANKAMERICA CORPORATION SHAREHOLDERS VOTE TO CHANGE NAME OF
HOLDING COMPANY TO BANK OF AMERICA CORPORATION; DIRECTORS DECLARE
DIVIDENDS
CHARLOTTE, NC, April 28, 1999 - At the annual meeting today,
shareholders of BankAmerica Corporation voted to change the name
of the company to Bank of America Corporation.
The name change becomes effective with the official filing in
Delaware today and will be reflected tomorrow on the exchanges
where the company's securities are listed.
The holding company's name now reflects the brand under which the
company will do business around the world. Bank of America
Corporation was formed Sept. 30, 1998 by the merger of
BankAmerica Corporation and NationsBank Corporation. By mid-year
2000, the company's banks will all be doing business under the
brand name Bank of America. Affiliated companies such as Bank of
America Mortgage and Bank of America Card Services already are
doing business under that name.
more
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In addition today, the Bank of America Corporation board of
directors declared a regular quarterly dividend of $.45 per share
on Bank of America Corporation common stock.
The dividend is payable June 25, 1999 to shareholders of record
on June 4, 1999.
The board also declared regular quarterly dividends on two
preferred stock issues. A $1.75 cash dividend was declared on
the 7 percent Cumulative Redeemable Preferred Stock, Series B.
The dividend is payable July 28, 1999 to shareholders of record
on July 14, 1999.
A cash dividend of 62.5 cents was declared on the $2.50
Cumulative Convertible Preferred Stock, Series BB, payable on
July 1, 1999 to shareholders of record on June 4, 1999.
Bank of America Corporation, with $614 billion in total assets,
is the largest bank in the United States. It has full-service
operations in 22 states and the District of Columbia and provides
financial products and services to 30 million households and 2
million businesses, as well as providing international corporate
financial services for business transactions in 190 countries.
Bank of America Corporation stock (ticker: BAC) is listed on the
New York, Pacific and London stock exchanges and certain shares
are listed on the Tokyo Stock Exchange.
www.nationsbank.com
www.bankamerica.com
