<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 17, 1994
REGISTRATION NO. 33-54385
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SECURITIES AND EXCHANGE COMMISSION
---------------
PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
---------------
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BANKAMERICA CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-1681731
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
BANK OF AMERICA CENTER CHERYL SOROKIN, SECRETARY
555 CALIFORNIA STREET BANK OF AMERICA CENTER
SAN FRANCISCO, CALIFORNIA 94104 555 CALIFORNIA STREET
(415) 622-3530 SAN FRANCISCO, CALIFORNIA 94104
(ADDRESS AND TELEPHONE NUMBER OF (415) 622-3530
PRINCIPAL EXECUTIVE OFFICES) (NAME, ADDRESS AND TELEPHONE NUMBER
OF AGENT FOR SERVICE)
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COPIES TO:
JEFFREY R. LAPIC PETER LILLEVAND
CAROLYN CHEW HAMILTON DANA M. KETCHAM
BANK OF AMERICA N.T. & S.A. ORRICK, HERRINGTON & SUTCLIFFE
LEGAL DEPARTMENT, P.O. BOX 37000 400 SANSOME STREET
SAN FRANCISCO, CALIFORNIA 94137 SAN FRANCISCO, CALIFORNIA 94111
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT
TITLE OF EACH CLASS OF AMOUNT BEING OFFERING PRICE AGGREGATE PAID ON
SECURITIES BEING REGISTERED(1) REGISTERED PER UNIT OFFERING PRICE 6/30/94
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<S> <C> <C> <C> <C>
Debt Securities, Debt Warrants, Pre-
ferred Stock(6), Depositary
Shares(6), Preferred Stock Warrants,
Common Stock, par value $1.5625 per
share(2)(6), Common Stock Warrants $4,000,000,000
and Currency (4)
Warrants............................. (3) (3) (5) $1,379,320
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</TABLE>
(1) This Registration Statement also covers contracts which may be issued by
the Registrant under which the counterparty may be required to purchase
Debt Securities, Preferred Stock or Depositary Shares. Such contracts
would be issued with the Debt Securities, Preferred Stock, Depositary
Shares and/or Securities Warrants. In addition, any other securities
registered hereunder may be sold separately or as units with other
securities registered hereunder.
(2) Associated with the Common Stock are Preferred Share Purchase Rights that
will not be exercisable or evidenced separately from the Common Stock
prior to the occurrence of certain events. The Common Stock registered
hereunder may be issued directly or upon exercise of Common Stock Warrants
registered hereunder or upon conversion of or in exchange for Debt
Securities, Preferred Stock or Depositary Shares registered hereunder.
(3) Not applicable pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933.
(4) Or the equivalent thereof in one or more foreign currencies or composite
currencies, including European Currency Units.
(5) No separate consideration will be received (i) for Common Stock, Preferred
Stock or Depositary Shares that are issued upon conversion of Debt
Securities, Preferred Stock or Depositary Shares or (ii) for Common Stock,
Perpetual Preferred Stock (as defined on page 18 herein) or other
securities that are issued in exchange for or upon conversion of the Debt
Securities or upon conversion of Preferred Stock or Depositary Shares as
described on pages 17-18 herein.
(6) This Registration Statement also covers Common Stock, Perpetual Preferred
Stock or other securities as may be issued in exchange for, or upon
conversion of, the Debt Securities or upon conversion of Preferred Stock
issued under this Registration Statement as described on pages 17-18
herein.
Pursuant to Rule 429 and, with respect to the first four registration
statements listed below, pursuant to Securities Act Release No. 6964, the
prospectus herein also relates to unallocated amounts of Debt Securities, Debt
Warrants, Preferred Stock, Depositary Shares, Preferred Share Warrants, Common
Stock, Common Stock Warrants and Currency Warrants having an aggregate initial
offering price (excluding accrued interest and dividends) not in excess of the
aggregate of the following dollar amounts of securities that have not yet been
offered for sale under the indicated original registration statements on Form
S-3: $50,000,000 pursuant to Registration Statement No. 33-23192; $1,000,000
pursuant to Registration Statement No. 33-36718; $1,000,000 pursuant to
Registration Statement No. 33-43862; $224,400,000 pursuant to Registration
Statement No. 33-51064 and $969,300,000 pursuant to Registration Statement No.
33-59892, in each case, plus such number of shares of Common Stock, Preferred
Stock and Depositary Shares as may be issuable upon conversion of the Debt
Securities or Preferred Stock and other securities as described on pages 17-18
herein that may be issued in exchange for or upon conversion of the Debt
Securities or upon conversion of the Preferred Stock or Depositary Shares.
Pursuant to Rule 457(o), no additional filing fee is due with respect to the
foregoing securities since the original filing fees in the above referenced
registration statements were based on the maximum offering price of all the
securities covered.
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<PAGE>
PROSPECTUS
BANKAMERICA CORPORATION
DEBT SECURITIES AND DEBT WARRANTS
PREFERRED SHARES, DEPOSITARY SHARES AND PREFERRED SHARE WARRANTS
COMMON STOCK AND COMMON STOCK WARRANTS
CURRENCY WARRANTS
BankAmerica Corporation (the "Corporation") may from time to time offer in
one or more series its unsecured debt securities, which may be either senior
(the "Senior Securities") or subordinated (the "Subordinated Securities," the
Senior Securities and the Subordinated Securities being referred to
collectively as the "Debt Securities"), warrants to purchase the Debt
Securities ("Debt Warrants"), shares of preferred stock (the "Preferred
Shares"), interests in which may be represented by depositary shares
("Depositary Shares"), warrants to purchase the Preferred Shares or Depositary
Shares ("Preferred Share Warrants"), shares of common stock (the "Common
Stock"), warrants to purchase Common Stock ("Common Stock Warrants", the Debt
Warrants, Preferred Share Warrants and Common Stock Warrants being referred to
collectively as the "Securities Warrants") and warrants entitling the holder to
receive the cash value of the right to purchase ("Currency Call Warrants") or
to sell ("Currency Put Warrants", the Currency Call Warrants and the Currency
Put Warrants being referred to collectively as the "Currency Warrants") foreign
currencies or composite currencies with an aggregate initial public offering
price (including the exercise price of any Securities Warrants) of up to
$5,245,700,000 or the equivalent thereof in one or more foreign currencies or
composite currencies, including European Currency Units ("ECU") on terms to be
determined at the time of sale. The Debt Securities, Preferred Shares,
Depositary Shares, Common Stock, Securities Warrants and Currency Warrants
(collectively, the "Offered Securities") may be offered, separately or
together, in separate series in amounts, at prices and on terms to be set forth
in a supplement to this Prospectus (a "Prospectus Supplement").
The Senior Securities will rank equally with all other unsubordinated and
unsecured indebtedness of the Corporation. The Subordinated Securities will be
subordinated to all existing and future Senior Debt of the Corporation, as
defined. See "Description of Debt Securities."
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered are set forth in the Prospectus Supplement.
The Prospectus Supplement will also contain information, where applicable,
about certain United States federal income tax considerations relating to, and
any listing on a securities exchange of, the Offered Securities covered by the
Prospectus Supplement.
The Offered Securities may be offered directly, through agents (which may
include Bank of America National Trust and Savings Association ("Bank of
America"), Bank of America International Limited and other affiliates of the
Corporation) designated from time to time or to or through underwriters or
dealers. If any agents or underwriters are involved in the sale of any of the
Offered Securities, their names, and any applicable fee, commission, purchase
price or discount arrangements with them will be set forth, or will be
calculable from the information set forth, in the Prospectus Supplement. The
Corporation may also issue contracts under which the counterparty may be
required to purchase Debt Securities, Preferred Stock, Depositary Shares or
Common Stock. Such contracts would be issued with the Debt Securities,
Preferred Stock, Depositary Shares, Common Stock and/or Securities Warrants in
amounts, at prices and on terms to be set forth in a Prospectus Supplement. See
"Plan of Distribution."
THE OFFERED SECURITIES ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER
OBLIGATIONS OF ANY BANK OR NONBANK SUBSIDIARY OF THE CORPORATION AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, BANK INSURANCE FUND OR
ANY OTHER GOVERNMENT AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is , 1994.
<PAGE>
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Act"). In accordance with the
Act, the Corporation files proxy statements, reports and other information with
the Securities and Exchange Commission (the "Commission"). This filed material
can be inspected and copied at the Commission's office at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549 and the Commission's Regional Offices in
New York (Seven World Trade Center, 13th Floor, New York, New York 10048) and
Chicago (Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511) and copies of such materials can be obtained from
the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. In addition, such material can be
inspected at the offices of the New York, Chicago and Pacific Stock Exchanges.
This Prospectus does not contain all information set forth in the Registration
Statement and exhibits thereto filed with the Commission under the Securities
Act of 1933, as amended.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation incorporates herein by reference (a) the Corporation's annual
report on Form 10-K for the year ended December 31, 1993, (b) the Corporation's
quarterly reports on Form 10-Q for the quarters ended March 31, 1994 and June
30, 1994 (c) the Corporation's reports on Form 8-K dated January 19, January
27, March 11, March 21, March 29, April 20, May 12, June 30, July 18, July 20
and August 11, 1994 and (d) the description of the Common Stock; Preferred
Share Purchase Rights; Cumulative Adjustable Preferred Stock, Series A;
Cumulative Adjustable Preferred Stock, Series B; 9 5/8% Cumulative Preferred
Stock, Series F; 6 1/2% Cumulative Convertible Preferred Stock, Series G; 9%
Cumulative Preferred Stock, Series H; Depositary Shares Each Representing a
One-Twentieth Interest in a Share of 11% Preferred Stock, Series I; Depositary
Shares Each Representing a One-Twentieth Interest in a Share of 11% Preferred
Stock, Series J; 8 3/8% Cumulative Preferred Stock, Series K; Depositary Shares
Each Representing a One-Twentieth Interest in a Share of 8.16% Cumulative
Preferred Stock, Series L; Depositary Shares Each Representing a One-Twentieth
Interest in a Share of 7 7/8% Cumulative Preferred Stock, Series M; Depositary
Shares Each Representing a One-Twentieth Interest in a Share of 8 1/2%
Cumulative Preferred Stock, Series N; Adjustable Rate Preferred Stock, Series
1; and Depositary Shares Each Representing a One-Fourth Interest in a Share of
Adjustable Rate Cumulative Preferred Stock, Series 2, set forth in the
Registration Statements on Form 8-A dated May 25, 1976 (as amended by Forms 8
dated June 14, 1976, August 18, 1976 and September 10, 1976); April 13, 1988
(as amended by Form 8 dated August 20, 1991); October 28, 1982; February 16,
1983; April 3, 1991; May 23, 1991; December 20, 1991; April 15, 1992; April 15,
1992; February 12, 1992; July 13, 1992; September 25, 1992; December 14, 1992;
August 1, 1994; and August 1, 1994, respectively.
All reports and definitive proxy or information statements filed by the
Corporation pursuant to Section 13(a), 13(c), 14 and 15(d) of the Act
subsequent to the date of this Prospectus and prior to the termination of the
offering of the Offered Securities to which this Prospectus relates (except
those portions of such reports or statements described in paragraphs (k) and
(l) of Item 402 of Regulation S-K promulgated by the Commission) shall be
deemed to be incorporated by reference into this Prospectus from the date of
filing of such documents. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement herein (or in any other subsequently
filed document which also is or is deemed incorporated by reference herein)
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed to constitute a part hereof, except as so
modified or superseded. A copy of the documents incorporated by reference
(excluding exhibits unless such exhibits are specifically incorporated by
reference herein) will be furnished, without charge, upon written or oral
request to BankAmerica Corporation, Corporate Secretary's Office, P.O. Box
37000, San Francisco, California 94137, telephone (415) 622-3530.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement. The delivery of this Prospectus
together with a Prospectus Supplement relating to particular Offered Securities
in any jurisdiction shall not constitute an offer in that jurisdiction of any
of the other Offered Securities covered by this Prospectus.
2
<PAGE>
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$", "dollars",
"U.S. dollars" or "U.S.$").
BANKAMERICA CORPORATION
The Corporation is a bank holding company registered under the Bank Holding
Company Act of 1956, as amended (the "BHC Act"), and was incorporated in the
State of Delaware in 1968. The Corporation's principal executive offices are
located at 555 California Street, San Francisco, California 94104 (telephone
(415) 622-3530).
Bank of America, a national banking association, became a subsidiary of the
Corporation in 1969. Bank of America began business in San Francisco,
California, as Bank of Italy in 1904 and adopted its present name in 1930.
On April 22, 1992, Security Pacific Corporation ("SPC") was merged with and
into the Corporation. SPC's principal subsidiary, Security Pacific National
Bank, was also merged with and into Bank of America on that date.
The Corporation also owns all of the capital stock of Seafirst Corporation
("Seafirst"), a registered bank holding company, the principal asset of which
is the capital stock of Seattle-First National Bank ("SFNB"). SFNB is a
national banking association headquartered in the State of Washington. The
Corporation acquired Seafirst in 1983.
In addition to the merger with SPC, the Corporation expanded its presence in
the western United States through several acquisitions beginning in 1989. As of
June 30, 1994, the Corporation's depository subsidiaries operated retail
branches in Alaska, Arizona, Hawaii, Idaho, Nevada, New Mexico, Oregon and
Texas, in addition to California and Washington. In January, 1994, the
Corporation announced an Agreement and Plan of Merger (the "Continental Merger
Agreement") providing for the merger (the "Continental Merger") of Continental
Bank Corporation ("Continental") with and into the Corporation. Continental is
a bank holding company whose principal subsidiary is Continental Bank.
Additional information about the Continental Merger is contained in documents
incorporated by reference herein. See "Incorporation of Certain Documents by
Reference".
The Corporation, through its various subsidiaries, provides a diversified
range of financial services to its customers. The Corporation, primarily
through Bank of America and its other domestic banking subsidiaries, provides
consumer banking services (including residential real estate and other consumer
loans, deposit and investment services and credit card products and services)
and other retail banking services.
The Corporation, through its banking and other subsidiaries, provides
wholesale banking and financial products and services throughout the United
States and in overseas markets to business customers, including corporations,
middle market companies, governments and other institutions. These products and
services encompass corporate lending, business finance, leasing, cash
management services, trade finance and investment banking services, including
interest rate risk and foreign exchange management products, capital markets
products and advisory and venture capital services.
Because the Corporation is a holding company, the rights of its creditors,
including the holders of the Debt Securities, to participate in the assets of
any subsidiary upon the latter's liquidation or reorganization will be subject
to the claims of the subsidiary's creditors, which will take priority except to
the extent that the Corporation may itself be a creditor with recognized claims
against the subsidiary. There are also various legal limitations on the extent
to which Bank of America, SFNB and certain other bank subsidiaries of the
Corporation may pay dividends, extend credit or otherwise supply funds to the
Corporation or various of its affiliates.
Under the National Bank Act, the Corporation's national banking subsidiaries
are subject to prohibitions on the payment of dividends in certain
circumstances and to restrictions on the amount
3
<PAGE>
that each can pay without the prior approval of the Office of the Comptroller
of the Currency. Without the Comptroller's approval, dividends for a given year
cannot exceed each bank's net profits (as defined by national banking laws) for
that year and retained earnings from the preceding two years. In addition,
dividends may not be paid in excess of each bank's undivided profits after
deducting statutory bad debt in excess of their allowance for loan losses.
Based upon these regulations, Bank of America could have declared dividends for
1993 of $3,125 million, while SFNB could have declared dividends to Seafirst,
of $437 million. At December 31, 1993, the unutilized dividends allowed under
these regulations for Bank of America and SFNB were $2,325 million and $159
million, respectively. Under these regulations, the Corporation's other
national banking subsidiaries could not have declared dividends during 1993.
In addition, state-chartered banking subsidiaries are subject to dividend
limitations imposed by applicable state law. These state-chartered banking
subsidiaries could have declared dividends to their respective parent companies
without state approval of $83 million for 1993. At December 31, 1993, this
entire amount was unutilized.
The Corporation's subsidiary, Bank of America, FSB, is subject to regulatory
restrictions by the Office of Thrift Supervision on its payment of dividends.
Under these restrictions, Bank of America, FSB could have declared dividends to
the Corporation without regulatory approval of $40 million for 1993. At
December 31, 1993, this entire amount was unutilized.
The depository subsidiaries are also subject to certain restrictions of the
Federal Reserve Act on loans each subsidiary may extend to their respective
parent companies. Among other things, the aggregate of such loans may not
exceed 10% of the sum of such subsidiary's capital stock and surplus, defined
by the Comptroller of the Currency to include undivided profits and reserves
for contingencies, subject to certain adjustments. Such loans must be secured
by collateral with a value between 100% and 130% of the loan, depending on the
type of collateral. Under these restrictions, and assuming the parent provided
the collateral required, Bank of America, SFNB, and other depository
subsidiaries could have loaned to their respective parent companies a maximum
of $1,142 million, $144 million, and $317 million, respectively, at December
31, 1993.
The net assets of depository subsidiaries restricted from flowing to the
Corporation by regulatory limitations were $14,051 million at December 31,
1993. Total net assets of depository subsidiaries were $17,944 million at
December 31, 1993.
The Financial Institutions Reform, Recovery and Enforcement Act of 1989
contains a "cross-guarantee" provision which could result in any insured
depository institution owned by the Corporation (i.e., any bank subsidiary)
being assessed for losses incurred by the Federal Deposit Insurance Corporation
("FDIC") in connection with assistance provided to, or the failure of, any
other depository institution owned by the Corporation. Under Federal Reserve
Board policy, the Corporation is expected to act as a source of financial
strength and to commit resources to support each subsidiary bank. As a result
of such policy and the legislation described below, the Corporation may be
required to commit resources to its subsidiary banks in circumstances where it
might not do so absent such policy.
The Federal Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA")
provides, among other things, that if a bank does not meet any one of its
capital requirements set by its regulators, the bank must submit a capital
restoration plan for improving its capital. A holding company of a bank must
guarantee that the bank will meet its capital restoration plan, subject to
certain limitations. If such a guarantee were deemed to be a commitment to
maintain capital under the federal Bankruptcy Code, a claim under such
guarantee in a bankruptcy proceeding involving the holding company would be
entitled to a priority over third party creditors of the holding company. In
addition, FDICIA prohibits a bank from making a capital distribution to its
holding company or otherwise if it fails to meet any capital requirements.
Furthermore, under certain circumstances, a holding company of a bank that
fails to meet certain of its capital requirements may be prohibited from making
any capital distributions to its shareholders or otherwise. At June 30, 1994,
the capital ratios of each of the Corporation's banking subsidiaries exceeded
the "well capitalized" threshold prescribed in the rules of the subsidiary's
4
<PAGE>
principal federal regulator. The categories of capital so prescribed are
determined by the regulators solely for the purposes of meeting their
responsibilities under federal law, and the category in which each subsidiary
falls may not necessarily constitute an accurate representation of its overall
financial condition or prospects.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for the Corporation including its
consolidated subsidiaries is computed by dividing earnings by fixed charges.
The ratio of earnings to combined fixed charges and preferred stock dividends
is computed by dividing earnings by the sum of fixed charges and preferred
stock dividend requirements. Earnings consist primarily of income (loss) before
income taxes adjusted for fixed charges. Fixed charges consist primarily of
interest expense on short- and long-term borrowings and one-third (the portion
deemed representative of the interest factor) of net rents under long-term
leases.
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
--------------- ------------------------------
1994(A) 1993(A) 1993(A) 1992(A) 1991 1990 1989
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<S> <C> <C> <C> <C> <C> <C> <C>
RATIO OF EARNINGS TO FIXED
CHARGES
Excluding interest on depos-
its.......................... 3.40 3.63 3.55 3.18 3.25 2.39 2.29
Including interest on depos-
its.......................... 1.81 1.78 1.79 1.53 1.34 1.22 1.23
RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED
STOCK DIVIDENDS
Excluding interest on depos-
its.......................... 2.65 2.73 2.69 2.55 2.89 2.25 2.15
Including interest on depos-
its.......................... 1.65 1.62 1.63 1.45 1.32 1.21 1.22
</TABLE>
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(a) This financial information reflects the effects of the SPC merger
subsequent to the merger's consummation on April 22, 1992.
USE OF PROCEEDS
The net proceeds of the Offered Securities will be used for general corporate
purposes, which may include without limitation funding investments in, or
extensions of credit to, the Corporation's subsidiaries, repayment of maturing
obligations, redemption of outstanding indebtedness or other securities and
financing possible future acquisitions. Pending such use, the Corporation may
temporarily invest the net proceeds or may use them to reduce short-term
indebtedness. A portion of the net proceeds of the Currency Warrants may be
used for the payment of costs and expenses which may be incurred by the
Corporation in hedging its currency risk with respect to the Currency Warrants.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Debt Securities so offered will be
described in the Prospectus Supplement relating to such Debt Securities.
The Senior Securities are to be issued under an Indenture dated as of
November 1, 1991, as amended by a First Supplemental Indenture dated as of
August 1, 1994 (as so amended, the "Senior Indenture"), between the Corporation
and First Trust of California, National Association, as successor trustee (the
"Senior Trustee"). The Subordinated Securities are to be issued under an
Indenture dated as of November 1, 1991, as amended by a First Supplemental
Indenture dated as of September 8, 1992 (as so amended, the "Subordinated
Indenture"), between the Corporation and Chemical Trust Company of California,
as trustee (the "Subordinated Trustee", and together with the Senior Trustee,
the "Trustees"). The Senior Indenture and the Subordinated Indenture
(collectively, the "Indentures")
5
<PAGE>
are exhibits to the Registration Statement. The following summaries of certain
provisions of the Indentures do not purport to be complete and are qualified in
their entirety by reference to the provisions of the Indentures. Numerical
references in parentheses below are to sections of the Indentures. Wherever
particular sections or defined terms of the Indentures are referred to, it is
intended that such sections or defined terms shall be incorporated herein by
reference. Unless otherwise indicated, capitalized terms shall have the
meanings ascribed to them in the Indentures.
GENERAL
The amount of Debt Securities offered by this Prospectus will be limited to
the amount described on the cover of this Prospectus. Each Indenture provides
that Debt Securities in an unlimited amount may be issued thereunder from time
to time in one or more series. (Section 301)
The Senior Securities will be unsecured and will rank pari passu with other
unsecured Senior Debt of the Corporation. The Subordinated Securities will be
unsecured and will rank pari passu with other Subordinated Debt of the
Corporation and, together with such other Subordinated Debt, will be
subordinate and junior in right of payment to the prior payment in full of the
Senior Debt of the Corporation as described below under "Subordination."
Reference is hereby made to the Prospectus Supplement relating to the
particular series of Debt Securities for the terms of such Debt Securities,
including, where applicable: (i) the designation and any limit on the aggregate
principal amount of such Debt Securities; (ii) the price (expressed as a
percentage of the aggregate principal amount thereof) at which such Debt
Securities will be issued; (iii) the date or dates on which such Debt
Securities will mature or method by which such dates can be determined; (iv)
the currency or currencies in which such Debt Securities are being sold and are
denominated and the circumstances, if any, under which any Debt Securities may
be payable in a currency other than the currency in which such Debt Securities
are denominated, and if so, the exchange rate, the exchange rate agent and, if
the Holder of any such Debt Securities may elect the currency in which payments
thereon are to be made, the manner of such election; (v) the denominations in
which any Debt Securities which are Registered Securities will be issuable, if
other than denominations of $1,000 and any integral multiple thereof, and the
denomination or denominations in which any Debt Securities which are Bearer
Securities will be issuable, if other than the denomination of $5,000; (vi) the
rate or rates (which may be fixed or variable) at which such Debt Securities
will bear interest, which rate may be zero in the case of certain Debt
Securities issued at an issue price representing a discount from the principal
amount payable at maturity; (vii) the date from which interest on such Debt
Securities will accrue, the dates on which such interest will be payable or
method by which such dates can be determined, the date on which payment of such
interest will commence and the circumstances, if any, in which the Corporation
may defer interest payments; (viii) the dates on which, and the price or prices
at which, such Debt Securities will, pursuant to any mandatory sinking fund
provision, or may, pursuant to any optional redemption or required repayment
provisions, be redeemed or repaid and the other terms and provisions of any
such optional redemption or required repayment; (ix) in the case of the
Subordinated Securities, any terms by which such securities may be convertible
into Common Stock (see "Description of Common Stock"), Preferred Shares (see
"Description of Preferred Shares"), Depositary Shares (see "Description of
Depositary Shares"), or any other Capital Securities (see "Description of
Capital Securities") of the Corporation and, in case of Subordinated Securities
convertible into Preferred Shares or Depositary Shares, the terms of such
Preferred Shares or Depositary Shares; (x) in the case of the Subordinated
Securities, any terms by which the principal will be exchangeable for Capital
Securities and any terms creating a fund (the "Securities Fund") pursuant to
which the proceeds of sales of Capital Securities may be designated on the
books of the Corporation for the payment of any of the principal of such
Subordinated Securities; (xi) whether such Debt Securities are to be issuable
as Bearer Securities and/or Registered Securities and, if issuable as Bearer
Securities, the terms upon which any Bearer Securities may be exchanged for
Registered Securities; (xii) whether such Debt Securities are to be issued in
the form of one or more temporary or permanent Global Securities and, if so,
the identity of the depositary for such Global Security or
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Securities; (xiii) if a temporary global Debt Security is to be issued with
respect to such series, the extent to which, and the manner in which, any
interest thereon payable on an interest payment date prior to the issuance of a
permanent Global Security or definitive Bearer Securities will be credited to
the accounts of the persons entitled thereto on such interest payment date;
(xiv) if a temporary Global Security is to be issued with respect to such
series, the terms upon which interests in such temporary Global Security may be
exchanged for interests in a permanent Global Security or for definitive Debt
Securities of the series and the terms upon which interests in a permanent
Global Security, if any, may be exchanged for definitive Debt Securities of the
series; (xv) any additional restrictive covenants included for the benefit of
Holders of such Debt Securities; (xvi) any additional Events of Default
provided with respect to such Debt Securities; (xvii) information with respect
to book-entry procedures, if any; (xviii) whether the Debt Securities will be
repayable at the option of the Holder in the event of a change in control of
the Corporation; (xix) any other material terms of the Debt Securities not
inconsistent with the provisions of the applicable Indenture; and (xx) the
material terms of any securities being offered together with or separately from
the Debt Securities. Such Prospectus Supplement will also describe any special
provisions for the payment of additional amounts with respect to the Debt
Securities and certain United States federal income tax consequences and other
special considerations applicable to such series of Debt Securities. If a Debt
Security is denominated in a foreign currency, such Debt Security may not trade
on a U.S. national securities exchange unless and until the Commission has
approved appropriate rule changes pursuant to the Act to accommodate the
trading of such Debt Security.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Unless otherwise indicated in the Prospectus
Supplement, Bearer Securities other than Bearer Securities in temporary or
permanent global form will have interest coupons attached. (Section 201) Each
Indenture also provides that Bearer Securities or Registered Securities of a
series may be issuable in permanent global form. (Section 203) See "Permanent
Global Securities."
Registered Securities of any series will be exchangeable for other Registered
Securities of the same series of authorized denominations and of a like
aggregate principal amount, tenor and terms. In addition, if Debt Securities of
any series are issuable as both Registered Securities and Bearer Securities, at
the option of the Holder upon request confirmed in writing, and subject to the
terms of the applicable Indenture, Bearer Securities (with all unmatured
coupons, except as provided below, and all matured coupons in default) of such
series will be exchangeable into Registered Securities of the same series of
any authorized denominations and of a like aggregate principal amount, tenor
and terms. Bearer Securities surrendered in exchange for Registered Securities
between the close of business on a Regular Record Date or a Special Record Date
and the relevant date for payment of interest shall be surrendered without the
coupon relating to such date for payment of interest, and interest will not be
payable in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the terms of the applicable Indenture. Bearer Securities
will not be issued in exchange for Registered Securities. (Section 305) Each
Bearer Security, other than a temporary global Bearer Security, and each
interest coupon will bear the following legend: "Any United States Person who
holds this obligation will be subject to limitations under the United States
federal income tax laws including the limitations provided in Sections 165(j)
and 1287(a) of the Internal Revenue Code."
Debt Securities may be presented for exchange as provided above, and
Registered Securities may be presented for registration of transfer (duly
endorsed or accompanied by a satisfactory written instrument of transfer), at
the office of the Security Registrar or at the office of any transfer agent
designated by the Corporation for such purpose with respect to such series of
Debt Securities, without service charge and upon payment of any taxes and other
governmental charges. (Section 305) If the
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applicable Prospectus Supplement refers to any transfer agent (in addition to
the Security Registrar) initially designated by the Corporation with respect to
any series of Debt Securities, the Corporation may at any time rescind the
designation of any such transfer agent or approve a change in the location
through which any such transfer agent (or Security Registrar) acts, except
that, if Debt Securities of a series are issuable solely as Registered
Securities, the Corporation will be required to maintain a transfer agent in
each Place of Payment for such series and, if Debt Securities of a series are
issuable as Bearer Securities, the Corporation will be required to maintain (in
addition to the Security Registrar) a transfer agent in a Place of Payment for
such series located outside the United States. The Corporation may at any time
designate additional transfer agents with respect to any series of Debt
Securities. (Section 1002)
The Corporation shall not be required (i) to issue, register the transfer of
or exchange Debt Securities of any particular series to be redeemed or
exchanged for Capital Securities for a period of 15 days preceding the first
publication of the relevant notice of redemption or, if Registered Securities
are outstanding and there is no publication, the mailing of the relevant notice
of redemption, (ii) to register the transfer of or exchange any Registered
Security so selected for redemption or exchange in whole or in part, except the
unredeemed or unexchanged portion of any Registered Security being redeemed or
exchanged in part, or (iii) to exchange any Bearer Security so selected for
redemption or exchange except that such a Bearer Security may be exchanged for
a Registered Security of like tenor and terms of that series, provided that
such Registered Security shall be surrendered for redemption or exchange.
(Section 305) Additional information regarding restrictions on the issuance,
exchange and transfer of, and special United States federal income tax
considerations relating to, Bearer Securities will be set forth in the
applicable Prospectus Supplement.
TEMPORARY GLOBAL SECURITIES
If so specified in the applicable Prospectus Supplement, all or any portion
of the Debt Securities of a series which are issuable as Bearer Securities will
initially be represented by one or more temporary Global Securities, without
interest coupons, to be deposited with a common depositary in London for Morgan
Guaranty Trust Company of New York, Brussels Office, as operator of the
Euroclear System ("Euroclear") and Cedel S.A. ("Cedel") for credit to
designated accounts. On and after the date determined as provided in any such
temporary Global Security and described in the applicable Prospectus
Supplement, but within a reasonable time, each such temporary Global Security
will be exchangeable for definitive Bearer Securities, definitive Registered
Securities or all or a portion of a permanent global Bearer Security, or any
combination thereof, as specified in such Prospectus Supplement. No definitive
Bearer Security or permanent global Bearer Security delivered in exchange for a
portion of a temporary Global Security shall be mailed or otherwise delivered
to any location in the United States in connection with such exchange.
Additional information regarding restrictions on and special United States
federal income tax consequences relating to temporary Global Securities will be
set forth in the Prospectus Supplement relating thereto.
PERMANENT GLOBAL SECURITIES
If any Debt Securities of a series are issuable in permanent global form, the
applicable Prospectus Supplement will describe the circumstances, if any, under
which beneficial owners of interests in any such permanent Global Security may
exchange such interests for Debt Securities of such series and of like tenor
and principal amount of any authorized form and denomination. Principal of and
any premium and interest on a permanent Global Security will be payable in the
manner described in the Prospectus Supplement relating thereto.
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PAYMENTS AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payments
of principal of and premium, if any, and interest, if any, on Bearer Securities
will be payable in the currency designated in the Prospectus Supplement,
subject to any applicable laws and regulations, at such paying agencies outside
the United States as the Corporation may appoint from time to time. Unless
otherwise provided in the Prospectus Supplement, such payments may be made, at
the option of the Holder, by a check in the designated currency or by transfer
to an account in the designated currency maintained by the payee with a bank
located outside the United States. Unless otherwise indicated in the applicable
Prospectus Supplement, payment of interest on Bearer Securities on any Interest
Payment Date will be made only against surrender of the coupon relating to such
Interest Payment Date to a paying agent outside the United States. (Section
1001) No payment with respect to any Bearer Security will be made at any office
or paying agency maintained by the Corporation in the United States nor will
any such payment be made by transfer to an account, or by mail to an address,
in the United States. Notwithstanding the foregoing, payments of principal of
and premium, if any, and interest, if any, on Bearer Securities denominated and
payable in U.S. dollars will be made in U.S. dollars at an office or agency of,
and designated by, the Corporation located in the United States, if payment of
the full amount thereof in U.S. dollars at all paying agencies outside the
United States is illegal or effectively precluded by exchange controls or other
similar restrictions, and the Trustee receives an opinion of counsel that such
payment within the United States is legal. (Section 1002) As used in this
Prospectus, "United States" means the United States of America (including the
States and the District of Columbia) and its possessions including Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Marianas Islands.
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of and premium, if any, and interest, if any, on a Registered
Security will be payable in the currency designated in the Prospectus
Supplement, and interest will be payable at the office of such paying agent or
paying agents as the Corporation may appoint from time to time, except that at
the option of the Corporation payment of any interest may be made by a check in
such currency mailed to the Holder at such Holder's registered address or by
wire transfer to an account in such currency designated by such Holder in
writing not less than ten days prior to the date of such payment. Unless
otherwise indicated in the applicable Prospectus Supplement, payment of any
instalment of interest on a Registered Security will be made to the Person in
whose name such Registered Security is registered at the close of business on
the Regular Record Date for such payments. (Section 307) Unless otherwise
indicated in the applicable Prospectus Supplement, principal payable at
maturity will be paid to the registered holder upon surrender of the Registered
Security at the office of a duly appointed paying agent.
The paying agents outside the United States initially appointed by the
Corporation for a series of Debt Securities will be named in the applicable
Prospectus Supplement. The Corporation may terminate the appointment of any of
the paying agents from time to time, except that the Corporation will maintain
at least one paying agent outside the United States so long as any Bearer
Securities are outstanding where Bearer Securities may be presented for payment
and may be surrendered for exchange, provided that so long as any series of
Debt Securities is listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Corporation will maintain a paying agent in London or Luxembourg
or any other required city located outside the United States, as the case may
be, for such series of Debt Securities. (Section 1002)
All moneys paid by the Corporation to a paying agent for the payment of
principal of or premium, if any, or interest, if any, on any Debt Security that
remains unclaimed at the end of two years after such principal, premium or
interest shall have become due and payable will, at request of the Corporation,
be repaid to the Corporation, and the Holder of such Debt Security or any
coupon appertaining thereto will thereafter look only to the Corporation for
payment thereof. (Section 1003)
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COVENANTS CONTAINED IN INDENTURES
The Senior Indenture provides that the Corporation (a) will not sell,
transfer, or otherwise dispose of any shares of Voting Stock of Bank of America
or permit Bank of America to issue, sell, or otherwise dispose of any shares of
its Voting Stock unless, after giving effect to any such transaction, Bank of
America remains a Controlled Subsidiary, and (b) will not permit Bank of
America to (i) merge or consolidate unless the surviving corporation is a
Controlled Subsidiary or (ii) convey or transfer its properties and assets
substantially as an entirety to any person, except to a Controlled Subsidiary.
(Section 1005 of the Senior Indenture) "Controlled Subsidiary" means any
corporation more than 80% of the outstanding shares of "Voting Stock" (except
for directors' qualifying shares) of which is at the time owned directly by the
Corporation. With the consent of the Holders of at least a majority in
principal amount of the outstanding Senior Securities of each series issued
under the Senior Indenture, such definition in the Senior Indenture may be
modified so as to reduce the required percentage of ownership from 80% to a
majority. (Section 902 of the Senior Indenture) The term "Voting Stock" of Bank
of America refers to stock of any class or classes, however designated, having
ordinary voting power for the election of a majority of the Board of Directors
of Bank of America, other than stock having such power only by reason of the
happening of a contingency. (Section 101 of the Senior Indenture)
The Senior Indenture also prohibits the Corporation from creating, assuming,
incurring or suffering to exist, as security for indebtedness for borrowed
money, any mortgage, pledge, encumbrance or lien or charge of any kind upon the
Voting Stock of Bank of America (other than directors' qualifying shares)
without effectively providing that the Senior Securities shall be secured
equally and ratably with (or prior to) such indebtedness; provided, however,
that the Corporation may create, assume, incur or suffer to exist any such
mortgage, pledge, encumbrance or lien or charge without regard to the foregoing
provisions so long as after giving effect thereto, the Corporation will own at
least 80% of the Voting Stock of Bank of America then issued and outstanding,
free and clear of any such mortgage, pledge, encumbrance or lien or charge.
(Section 1004 of the Senior Indenture)
The Subordinated Indenture does not contain any of the foregoing covenants.
The Corporation is not restricted by the Indentures from incurring, assuming
or becoming liable for any type of debt or other obligations, from creating
liens on its property (other than, in the case of the Senior Indenture, the
Voting Stock of Bank of America as described above) for any purposes or from
paying dividends or making distributions on its capital stock or purchasing or
redeeming its capital stock. The Indentures do not require the maintenance of
any financial ratios or specified levels of net worth or liquidity. In
addition, the Indentures do not contain any provision which would require the
Corporation to repurchase or redeem or otherwise modify the terms of any of its
Debt Securities upon a change in control or other events involving the
Corporation which may adversely affect the creditworthiness of the Debt
Securities.
MODIFICATION AND WAIVER
Except as to the definition of Controlled Subsidiary in the Senior Indenture
and certain other modifications and amendments not adverse to Holders of Debt
Securities, modifications and amendments of and waivers of compliance with
certain restrictive provisions under each Indenture may be made only with the
consent of the Holders of not less than 66 2/3% in principal amount of the
Outstanding Debt Securities of each series thereunder affected by such
modification, amendment or waiver; provided that no such modification or
amendment may, without the consent of the Holder of each Outstanding Debt
Security or coupon affected thereby: (i) change the Stated Maturity of the
principal or any instalment of principal or any instalment of interest, if any;
(ii) reduce the amount of principal or interest, if any, thereon, or any
premium payable upon redemption or repayment thereof or in the case of an
Original Issue Discount Security the amount of principal payable upon
acceleration of the Maturity thereof; (iii) change the place of payment or the
currency in which principal or interest, if any, is payable; (iv) impair the
right to institute suit for the enforcement of any payment of the principal,
premium, if any, and interest, if any, or adversely affect the right of
repayment, if any, at the option of
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the Holder; (v) reduce the percentage in principal amount of Outstanding Debt
Securities of any series, the consent of whose Holders is required for
modification or amendment of the applicable Indenture or for waiver of
compliance with certain provisions of the applicable Indenture or for waiver of
certain defaults; (vi) reduce the requirements contained in the applicable
Indenture for quorum or voting; (vii) in the case of Subordinated Securities
exchangeable for Capital Securities, impair any right to the delivery of
Capital Securities in exchange for such Subordinated Securities or the right to
institute suit for the enforcement of any such delivery or, in the case of
Subordinated Securities convertible into Common Stock, impair any right to
convert such Subordinated Securities; or (viii) modify any of the above
provisions. (Section 902)
Each Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series issued thereunder if Debt Securities of that series
are issuable in whole or in part as Bearer Securities. (Section 1401 of the
Senior Indenture, Section 1601 of the Subordinated Indenture) A meeting may be
called at any time by the Trustee for such Debt Securities, or upon the request
of the Corporation or the Holders of at least 10% in principal amount of the
Outstanding Debt Securities of such series, in any such case upon notice given
in accordance with the Indenture with respect thereto. (Section 1402 of the
Senior Indenture, Section 1602 of the Subordinated Indenture) Except as limited
by the proviso in the preceding paragraph, any resolution presented at a
meeting or adjourned meeting at which a quorum is present may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series; provided, however, that any
resolution with respect to any consent or waiver which may be given by the
Holders of not less than 66 2/3% in principal amount of the Outstanding Debt
Securities of a series issued under an Indenture may be adopted at a meeting or
an adjourned meeting at which a quorum is present only by the affirmative vote
of the Holders of not less than 66 2/3% in principal amount of such Outstanding
Debt Securities of that series; and provided further, that any resolution with
respect to any demand, consent, waiver or other action which may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Debt Securities of a series
issued under an Indenture may be adopted at a meeting or adjourned meeting at
which a quorum is present by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Debt Securities of
that series. (Section 1404 of the Senior Indenture, Section 1604 of the
Subordinated Indenture)
Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with the applicable Indenture
with respect thereto will be binding on all Holders of Debt Securities of that
series and the related coupons issued under that Indenture. The quorum at any
meeting of Holders of a series of Debt Securities called to adopt a resolution,
and at any reconvened meeting, will be persons holding or representing a
majority in principal amount of the Outstanding Debt Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which may be given by the Holders of not less
than 66 2/3% in principal amount of the Outstanding Debt Securities of a
series, the Persons holding or representing 66 2/3% in principal amount of the
Outstanding Debt Securities of such series issued under that Indenture will
constitute a quorum. (Section 1404 of the Senior Indenture, Section 1604 of the
Subordinated Indenture)
EVENTS OF DEFAULT
Unless otherwise provided in the applicable Prospectus Supplement, any series
of Senior Securities issued under the Senior Indenture will provide that the
following shall constitute Events of Default with respect to such series: (i)
default in payment of principal of or premium, if any, on any Senior Security
of such series when due; (ii) default for 30 days in payment of interest, if
any, on any Senior Security of such series or related coupon, if any, when due;
(iii) default in the deposit of any sinking fund payment on any Senior Security
of such series when due; (iv) default in the performance or breach of any other
covenant in such Indenture for the benefit of such series, continued for 90
days after written notice thereof by the Trustee thereunder or the Holders of
at least 25% in principal amount of the
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Outstanding Senior Securities of such series issued under that Indenture; and
(v) certain events of bankruptcy, insolvency or reorganization of the
Corporation or Bank of America. Unless otherwise provided in the applicable
Prospectus Supplement, an Event of Default will not be triggered with respect
to any series of Senior Securities issued under the Senior Indenture as a
result of an event of default pertaining to any other indebtedness of the
Corporation, including any other series of Debt Securities issued under the
Senior Indenture. (Section 501 of the Senior Indenture)
Unless otherwise provided in the applicable Prospectus Supplement, any series
of Subordinated Securities issued under the Subordinated Indenture will provide
that the only Event of Default will be certain events of bankruptcy of the
Corporation. (Section 501 of the Subordinated Indenture) Unless specifically
stated in the applicable Prospectus Supplement for a particular series of
Subordinated Securities, there is no right of acceleration of the payment of
principal of the Subordinated Securities upon a default in the payment of
principal, premium, if any, or interest, if any, or in the performance of any
covenant or agreement in the Subordinated Securities or Subordinated Indenture.
In the event of a default in the payment of principal, premium, if any, or
interest, if any, or the performance of any covenant (including, if applicable,
any covenant to deliver any Capital Securities required to be delivered or any
covenant to sell Capital Securities in a Secondary Offering) or agreement in
the Subordinated Securities or Subordinated Indenture, the Trustee, subject to
certain limitations and conditions, may institute judicial proceedings to
enforce payment of such principal, premium, if any, or interest, if any, or to
obtain the performance of such covenant or agreement or any other proper
remedy, including, in the case of the failure to deliver Capital Securities, a
proceeding to collect money equal to the principal amount of any Subordinated
Securities for which Capital Securities were to be exchanged. (Section 503 of
the Subordinated Indenture)
The Corporation is required to file with each Trustee annually an Officers'
Certificate as to the existence of any default in the performance and
observance of any of the terms, provisions and conditions of the applicable
Indenture. (Section 1007 of the Senior Indenture, Section 1004 of the
Subordinated Indenture) Each Indenture provides that if an Event of Default
specified therein shall occur and be continuing with respect to any series of
Debt Securities, either the Trustee thereunder or the Holders of not less than
25% in principal amount of the Outstanding Debt Securities of such series may
declare the principal of all the Debt Securities of such series (or in the case
of Original Issue Discount Series, such portion of the principal amount thereof
as may be specified in the terms thereof) and all accrued but unpaid interest
thereon to be due and payable. (Section 502) In certain cases, the Holders of a
majority in principal amount of the Outstanding Debt Securities of any series
may, on behalf of the Holders of all Debt Securities of any such series and any
related coupons, waive any past default or Event of Default except a default
(i) in payment of the principal of or premium, if any, or interest, if any, on
any of the Debt Securities of such series or (ii) in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of such series or
coupon affected. (Section 513)
Each Indenture contains a provision entitling the Trustee thereunder, subject
to the duty of such Trustee during default to act with the required standard of
care, to be indemnified by the Holders of the Debt Securities of any series
thereunder or any related coupons before proceeding to exercise any right or
power under such Indenture with respect to such series at the request of such
Holders. (Section 603) Each Indenture provides that no Holder of any Debt
Securities of any series thereunder or any related coupons may institute any
proceeding, judicial or otherwise, to enforce such Indenture except in the case
of failure of the Trustee thereunder, for 60 days, to act after it is given
notice of default, a request to enforce such Indenture by the Holders of not
less than 25% in principal amount of the Outstanding Debt Securities of such
series and an offer of reasonable indemnity. (Section 507) This provision will
not prevent any Holder of Debt Securities or any related coupons from enforcing
payment of the principal thereof and premium, if any, and interest, if any,
thereon at the respective due dates thereof. (Section 508) The Holders of a
majority in principal amount of the Outstanding Debt Securities of any series
issued under an Indenture may direct the time, method and place of conducting
any
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proceedings for any remedy available to the Trustee for such Debt Securities or
exercising any trust or power conferred on it with respect to the Debt
Securities of such series. However, such Trustee may refuse to follow any
direction that conflicts with law or the Indenture under which it serves or
which it determines in good faith would be unjustly prejudicial to Holders not
joining therein. (Section 512)
Each Indenture provides that the Trustee thereunder will, within 90 days
after the occurrence of a default with respect to any series of Debt Securities
thereunder known to it, give to the Holders of Debt Securities of such series
notice of such default if not cured or waived, but, except in the case of a
default in the payment of principal of or premium, if any, or interest, if any,
on any Debt Securities of such series or any related coupons or in the payment
of any sinking fund instalment with respect to Debt Securities of such series
or in the exchange of Capital Securities for Debt Securities of such series,
the Trustee for such Debt Securities shall be protected in withholding such
notice if, and so long as, the Trustee determines in good faith that the
withholding of such notice is in the interest of the Holders of such Debt
Securities. (Section 602)
DEFEASANCE
The Corporation may terminate certain of its obligations under each Indenture
with respect to the Debt Securities of any series thereunder, including its
obligations to comply with the covenants described under the heading "Covenants
Contained in Indentures" above, with respect to such Debt Securities, on the
terms and subject to the conditions contained in such Indentures, by depositing
in trust with the Trustee money and/or, to the extent such Debt Securities are
denominated and payable in U.S. dollars only, Eligible Instruments which,
through the payment of principal and interest in accordance with their terms,
will provide money in an amount sufficient to pay the principal and premium, if
any, and interest, if any, on such Debt Securities, and any mandatory sinking
fund, repayment or analogous payments thereon, on the scheduled due dates
therefor. Such deposit and termination is conditioned upon the Corporation's
delivery of an opinion of counsel that the Holders of such Debt Securities will
have no federal income tax consequences as a result of such deposit and
termination. Such termination will not relieve the Corporation of its
obligation to pay when due the principal of or interest on such Debt Securities
if such Debt Securities of such series are not paid from the money or Eligible
Instruments held by the Trustee for the payment thereof. (Section 1501 of the
Senior Indenture, Section 1701 of the Subordinated Indenture) The applicable
Prospectus Supplement may further describe the provisions, if any, permitting
or restricting such defeasance with respect to the Debt Securities of a
particular series.
SUBORDINATION
The Subordinated Securities shall be subordinate and junior in right of
payment, to the extent set forth in the Subordinated Indenture, to all Senior
Debt (as defined below) of the Corporation. In the event that the Corporation
shall default in the payment of any principal, premium, if any, or interest, if
any, on any Senior Debt when the same becomes due and payable, whether at
Maturity or at a date fixed for prepayment or by declaration of acceleration or
otherwise, then, unless and until such default shall have been cured or waived
or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made for principal, premium, if any, or interest, if any, on the Subordinated
Securities, or in respect of any redemption, repayment, retirement, purchase or
other acquisition of any of the Subordinated Securities. (Section 1801 of the
Subordinated Indenture) "Senior Debt" means any obligation of the Corporation
to its creditors, whether now outstanding or subsequently incurred, other than
(i) any obligation as to which, in the instrument creating or evidencing the
obligation or pursuant to which the obligation is outstanding, it is provided
that such obligation is not Senior Debt and (ii) the Subordinated Securities.
(Section 101 of the Subordinated Indenture) As of June 30, 1994, the
Corporation (the Parent) had approximately $9.8 billion of Senior Debt
outstanding.
In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Corporation, its creditors or its
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property, (ii) any proceeding for the liquidation, dissolution or other winding
up of the Corporation, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings, (iii) any assignment by the Corporation
for the benefit of creditors or (iv) any other marshalling of the assets of the
Corporation, all Senior Debt (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall
be made on account of the principal of or premium, if any, or interest, if any,
on the Subordinated Securities. In such event, any payment or distribution on
account of the principal of or premium, if any, or interest, if any, on the
Subordinated Securities, whether in cash, securities or other property (other
than securities of the Corporation or any other corporation provided for by a
plan of reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in the subordination provisions with respect to
the Subordinated Securities, to the payment of all Senior Debt at the time
outstanding, and to any securities issued in respect thereof under any such
plan of reorganization or readjustment), which would otherwise (but for the
subordination provisions) be payable or deliverable in respect of the
Subordinated Securities shall be paid or delivered directly to the holders of
Senior Debt in accordance with the priorities then existing among such holders
until all Senior Debt (including any interest thereon accruing after the
commencement of any such proceedings) shall have been paid in full. (Section
1801 of the Subordinated Indenture)
In the event of any such proceeding, after payment in full of all sums owing
with respect to Senior Debt, the Holders of Subordinated Securities, together
with the holders of any obligations of the Corporation ranking on a parity with
the Subordinated Securities, shall be entitled to be paid from the remaining
assets of the Corporation the amounts at the time due and owing on account of
unpaid principal of and premium, if any, and interest, if any, on the
Subordinated Securities and such other obligations before any payment or other
distribution, whether in cash, property or otherwise, shall be made on account
of any capital stock or obligations of the Corporation ranking junior to the
Subordinated Securities and such other obligations. If any payment or
distribution on account of the principal of or interest on the Subordinated
Securities of any character or any security, whether in cash, securities or
other property (other than securities of the Corporation or any other
corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in the
subordination provisions with respect to the Subordinated Securities, to the
payment of all Senior Debt at the time outstanding and to any securities issued
in respect thereof under any such plan of reorganization or readjustment) shall
be received by any Holder of any Subordinated Securities in contravention of
any of the terms hereof and before all the Senior Debt shall have been paid in
full, such payment or distribution or security shall be received in trust for
the benefit of, and shall be paid over or delivered and transferred to, the
holders of the Senior Debt at the time outstanding in accordance with the
priorities then existing among such holders for application to the payment of
all Senior Debt remaining unpaid to the extent necessary to pay all such Senior
Debt in full. (Section 1801 of the Subordinated Indenture) By reason of such
subordination, in the event of the insolvency of the Corporation, holders of
Senior Debt may receive more, ratably, and holders of the Subordinated
Securities having a claim pursuant to such securities may receive less,
ratably, than the other creditors of the Corporation. Such subordination will
not prevent the occurrence of any Event of Default in respect of the
Subordinated Securities.
The Subordinated Indenture may be modified or amended as provided under
"Modification and Waiver" above, provided that no such modification or
amendment may, without the consent of the holders of all Senior Debt
outstanding, modify any of the provisions of the Subordinated Indenture
relating to the subordination of the Subordinated Securities and any related
coupons in a manner adverse to such holders. (Section 902 of the Subordinated
Indenture)
CONVERSION OF SUBORDINATED CONVERTIBLE SECURITIES
The Holders of Subordinated Securities of a specified series that are
convertible into Common Stock, Preferred Shares or Depositary Shares of the
Corporation ("Subordinated Convertible
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Securities") will be entitled at certain times specified in the applicable
Prospectus Supplement, subject to prior redemption, repayment or repurchase, to
convert any Subordinated Convertible Securities of such series (in
denominations set forth in the applicable Prospectus Supplement) into Common
Stock, Preferred Shares or Depositary Shares, as the case may be, at the
conversion price set forth in the applicable Prospectus Supplement, subject to
adjustment as described below and in the applicable Prospectus Supplement.
Except as described below, no adjustment will be made on conversion of any
Subordinated Convertible Securities for interest accrued thereon or for
dividends on any Common Stock, Preferred Shares or Depositary Shares issued.
(Section 1903 of the Subordinated Indenture) If any Subordinated Convertible
Securities not called for redemption are converted between a Regular Record
Date for the payment of interest and the next succeeding Interest Payment Date,
such Subordinated Convertible Securities must be accompanied by funds equal to
the interest payable on such succeeding Interest Payment Date on the principal
amount so converted. (Section 1903 of the Subordinated Indenture) The
Corporation is not required to issue fractional shares of Common Stock upon
conversion of Subordinated Convertible Securities that are convertible into
Common Stock and, in lieu thereof, will pay a cash adjustment based upon the
Closing Price (as defined in the Subordinated Indenture) of the Common Stock on
the last business day prior to the date of conversion. (Section 1904 of the
Subordinated Indenture) In the case of Subordinated Convertible Securities
called for redemption, conversion rights will expire at the close of business
on the redemption date. (Section 1902 of the Subordinated Indenture)
Unless otherwise indicated in the applicable Prospectus Supplement, the
conversion price for Subordinated Convertible Securities that are convertible
into Common Stock is subject to adjustment under formulas set forth in the
Subordinated Indenture in certain events, including: the issuance of the
Corporation's capital stock as a dividend or distribution on the Common Stock;
subdivisions and combinations of the Common Stock; the issuance to all holders
of Common Stock of certain rights or warrants entitling them to subscribe for
or purchase Common Stock within 45 days after the date fixed for the
determination of the stockholders entitled to receive such rights or warrants,
at less than the current market price (as defined in the Subordinated
Indenture); and the distribution to all holders of Common Stock of evidences of
indebtedness or assets of the Corporation (excluding certain cash dividends and
distributions described in the next paragraph) or rights or warrants (excluding
those referred to above). (Section 1906 of the Subordinated Indenture) In the
event that the Corporation shall distribute any rights or warrants to acquire
capital stock ("Capital Stock Rights") pursuant to which separate certificates
representing such Capital Stock Rights will be distributed subsequent to the
initial distribution of such Capital Stock Rights (whether or not such
distribution shall have occurred prior to the date of the issuance of a series
of Subordinated Convertible Securities), such subsequent distribution shall be
deemed to be the distribution of such Capital Stock Rights; provided that the
Corporation may, in lieu of making any adjustment in the conversion price upon
a distribution of separate certificates representing such Capital Stock Rights,
make proper provision so that each Holder of such a Subordinated Convertible
Security who converts such Subordinated Convertible Security (or any portion
thereof) (a) before the record date for such distribution of separate
certificates shall be entitled to receive upon such conversion shares of Common
Stock issued with Capital Stock Rights and (b) after such record date and prior
to the expiration, redemption or termination of such Capital Stock Rights shall
be entitled to receive upon such conversion, in addition to the shares of
Common Stock issuable upon such conversion, the same number of such Capital
Stock Rights as would a holder of the number of shares of Common Stock that
such Subordinated Convertible Security so converted would have entitled the
holder thereof to acquire in accordance with the terms and provisions
applicable to the Capital Stock Rights if such Subordinated Convertible
Security were converted immediately prior to the record date for such
distribution. Common Stock owned by or held for the account of the Corporation
or any majority owned subsidiary shall not be deemed outstanding for the
purpose of any adjustment.
No adjustment in the conversion price of Subordinated Convertible Securities
that are convertible into Common Stock will be made for regular quarterly or
other periodic or recurring cash dividends or
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distributions or for cash dividends or distributions to the extent paid from
retained earnings. No adjustment in the conversion price of Subordinated
Convertible Securities that are convertible into Common Stock will be required
unless such adjustment would require a change of at least 1% in the conversion
price then in effect, provided, that any such adjustment not so made will be
carried forward and taken into account in any subsequent adjustment; and
provided further that any such adjustment not so made shall be made no later
than three years after the occurrence of the event requiring such adjustment to
be made or carried forward. Notwithstanding any of the foregoing, neither the
issuance of Common Stock under the Corporation's Shareholder Investment Plan or
any successor plans providing for the purchase of shares of Common Stock by the
Corporation's stockholders or employees at a price not less than 90% of the
"average market price" during the "pricing period," as such terms, or
equivalent terms, are defined in, and as calculated pursuant to, such plans
from time to time, nor the granting or exercise of any rights thereunder, shall
require an adjustment to the conversion price of Subordinated Convertible
Securities that are convertible into Common Stock. The Corporation reserves the
right to make such reductions in the conversion price in addition to those
required in the foregoing provisions as the Corporation in its discretion shall
determine to be advisable in order that certain stock-related distributions
hereafter made by the Corporation to its stockholders shall not be taxable.
(Section 1906 of the Subordinated Indenture) Except as stated above, the
conversion price will not be adjusted for the issuance of Common Stock or any
securities convertible into or exchangeable for Common Stock, or securities
carrying the right to purchase any of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Corporation or (iii) a sale or conveyance
to another corporation of the property and assets of the Corporation as an
entirety or substantially as an entirety, in each case as a result of which
holders of Common Stock shall be entitled to receive stock, securities, other
property or assets (including cash) with respect to or in exchange for such
Common Stock, the Holders of the Subordinated Convertible Securities then
outstanding that are convertible into Common Stock will be entitled thereafter
to convert such Subordinated Convertible Securities into the kind and amount of
shares of stock and other securities or property which they would have received
upon such reclassification, change, consolidation, merger, sale or conveyance
had such Subordinated Convertible Securities been converted into Common Stock
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance. (Section 1907 of the Subordinated Indenture)
In the event of a taxable distribution to holders of Common Stock (or other
transaction) which results in any adjustment of the conversion price of
Subordinated Convertible Securities that are convertible into Common Stock, the
Holders of such Subordinated Convertible Securities may, in certain
circumstances, be deemed to have received a distribution subject to United
States income tax as a dividend; in certain other circumstances, the absence of
such an adjustment may result in a taxable dividend to the holders of Common
Stock or such Subordinated Convertible Securities.
INFORMATION CONCERNING THE TRUSTEES
The Senior Trustee serves as successor trustee under two indentures for
Senior Debt pursuant to which certain debentures and notes of the Corporation
are outstanding. Bank of America also maintains a deposit account and conducts
other banking transactions with First Bank Systems, Inc., an affiliate of the
Senior Trustee.
The Subordinated Trustee serves as trustee under three indentures for
subordinated debt pursuant to which certain debentures and notes of the
Corporation are outstanding, as transfer agent and registrar for the
Corporation's outstanding common and preferred stock, as depositary for certain
of the Corporation's preferred stock issues and as Rights Agent under the
Corporation's Rights Agreement, described in "Description of Common Stock--
Rights Agreement," below. Chemical Bank,
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an affiliate of the Subordinated Trustee, also serves as trustee under two
indentures for subordinated debt of the Corporation. In addition, Bank of
America and certain of its affiliates maintain deposit accounts and/or conduct
other banking transactions with Chemical Bank.
The Trustees may, from time to time, make loans to the Corporation and
perform other services for the Corporation in the normal course of business.
Under the provisions of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), upon the occurrence of a default under an indenture, if a
trustee has a conflicting interest (as defined in the Trust Indenture Act) the
trustee must, within 90 days, either eliminate such conflicting interest or
resign. Under the provisions of the Trust Indenture Act, an indenture trustee
shall be deemed to have a conflicting interest if the trustee is a creditor of
the obligor. If the trustee fails either to eliminate the conflicting interest
or to resign within 10 days after the expiration of such 90-day period, the
trustee is required to notify debt holders to this effect and any debt holder
who has been a bona fide holder for at least six months may petition a court to
remove the trustee and to appoint a successor trustee.
DESCRIPTION OF CAPITAL SECURITIES
The following description of Capital Securities is included in this
Prospectus because a Prospectus Supplement may provide that Capital Securities
will be issuable in exchange for a series of mandatory convertible Subordinated
Securities or upon conversion of a series of mandatory convertible Preferred
Shares. Whenever Capital Securities are exchangeable for Subordinated
Securities, the Corporation will be obligated to deliver Capital Securities
with a Market Value (as defined below) equal to the principal amount of such
Subordinated Securities. In addition, the Corporation will unconditionally
undertake to sell the Capital Securities in a sale (the "Secondary Offering")
on behalf of any Holders who elect to receive cash for the Capital Securities.
The Corporation will bear all expenses of the Secondary Offering, including
underwriting discounts and commissions. However, there is no assurance that
there will be a market for the Capital Securities when issued or at any time
thereafter. If the Corporation fails to deliver any Capital Securities when
required to be delivered, the Trustee may institute judicial proceedings for
(i) specific performance, (ii) money equal to the principal amount of the
Subordinated Securities for which Capital Securities were to be exchanged or
(iii) any other proper remedy. (Section 503 of the Subordinated Indenture) If
the Corporation fails to effect the Secondary Offering, it will deliver to the
Holders Capital Securities, and not cash, upon exchange of the Subordinated
Securities. In such event, the Corporation will have no specifically
enforceable obligation to effect the Secondary Offering, but will not be
relieved of any liability for money damages it would have for breach of its
obligation to effect a Secondary Offering of sufficient amounts of Capital
Securities. The "Market Value" of any Capital Securities means their sale price
in the Secondary Offering. If the Corporation does not effect the Secondary
Offering, the Market Value of such Capital Securities shall be their fair value
when exchanged as determined by three independent nationally recognized
investment banking firms selected by the Corporation.
Whenever Preferred Shares are mandatorily convertible into Capital
Securities, the Corporation will be obligated to deliver Capital Securities in
an amount either based upon a conversion price or with a required conversion
value. The conversion value will be determined by then market prices, by an
auction or bidding procedure or by such other method as set forth in the
applicable Prospectus Supplement.
The staff of the Commission has advised that Rules 13e-4 and 14e-1 of the
Commission's rules and regulations under the Act relating to tender offers by
issuers, as currently in effect and interpreted, would be applicable to the
exchange of Capital Securities for Subordinated Securities of any series and
the Secondary Offering. If, at the time of the exchange of Capital Securities
for Subordinated Securities of any series and the Secondary Offering, Rule 13e-
4 or Rule 14e-1 (or any successor rule or rules) applies to such transactions,
the Corporation will comply with such rule (or any successor rule or rules) and
will afford holders of such Subordinated Securities all rights and will make
all filings required by
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such rule (or successor rule or rules). Rule 13e-4 and Rule 14e-1 may also be
deemed to apply to mandatorily convertible Preferred Shares.
The Capital Securities may consist of Common Stock, Perpetual Preferred Stock
(as defined below) or other capital securities of the Corporation acceptable to
its primary federal regulator. All Capital Securities which will be
exchangeable for Subordinated Securities or issuable upon conversion of
Preferred Shares will, upon issuance, be duly authorized, validly issued and,
if applicable, fully paid and nonassessable. The Common Stock of the
Corporation is described below under "Description of Common Stock."
The Corporation may select any preferred stock or depositary shares
representing preferred stock ("Perpetual Preferred Stock") that is not
mandatorily, or at the option of the holder, redeemable or repayable, otherwise
than in shares of Common Stock or Perpetual Preferred Stock of another class or
series or with the proceeds of the sale of Common Stock or Perpetual Preferred
Stock, as Capital Securities to be exchanged for Subordinated Securities or
issued upon conversion of Preferred Shares. Any shares of Perpetual Preferred
Stock to be so issued will have such designations, preferences, dividend and
other rights, qualifications, limitations and restrictions as may be determined
by the Corporation and approved by the Board of Directors. A general
description of the preferred stock of the Corporation is set forth below under
"Description of Preferred Shares--Outstanding Preferred Stock."
The Corporation may also select any other securities to be exchanged for
Subordinated Securities or issued upon conversion of Preferred Shares which
qualify at the time of exchange or conversion as Capital Securities as
determined by the Corporation's primary federal regulator. Such other Capital
Securities will have such terms as may be determined by the Corporation.
DESCRIPTION OF PREFERRED SHARES
The following description of the terms of the Preferred Shares sets forth
certain general terms and provisions of the Preferred Shares to which any
Prospectus Supplement may relate. Particular terms of the Preferred Shares
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Preferred Shares so offered will be
described in the Prospectus Supplement relating to such Preferred Shares. The
description of certain provisions of the Preferred Shares set forth below and
in the Prospectus Supplement does not purport to be complete and is subject to
and qualified in its entirety by reference to the Certificate of Designations
relating to the particular series of Preferred Shares, which will be filed with
the Commission at or prior to the time of the sale of such Preferred Shares.
GENERAL
Under the Corporation's Certificate of Incorporation, the Board of Directors
of the Corporation is authorized without further stockholder action to adopt
resolutions providing for the issuance of up to 70,000,000 shares of preferred
stock, without par value, in one or more series, with such voting powers, full
or limited, and with such designations, preferences and relative,
participating, optional or other special rights and qualifications, limitations
or restrictions, as may be determined by the Board of Directors. As of the date
of this Prospectus, the Corporation has eleven series of preferred stock
outstanding, which are described below under "--Outstanding Preferred Stock."
The Preferred Shares shall have the dividend, liquidation, redemption and
voting rights and, if applicable, conversion rights set forth below unless
otherwise provided in the Prospectus Supplement relating to a particular series
of Preferred Shares. Reference is made to the Prospectus Supplement relating to
the particular series of Preferred Shares offered thereby for specific terms,
including, where
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applicable: (i) the title and stated value of such Preferred Shares; (ii) the
price at which such Preferred Shares will be issued; (iii) the dividend rates
and dates on which dividends shall be payable, as well as the dates from which
dividends shall commence to cumulate; (iv) any dates on which such Preferred
Shares will be subject to redemption and the redemption prices; (v) any
mandatory redemption or sinking fund provisions; (vi) any rights on the part of
the holder to convert such Preferred Shares into shares of Common Stock; (vii)
any provisions for the mandatory conversion of such Preferred Shares into
Capital Securities; (viii) any additional dividend, liquidation, redemption,
sinking fund, voting and other rights, preferences, privileges, limitations and
restrictions; (ix) whether interests in the Preferred Shares will be
represented by Depositary Shares; and (x) the material terms of any securities
being offered together with or separately from such Preferred Shares.
The Preferred Shares will be fully paid and nonassessable, and for each share
issued, a sum equal to the stated value will be credited to the Corporation's
preferred stock account. The Preferred Shares will rank on a parity in all
respects with the outstanding preferred stock of the Corporation. See "--
Outstanding Preferred Stock," below.
DIVIDENDS
Holders of Preferred Shares will be entitled to receive quarterly cash
dividends, when and as declared by the Board of Directors of the Corporation,
out of funds of the Corporation legally available for payment, at such rates
and on such dates as will be set forth in the applicable Prospectus Supplement.
Each dividend will be payable to holders of record as they appear on the stock
books of the Corporation on the record date fixed by the Board of Directors of
the Corporation. Dividends will be cumulative from and after the date set forth
in the applicable Prospectus Supplement. If, for any dividend period or
periods, full cumulative dividends on any shares of preferred stock have not
been paid or declared and set apart for payment or the Corporation is in
default or in arrears with respect to any sinking fund or other arrangement for
the purchase or redemption of any shares of preferred stock, the Corporation
may not declare any dividends on, or make any payment on account of the
purchase, redemption or other retirement of, its Common Stock or any other
stock of the Corporation ranking as to dividends or distribution of assets
junior to the preferred stock. If dividends on Preferred Shares are in arrears,
and there shall be outstanding shares of any other series of preferred stock
ranking on a parity as to dividends with the Preferred Shares, the Corporation,
in making any dividend payment on account of such arrears, is required to make
payments ratably upon all outstanding Preferred Shares and shares of such other
series of preferred stock in proportion to the respective amounts of dividends
in arrears on such Preferred Shares and shares of such other series of
preferred stock. See "BankAmerica Corporation" for a description of certain
legal restrictions placed on Bank of America, SFNB and the Corporation's other
depository subsidiaries regarding providing funds to the Corporation.
LIQUIDATION RIGHTS
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of Preferred Shares will be entitled
to receive out of assets of the Corporation available for distribution to
stockholders, before any distribution of assets is made to holders of Common
Stock, liquidating distributions in the amount of the liquidation price per
share (as set forth in the applicable Prospectus Supplement) plus all accrued
and unpaid dividends. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the amounts payable with respect
to the Preferred Shares and any other shares of stock of the Corporation
ranking as to any such distribution on a parity with the Preferred Shares are
not paid in full, the holders of the Preferred Shares and of
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such other shares will share ratably in any such distribution of assets of the
Corporation in proportion to the full respective preferential amounts to which
they are entitled. After payment of the full amount of the liquidating
distribution to which they are entitled, the holders of Preferred Shares will
not be entitled to any further participation in any distribution of assets by
the Corporation. A consolidation or merger of the Corporation with or into any
other corporation or corporations or a sale of all or substantially all of the
assets of the Corporation shall not be deemed to be a liquidation, dissolution
or winding up of the Corporation.
REDEMPTION
The Preferred Shares will be redeemable in whole or in part, at the option of
the Corporation, at the times and at the redemption prices set forth in the
applicable Prospectus Supplement.
The Corporation may not purchase or redeem any of the outstanding shares of
any series of Preferred Shares unless full cumulative dividends have been paid
or declared and set apart for payment upon all outstanding shares of any series
of preferred stock for all past dividend periods, and unless all matured
obligations of the Corporation with respect to all sinking funds, retirement
funds or purchase funds for all series of preferred stock then outstanding have
been met.
In addition, under current regulations, in order to qualify as Tier I
capital, a series of Preferred Shares may not be redeemed at the Corporation's
option without the prior approval of the Federal Reserve Board. The Corporation
expects that, ordinarily, the Federal Reserve would permit such a redemption if
the shares are redeemed with the proceeds of, or replaced by, a like amount of
a similar or higher quality capital instrument and if the Corporation's capital
position is considered fully adequate by the Federal Reserve.
VOTING RIGHTS
Except as indicated below or in the applicable Prospectus Supplement, or
except as expressly required by applicable law, the holders of the Preferred
Shares will not be entitled to vote.
If the equivalent of six quarterly dividends payable on any series of the
Preferred Shares or any other series of preferred stock are in default (whether
or not declared or consecutive), the holders of all outstanding series of
preferred stock, voting as a single class without regard to series, will be
entitled to elect two directors until all dividends in default have been paid
or declared and set apart for payment.
The affirmative vote of the holders of at least two-thirds of the outstanding
shares of the Preferred Shares and any other series of preferred stock, voting
as a single class without regard to series, will be required (i) for any
amendment of the Corporation's Certificate of Incorporation (or any certificate
supplemental thereto providing for the capital stock of the Corporation) or By-
laws that will materially and adversely change the preferences, privileges,
rights or powers of the preferred stock, but, in any case in which one or more,
but not all, series of preferred stock would be so affected as to their
preferences, privileges, rights or powers, only the consent of holders of at
least two-thirds of the shares of each series that would be so affected, voting
separately as a class, shall be required or (ii) to issue any class of stock
that shall have preference as to payment of dividends or distribution of assets
over any outstanding series of preferred stock.
All stockholder action must be taken at a meeting. Stockholder action by
written consent is not permitted.
The Corporation's Certificate of Incorporation may be amended to increase the
number of authorized shares of the preferred stock without the vote of the
holders of outstanding Preferred Shares.
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CONVERSION RIGHTS
The Prospectus Supplement for any series of Preferred Shares will state
whether shares in that series are convertible into Common Stock. See
"Description of Common Stock," below. Unless otherwise provided in the
applicable Prospectus Supplement, if a series of Preferred Shares is
convertible into shares of Common Stock ("Convertible Preferred Shares"),
holders of such Convertible Preferred Shares will have the right, at their
option and at any time, to convert any of such Convertible Preferred Shares,
initially at the conversion rate set forth in the Prospectus Supplement
relating to such Convertible Preferred Shares, provided that if such series of
Convertible Preferred Shares is called for redemption, the conversion rights
pertaining thereto will terminate at the close of business on the date fixed
for redemption. No fractional share or scrip representing a fractional share
will be issued upon conversion of the Convertible Preferred Shares, but if such
conversion results in a fraction, an equivalent amount will be paid in cash by
the Corporation, based on the Closing Price, as defined in the Certificate of
Designations for such series of Convertible Preferred Shares, of the
Corporation's Common Stock on the business day immediately preceding the day on
which the Convertible Preferred Shares are converted. No payment or adjustment
shall be made upon conversion of the Convertible Preferred Shares in respect of
dividends accrued and unpaid to the date of conversion or in respect of any
dividends on the Common Stock issued upon such conversion.
Unless otherwise indicated in the applicable Prospectus Supplement, the
conversion rate is subject to adjustment in certain events, including: (i) the
issuance of the Corporation's capital stock as a dividend or distribution on
the Common Stock; (ii) subdivisions and combinations of the Common Stock; (iii)
the issuance to all holders of Common Stock of certain rights or warrants
entitling them to subscribe for or purchase Common Stock within 45 days after
the date fixed for the determination of the stockholders entitled to receive
such rights or warrants, at less than the current market price (as defined in
the Certificate of Designations for such series of Convertible Preferred
Shares); and (iv) the distribution to all holders of Common Stock of evidences
of indebtedness or assets of the Corporation (excluding certain cash dividends
and distributions described below) or rights or warrants (excluding those
referred to above). In the event that the Corporation shall distribute any
rights or warrants to acquire capital stock pursuant to clause (iv) above (the
"Capital Stock Rights"), pursuant to which separate certificates representing
such Capital Stock Rights will be distributed subsequent to the initial
distribution of such Capital Stock Rights (whether or not such distribution
shall have occurred prior to the date of the issuance of a series of
Convertible Preferred Shares), such subsequent distribution shall be deemed to
be the distribution of such Capital Stock Rights; provided that the Corporation
may, in lieu of making any adjustment in the conversion rate upon a
distribution of separate certificates representing such Capital Stock Rights,
make proper provision so that each holder of such a Convertible Preferred Share
who converts such Convertible Preferred Share (or any portion thereof) (a)
before the record date for such distribution of separate certificates shall be
entitled to receive upon such conversion shares of Common Stock issued with
Capital Stock Rights and (b) after such record date and prior to the
expiration, redemption or termination of such Capital Stock Rights shall be
entitled to receive upon such conversion, in addition to the shares of Common
Stock issuable upon such conversion, the same number of such Capital Stock
Rights as would a holder of the number of shares of Common Stock that such
Convertible Preferred Share so converted would have entitled the holder thereof
to acquire in accordance with the terms and provisions applicable to the
Capital Stock Rights if such Convertible Preferred Share were converted
immediately prior to the record date for such distribution. Common Stock owned
by or held for the account of the Corporation or any majority owned subsidiary
shall not be deemed outstanding for the purpose of any adjustment.
No adjustment in the conversion rate will be made for regular quarterly or
other periodic or recurring cash dividends or distributions or for cash
dividends or distributions to the extent paid from retained earnings. No
adjustment in the conversion rate will be required unless such adjustment would
require a change of at least 1% in the conversion rate then in effect; provided
that any such adjustment not so made will be carried forward and taken into
account in any subsequent adjustment; and provided further
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that any such adjustment not so made shall be made no later than three years
after the occurrence of the event requiring such adjustment to be made or
carried forward. Notwithstanding any of the foregoing, neither the issuance of
Common Stock under the Corporation's Shareholder Investment Plan or any
successor plans providing for the purchase of shares of Common Stock by the
Corporation's stockholders or employees at a price not less than 90% of the
"average market price" during the "pricing period," as such terms, or
equivalent terms, are defined in, and as calculated pursuant to, such plans
from time to time, nor the granting or exercise of any rights thereunder, shall
require an adjustment to the conversion rate. The Corporation reserves the
right to make such increases in the conversion rate in addition to those
described in the foregoing provisions as the Corporation in its discretion
shall determine to be advisable in order that certain stock-related
distributions hereafter made by the Corporation to its stockholders shall not
be taxable. Except as stated above, the conversion rate will not be adjusted
for the issuance of Common Stock or any securities convertible into or
exchangeable for Common Stock, or securities carrying the right to purchase any
of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Corporation or (iii) a sale or conveyance
to another corporation of the property and assets of the Corporation as an
entirety or substantially as an entirety, in each case as a result of which
holders of the Corporation's Common Stock shall be entitled to receive stock,
securities, other property or assets (including cash) with respect to or in
exchange for such Common Stock, the holders of the Convertible Preferred Shares
then outstanding will be entitled thereafter to convert such Convertible
Preferred Shares into the kind and amount of shares of stock and other
securities or property which they would have received upon such
reclassification, change, consolidation, merger, sale or conveyance had such
Convertible Preferred Shares been converted into Common Stock immediately prior
to such reclassification, change, consolidation, merger, sale or conveyance.
If at any such time the Corporation makes a distribution of property to its
shareholders that would be taxable to such shareholders as a dividend for
federal income tax purposes (for example, distributions of evidences of
indebtedness or assets of the Corporation, but generally not stock dividends or
rights to subscribe to capital stock) and, pursuant to the antidilution
provisions described above, the conversion rate of the Convertible Preferred
Stock is increased, such increase may be deemed to be the receipt of taxable
income by Holders of the Convertible Preferred Stock.
OUTSTANDING PREFERRED STOCK
The Preferred Shares will rank on a parity in all respects with the
outstanding preferred stock (the "Preferred Stock") of the Corporation. The
Common Stock of the Corporation, including the Common Stock that may be issued
upon conversion of the Preferred Shares or in exchange for or upon conversion
of Subordinated Debt Securities, will be subject to any prior rights of the
Preferred Stock then outstanding. Therefore, the rights of the outstanding
Preferred Stock, described below, and any other preferred stock that may be
subsequently issued, may limit the rights of the holders of the Preferred
Shares, Perpetual Preferred Stock and Common Stock of the Corporation. As of
June 30, 1994, the Corporation had outstanding 5,178,000 shares of Cumulative
Adjustable Preferred Stock, Series A (the "Series A Preferred"), 3,546,100
shares of Cumulative Adjustable Preferred Stock, Series B (the "Series B
Preferred"), 7,250,000 shares of 9 5/8% Cumulative Preferred Stock, Series F
(the "Series F Preferred"), 4,998,357 shares of 6 1/2% Cumulative Convertible
Preferred Stock, Series G (the "Series G Preferred"), 11,250,000 shares of 9%
Cumulative Preferred Stock, Series H (the "Series H Preferred "), 200,000
shares of 11% Preferred Stock, Series I (the "Series I Preferred"), 400,000
shares of 11% Preferred Stock, Series J (the "Series J Preferred"), 14,600,000
shares of 8 3/8% Cumulative Preferred Stock, Series K (the "Series K
Preferred"), 800,000 shares of 8.16% Cumulative Preferred Stock, Series L (the
"Series L Preferred"), 700,000 shares of 7 7/8% Cumulative Preferred Stock,
Series M (the "Series M Preferred") and 475,000 shares of 8 1/2% Cumulative
Preferred Stock, Series N (the "Series N Preferred").
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Except as required by law and described below, the holders of Preferred Stock
are not entitled to vote. If the equivalent of six quarterly dividends payable
on any series of the Preferred Stock are in default (whether or not declared or
consecutive), the holders of all outstanding series of Preferred Stock, voting
as a single class without regard to series, will be entitled to elect two
directors until all dividends in default have been paid or declared and set
apart for payment.
The affirmative vote of the holders of at least two-thirds of the outstanding
shares of the Preferred Stock, voting as a single class without regard to
series, will be required (i) for any amendment of Certificate of Incorporation
(or any certificate supplemental thereto providing for the capital stock of the
Corporation) or By-laws that will materially and adversely change the
preferences, privileges, rights or powers of the Preferred Stock, but in any
case in which one or more, but not all, series of Preferred Stock would be so
affected as to their preferences, privileges, rights or powers, only the
consent of holders of at least two-thirds of the shares of each series that
would be so affected, voting separately as a class, shall be required or (ii)
to issue any class of stock that shall have preference as to dividends or
distribution of assets over any outstanding series of Preferred Stock. In
addition, the vote or consent of holders of at least two-thirds of all
outstanding shares of Series I Preferred and Series J Preferred, each voting
separate as a class, is required to authorize any amendment to the
Corporation's Certificate of Incorporation or to any certificates supplemental
thereto that would adversely affect the powers, preferences, privileges or
rights of the Series I Preferred or Series J Preferred, respectively; provided,
however, that any increase or decrease in the amount of authorized preferred
stock or the creation and issuance of other series of preferred stock, or any
increase or decrease in the amount of authorized shares or issued shares of the
Series I Preferred, Series J Preferred or of any other series of Preferred
Stock, in each case ranking on a parity with or junior to such series of the
Series I Preferred and Series J Preferred with respect to the payment of
dividends and the distribution of assets upon liquidation, dissolution or
winding up, will not be deemed to materially and adversely affect the powers,
preferences, privileges or rights of the Series I Preferred and Series J
Preferred.
Furthermore, the vote or consent of the holders of at least two-thirds of all
of the shares of the Series I Preferred and Series J Preferred and all other
series of preferred stock ranking on a parity with shares of the Series I
Preferred and Series J Preferred, either as to dividends or upon liquidation,
and which are granted in the Certificate of Incorporation (including any
Certificate of Designations) the right to vote together with Series I Preferred
and Series J Preferred as a single class on the matters set forth in this
paragraph, is necessary for authorizing or issuance of any shares of any class
of stock of the Corporation ranking prior to the shares of the Series I
Preferred and Series J Preferred as to dividends or upon liquidation, or the
reclassification of any authorized stock of the Corporation into any such prior
shares, or the creation, authorization or issuance of any obligation or
security convertible into or evidencing the right to purchase any such prior
shares.
In the event of voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, the holders of Preferred Stock are entitled to receive
out of the assets of the Corporation available for distribution to
stockholders, before any distribution of assets is made to holders of Common
Stock, an amount equal to the stated value per share, plus accrued and unpaid
dividends. The Preferred Stock is not convertible into shares of other capital
stock, except for the Series G Preferred. The Preferred Stock does not have
preemptive rights and is not subject to any sinking fund or other obligation of
the Corporation to repurchase or retire the Preferred Stock.
Series A Preferred. The Series A Preferred has a stated value of $50.00 per
share. The Series A Preferred provides for cumulative dividends payable
quarterly at adjustable rates based on the discount
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rates and average yields of certain United States government securities. The
Series A Preferred is subject to redemption, in whole or in part, at the option
of the Corporation, at $50.00 per share plus accrued and unpaid dividends.
Series B Preferred. The Series B Preferred has a stated value of $100.00 per
share. The Series B Preferred provides for cumulative dividends payable
quarterly at adjustable rates based on the discount rates and average yields of
certain United States government securities. The Series B Preferred is subject
to redemption, in whole or in part, at the option of the Corporation, at
$100.00 per share, plus accrued and unpaid dividends.
Series F Preferred. The Series F Preferred has a stated value of $25.00 per
share. The Series F Preferred provides for cumulative dividends payable
quarterly at the rate of 9 5/8% per annum calculated as a percentage of the
stated value. The Series F Preferred is subject to redemption, in whole or in
part, at the option the Corporation on or after April 15, 1996, at $25.00 per
share, plus accrued and unpaid dividends.
Series G Preferred. The Series G Preferred has a stated value of $50.00 per
share. The Series G Preferred provides for cumulative dividends payable
quarterly at the rate of 6 1/2% per annum calculated as a percentage of the
stated value. The Series G Preferred is subject to redemption, in whole or in
part, at the option of the Corporation at $51.95 per share during the twelve
months beginning May 31, 1995, at decreasing prices thereafter through May 30,
2001, and at $50.00 per share thereafter, in each case plus accrued and unpaid
dividends. The Series G Preferred is convertible, at any time, unless
previously redeemed, into common Stock at a conversion rate of 1.09649 shares
of Common Stock for each share of Series G Preferred (equivalent to a
conversion price of $45.60 per share of Common Stock). The conversion rate is
protected by customary antidilution provisions.
Series H Preferred. The Series H Preferred has a stated value of $25.00 per
share. The Series H Preferred provides for cumulative dividends payable
quarterly at the rate of 9% per annum calculated as a percentage of the stated
value. The Series H Preferred is subject to redemption, in whole or in part, at
the option of the Corporation on or after January 15, 1997, at $25.00 per
share, plus accrued and unpaid dividends.
Series I Preferred. The Series I Preferred has a stated value of $500.00 per
share. The Series I Preferred provides for cumulative dividends payable
quarterly at a rate of 11% per annum calculated as a percentage of the stated
value. The Series I Preferred is subject to redemption, in whole or in part, at
the option of the Corporation at $527.50 per share during the twelve months
beginning September 30, 1995, at decreasing prices thereafter through September
29, 2000, and at $500.00 per share thereafter, in each case plus accrued and
unpaid dividends.
Series J Preferred. The Series J Preferred has a stated value of $500.00 per
share. The Series J Preferred provides for cumulative dividends payable
quarterly at a rate of 11% per annum calculated as a percentage of the stated
value. The Series J Preferred is subject to redemption, in whole or in part, at
the option of the Corporation at $527.50 per share during the twelve months
beginning March 31, 1996, at decreasing prices thereafter through March 30,
2001, and at $500.00 per share thereafter, in each case plus accrued and unpaid
dividends.
Series K Preferred. The Series K Preferred has a stated value of $25.00 per
share. The Series K Preferred provides for cumulative dividends payable
quarterly at a rate of 8 3/8% per annum calculated as a percentage of the
stated value. The Series K Preferred is subject to redemption, in whole or in
part, at the option of the Corporation on or after February 15, 1997, at $25.00
per share, plus accrued and unpaid dividends.
Series L Preferred. The Series L Preferred has a stated value of $500.00 per
share. The Series L Preferred provides for cumulative dividends payable
quarterly at a rate of 8.16% per annum calculated
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as a percentage of the stated value. The Series L Preferred is subject to
redemption, in whole or in part, at the option of the Corporation on or after
July 13, 1997, at $500.00 per share, plus accrued and unpaid dividends.
Series M Preferred. The Series M Preferred has a stated value of $500.00 per
share. The Series M Preferred provides for cumulative dividends payable
quarterly at a rate of 7 7/8% per annum calculated as a percentage of the
stated value. The Series M Preferred is subject to redemption, in whole or in
part, at the option of the Corporation on or after September 30, 1997, at
$500.00 per share, plus accrued and unpaid dividends.
Series N Preferred. The Series N Preferred has a stated value of $500.00 per
share. The Series N Preferred provides for cumulative dividends payable
quarterly at a rate of 8 1/2% per annum calculated as a percentage of the
stated value. The Series N Preferred is subject to redemption, in whole or in
part, at the option of the Corporation on or after December 15, 1997, at
$500.00 per share, plus accrued and unpaid dividends.
DESCRIPTION OF DEPOSITARY SHARES
The following description of the terms of the Depositary Shares sets forth
certain general terms and provisions of the Depositary Shares to which any
Prospectus Supplement may relate. Particular terms of the Depositary Shares
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Depositary Shares so offered will be
described in the Prospectus Supplement relating to such Depositary Shares. The
description of certain provisions of the Depositary Shares set forth below and
in the Prospectus Supplement does not purport to be complete and is subject to
and qualified in its entirety by reference to the forms of Deposit Agreement
and Depositary Receipts relating to each series of Preferred Shares, which have
been filed with the Commission.
GENERAL
The Corporation may, at its option, elect to offer fractional interests in
Preferred Shares, rather than full shares. In the event such option is
exercised, the Corporation will provide for the issuance by a Depositary to the
public of Depositary Receipts evidencing Depositary Shares, each of which will
represent a fractional interest (to be set forth in the Prospectus Supplement
relating to a particular series of the Preferred Shares) in a share of a
particular series of the Preferred Shares as described below.
The shares of any series of the Preferred Shares underlying the Depositary
Shares will be deposited under a separate Deposit Agreement (the "Deposit
Agreement") between the Corporation
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and a bank or trust company selected by the Corporation having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000 (the "Depositary"). The Prospectus Supplement relating to a
series of Depositary Shares will set forth the name and address of the
Depositary. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fractional
interest in a Preferred Share underlying such Depositary Share, to all the
rights and preferences of the Preferred Share underlying such Depositary Share
(including dividend, voting, redemption, conversion and liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary Receipts
will be distributed to those persons purchasing the fractional shares of the
related series of Preferred Shares in accordance with the terms of the offering
described in the related Prospectus Supplement.
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of the Corporation, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will
be exchangeable for definitive Depositary Receipts at the Corporation's
expense.
Upon surrender of the Depositary Receipts at the principal office of the
Depositary (unless the related Depositary Shares have previously been called
for redemption), the holder of the Depositary Shares evidenced thereby will be
entitled to delivery at such office, to or upon such holder's order, of the
number of whole Preferred Shares and any money or other property represented by
such Depositary Shares. Partial Preferred Shares will not be issued. If the
Depositary Receipts delivered by the holder evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the number of
whole Preferred Shares to be withdrawn, the Depositary will deliver to such
holder at the same time a new Depositary Receipt evidencing such excess number
of Depositary Shares. Holders of Preferred Shares thus withdrawn will not
thereafter be entitled to deposit such shares under the Deposit Agreement or to
receive Depositary Shares therefor. The Corporation does not expect that there
will be any public trading market for such Preferred Shares except as
represented by the Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash distributions
received in respect of the underlying Preferred Shares to the record holders of
Depositary Shares relating to such Preferred Shares in proportion to the
numbers of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction
of one cent, and any balance not so distributed shall be added to and treated
as part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Corporation, sell such property and distribute the net proceeds from such
sale to such holders.
The Deposit Agreement will also contain provisions relating to the manner in
which any subscription or similar rights offered by the Corporation to holders
of the Preferred Shares shall be made available to holders of Depositary
Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Shares underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the
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redemption, in whole or in part, of such series of the Preferred Shares held by
the Depositary. The Depositary shall mail notice of redemption not less than 30
and not more than 80 days prior to the date fixed for redemption to the record
holders of the Depositary Shares to be so redeemed at their respective
addresses appearing in the Depositary's books. The redemption price per
Depositary Share will be equal to the applicable fraction of the redemption
price per share payable with respect to such series of the Preferred Shares.
Whenever the Corporation redeems Preferred Shares held by the Depositary, the
Depositary will redeem as of the same redemption date the number of Depositary
Shares relating to Preferred Shares so redeemed. If less than all the
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will
be selected by lot or pro rata as may be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares so called for redemption will cease, except
the right to receive the moneys payable upon such redemption and any money or
other property to which the holders of such Depositary Shares were entitled
upon such redemption upon surrender to the Depositary of the Depositary
Receipts evidencing such Depositary Shares.
CONVERSION
With respect to a series of the Preferred Shares underlying the Depositary
Shares that is convertible into Common Stock, a holder of Depositary Receipts
may participate in the conversion in the manner specified in the pertinent
Certificate of Designations for holders of the underlying Preferred Shares. If
the Depositary Shares represented by a Depositary Receipt are to be converted
in part only, a new Depositary Receipt or Depositary Receipts will be issued by
the Depositary for the Depositary Shares not to be converted. No fractional
shares of Common Stock will be issued upon conversion, and if such conversion
would result in a fractional share being issued, an amount will be paid in cash
by the Corporation equal to the value of the fractional interest based upon the
closing price of the Common Stock on the last business day prior to the date of
conversion.
VOTING THE PREFERRED SHARES
Upon receipt of notice of any meeting at which the holders of the Preferred
Shares are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Shares
relating to such Preferred Shares. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Shares) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the number of Preferred Shares
underlying such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the number of Preferred Shares underlying such
Depositary Shares in accordance with such instructions, and the Corporation
will agree to take all action which may be deemed necessary by the Depositary
in order to enable the Depositary to do so. The Depositary will abstain from
voting Preferred Shares to the extent it does not receive specific instructions
from the holders of Depositary Shares relating to such Preferred Shares. The
Depositary's liability with respect to voting Preferred Shares is limited.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Corporation and the Depositary. However, any amendment which
materially and adversely alters the rights of the existing holders of
Depositary Shares will not be effective unless such amendment has been approved
by the record holders of at least a majority of the Depositary Shares then
outstanding. A Deposit Agreement may be terminated by the Corporation or the
Depositary only if (i) all outstanding Depositary Shares relating
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thereto have been redeemed or, if applicable, converted into Common Stock or
(ii) there has been a final distribution in respect of the Preferred Shares of
the relevant series in connection with any liquidation, dissolution or winding
up of the Corporation and such distribution has been distributed to the holders
of the related Depositary Shares.
CHARGES OF DEPOSITARY
The Corporation will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary agreements. The
Corporation will pay charges of the Depositary in connection with the initial
deposit of the Preferred Shares, any redemption of the Preferred Shares and any
withdrawals of the Preferred Shares by holders of the Depositary Shares.
Holders of Depositary Shares will pay other transfer and other taxes and
governmental charges and such other charges as are expressly provided in the
Deposit Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications (including, without limitation, financial statements) from
the Corporation which are delivered to the Depositary and which the Corporation
is required to furnish to the holders of the Preferred Shares.
Neither the Depositary nor the Corporation will be liable if it is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Corporation and
the Depositary under the Deposit Agreement will be limited to performance
without negligence or intentional misconduct of their duties thereunder and
they will not be obligated to prosecute or defend any legal proceeding in
respect of any Depositary Shares or Preferred Shares unless satisfactory
indemnity is furnished. They may rely upon written advice of counsel or
accountants, or information provided by persons presenting Preferred Shares for
deposit, holders of Depositary Shares or other persons believed to be competent
and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Corporation notice
of its election to do so, and the Corporation may at any time remove the
Depositary, any such resignation or removal to take effect upon the appointment
of a successor Depositary and its acceptance of such appointment. Such
successor Depositary must be appointed within 60 days after delivery of the
notice of resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000.
TAXATION
Owners of Depositary Shares will be treated for federal income tax purposes
as if they were owners of the Preferred Shares represented by such Depositary
Shares and, accordingly, will be entitled to take into account for federal
income tax purposes income and deductions to which they would be entitled if
they were holders of such Preferred Stock. In addition, (i) no gain or loss
will be recognized for federal income tax purposes upon the withdrawal of
Preferred Shares in exchange for Depositary Shares as provided in the Deposit
Agreement, (ii) the tax basis of each Preferred Share to an exchanging owner of
Depositary Shares will, upon such exchange, be the same as the aggregate tax
basis of the Depositary Shares exchanged therefor and (iii) the holding period
for the Preferred Shares in the hands of an exchanging owner of Depositary
Shares who held such Depositary Shares as a capital asset at the time of the
exchange thereof for Preferred Shares will include the period during which such
person owned such Depositary Shares.
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DESCRIPTION OF COMMON STOCK
GENERAL
The Corporation has 700,000,000 authorized shares of Common Stock, $1.5625
par value, of which 346,908,728 shares (excluding treasury shares) were
outstanding at June 30, 1994. The following is a brief summary of certain
rights and provisions of the Common Stock.
Subject to any prior rights of the preferred stock of the Corporation then
outstanding, holders of the Corporation's Common Stock are entitled to receive
such dividends as are declared by the Board of Directors out of funds legally
available therefor. (See the description of the outstanding Preferred Stock set
forth in "Description of Preferred Shares--Outstanding Preferred Stock,"
above.) The indentures under which certain of the Corporation's debt securities
are outstanding prohibit the Corporation, under certain circumstances, from
paying dividends in shares of stock of Bank of America.
In addition, the Federal Reserve Board has adopted a policy statement that it
is its view that, as a matter of prudent banking, a bank holding company should
not pay cash dividends on common stock unless its net income available to
common stockholders over the past year has been sufficient to fully fund the
dividends and the prospective rate of earnings retention appears consistent
with the company's capital needs, asset quality and overall financial
condition.
Subject to the rights, if any, of the holders of shares of preferred stock,
all voting rights are vested in the holders of shares of Common Stock, each
share being entitled to one vote. Stockholder action (including the election of
directors) may not be taken without a meeting. Stockholder action by written
consent is not permitted.
Holders of the shares of Common Stock have non-cumulative voting rights,
which means that the holders of a majority of the shares voting for the
election of directors can elect 100% of the directors if they choose to do so,
and, in such event, the holders of the remaining less than 50% of the shares
voting for the election of directors will not be able to elect any person or
persons to the Board of Directors.
Subject to the rights of the holders of the preferred stock, in the event of
liquidation of the Corporation the holders of the Common Stock are entitled to
share equally and ratably in any assets remaining after the payment of all
debts and liabilities.
Holders of Common Stock do not have preemptive or other subscription or
conversion rights.
The Common Stock does not have any sinking fund, conversion or redemption
provisions applicable thereto and is not liable to further call or assessment
by the Corporation. There is no restriction under the Corporation's Certificate
of Incorporation or By-Laws on the Corporation's repurchase or redemption of
shares of Common Stock with funds legally available therefor.
RIGHTS AGREEMENT
Each share of the Corporation's Common Stock, including those that may be
issued hereunder, is accompanied by one preferred share purchase right (a
"Right"). Each Right entitles the registered holder to purchase one one-
hundredth of a share of the Corporation's Cumulative Participating Preferred
Stock, Series E, without par value ("Series E Preferred Shares"), at a price of
$50.00 (subject to adjustment). The description and terms of the Rights are set
forth in a Rights Agreement (the "Rights Agreement") between the Corporation
and Chemical Trust Company of California, as Rights Agent (the "Rights Agent"),
as amended by Amendment No. 1 ("Amendment No. 1") to the Rights Agreement dated
as of August 11, 1991.
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Certificates for Common Stock of the Corporation contain a notation
incorporating the Rights Agreement by reference.
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") has acquired beneficial ownership of 20% or more of the outstanding
Common Stock of the Corporation or (ii) 10 business days (or such later date as
may be determined by action of the Board of Directors prior to such time as any
person becomes an Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a person or
group of 20% or more of such outstanding Common Stock of the Corporation (the
earlier of such dates being called the "Distribution Date"), the Rights will be
evidenced, with respect to any Common Stock of the Corporation, by the
certificate representing such Common Stock. In addition, the Rights Agreement
provides that, until the Distribution Date, the Rights will be transferred with
and only with shares of Common Stock.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on April 22, 1998 (the "Final Expiration Date") unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed by the
Corporation.
Series E Preferred Shares purchasable upon exercise of the Rights will be
redeemable by the Corporation at a formula price. Each Series E Preferred Share
will be entitled to a minimum preferential quarterly dividend payment of $1.00
per share, but will be entitled to an aggregate dividend of 100 times the
dividend declared per share of Common Stock of the Corporation. In the event of
liquidation, the holders of the Series E Preferred Shares will be entitled to a
minimum preferential liquidation payment of $100.00 per share, plus accrued and
unpaid dividends, but will be entitled to an aggregate payment of 100 times the
payment made per share of Common Stock of the Corporation. Each Series E
Preferred Share will have 100 votes, voting together with shares of Common
Stock of the Corporation. Finally, in the event of any merger, consolidation or
other transaction in which shares of Common Stock of the Corporation are
exchanged, each Series E Preferred Share will be entitled to receive 100 times
the amount received per share of Common Stock of the Corporation. These rights
are protected by customary antidilution provisions.
Because of the nature of the Series E Preferred Shares' dividend, liquidation
and voting rights, the value of the one one-hundredth interest in a Series E
Preferred Share purchasable upon exercise of each Right should approximate the
value of one share of Common Stock.
In the event that the Corporation is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning
power are sold, proper provision will be made so that each holder of a Right
will thereafter have the right to receive, upon the exercise thereof at the
then current exercise price of the Right, that number of shares of Common Stock
of the acquiring company which at the time of such transaction will have a
market value of two times the exercise price of the Right. In the event that
any person or group of affiliated or associated persons acquires beneficial
ownership of 20% or more of the outstanding shares of Common Stock of the
Corporation (unless such person increased its beneficial ownership from less
than 20% to 80% or more of the outstanding shares of Common Stock of the
Corporation by a purchase pursuant to a tender offer for all of the shares of
Common Stock for cash), proper provisions shall be made so that each holder of
a Right, other than Rights beneficially owned by such person or group of
affiliated or associated persons (which will thereafter be void), will
thereafter have the right to receive upon exercise that number of shares of
Common Stock of the Corporation having a market value of two times the exercise
price of the Right.
At any time prior to the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 20% or more of the outstanding
shares of Common Stock of the Corporation, the Board of Directors of the
Corporation may redeem the Rights in whole, but not in part, at a price of
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$.001 per Right (rounded upward for each holder to the nearest $.01). In
addition, the Rights may be subject to automatic redemption in certain
circumstances upon approval of the majority of the holders of Common Stock of
the Corporation entitled to vote on the matter at a special meeting to be held
in connection with certain acquisition offers.
Copies of the Rights Agreement and Amendment No. 1 have been filed with the
Commission as an exhibit to a Registration Statement on Form 8-A dated April
13, 1988, and as an exhibit to the amendment to such Registration Statement
filed on Form 8 dated August 20, 1991, respectively.
The foregoing description of the Corporation's Common Stock and the Rights
does not purport to be a complete description of the terms of the Corporation's
Common Stock and the Rights and is qualified in its entirety by reference to
the terms of such Common Stock and Rights, which are incorporated herein by
reference and are set forth in full in Article Fourth of the Corporation's
Certificate of Incorporation and the Rights Agreement, respectively, which have
been filed with the Commission.
DESCRIPTION OF SECURITIES WARRANTS
The Corporation may issue Securities Warrants for the purchase of Debt
Securities, Preferred Shares, Depositary Shares or Common Stock. Securities
Warrants may be issued independently or together with Debt Securities,
Preferred Shares, Depositary Shares or Common Stock offered by any Prospectus
Supplement and may be attached to or separate from such Debt Securities,
Preferred Shares, Depositary Shares or Common Stock. Each series of Securities
Warrants will be issued under a separate warrant agreement (a "Securities
Warrant Agreement") to be entered into between the Corporation and a bank or
trust company, as Securities Warrant Agent, all as set forth in the Prospectus
Supplement relating to the particular issue of offered Securities Warrants. The
Securities Warrant Agent will act solely as an agent of the Corporation in
connection with the Securities Warrant Certificates and will not assume any
obligation or relationship of agency or trust for or with any holders of
Securities Warrant Certificates or beneficial owners of Securities Warrants.
Copies of the forms of Securities Warrant Agreements, including the forms of
Securities Warrant Certificates representing the Securities Warrants, are filed
as exhibits to the Registration Statement to which this Prospectus pertains.
The following summaries of certain provisions of the forms of Securities
Warrant Agreements and Securities Warrant Certificates do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Securities Warrant Agreements and the Securities
Warrant Certificates.
GENERAL
If Securities Warrants are offered, the applicable Prospectus Supplement will
describe the terms of such Securities Warrants, including, in the case of
Securities Warrants for the purchase of Debt Securities, the following where
applicable: (i) the offering price; (ii) the currencies in which such
Securities Warrants are being offered; (iii) the designation, aggregate
principal amount, currencies, denominations and terms of the series of Debt
Securities purchasable upon exercise of such Securities Warrants; (iv) the
material terms of any securities being offered together with or separately from
the Securities Warrants; (v) the principal amount of the series of Debt
Securities purchasable upon exercise of each such Securities Warrant and the
price at which and currencies in which such principal amount of Debt Securities
of such series may be purchased upon such exercise; (vi) the date on which the
right to exercise such Securities Warrants shall commence and the date (the
"Expiration Date") on which such right shall expire; (vii) whether the
Securities Warrants will be issued in registered or bearer form; (viii) United
States federal income tax consequences; and (ix) any other material terms of
such Securities Warrants.
31
<PAGE>
In the case of Securities Warrants for the purchase of Preferred Shares,
Depositary Shares or Common Stock, the applicable Prospectus Supplement will
describe the terms of such Securities Warrants, including the following where
applicable: (i) the offering price; (ii) the aggregate number of shares
purchasable upon exercise of such Securities Warrants and, in the case of
Securities Warrants for Preferred Shares or Depositary Shares, the designation,
aggregate number and terms of the series of Preferred Shares purchasable upon
exercise of such Securities Warrants or underlying the Depositary Shares
purchasable upon exercise of such Securities Warrants; (iii) the material terms
of any securities being offered together with or separately from the Securities
Warrants; (iv) the number of Preferred Shares, Depositary Shares or shares of
Common Stock purchasable upon exercise of each such Securities Warrant and the
price at which such number of Preferred Shares, Depositary Shares or shares of
Common Stock may be purchased upon such exercise; (v) the date on which the
right to exercise such Securities Warrants shall commence and the Expiration
Date; (vi) United States federal income tax consequences; and (vii) any other
material terms of such Securities Warrants. Securities Warrants for the
purchase of Preferred Shares, Depositary Shares or Common Stock will be offered
and exercisable for U.S. dollars only and will be in registered form only.
Securities Warrant Certificates may be exchanged for new Securities Warrant
Certificates of different denominations, may (if in registered form) be
presented for registration of transfer, and may be exercised at the corporate
trust office of the Securities Warrant Agent or any other office indicated in
the applicable Prospectus Supplement. Prior to the exercise of any Securities
Warrant to purchase Debt Securities, holders of such Securities Warrants will
not have any of the rights of Holders of the Debt Securities purchasable upon
such exercise, including the right to receive payments of principal of,
premium, if any, or interest, if any, on the Debt Securities purchasable upon
such exercise or to enforce covenants in the applicable Indenture. Prior to the
exercise of any Securities Warrants to purchase Preferred Shares, Depositary
Shares or Common Stock, holders of such Securities Warrants will not have any
rights of holders of the Preferred Shares, Depositary Shares or Common Stock
purchasable upon such exercise, including the right to receive payments of
dividends, if any, on the Preferred Shares, Depositary Shares or Common Stock
purchasable upon such exercise or to exercise any applicable right to vote.
EXERCISE OF SECURITIES WARRANTS
Each Securities Warrant will entitle the holder thereof to purchase such
principal amount of Debt Securities or number of Preferred Shares, Depositary
Shares or shares of Common Stock, as the case may be, at such exercise price as
shall in each case be set forth in, or calculable from, the Prospectus
Supplement relating to the offered Securities Warrants. After the close of
business on the Expiration Date (or such later date to which such Expiration
Date may be extended by the Corporation), unexercised Securities Warrants will
become void.
Securities Warrants may be exercised by delivering to the Securities Warrant
Agent payment as provided in the applicable Prospectus Supplement of the amount
required to purchase the Debt Securities, Preferred Shares, Depositary Shares
or Common Stock, as the case may be, purchasable upon such exercise together
with certain information set forth on the reverse side of the Securities
Warrant Certificate. Securities Warrants will be deemed to have been exercised
upon receipt of payment of the exercise price, subject to the receipt, within
five business days, of the Securities Warrant Certificate evidencing such
Securities Warrants. Upon receipt of such payment and the Securities Warrant
Certificate properly completed and duly executed at the corporate trust office
of the Securities Warrant Agent or any other office indicated in the applicable
Prospectus Supplement, the Corporation will, as soon as practicable, issue and
deliver the Debt Securities, Preferred Shares, Depositary Shares or Common
Stock, as the case may be, purchasable upon such exercise. If fewer than all of
the Securities Warrants represented by such Securities Warrant Certificate are
exercised, a new Securities Warrant Certificate will be issued for the
remaining amount of Securities Warrants.
32
<PAGE>
AMENDMENTS AND SUPPLEMENTS TO SECURITIES WARRANT AGREEMENTS
The Securities Warrant Agreements may be amended or supplemented without the
consent of the holders of the Securities Warrants issued thereunder to effect
changes that are not inconsistent with the provisions of the Securities
Warrants and that do not adversely affect the interests of the holders of the
Securities Warrants.
COMMON STOCK WARRANT ADJUSTMENTS
Unless otherwise indicated in the applicable Prospectus Supplement, the
exercise price of, and the number of shares of Common Stock covered by, a
Common Stock Warrant are subject to adjustment in certain events, including:
(i) the issuance of Common Stock as a dividend or distribution on the Common
Stock; (ii) subdivisions and combinations of the Common Stock; (iii) the
issuance to all holders of Common Stock of certain rights or warrants entitling
them to subscribe for or purchase Common Stock within 45 days after the date
fixed for the determination of the stockholders entitled to receive such rights
or warrants, at less than the current market price (as defined in the Warrant
Agreement for such series of Common Stock Warrants); and (iv) the distribution
to all holders of Common Stock of evidences of indebtedness or assets of the
Corporation (excluding certain cash dividends and distributions described
below) or rights or warrants (excluding those referred to above). In the event
that the Corporation shall distribute any rights or warrants to acquire capital
stock pursuant to clause (iv) above (the "Capital Stock Rights"), pursuant to
which separate certificates representing such Capital Stock Rights will be
distributed subsequent to the initial distribution of such Capital Stock Rights
(whether or not such distribution shall have occurred prior to the date of the
issuance of a series of Common Stock Warrants), such subsequent distribution
shall be deemed to be the distribution of such Capital Stock Rights; provided
that the Corporation may, in lieu of making any adjustment in the exercise
price of, and the number of shares of Common Stock covered by, a Common Stock
Warrant upon a distribution of separate certificates representing such Capital
Stock Rights, make proper provision so that each holder of such a Common Stock
Warrant who exercises such Common Stock Warrant (or any portion thereof) (a)
before the record date for such distribution of separate certificates shall be
entitled to receive upon such exercise shares of Common Stock issued with
Capital Stock Rights and (b) after such record date and prior to the
expiration, redemption or termination of such Capital Stock Rights shall be
entitled to receive upon such exercise, in addition to the shares of Common
Stock issuable upon such exercise, the same number of such Capital Stock Rights
as would a holder of the number of shares of Common Stock that such Common
Stock Warrant so exercised would have entitled the holder thereof to acquire in
accordance with the terms and provisions applicable to the Capital Stock Rights
if such Common Stock Warrant was exercised immediately prior to the record date
for such distribution. Common Stock owned by or held for the account of the
Corporation or any majority owned subsidiary shall not be deemed outstanding
for the purpose of any adjustment.
No adjustment in the exercise price of, and the number of shares of Common
Stock covered by, a Common Stock Warrant will be made for regular quarterly or
other periodic or recurring cash dividends or distributions or for cash
dividends or distributions to the extent paid from retained earnings. No
adjustment will be required unless such adjustment would require a change of at
least 1% in the exercise price then in effect; provided that any such
adjustment not so made will be carried forward and taken into account in any
subsequent adjustment; and provided further that any such adjustment not so
made shall be made no later than three years after the occurrence of the event
requiring such adjustment to be made or carried forward. Notwithstanding any of
the foregoing, neither the issuance of Common Stock under the Corporation's
Shareholder Investment Plan or any successor plans providing for the purchase
of shares of Common Stock by the Corporation's stockholders or employees at a
price not less than 90% of the "average market price" during the "pricing
period," as such terms, or equivalent terms, are defined in, and as calculated
pursuant to, such plans from time to time, nor the granting or exercise of any
rights thereunder, shall require an adjustment to the exercise price of, and
the number of shares of Common Stock covered by, a Common Stock Warrant. Except
as stated above,
33
<PAGE>
the exercise price of, and the number of shares of Common Stock covered by, a
Common Stock Warrant will not be adjusted for the issuance of Common Stock or
any securities convertible into or exchangeable for Common Stock, or securities
carrying the right to purchase any of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Corporation or (iii) a sale or conveyance
to another corporation of the property and assets of the Corporation as an
entirety or substantially as an entirety, in each case as a result of which
holders of the Corporation's Common Stock shall be entitled to receive stock,
securities, other property or assets (including cash) with respect to or in
exchange for such Common Stock, the holders of the Common Stock Warrants then
outstanding will be entitled thereafter to convert such Common Stock Warrants
into the kind and amount of shares of stock and other securities or property
which they would have received upon such reclassification, change,
consolidation, merger, sale or conveyance had such Common Stock Warrants been
exercised immediately prior to such reclassification, change, consolidation,
merger, sale or conveyance.
RISK FACTORS RELATING TO THE CURRENCY WARRANTS
THE CURRENCY WARRANTS INVOLVE A HIGH DEGREE OF RISK, INCLUDING FOREIGN
EXCHANGE RISKS AND THE RISK OF EXPIRING WORTHLESS. PURCHASERS SHOULD BE
PREPARED TO SUSTAIN A LOSS OF SOME OR ALL OF THE PURCHASE PRICE OF THEIR
CURRENCY WARRANTS. PROSPECTIVE PURCHASERS OF THE CURRENCY WARRANTS SHOULD BE
EXPERIENCED WITH RESPECT TO OPTIONS AND OPTION TRANSACTIONS AND SHOULD REACH AN
INVESTMENT DECISION ONLY AFTER CAREFUL CONSIDERATION WITH THEIR ADVISERS OF THE
SUITABILITY OF THE CURRENCY WARRANTS IN LIGHT OF THEIR PARTICULAR FINANCIAL
CIRCUMSTANCES, THE INFORMATION SET FORTH UNDER "DESCRIPTION OF CURRENCY
WARRANTS" HEREIN AND THE RISK FACTORS AND INFORMATION REGARDING THE CURRENCY
WARRANTS AND THE DESIGNATED CURRENCY SET FORTH IN THE PROSPECTUS SUPPLEMENT
RELATING TO SUCH CURRENCY WARRANTS.
DESCRIPTION OF CURRENCY WARRANTS
The following description of the terms of the Currency Warrants sets forth
certain general terms and provisions of the Currency Warrants to which any
Prospectus Supplement may relate. The particular terms of the Currency Warrants
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions do not apply to the Currency Warrants so offered will be
described in the Prospectus Supplement relating to such Currency Warrants.
Each issue of Currency Warrants will be issued under a warrant agreement
(each, a "Currency Warrant Agreement") to be entered into between the
Corporation and a bank or trust company, as warrant agent (the "Currency
Warrant Agent"), all as described in the Prospectus Supplement relating to such
Currency Warrants. The Currency Warrant Agent will act solely as the agent of
the Corporation under the applicable Currency Warrant Agreement and will not
assume any obligation or relationship of agency or trust for or with any
holders of such Currency Warrants. A copy of the form of Currency Warrant
Agreement, including the form of warrant certificate, is filed as an exhibit to
the Registration Statement. The following summary of certain provisions of the
Currency Warrants and the form of Currency Warrant Agreement do not purport to
be complete and are subject to, and are qualified in their entirety by
reference to, all the provisions of the Currency Warrants and the Currency
Warrant Agreement.
GENERAL
The Corporation may issue Currency Warrants either in the form of Currency
Put Warrants entitling the holders thereof to receive from the Corporation the
cash settlement value in U.S. dollars of the
34
<PAGE>
right to sell a specified amount of a specified foreign currency or composite
currency (the "Designated Currency") for a specified amount of U.S. dollars, or
in the form of Currency Call Warrants entitling the holders thereof to receive
from the Corporation the cash settlement value in U.S. dollars of the right to
purchase a specified amount of a Designated Currency for a specified amount of
U.S. dollars.
Unless otherwise provided in the applicable Prospectus Supplement, the Cash
Settlement Value of an exercised Currency Warrant will be an amount stated in
U.S. dollars which, in the case of a Currency Put Warrant, is the greater of
(i) zero and (ii) the amount computed by subtracting from a nominal amount of
U.S. dollars specified in the Prospectus Supplement (the "U.S. Dollar
Constant") an amount equal to the U.S. Dollar Constant times a fraction, the
numerator of which is the spot exchange rate on the exercise date and the
denominator of which is the strike price set forth in the applicable Prospectus
Supplement and, in the case of a Currency Call Warrant, is the greater of (i)
zero and (ii) the amount computed by subtracting the U.S. Dollar Constant from
an amount equal to the U.S. Dollar Constant times a fraction, the numerator of
which is the spot exchange rate on the exercise date and the denominator of
which is the strike price. If the Cash Settlement Value is zero at the time of
expiration of an unexercised Currency Warrant, the Currency Warrant will expire
worthless.
Reference is hereby made to the Prospectus Supplement relating to the
particular issue of Currency Warrants offered thereby for the terms of such
Currency Warrants, including, where applicable: (i) whether such Currency
Warrants shall be Currency Put Warrants, Currency Call Warrants, or both; (ii)
the aggregate amount of such Currency Warrants; (iii) the offering price of
such Currency Warrants; (iv) the Designated Currency, which currency may be a
foreign currency or a composite currency, including ECU, and information
regarding such currency or composite currency; (v) the date on which the right
to exercise such Currency Warrants commences and the date on which such right
expires; (vi) the manner in which such Currency Warrants may be exercised;
(vii) the circumstances which will cause the Currency Warrants to be deemed
automatically exercised; (viii) the minimum number, if any, of such Currency
Warrants exercisable at any one time and any other restrictions on exercise;
(ix) the method of determining the amount payable in connection with the
exercise of such Currency Warrants, including the strike price or range of
strike prices of such Currency Warrants, the method of determining the spot
exchange rate and the U.S. Dollar Constant for such Currency Warrants; (x) the
national securities exchange on which such Currency Warrants will be listed;
(xi) whether such Currency Warrants will be represented by certificates or
issued in book-entry form; (xii) the place or places at which payment of the
cash settlement value of such Currency Warrants is to be made by the
Corporation, if applicable; (xiii) information with respect to book-entry
procedures, if any; (xiv) the plan of distribution of the Currency Warrants;
and (xv) any other material terms of such Currency Warrants.
Prospective purchasers of Currency Warrants should be aware of special United
States federal income tax considerations applicable to instruments such as the
Currency Warrants. The Prospectus Supplement relating to each issue of Currency
Warrants will describe certain of such tax considerations.
BOOK-ENTRY PROCEDURES AND SETTLEMENT
Except as may otherwise be provided in the applicable Prospectus Supplement,
the Currency Warrants will be issued in the form of global Currency Warrant
Certificates, registered in the name of a depositary or its nominee. Holders
will not be entitled to receive definitive certificates representing Currency
Warrants. A holder's ownership of a Currency Warrant will be recorded on or
through the records of the brokerage firm or other entity that maintains such
holder's account. In turn, the total number of Currency Warrants held by an
individual brokerage firm for its clients will be maintained on the records of
the depositary in the name of such brokerage firm or its agent. Transfer of
ownership of any Currency Warrant will be affected only through the selling
holder's brokerage firm.
35
<PAGE>
EXERCISE OF CURRENCY WARRANTS
Each Currency Warrant will entitle the holder to the cash settlement value of
such Currency Warrant on the applicable Exercise Date, in each case as such
terms will be defined in the applicable Prospectus Supplement. If not exercised
prior to 3:00 P.M., New York City time, on the fifth New York Business Day
preceding the Expiration Date, Currency Warrants will be deemed automatically
exercised as of the Expiration Date.
LISTING
Each issue of Currency Warrants will be listed on a national securities
exchange, subject only to official notice of issuance, as a condition of sale
of any such Currency Warrants. In this regard, it should be noted that if the
Corporation issues Currency Warrants on a foreign currency that does not
currently underlie a standardized option traded on a national securities
exchange, before such Currency Warrants could be traded on a national
securities exchange, such exchange would have to receive Commission approval.
There can be no assurance that such approval will be granted. In the event that
the Currency Warrants are delisted from, or permanently suspended from trading
on, such exchange, the Expiration Date for such Currency Warrants will be the
date such delisting or trading suspension becomes effective and Currency
Warrants not previously exercised will be deemed automatically exercised on
such Expiration Date. The applicable Currency Warrant Agreement will contain a
covenant of the Corporation not to seek delisting of the Currency Warrants, or
suspension of their trading, on such exchange unless the Corporation has, at
the same time, arranged for listing on another national securities exchange.
PLAN OF DISTRIBUTION
The Corporation may offer and sell the Offered Securities in any of three
ways: (i) through agents (including Bank of America, Bank of America
International Limited or other affiliates of the Corporation); (ii) through
underwriters or dealers (including certain affiliates of the Corporation); or
(iii) directly to one or more purchasers. The Prospectus Supplement with
respect to any of the Offered Securities will set forth the terms of the
offering of such Offered Securities, including the name or names of any
underwriters or agents, the purchase price of such Offered Securities, the
proceeds to the Corporation from such sale, any underwriting discounts or
agency fees and other items constituting underwriters' or agents' compensation,
the initial public offering price, any discounts or concessions allowed or
reallowed or paid to dealers, and any securities exchanges on which such
Offered Securities may be listed.
The distribution of the Offered Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed,
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Currency Warrants,
including additional Currency Warrants of a previous issue, may be sold on any
national securities exchange on which the Currency Warrants are listed.
The Corporation may also issue contracts under which the counterparty may be
required to purchase Debt Securities, Preferred Shares, Depositary Shares or
Common Stock. Such contracts would be issued with Debt Securities, Preferred
Shares, Depositary Shares, Common Stock and/or Securities Warrants in amounts,
at prices and on terms to be set forth in a Prospectus Supplement.
If so indicated in the Prospectus Supplement relating to any Offered
Securities, the Corporation will authorize underwriters, dealers and agents to
solicit offers by certain specified institutions to purchase such Offered
Securities from the Corporation at the public offering price set forth in such
Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such contracts will be
subject only to those conditions set forth in such Prospectus Supplement, and
such Prospectus Supplement will set forth the commission payable for
solicitation of such contracts.
36
<PAGE>
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Corporation, to indemnification by the Corporation against
certain civil liabilities, including liabilities under the Securities Act of
1933, as amended, or to contributions with respect to payments which the
underwriters or agents may be required to make in respect thereof. Underwriters
and agents, and affiliates thereof, may be customers of, engage in transactions
with, or perform services for the Corporation and its affiliates in the
ordinary course of business.
Each underwriter, dealer and agent participating in the distribution of any
Debt Securities that are issuable as Bearer Securities will agree that, in
connection with the original issuance of such Bearer Securities, it will not
offer, sell or deliver, directly or indirectly, Bearer Securities to a United
States person or to any person within the United States, except to the extent
permitted under United States Treasury Regulations.
All Offered Securities, other than the Common Stock, will be new issues of
securities with no established trading market. Any underwriters to whom Offered
Securities are sold by the Corporation for public offering and sale may make a
market in such Offered Securities, but such underwriters will not be obligated
to do so and may discontinue any market making at any time without notice. No
assurance can be given as to the liquidity of the trading market for any
Offered Securities.
LEGAL MATTERS
The validity of the Offered Securities offered hereby will be passed upon for
the Corporation by Michael J. Halloran, Executive Vice President and General
Counsel of the Corporation and Group Executive Vice President and General
Counsel of Bank of America. As of June 30, 1994, Mr. Halloran had a direct or
indirect interest in 2,066 shares of Common Stock of the Corporation and had
options to purchase an additional 52,832 shares of which 36,832 options will be
exercisable as of August 29, 1994.
Certain tax matters will be passed upon for the Corporation by Raymond W.
McKee, an Assistant Treasurer of the Corporation and Senior Vice President and
General Tax Counsel of Bank of America. As of June 30, 1994, Mr. McKee had
options to purchase 18,444 shares of Common Stock of the Corporation, of which
11,225 options will be exercisable as of August 29, 1994.
Certain matters will be passed upon for any underwriters or agents by Orrick,
Herrington & Sutcliffe, San Francisco, California. Orrick, Herrington &
Sutcliffe has from time to time rendered, and continues to render, certain
legal services to the Corporation.
EXPERTS
The consolidated financial statements of the Corporation and subsidiaries,
incorporated by reference in the Corporation's Annual Report on Form 10-K for
the year ended December 31, 1993 have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Continental Bank Corporation and
subsidiaries as of and for the year ended December 31, 1993, appearing in
Continental Bank Corporation's Annual Report on Form 10-K for the year ended
December 31, 1993, which financial statements were incorporated by reference as
an exhibit to the Corporation's Current Report on Form 8-K dated March 21,
1994, have been incorporated herein in reliance upon the report of Price
Waterhouse LLP, independent auditors, incorporated by reference herein and upon
the authority of said firm as experts in accounting and auditing.
37
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
4.5(a) Form of Note.
4.19 Form of First Supplemental Indenture between BankAmerica Corpora-
tion and First Trust of California, National Association, as suc-
cessor Trustee.
5 Opinion of Michael J. Halloran, Executive Vice President and Gen-
eral Counsel of the Corporation, as to the legality of the Offered
Securities registered hereunder.
12(a) Computations of ratio of earnings to fixed charges and ratio of
earnings to combined fixed charges and preferred stock dividends.
23.1(a) Consent of Ernst & Young LLP.
23.2(a) Consent of Price Waterhouse LLP.
23.3 Consent of Michael J. Halloran is contained in his opinion filed
as Exhibit 5 to this Registration Statement.
</TABLE>
II-1
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT TO
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY AND COUNTY OF SAN FRANCISCO, STATE OF CALIFORNIA,
ON THE 17TH DAY OF AUGUST, 1994.
BankAmerica Corporation
/s/ Raymond R. Peters
By___________________________________
(Raymond R. Peters,
Executive Vice President and
Treasurer)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT TO
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND AS OF THE DATE INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
Richard M. Rosenberg* Chairman of the Board and Chief Executive
- ------------------------------------------- Officer (Principal Executive Officer) and
Richard M. Rosenberg Director
Lewis W. Coleman* Vice Chairman of the Board and Chief
- ------------------------------------------- Financial Officer (Principal Financial
Lewis W. Coleman Officer) and Director
/s/ James H. Williams Executive Vice President (Principal
- ------------------------------------------- Accounting Officer)
James H. Williams
Directors:
Joseph F. Alibrandi* Philip M. Hawley*
Peter B. Bedford* Frank L. Hope, Jr.*
Andrew F. Brimmer* Ignacio E. Lozano, Jr.*
Richard A. Clarke* Cornell C. Maier*
Timm F. Crull* Walter E. Massey*
Kathleen Feldstein* A. Michael Spence*
Donald E. Guinn*
</TABLE>
/s/ Carolyn Chew Hamilton
*By__________________________________
Carolyn Chew Hamilton,
Attorney-in-Fact
Dated: August 17, 1994
II-2
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
------- --------------------
<C> <S>
4.5(a) Form of Note.
4.19 Form of First Supplemental Indenture between BankAmerica Corporation
and First Trust of California, National Association, as successor
Trustee.
5 Opinion of Michael J. Halloran, Executive Vice President and General
Counsel of the Corporation, as to the legality of the Offered
Securities registered hereunder.
12(a) Computations of ratio of earnings to fixed charges and ratio of earn-
ings to combined fixed charges and preferred stock dividends.
23.1(a) Consent of Ernst & Young LLP.
23.2(a) Consent of Price Waterhouse LLP.
23.3 Consent of Michael J. Halloran is contained in his opinion filed as
Exhibit 5 to this Registration Statement.
</TABLE>
<PAGE>
EXHIBIT 4.5(a)
--------------
[Form of Security]
[Face of Securities.]
BANKAMERICA CORPORATION
-------------------------------------------
----------------------------------------------------------------------------
[IF THIS IS A GLOBAL SECURITY -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN
----------------------------
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.]
THIS SECURITY IS AN UNSECURED OBLIGATION OF BANKAMERICA CORPORATION ONLY,
AND IS NOT A DEPOSIT OR AN OBLIGATION OF ANY BANK OR NONBANK SUBSIDIARY OF
THE CORPORATION. THIS SECURITY IS NOT INSURED BY THE FDIC, BANK INSURANCE
FUND OR ANY OTHER FEDERAL AGENCY.
<PAGE>
No. __________ $____________
BankAmerica Corporation, a Delaware corporation (herein called the
"Corporation", which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
to ____________________________________, or registered assigns, the principal
sum of __________________________________ Dollars on [____________________,]
[the Interest Payment Date in _______________,][________________; provided that
(a) the Stated Maturity may be extended, at the option of the Holder, to
_______________________ if the Holder so elects, in the manner specified herein,
prior to _______ and (b) if the Stated Maturity has been extended as set forth
in clause (a) above, the Stated Maturity may be further extended, at the option
of the Holder, to ___________________, if the Holder so elects, in the manner
specified herein, prior to ________. Such election will be irrevocable and will
be binding upon each subsequent Holder of this Note.
Any such election to extend the Stated Maturity of this Note will be
effective only if notice thereof is provided to the Corporation in the manner
described below. The Stated Maturity of this Note may be extended, at the
option of the Holder hereof, to ________________ if the Holder presents a duly
completed and executed notice in the form below entitled "Form of Option To
Extend Maturity" to the Corporation at the office of the Paying Agent,
___________________________________ (the "Paying Agent"), in
_____________________________ prior to, but not more than __ prior to _________.
If the Stated Maturity of this Note is extended to ______________, the Stated
Maturity may be further extended, at the option of the Holder hereof, if the
Holder presents a duly completed and executed notice in the form below entitled
"Form of Option To Extend Maturity" to the Corporation at the office of the
Paying Agent in _______________________, prior to but not more than
________________ prior to _______. Any option by the Holder to extend the
Stated Maturity of this Note must be exercised with respect to the entire
principal amount. All questions as to the validity, eligibility (including time
of receipt) and acceptance of any option to extend the Stated Maturity of this
Note will be determined by the Corporation, whose determination will be final
and binding.]
2
<PAGE>
[If the Security is payable from the proceeds of a Secondary Offering
---------------------------------------------------------------------
of Capital Securities or by delivering Capital Securities, insert-- from the
- -------------------------------------------------------------------
proceeds of the Secondary Offering of Capital Securities referred to on the
reverse hereof insert, if applicable [(unless earlier exchanged or redeemed or
---------------------
prepaid on the terms and in the manner described on the reverse hereof)] or by
delivering to the Holder hereof Capital Securities (as defined on the reverse
hereof) on the Exchange Date (as defined on the reverse hereof) with a Market
Value (as defined on the reverse hereof) equal to such principal sum,]
[If the Security is to bear interest at a fixed rate prior to Maturity,
-----------------------------------------------------------------------
insert--, and to pay interest thereon from ___________ [(the "Issue Date")] or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for [semi-annually in arrears on ____________________and
______________] [quarterly in arrears on ________, ________,________ and
________] [quarterly on the Interest Payment Dates in ________, ________,
________ and ________] in each year and at Maturity, commencing
[______________] [on the first Interest Payment Date after the date hereof],
at the rate of ____% per annum until the principal hereof is paid or made
available for payment. Interest will be calculated on the basis of a 360-day
year of twelve 30-day months. Any payment required to be made on a date that is
not a Business Day need not be made on such date but may be made on the next
succeeding Business Day with the same force and effect as if made on such date
and no additional interest shall accrue as a result of such delayed payment.
"Business Day" means any day which is not a Saturday or Sunday and
which is not a legal holiday or a day on which banking institutions or trust
companies in ______________________ are authorized or obligated by law or
executive order to close.]
[If the Security is to bear interest at a floating rate other than
-----------------------------------------------------------------
secondary market rate for T-Bills or the auction rate for such Bills, insert--
- ------------------------------------------------------------------------------
and to pay interest thereon from _________ [(the "Issue Date")] or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, at [a rate] [rates] per annum determined as provided below, [semi-annually
in arrears on __________ and __________] [quarterly on the Interest Payment
Dates in __________, _______, __________ and ___________] [quarterly in
arrears on ________, ________, ________ and ________] in each year and at
Maturity], commencing [on _________] [on the first Interest Payment Date after
the date hereof,] until the principal hereof is paid or made
3
<PAGE>
available for payment. If any Interest Payment Date (other than an Interest
Payment Date occurring on Maturity) would otherwise be a day that is not a
Business Day, such Interest Payment Date shall be postponed to the next day that
is a Business Day [if the Security is to bear interest at LIBOR, insert-- except
------------------------------------------------------
that, if such Business Day is in the next succeeding calendar month, such
Interest Payment Date shall be the immediately preceding Business Day]. If the
Maturity falls on a day that is not a Business Day, the payment of principal and
interest will be made on the next succeeding Business Day, and no interest on
such payment shall accrue for the period from and after such Maturity to the
date of such payment on the next succeeding Business Day. Interest payments on
each Interest Payment Date will include accrued interest from and including
____________ or from and including the last date in respect of which interest
has been paid, as the case may be, to, but excluding, such Interest Payment Date
or Maturity (each, an "Interest Period").
[If the Security is to bear interest at a floating rate based upon the
----------------------------------------------------------------------
secondary market rate for T-Bills or the auction rate for such Bills, insert--
- ------------------------------------------------------------------------------
Interest on this Security is payable at the rate of [___ basis points above]
[____% of] the weighted average per annum [of the [daily] [weekly average]
[monthly average]] [discount rate] [bond yield equivalent rate] for direct
obligations of the United States with a maturity of ____________________
computed on the basis of a [365 or 366-day year, as the case may be,] [360-day
year of twelve 30-day months] [and applied on a daily basis] (the
"_________________ Treasury Bill Rate") [based on results of the most recent
auction of] [set in the secondary market for] _______ [month] [day] U.S.
Treasury Bills as published by the Board of Governors of the Federal Reserve
System or (if not so published) as reported by the United States Department of
the Treasury or any Federal Reserve Bank or United States Government Department
or Agency. [The interest rate will be adjusted [weekly] [monthly] [quarterly]
[semi-annually] on the calendar day following the most recent auction of
_________ [month] [day] U.S. Treasury Bills, commencing on _____________.] [The
interest rate will be adjusted [weekly] [monthly] [quarterly] [semi-annually]
on the calendar day following the most recently so published or reported
secondary market rate for __________ [month] [day] U.S. Treasury Bills,
commencing on ___________.] [The interest rate in effect for the period from
____________ through the date of the first _________ [month] [day] U.S.
Treasury Bill auction after such date shall be based upon the results of the
most recent __________ [month] [day] U.S. Treasury Bill auction prior to such
date; and the interest rate in effect for the ___________ days immediately
prior to Maturity shall be based upon the results of the most recent
__________ [month] [day] U.S. Treasury Bill auction held prior to the
__________ days preceding Maturity. [The interest rate in effect for the period
4
<PAGE>
from __________ through the date of the first published or reported [daily]
[weekly average] [monthly average] secondary market rate for ______ [month]
[day] U.S. Treasury Bills after such date shall be based upon the most recent
published or reported secondary market rate for __________ [month] [day] U.S.
Treasury Bills prior to such date; and the interest rate in effect for the
_________ days immediately prior to Maturity shall be based upon the results of
the most recent published or reported [daily] [weekly average] [monthly average]
secondary market rate for __________ [month] [day] U.S. Treasury Bills prior to
the _________ days preceding Maturity.
In the event that the Corporation determines in good faith that the
_______________ Treasury Bill Rate has ceased to be published or reported as
provided above, then the rate of interest in effect at the time of the last such
publication or report will remain in effect until such time, if any, as such
Treasury Bill Rate shall again be so published or reported.]
[If the Security is to bear interest at a floating rate based upon the
----------------------------------------------------------------------
secondary market rate for United States dollar domestic certificates of deposit,
- --------------------------------------------------------------------------------
insert-- Interest on this Security is payable at the rate of [___ basis points]
- --------
[_______ of_______%] above the [daily] [weekly average] [monthly average]
secondary market yield on those ________-month United States dollar domestic
certificates of deposit that are considered by the cash market to be of the
highest liquidity and lowest credit risk, and which trade at identical yields
(the "CD Rate") as published by the Board of Governors of the Federal Reserve
System or (if not so published) as reported by the Department of the Treasury or
any Federal Reserve Bank or any United States Government Department or Agency.
[The interest rate will be adjusted [weekly] [monthly] [quarterly] [semi-
annually] on the calendar date following each publication (or report, if
applicable) of the CD Rate, commencing on __________.] [The interest rate in
effect for the period from _______________ through the date of the first
publication (or report, if applicable) of the CD Rate after such date shall be
the CD Rate most recently published or reported, as the case may be, prior to
such date; and the interest rate in effect for the days immediately prior to
Maturity shall be the CD Rate most recently published or reported, as the case
may be, prior to the _______________ days preceding Maturity.
In the event the Corporation determines in good faith that the CD Rate
has ceased to be published or reported as provided above, then the CD Rate shall
be the arithmetic mean of the closing secondary market yields quoted to the
Corporation on the Business Day next succeeding such _________
5
<PAGE>
by each of _____ major dealers in certificates of deposit, selected by the
Corporation, as prevailing on ______-month United States dollar domestic
certificates of deposit on such __________ (or next preceding Business Day). In
the event the Corporation determines in good faith that such quotations as
provided above are not available, the then current CD Rate will remain in
effect until such time as such CD Rate is again published or reported or such
yields are again quoted as provided above.
"Business Day" shall mean any day which is not a Saturday or Sunday or
which in _______________________ is neither a legal holiday nor a day on which
banking institutions or trust companies are authorized or obligated by law or
executive order to close.
Interest on this Security will be calculated on the basis of [a 365 or
366-day year, as the case may be] [a 360-day year of twelve 30-day months] for
the actual number of days elapsed in the relevant period.]
[If the Security is to bear interest at a floating rate based upon (i)
---------------------------------------------------------------------
the secondary market for T-Bills or the auction rate for such Bills or (ii) the
- -------------------------------------------------------------------------------
secondary market rate for United States dollar domestic certificates of deposit,
- --------------------------------------------------------------------------------
insert-- The interest rate applicable to each _______ will be determined as
- ------
promptly as practicable by the Corporation as described herein, and the
Corporation will furnish the Trustee with an Officers' Certificate setting forth
the interest rate applicable to each _________ promptly after such rate has been
determined.]
[If the Security is to bear interest at a floating rate based upon a
--------------------------------------------------------------------
LIBOR Rate, insert-- The "Interest Determination Date" for an Interest Period
- --------------------
is two London Banking Days (as defined below) preceding the first day of such
Interest Period.
The interest rate for any Interest Period will be effective as of the
first day of such Interest Period. The interest rate for the initial Interest
Period will be equal to ______% per annum. Thereafter, the interest rate for
each Interest Period will be determined on the Interest Determination Date for
such Interest Period and will be [the greater of (i)] a per annum rate equal to
three-month U.S. dollar LIBOR (determined as set forth below) [plus] [minus]
___% [or (ii) ____%]. Interest will be computed on the basis of a 360-day year
and the actual number of days in the applicable Interest Period.
LIBOR, with respect to an Interest Determination Date, will be the rate
(expressed as a percentage per annum) for deposits in U.S. dollars for a three-
month period commencing on the second London Banking Day immediately following
that
6
<PAGE>
Interest Determination Date that appears on Telerate Page 3750 (as defined
below) as of 11:00 a.m. (London time) on that Interest Determination Date. If
such rate does not appear on Telerate Page 3750 on such Interest Determination
Date, LIBOR will be determined on the basis of the rates at which deposits in
U.S. dollars for a three-month period commencing on the second London Banking
Day immediately following that Interest Determination Date and in a principal
amount equal to an amount of not less than U.S. $1 million that is
representative for a single transaction in such market at such time are offered
to prime banks in the London interbank market by four major banks in the London
interbank market selected by the Calculation Agent (as defined below), after
consultation with the Corporation, at approximately 11:00 a.m., London time on
that Interest Determination Date. The Calculation Agent will request the
principal London office of each of such banks to provide a quotation of its
rate. If at least two such quotations are provided, LIBOR in respect of that
Interest Determination Date will be the arithmetic mean of such quotations. If
fewer than two quotations are provided, LIBOR in respect of that Interest
Determination Date will be the arithmetic mean of the rates quoted by three
major money center banks in The City of New York selected by the Calculation
Agent (after consultation with the Corporation) at approximately 11:00 a.m., New
York City time, on that Interest Determination Date for loans in U.S. dollars to
leading European banks for a three-month period commencing on the second London
Banking Day immediately following that Interest Determination Date and in a
principal amount equal to an amount of not less than U.S. $1 million that is
representative for a single transaction in such market at such time; provided,
however, that if the banks selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, LIBOR for the applicable period will
be the same as LIBOR for such Interest Determination Date.
As used herein:
"Business Day" means any day which is not a Saturday or Sunday and
which is not a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law or executive order
to be closed in the City of _______________________________________.
"Calculation Agent" means
_________________________________________________________ or its
successor as calculation agent as appointed by the Corporation.
"London Banking Day" means a day on which dealings in deposits in
U.S. dollars are transacted in the London interbank market.
7
<PAGE>
"Telerate Page 3750" means the display designated as "Page 3750" on the
Dow Jones Telerate Service (or such other page as may replace Page 3750
on that service or such other service or services as may be nominated
by the British Bankers' Association as the information vendor for the
purpose of displaying London interbank offered rates for U.S. dollar
deposits).
As soon as possible after 11:00 a.m. (London time) on each Interest
Determination Date the Calculation Agent shall determine the interest rate and
calculate the amount of interest payable in respect of each U.S. $1,000
principal amount of Securities for such Interest Period (the "Interest Amount")
by applying the interest rate to U.S. $1,000 and multiplying such amount by the
actual number of days for which interest is payable in the applicable Interest
Period divided by 360 and rounding the result as described below.
All percentages resulting from any of the above calculations will be
rounded, if necessary, to the nearest ______________________ of a percentage
point, with _________________________ of a percentage point being rounded
upwards, and all dollar amounts used in or resulting from such calculations on
Securities will be rounded to the nearest cent (with one half cent being rounded
upwards).
The Calculation Agent will, upon the request of the holder of this
Security, provide the interest rate then in effect. All calculations made by
the Calculation Agent in the absence of manifest error shall be conclusive for
all purposes and binding on the Corporation and the holders of the Notes.
Until all the Securities are paid or payment thereof is provided for,
there shall at all times be a Calculation Agent capable of performing the duties
described above in connection with determination of the Interest Rate on the
Securities.]
[If the Security is to bear interest at a floating rate based upon the
----------------------------------------------------------------------
prime rate, insert-- Interest on this Security is payable at the rate of [___
- --------------------
basis points] [_______ of _______%] above the prime rate for bank prime loans
(the "Prime Rate") as published by the Board of Governors of the Federal
Reserve System or (if not so published) as reported by the Department of the
Treasury or any Federal Reserve Bank or any United States Government Department
or Agency. [The interest rate will be adjusted [weekly] [monthly] [quarterly]
[semi-annually] on the calendar date following each publication (or report, if
applicable) of the Prime Rate, commencing on __________.] [The interest rate in
effect for the period from _______________ through the date of the first
publication (or report, if
8
<PAGE>
applicable) of the Prime Rate after such date shall be the Prime Rate most
recently published or reported, as the case may be, prior to such date; and the
interest rate in effect for the __________ days immediately prior to Maturity
shall be the Prime Rate most recently published or reported, as the case may be,
prior to the _______________ days preceding Maturity.
In the event the Corporation determines in good faith that the Prime
Rate has ceased to be published or reported as provided above, then the Prime
Rate shall be the arithmetic mean of the rates of interest publicly announced by
each bank that appears on the Reuters Screen NYMF Page (as defined herein) as
such bank's prime rate or base lending rate as in effect for that Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
NYMF Page for the Interest Determination Date, the Prime Rate will be determined
by the Calculation Agent and will be the arithmetic mean of the prime rates
quoted on the basis of the actual number of days in the year divided by a 360-
day year as of the close of business on such Interest Determination Date by at
least two of three major money center banks in The City of New York selected by
the Calculation Agent. If fewer than two such rates are quoted as aforesaid,
the Prime Rate will be determined by the Calculation Agent on the basis of the
rates furnished in The City of New York by one or two, as the case may be,
substitute banks or trust companies organized and doing business under the laws
of the United States, or any State thereof, having total equity capital of at
least U.S. $500,000,000 and being subject to supervision or examination by
federal or state authority, selected by the Calculation Agent (after
consultation with the Corporation) to provide such rate or rates; provided,
however, that if the banks selected as aforesaid are not quoting as set forth
above, the Prime Rate will remain the Prime Rate then in effect on such Interest
Determination Date. "Reuters Screen NYMF Page" means the display designated as
page "NYMF" on the Reuters Monitor Money Rates Service (or such other page as
may replace the NYMF page on that service for the purpose of displaying the
prime rate or base lending rate of major United States banks).]
[If the Security is to bear interest prior to Maturity, insert-- The
----------------------------------------------------------------
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture referred to on the reverse
hereof, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the [if
--
interest is payable semi-annually, insert-- ____ or _____] [if interest is
- ------------------------------------------- --------------
payable quarterly, insert-- _____, _____, ______ or _____] [the _________ day
- ---------------------------
of the calendar month] (whether or not
9
<PAGE>
a Business Day) [, as the case may be,] next preceding such Interest Payment
Date (a "Regular Record Date"). Any such interest which is payable but not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the registered Holder hereof on such Regular
Record Date, and may be paid to the Person in whose name this Security is
registered on the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee; notice whereof shall be
given to the Holder hereof not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner, all as more fully
provided in the Indenture.]
Interest will be payable at ________ or at such other agencies or
places as the Corporation may from time to time appoint under the terms of the
Indenture (the "Paying Agent"). At the option of the Corporation payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register [or by wire
transfer to a U.S. dollar account designated by such Holder, not less than __
days prior to the date of such payment. Principal payable at Maturity will be
paid to the registered holder upon surrender of the Security at the office of
the Paying Agent.]
[If the Security is to bear interest prior to Maturity,
-------------------------------------------------------
but is to be an Original Issue Discount Security, insert-- If an Event of
- ----------------------------------------------------------
Default with respect to Securities of this series shall occur and be continuing,
an amount of principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the Indenture. Such
amount shall be equal to [insert formula for determining the amount]. Upon
payment (i) of the amount of principal so declared due and payable, (ii) of the
amount of all overdue instalments of interest and (iii) of interest on any
overdue principal and overdue interests (in each case to the extent that the
payment of such interest shall be legally enforceable),all of the Corporation's
obligations in respect of the payment of the principal of and interest on the
Securities of this series shall terminate.
In the case of a default in payment of principal of this Security upon
acceleration or at Stated Maturity, or any instalment of interest on this
Security when it becomes due and payable, the overdue principal of or instalment
of interest on this Security, as the case may be, shall bear interest at the
rate of ____% per annum (to the extent that the payment of such interest shall
be legally enforceable), which shall accrue from principal or instalment of
interest, as the case may be, has been made or duly provided for.]
10
<PAGE>
[If the Security is to be subordinated, insert -- The indebtedness
---------------------------------------------
evidenced by this Security is, to the extent and in the manner set forth in the
Indenture, expressly subordinated and subject in right of payment to the prior
payment in full of all Senior Debt (as defined in the Indenture) of the
Corporation. This Security is issued subject to such provisions of the
Indenture, and each Holder of this Security, by accepting the same, agrees to
and shall be bound by such provisions and authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to acknowledge
or effectuate such subordination as provided in the Indenture and appoints the
Trustee his attorney-in-fact for any and all such purposes.]
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH IN FULL AT THIS PLACE.
Unless the certificate of authentication hereon has been manually
executed by or on behalf of the Trustee under the Indenture, this Security shall
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
11
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed under its corporate seal.
BANKAMERICA CORPORATION
[Seal] By __________________________
Vice Chairman of the Board
and Chief Financial Officer
Attest
________________________ By __________________________
Secretary Senior Vice President
and Assistant Treasurer
Dated:
- -----
12
<PAGE>
Trustee's Certificate of Authentication
This is one of the Securities, of the series designated herein,
described in the within-mentioned Indenture.
[First Trust of California, National Association]
[Chemical Trust Company of California], as Trustee
By _________________________,
or as Authenticating Agent
for the Trustee
By ___________________________ By __________________________
Authorized Officer Authorized Officer
13
<PAGE>
[Form of Reverse of Security.]
BANKAMERICA CORPORATION
------------------------
--------------------------------
This Security is one of a duly authorized issue of securities of the
Corporation (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of November 1, 1991[, as amended by the
First Supplemental Indenture dated as of [August 1, 1994,] [September 8, 1992,]]
(which indenture and all indentures supplemental thereto will herein be called
the "Indenture"), between the Corporation and [First Trust of California,
National Association, as successor Trustee] [Chemical Trust Company of
California, as Trustee] (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the
Corporation, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [, limited in
aggregate principal amount to $______________].
[If the Security is payable from funds in a mandatory Securities Fund,
---------------------------------------------------------------------
insert-- The Indenture provides for the creation of a segregated fund (the
- --------
"Securities Fund") to be held by the Trustee. The Securities Fund is being
created for certain United States bank regulatory purposes and, although it is
expected to provide a source of funds for the payment of the Securities of this
series, the Securities Fund will not constitute security for the Securities of
this series. Amounts in the Securities Fund will consist solely of (i) the net
proceeds of the sale for cash (the "Cash Proceeds") from time to time of shares
of Capital Securities and (ii) funds equal to the market value (as determined by
the Corporation) of Capital Securities sold from time to time in exchange for
other property, less the expenses to effect any such exchanges (the "Exchange
Proceeds"), in each case which the Corporation from time to time shall elect to
deposit into the Securities Fund. The Corporation has covenanted and agreed
that (i) by the Interest Payment Date in _________, it will have sold Capital
Securities in a sufficient amount so that the aggregate of the Cash Proceeds and
the Exchange Proceeds will equal at least one-third of the original aggregate
principal amount of the Securities of this series (or such lesser amounts as the
Primary
14
<PAGE>
Federal Regulator may permit from time to time) and will have deposited into the
Securities Fund funds equivalent to such amount, (ii) by the Interest Payment
Date in ______________, it will have sold Capital Securities in a sufficient
amount so that the aggregate of the Cash Proceeds and the Exchange Proceeds will
equal at least two-thirds of the original aggregate principal amount of the
Securities of this series (or such lesser amount as the Primary Federal
Regulator may permit from time to time) and will have deposited into the
Securities Fund funds equivalent to such amount, (iii) by 60 days prior to the
Interest Payment Date in _________, it will have sold Capital Securities in a
sufficient amount so that the aggregate of the Cash Proceeds and the Exchange
Proceeds will equal not less than the original aggregate principal amount of the
Securities of this series (or such lesser amount as the Primary Federal
Regulator may permit from time to time) and will have deposited into the
Securities Fund funds equivalent to such amount, and (iv) by 10 days prior to
the Stated Maturity of the Securities of such series, if the aggregate amount of
the funds in the Securities Fund is not sufficient to pay all of the principal
of (and premium, if any) on Securities of such series coming due, it will have
sold Capital Securities in a sufficient amount so that the aggregate of the Cash
Proceeds and the Exchange Proceeds will equal not less than the amount necessary
in order to provide sufficient funds for such payment and will have deposited
into the Securities Fund additional funds equivalent to such amount; provided,
however, that such covenant and agreement of the Corporation shall be cancelled,
and amounts theretofore deposited into the Securities Fund will, at the request
of the Corporation, be repaid to it, if the Corporation shall determine that
under then regulations of the Corporation's Primary Federal Regulator either the
Securities of this series are no longer includable as capital or it is no longer
necessary for the Corporation to be obligated to pay the principal of the
Securities of this series out of the Securities Fund in order for such
Securities to maintain the same capital treatment as they are then receiving
under such regulations, if the approval of the Primary Federal Regulator is
obtained for such cancellation and release or if the Corporation shall have
exchanged or redeemed the Securities of this series pursuant to clause (ii) of
the third sentence of the second succeeding paragraph of this Security.
Unless the Securities of this series shall have been accelerated upon
the occurrence of an Event of Default or the Corporation shall elect to redeem
the Securities pursuant to clause (ii) of the third sentence of the next
paragraph of this Security or the Corporation shall have made the determination
referred to in the proviso to the final sentence of the immediately preceding
paragraph, or the Primary Federal
15
<PAGE>
Regulator shall have approved payment from sources other than the Securities
Fund, the principal of the Securities shall be payable prior to their final
maturity in __________ solely from funds in the Securities Fund. All interest
or discount earned on investments of amounts held in the Securities Fund and any
profit realized therefrom shall be promptly paid to the Corporation and will not
be deemed to be part of the Securities Fund.]
[If the Security is to be redeemable from funds deposited in the
---------------------------------------------------------------
Securities Fund, insert-- Except as otherwise provided herein, the Securities of
- -------------------------
this series may not be redeemed before the Interest Payment Date in __________
____. On the Interest Payment Date in __________ ____ and on any day
thereafter, the Securities of this series may be redeemed, as a whole or from
time to time in part, at the option of the Corporation, on not less than 30 nor
more than 60 days' prior notice given as provided in the Indenture, at a
redemption price equal to ___% of the principal amount of the Securities to be
redeemed plus interest accrued and unpaid to the Redemption Date. Any such
redemption may be made (i) solely out of funds in the Securities Fund, provided
that no notice of any such redemption to be made solely out of funds in the
Securities Fund may be given unless there are sufficient funds available in the
Securities Fund to pay the principal amount of the Securities to be redeemed; or
(ii) from any source, irrespective of the amount of funds available in or
theretofore deposited in the Securities Fund, if (x) the Primary Federal
Regulator shall have approved such redemption from a source other than funds in
the Securities Fund or (y) if the Corporation shall determine that under then
regulations of the Corporation's Primary Federal Regulator either the Debt
Securities are no longer includable as capital or it is no longer necessary for
the Corporation to be obligated to redeem the Debt Securities out of Securities
Funds in order for the Debt Securities to maintain the same capital treatment as
they are then receiving under such regulations.]
[If the Security is exchangeable at Maturity for Capital Securities,
-------------------------------------------------------------------
insert-- On __________, unless the Securities of this series have been
- --------
previously accelerated upon the occurrence of an Event of Default, redeemed or
exchanged as provided herein and in the Indenture, or prepaid [on or after
__________] [not more than __ days prior to ________] on an Exchange Date
selected by the Corporation, the Corporation shall exchange Capital Securities
with a Market Value equal to the principal amount of the Outstanding Securities
of this series for the Securities of this series in whole. [The Corporation
will sell Capital Securities in a sale (the "Secondary Offering") on behalf of
the Holders of the Securities of this series who elect
16
<PAGE>
to receive cash for their Capital Securities upon exchange of their Securities
on the Exchange Date.] The Market Value of any Capital Securities issued on the
Exchange Date means the sale price of such Capital Securities in the Secondary
Offering. In the event the Corporation fails to effect the Secondary Offering,
the Market Value of such Capital Securities shall be the fair value of such
Capital Securities on the Exchange Date as determined by _____ independent
nationally recognized investment banking firms selected by the Corporation.
Capital Securities shall consist of the Corporation's Common Stock,
Perpetual Preferred Stock or securities which at the date of issuance may be
issued in exchange for, or the proceeds from the sale of which may be designated
as Securities Funds or Optional Securities Funds for the payment of the
principal of, "mandatory convertible securities" under applicable regulations of
the Corporation's Primary Federal Regulator.
Not less than __ days prior to _____, the Corporation shall give notice
to Holders of Securities of this series as to the type of Capital Securities to
be exchanged for such Securities on the Exchange Date. Such notice shall
specify the type of Capital Securities to be exchanged for such Securities and
shall state that each such Holder will receive on the Exchange Date accrued and
unpaid interest in cash to the Exchange Date and may elect to receive on the
Exchange Date Capital Securities with a Market Value equal to the principal
amount of such Securities registered in the name of such Holder. In order to
receive Capital Securities, a Holder must return not less than __ days prior to
__________ a duly completed Capital Security Election Form to the Exchange Agent
appointed by the Corporation. If no such notice is timely returned by a Holder,
such Holder will be deemed to have received on the Exchange Date Capital
Securities having such Market Value and to have elected to have such Capital
Securities sold for such Holder by the Corporation in the Secondary Offering for
cash proceeds to such Holder on the Exchange Date equal to the principal amount
of such Securities registered in the name of such Holder. The Corporation shall
bear all expenses of the Secondary Offering, including underwriting discounts
and commissions. Holders electing to receive Capital Securities will receive
cash for any fractions of Capital Securities.
The Corporation may accelerate the Exchange Date to any date not more
than __ days prior to _________ which date shall be at the closing of the
Secondary Offering or, in the event the Corporation does not effect the
Secondary Offering, on __________.
17
<PAGE>
Notice of the Exchange Date will be published in an Authorized
Newspaper in each of the City and County of San Francisco and the Borough of
Manhattan, The City of New York and mailed to each Holder of Securities of this
series together with notice of the amount of Capital Securities being exchanged
for each $____ principal amount of such Securities not less than ____ Business
Days prior to the Exchange Date.]
[If the Security is exchangeable early, insert-- On or after
-----------------------------------------------
__________, the Corporation may at its option at any time upon not less than __
days' notice exchange Capital Securities with a Market Value equal to the
principal amount of the Securities of this series to be exchanged for the
Securities of this series, in whole or in part. Each Holder of such Securities
will be required to return a duly completed Capital Security Election Form to
the Exchange Agent appointed by the Corporation not less than __ days prior to
each Exchange Date if such Holder desires to receive Capital Securities. In the
absence of any such election by the Holder, such Holder will be deemed to have
received on such Exchange Date Capital Securities having such Market Value and
to have elected to have such Capital Securities sold for it by the Corporation
in the related Secondary Offering for cash proceeds to such Holder on such
Exchange Date equal to the principal amount of such Securities registered in the
name of such Holder which are subject to such exchange. The Corporation may at
its option accelerate such Exchange Date within such __-day period. Notice of
the Exchange Date will be published in an Authorized Newspaper in each of the
City and County of San Francisco and the Borough of Manhattan, The City of New
York and mailed to each Holder of such Securities together with notice of the
amount of Capital Securities being exchanged for each $____ principal amount of
such Securities not less than _____ Business Days prior to such accelerated
Exchange Date. The Corporation shall bear all expenses of such Secondary
Offering, including underwriting discounts and commissions. Holders electing to
receive Capital Securities will receive cash for any fractions of Capital
Securities.]
[If the Security is exchangeable for Capital Securities, insert--
----------------------------------------------------------------
Subject to Section 503 of the Indenture, and without prejudice to the rights of
Holders of Securities of this series pursuant to Section 1413 of the Indenture,
no such Holder shall be entitled to receive any cash from the Corporation on any
Exchange Date or at the Stated Maturity of any such Security except from the
proceeds of the sale of such
18
<PAGE>
Holder's Capital Securities in the related Secondary Offering and except as
provided herein and in the Indenture with respect to fractional Capital
Securities, amounts equal to expenses of the sale in the related Secondary
Offering of such Capital Securities, [redemption from the Optional Securities
Fund,] redemption after revocation of the Corporation's obligation to exchange
Capital Securities, accrued and unpaid interest and acceleration upon an Event
of Default. If the Corporation does not effect the Secondary Offering, such
Holder will receive Capital Securities with Market Value equal to the principal
amount of Securities of this series registered in the name of such Holder which
are subject to such exchange and not cash other than in lieu of fractional
Capital Securities and for accrued and unpaid interest, without prejudice to
such Holder's rights pursuant to Section 1413 of the Indenture.
The Corporation's obligation to exchange Capital Securities for
Securities of this series as provided in the Indenture is absolute and
unconditional; provided, however, that such obligation may be revoked at the
option of the Corporation at any time on not less than __ days' prior notice if
the Corporation shall determine that under then regulations of the Corporation's
Primary Federal Regulator either the Debt Securities are no longer includable as
capital or it is no longer necessary for the Corporation to be obligated to
exchange Capital Securities for Debt Securities in order for the Debt Securities
to maintain the same capital treatment as they are then receiving under such
regulations or if approval of the Primary Federal Regulator is obtained for such
revocation. If such obligation is revoked the Corporation will pay for such
Securities in cash at ___% of the principal amount thereof plus accrued interest
to the Stated Maturity of this Security, or, at its option, the Corporation may
redeem the Security of this series in cash upon not less than __ days' notice by
mail, at any time on or after __________, as a whole or in part, at the election
of the Corporation, at a redemption price equal to ___% of the principal amount,
plus accrued interest to the Redemption Date.]
[If the Security is exchangeable early or at Stated Maturity, but in
-------------------------------------------------------------------
lieu thereof or in addition thereto the Security may be redeemed from funds
- ---------------------------------------------------------------------------
deposited in the Optional Securities Fund, insert-- At any time from __________
- ----------------------------------------------------
to the Stated Maturity, inclusive, the Corporation at its option upon not less
than __days' notice may redeem the Securities of this series in whole or in part
at a redemption price equal to __% of the principal amount of the Securities to
be redeemed plus interest accrued and unpaid at the Redemption Date, in lieu of
or in addition to any exchange of such Securities for Capital
19
<PAGE>
Securities as provided in this Security. In the event of any such redemption,
the principal amount of the Securities to be redeemed may be paid solely out of
funds in the Optional Securities Fund. The Optional Securities Fund is being
created for certain United States bank regulatory purposes and, although it may
provide a source of funds for the payment of the Securities of this series, the
Optional Securities Fund will not constitute security for the Securities of this
series.]
[If this Security is exchanged for Capital Securities after any record
date and on or prior to the next succeeding Interest Payment Date (but not if
the Maturity of this Security is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be paid by the
Corporation on such Interest Payment Date notwithstanding such exchange, and
such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name this Security is registered at the close of
business on such record date.]
[If the Security is to be repayable at the option of the Holder,
---------------------------------------------------------------
insert--This Security is subject to repayment at the option of the Holder [on
and after _______________] [on ____________, _____________, and
__________________] (the "Optional Repayment Dates"). On each Optional Repayment
Date, this Security will be repayable in whole or in part in increments of
$________ (provided that any remaining principal amount of this Security shall
be at least $_________) at the option of the Holder hereof at a repayment price
equal to _______% of the principal amount to be repaid together with interest
thereon payable to the date of repayment. For this Security to be repaid in
whole or in part at the option of the Holder hereof, this Security must be
received with an election in form acceptable to the Trustee at
________________________ not more than ___ nor less than ____ days prior to the
Optional Repayment Date. Any such election shall be irrevocable.
[If the Security is to be redeemable prior to Stated Maturity, insert
----------------------------------------------------------------------
- -- Except as otherwise provided herein, the Securities of this series may not be
redeemed before the Interest Payment Date in _________ ____. On the Interest
Payment Date in _________ ____ and on any day thereafter, the Securities of this
series may be redeemed, as a whole or from time to time in part, at the option
of the Corporation, on not less than 30 nor more than 60 days' prior notice
given as provided in the Indenture, at a redemption price equal to ___%
20
<PAGE>
of the principal amount of the Securities to be redeemed plus interest accrued
and unpaid to the Redemption Date.]
[If the Security is to be redeemable in part, insert-- In the event of
-----------------------------------------------------
redemption of this Security in part only, a new Security or Securities of this
series for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.]
[If the Security is convertible, insert-- Subject to and upon
----------------------------------------
compliance with the provisions of the Indenture, the Holder hereof has the
right, at his option, at any time prior to the close of business on
_________________, or, as to all or any portion hereof called for redemption or
submitted for repayment, the close of business on the Redemption or Repayment
Date, as the case may be, to convert the principal amount hereof or, if the
principal amount hereof is greater than $1,000, any portion of such principal
amount which is $1,000 or an integral multiple thereof, into that number of
fully paid and nonassessable shares of [Common Stock] [__% Cumulative
Convertible Preferred Stock, Series __] (as such shares shall then be
constituted) obtained by dividing the principal amount of this Security or
portion hereof to be converted by the conversion price of $_____________, or
such conversion price as adjusted from time to time as provided in the
Indenture, upon surrender of this Security, together with a conversion notice as
provided herein and in the Indenture, to the Corporation at the office or
agencies of the Corporation maintained for that purpose in the City and County
of San Francisco [and the Borough of Manhattan, The City of New York], and
unless the shares deliverable on conversion are to be registered in the same
name as this Security, duly endorsed by, or accompanied by instruments of
transfer in form satisfactory to the Corporation duly executed by, the Holder or
by the Holder's duly authorized attorney. No adjustments in respect of interest
or dividends will be made upon any conversion, provided, however, that if this
-------- -------
Security shall be surrendered for conversion during the period from the close of
business on any Regular Record Date to the opening of business on such Interest
Payment Date, this Security (unless it or the portion being converted shall have
been called for redemption or submitted for repayment on a date in such period)
must be accompanied by payment, in legal tender or other funds acceptable to the
Corporation, of an amount equal to the interest otherwise payable on such
Interest Payment Date on the principal amount being converted for any Interest
Payment Date; provided further, however, that no such payment need be made if
-------------------------
there shall exist at the time of conversion a default in the payment of interest
on the Securities of this series. No
21
<PAGE>
fractional shares will be delivered upon any conversion, but an adjustment in
cash will be made, as provided in the Indenture, in respect of any portion of a
share which would otherwise be deliverable upon the surrender of any Security or
Securities for conversion.]
[If this is a subordinated Security insert -- "Event of Default", with
-----------------------------------------
respect to the Securities of this series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
[(a) default in the payment of any interest upon any Security of
this series when it becomes due and payable, and continuance of such
default for a period of 30 days; or]
[(b) default in the payment of the principal of any Security of
this series at its Maturity; or]
[(c) default in the deposit of any sinking fund payment, when and
as due by the terms of the Securities of this series;]
[(d) default in the performance, or breach, of any covenant or
warranty of the Corporation in the Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Paragraph specifically dealt with or which has expressly been
included in the Indenture solely for the benefit of Debt Securities of
a series other than this series), and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Corporation by the Trustee, or to
the Corporation and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of this series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" under
the Indenture; or]
[(e) the entry of a decree or order for relief in respect of the
Corporation by a court having jurisdiction in the premises in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, and the continuance of any such decree or
22
<PAGE>
order unstayed and in effect for a period of 60 consecutive days; or
[(f) the commencement by the Corporation of a voluntary case
under the Federal bankruptcy laws, as now or hereafter constituted, or
the consent by the Corporation to the entry of a decree or order for
relief in an involuntary case under any such law.]
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
[If this is a subordinated Security with limited acceleration rights,
--------------------------------------------------------------------
insert -- There is no right of acceleration of the payment of principal of this
- ------
Security upon a default in the payment of principal or interest or in the
performance of any other covenant or agreement in this Security.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of each series under
the Indenture to be affected at any time by the Corporation with the consent of
the Holders of 66-2/3% in principal amount at Maturity of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Corporation
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair [the] [any] obligation of the
Corporation, which is absolute and unconditional, to pay the principal of [(and
premium, if any)] and interest on this Security at the times, place and rate,
and in the coin or currency, herein and in the Indenture prescribed.
23
<PAGE>
[If the Security is to be in registered form, insert--As provided in
----------------------------------------------------
the Indenture and subject to certain limitations therein set forth, the transfer
of this Security is registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of the Corporation
in any place where the principal of [(and premium, if any)] and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Corporation and the Security Registrar
duly executed by, the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
[If this is a Global Security -- This Security is a Global Security and
----------------------------
shall be exchangeable for Securities registered in the names of Persons other
than the Depositary with respect to this Global Security or its nominee only if
(x) such Depositary notifies the Corporation that it is unwilling or unable to
continue as Depositary for this Global Security, or (y) the Corporation executes
and delivers to the Trustee a Company Order that this Global Security shall be
exchangeable. In the event the Global Security representing the Securities
becomes exchangeable for definitive Securities pursuant to the terms of the
Indenture, such Securities will be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.]
[When not represented by one or more Global Securities,] [T]he
Securities of this series are issuable only in registered form in denominations
of $_________
[and any integral multiple thereof] [or any amount in excess thereof which is an
integral multiple of $____________]. As provided in the Indenture and subject
to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
of a different authorized denomination, as requested by the Holder surrendering
the same.]
[If the Security is not to be subject to redemption at the option of
-------------------------------------------------------------------
the Corporation, insert-- The Securities are not redeemable at the option of the
- -------------------------
Corporation prior to Stated Maturity.]
[The Corporation shall not be required (i) to issue, register the
transfer of or exchange any Security to be
24
<PAGE>
[redeemed or exchanged for Capital Securities] for a period of fifteen days
preceding the date of mailing of a notice of redemption or exchange or (ii) to
register the transfer of or exchange any Security so selected for [redemption or
exchange] in whole or in part, except the [unredeemed or unexchanged] portion of
such Security being [redeemed or exchanged] in part.
No service charge shall be made for any such registration of transfer
or exchange, but the Corporation may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to the
contrary.
[If the Security may be defeased, insert-- Certain of the Corporation's
-----------------------------------------
obligations under the Indenture with respect to Securities of this series may be
terminated if the Corporation irrevocably deposits with the Trustee money or
Eligible Instruments sufficient to pay and discharge the entire indebtedness on
all Securities of this series, as described in the Indenture.]
This Security is governed by the laws of the State of California.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
25
<PAGE>
CONVERSION NOTICE
TO BANKAMERICA CORPORATION:
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or portion hereof (which is $1,000 or an
integral multiple thereof) below designated, into shares of [Common Stock] [__%
Cumulative Convertible Preferred Stock, Series __] of BankAmerica Corporation in
accordance with the terms of the Indenture referred to in this Security and
directs that the shares deliverable upon the conversion, together with any check
in payment for fractional shares and any Securities representing any unconverted
principal amount hereof, be delivered to the registered holder hereof unless a
different name has been indicated below. If shares are to be registered in the
name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto. Any amount required to be paid by
the undersigned on account of interest accompanies this Security.
Date: ________________________ ___________________________
Signature
Fill in for registration
of shares:
_______________________________ Principal amount to be
_______________________________ converted (if less than
_______________________________ entire amount):
$ ,000
---------
_______________________________ _____________________________
Please print name and address Social Security or Other
(including zip code) Taxpayer Identification Number
26
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - _________ Custodian __________
(Cust) (Minor)
under Uniform Gift to Minors
Act ______________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
________________________________
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________
___________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS IN TRANSFEREE)
the within Note, and all rights hereunder, and hereby irrevocably constitutes
and appoints _____________________________________________________ Attorney to
transfer the within Note on the books kept for registration thereof, with full
power of substitution in the premises.
Date:_________________________ __________________________________________
NOTICE: The signature to this assignment
must be guaranteed by a commercial bank or
trust company in the continental United
States or by a firm or corporation having
membership on any national securities
exchange or in the National Association of
Securities Dealers, Inc., and must
correspond with the name as written upon
the face of the within instrument in every
particular without alteration or
enlargement or any change whatever.
27
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Corporation to repay the within Security (or portion hereof specified below)
pursuant to its terms at a price equal to the applicable Repayment Price thereof
together with interest to the Repayment Date, to the undersigned at ___________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Security is to
be repaid, specify the portion thereof which the Holder elects to have repaid
_______________; and specify the denomination or denominations (which shall be
in authorized denominations) of the Securities to be issued to the Holder for
the portion of the within Security not being repaid (in the absence of any such
specification, one such Security will be issued for the portion not being
repaid): ___________________________________
Date:__________________________ _________________________________________
Note: The signature on this Option to
Elect Repayment must correspond with the
name as written upon the face of this
Security in every particular without
alteration or enlargement.
28
<PAGE>
[If the Maturity Date is extendible, insert--
FORM OF OPTION TO EXTEND MATURITY
The undersigned hereby irrevocably requests and instructs the Corporation to
extend the Stated Maturity to ___________________of BankAmerica Corporation,
______________________Note Due _______represented by certificate number ________
in aggregate principal amount of $_______________ and registered in the name of
the undersigned.
For the Stated Maturity of this Note to be extended, the Corporation must
receive a notice in this form duly completed, at the office of the Paying Agent
of the Corporation set forth in this Note, not less than two nor more than 10
Business Days preceding the _______________ Interest Payment Date.
Date:_________________ ________________________________________
NOTICE: The signature on this Form must
correspond with the name as written upon
the face of this Note in every particular
without alteration or enlargement.
29
<PAGE>
EXHIBIT 4.19
FORM OF FIRST SUPPLEMENTAL INDENTURE
BANKAMERICA CORPORATION
TO
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION
Trustee
------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of August 1, 1994
------------
SUPPLEMENTAL TO INDENTURE
DATED AS OF NOVEMBER 1, 1991
<PAGE>
FIRST SUPPLEMENTAL INDENTURE
First Supplemental Indenture (the "Indenture"), dated as of August 1, 1994,
between BankAmerica Corporation, a Delaware corporation (hereinafter called the
"Company"), having its principal office at Bank of America Center, 555
California Street, San Francisco, California 94104, and First Trust of
California, National Association, a national banking association (hereinafter
called "Trustee"), having its principal corporate trust office at 101 California
Street, San Francisco, California 94111.
The Company has previously executed and delivered to the Trustee's
predecessor in interest an Indenture dated as of November 1, 1991 (hereinafter
called the "Original Indenture"), providing for the issuance from time to time
of one or more series of securities (herein called the "Debt Securities").
The Company desires and has requested the Trustee pursuant to Section
901(5) of the Original Indenture to join with it in the execution and delivery
of this Indenture in order to amend the Original Indenture in a First
Supplemental Indenture as set forth herein with respect solely to series of Debt
Securities created and issued on or after the date hereof.
Section 901(5) of the Original Indenture provides that a supplemental
indenture may be entered into by the Company and the Trustee without the consent
of any Holders to change or eliminate any of the provisions of the Original
Indenture, provided that any such change or elimination (a) shall become
effective only when there is no Debt Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to the
benefit of such provision or (b) shall not apply to any Debt Security
Outstanding.
All things necessary to make this Indenture a valid agreement of the
Company and the Trustee and a valid amendment to the Original Indenture have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities of any series created and issued on or after the date hereof by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Debt Securities of any such series:
(a) that Subsection (5) of Section 501, "Events of Default", is hereby
deleted; and
(b) that nothing in this Indenture shall: (i) apply to, or alter the
rights and remedies conferred by the Original
<PAGE>
Indenture upon, Debt Securities of any series created and issued prior to the
date hereof or (ii) affect the rights, remedies and duties of the Trustee under
the Original Indenture with respect to such Debt Securities.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
BANKAMERICA CORPORATION
By:___________________________
Senior Vice President
[Corporate Seal]
Attest:
- -------------------------
Secretary
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
By:____________________________
Assistant Vice President
[Corporate Seal]
Attest:
- -------------------------
Secretary
<PAGE>
STATE OF CALIFORNIA )
)ss.
CITY AND COUNTY OF SAN FRANCISCO )
On this ____ day of August, 1994 before me, a notary public in and for said
State, personally appeared SHAUN M. MAGUIRE, known to me to be a senior vice
president of BANKAMERICA CORPORATION, one of the corporations that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
------------------------------------------
[NOTARIAL SEAL] NOTARY PUBLIC
In and for the State of California with
principal office in the City and County of
San Francisco.
My Commission Expires ___________________
<PAGE>
STATE OF CALIFORNIA )
)ss.
CITY AND COUNTY OF SAN FRANCISCO )
On this ____ day of August, 1994 before me, a notary public in and for said
State, personally appeared ______________________, known to me to be an
assistant vice president of FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, one
of the corporations that executed the within instrument, and also known to me to
be the person who executed it on behalf of said corporation, and acknowledged to
me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
-------------------------------------------
[NOTARIAL SEAL] NOTARY PUBLIC
In and for the State of California with
principal office in the City and County of
San Francisco.
My Commission Expires _____________________
<PAGE>
Exhibit 5
[LETTERHEAD BANKAMERICA CORPORATION]
August 17, 1994
Board of Directors
BankAmerica Corporation
Bank of America Center
San Francisco, CA 94104
Ladies and Gentlemen:
I am Executive Vice President and General Counsel of BankAmerica
Corporation (the "Corporation"). At your request, I have examined or caused to
be examined the registration statement on Form S-3 (Registration No. 33-54385),
as amended by Pre-Effective Amendment No. 1, being filed with the Securities and
Exchange Commission (as so amended, the "Registration Statement") in connection
with the registration under the Securities Act of 1933 of (i) debt securities,
which may be either senior (the "Senior Securities") or subordinated (the
"Subordinated Securities" and, together with the Senior Securities, the "Debt
Securities"), (ii) shares of preferred stock (the "Preferred Shares"), interests
in which may be represented by depositary shares (the "Depositary Shares"),
(iii) shares of common stock (the "Common Stock") with associated preferred
share purchase rights, (iv) warrants to purchase Debt Securities, Preferred
Shares or Common Stock (the "Securities Warrants"), (v) currency warrants (the
"Currency Warrants") and (vi) capital securities (the "Capital Securities")
issuable in exchange for, or upon conversion of, Debt Securities or upon
conversion of Preferred Shares. All of the foregoing securities will be
referred to herein collectively as the "Offered Securities."
The Offered Securities will be sold or delivered from time to time as set
forth in the Registration Statement, any amendment thereto, the prospectus
contained therein (the "Prospectus") and supplements to the Prospectus (the
"Prospectus Supplements"). The Senior Securities will be issued under an
Indenture dated as of November 1, 1991 as
<PAGE>
Board of Directors
BankAmerica Corporation
August 17, 1994
Page 2
amended by a First Supplemental Indenture (the "Supplemental Indenture") dated
as of August 1, 1994 (the "Senior Indenture"), each between the Corporation and
First Trust of California, National Association, as Successor Trustee. The
Subordinated Securities will be issued under an Indenture dated as of November
1, 1991, as amended by a First Supplemental Indenture dated as of September 8,
1992 (the "Subordinated Indenture"), each between the Corporation and Chemical
Trust Company of California. The forms of the Senior Indenture and the
Subordinated Indenture are included as exhibits to the Registration Statement.
The opinions expressed in paragraphs 1, 5, 6 and 7 below, relating to
whether the securities described therein will be legal, valid and binding
obligations of the Corporation, are qualified as to:
(a) limitations imposed by applicable bankruptcy, insolvency,
reorganization, liquidation, receivership, conservatorship, readjustment of
debt, arrangement, moratorium or other laws relating to or affecting the rights
of creditors, generally;
(b) limitations imposed by general principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, and the possible unavailability of specific performance, injunctive
relief or other equitable remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law; and
(c) the effect of applicable court decisions holding that provisions of
agreements are unenforceable where the breach thereof imposes restrictions or
burdens on a debtor and it cannot be demonstrated that the enforcement thereof
is necessary for the protection of the creditor; and the effect of applicable
statutes or court decisions limiting in certain circumstances enforcement of
provisions imposing penalties, forfeitures, late payment charges or increases in
interest rates upon deliquency in payment or default; and the enforceability of
any choice of forum which may be included in the securities, which may be
subject to limitation by certain procedural rules of and statutes applicable to
the Federal courts.
I have examined, or caused to be examined, instruments, documents and
records which I have deemed relevant and necessary for the basis of my opinions
hereinafter expressed. Based on such examination, I am of the opinion that:
1. When appropriate corporate action has been taken to authorize the
issuance of any Debt Securities, officers' certificates have been duly executed
and delivered in accordance with the applicable Indenture, and such Debt
Securities have been duly completed, executed, authenticated, sold and delivered
in the applicable form filed as an exhibit to the Registration Statement, in
accordance with the applicable Indenture and in the manner described in the
Registration Statement, any amendment thereto, the Prospectus and any Prospectus
Supplement relating thereto and, in the case of Senior Securities, the
Supplemental Indenture has been duly executed and delivered, such Debt
Securities will be legal, valid and binding
<PAGE>
Board of Directors
BankAmerica Corporation
August 17, 1994
Page 3
obligations of the Corporation, entitled to the benefits of the applicable
Indenture.
2. When appropriate corporate action has been taken to authorize the
issuance of any Preferred Shares and such Preferred Shares have been duly
executed, countersigned, sold and delivered in the form filed as an exhibit to
the Registration Statement and in the manner described in the Registration
Statement, any amendment thereto, the Prospectus and any Prospectus Supplement
relating thereto, such Preferred Shares will be duly authorized, validly issued,
fully paid and nonassessable.
3. When appropriate corporate action has been taken to authorize the
issuance of any Common Stock and such Common Stock has been duly executed,
countersigned, sold and delivered in the form filed as an exhibit to the
Registration Statement and in the manner described in the Registration
Statement, any amendment thereto, the Prospectus and any Prospectus Supplement
relating thereto, such Common Stock will be duly authorized, validly issued,
fully paid and nonassessable.
4. When appropriate corporate action has been taken to authorize the
issuance of any Depositary Shares and the underlying Preferred Shares and the
execution and delivery of a deposit agreement relating to such Depositary Shares
(the "Depositary Agreement"), such Deposit Agreement has been duly executed and
delivered in the form filed as an exhibit to the Registration Statement, and the
depositary receipts representing the Depositary Shares (the "Depositary
Receipts") and the underlying Preferred Shares have been duly executed,
countersigned, sold and delivered in the form filed as an exhibit to the
Registration Statement and in the manner described in the Registration
Statement, any amendment thereto, the Prospectus and any Prospectus Supplement
relating thereto, such Depositary Shares will be validly issued and will entitle
the holders thereof to the rights specified in the Depositary Receipts and in
the Deposit Agreement.
5. When appropriate corporate action has been taken to authorize the
issuance of any Securities Warrants and the underlying Debt Securities,
Preferred Shares or Common Stock, as the case may be, and the execution and
delivery of a warrant agreement relating to such Securities Warrants (the
"Securities Warrant Agreement"), such Securities
<PAGE>
Board of Directors
BankAmerica Corporation
August 17, 1994
Page 4
Warrant Agreement has been duly executed and delivered in the applicable form
filed as an exhibit to the Registration Statement, and such Securities Warrants
have been duly executed, countersigned, sold and delivered in the applicable
form filed as an exhibit to the Registration Statement and in the manner
described in the Registration Statement, any amendment thereto, the Prospectus
and any Prospectus Supplement relating thereto, such Securities Warrants will be
legal, valid and binding obligations of the Corporation.
6. When appropriate corporate action has been taken to authorize the
issuance of any Currency Warrants and the execution and delivery of a currency
warrant agreement relating to such Currency Warrants (the "Currency Warrant
Agreement"), such Currency Warrant Agreement has been duly executed and
delivered in the form filed as an exhibit to the Registration Statement and such
Currency Warrants have been duly executed, countersigned, sold and delivered in
the form filed as an exhibit to the Registration Statement and in the manner
described in the Registration Statement, any amendment thereto, the Prospectus
and any Prospectus Supplement relating thereto, such Currency Warrants will be
legal, valid and binding obligations of the Corporation.
7. When appropriate corporate action has been taken to authorize the
issuance of Debt Securities, Preferred Shares or Common Stock upon exercise of
any Securities Warrants, such Securities Warrants have been duly issued and
exercised in accordance with their terms and in the manner described in the
Registration Statement, any amendment thereto, the Prospectus and any Prospectus
Supplement relating thereto, such Debt Securities, Preferred Shares or Common
Stock, as the case may be, have been duly issued and executed, countersigned and
delivered in the applicable form filed as an exhibit to the Registration
Statement, and, in the case of Senior Securities, the Supplemental Indenture has
been duly executed and delivered, any such Debt Securities will be legal, valid
and binding obligations of the Corporation, entitled to the benefit of the
applicable Indenture and any such Preferred Shares or Common Stock will be duly
authorized, validly issued, fully paid and nonassessable.
8. When appropriate corporate action has been taken to authorize the
issuance of any shares of Common Stock, or Capital Securities upon conversion of
any convertible
<PAGE>
Board of Directors
BankAmerica Corporation
August 17, 1994
Page 5
Preferred Shares, such Preferred Shares have been duly issued and converted in
accordance with their terms and in the manner described in the Registration
Statement, any amendment thereto, the Prospectus and any Prospectus Supplement
relating thereto, and such shares of Common Stock or Capital Securities, as the
case may be, will be duly authorized, validly issued, fully paid and
nonassessable.
9. When appropriate corporate action has been taken to authorize the
issuance of any shares of Common Stock, Preferred Shares or Capital Securities
upon conversion of any convertible Debt Securities or upon exchange of any
exchangeable Debt Securities, such Debt Securities have been duly issued and
converted or exchanged, as the case may be, in accordance with their terms and
the terms of the applicable Indenture and in the manner described in the
Registration Statement, any amendment thereto, the Prospectus and any Prospectus
Supplement relating thereto, and such shares of Common Stock, Preferred Shares
or Capital Securities, as the case may be, have been duly executed,
countersigned and delivered in the applicable form filed as an exhibit to the
Registration Statement, and, in the case of Senior Securities, the Supplemental
Indenture has been duly executed and delivered, such shares of Common Stock,
Preferred Shares or Capital Securities, as the case may be, will be duly
authorized, validly issued, fully paid and nonassessable.
I consent to the use of this opinion as an exhibit to the Registration
Statement and of my name under the caption "Legal Matters" in the Registration
Statement and in the Prospectus.
Sincerely yours,
/s/ MICHAEL J. HALLORAN
Michael J. Halloran
Executive Vice President and
General Counsel
<PAGE>
Exhibit 12(a)
-------------
Page 1 of 3
-----------
BANKAMERICA CORPORATION
Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Six Months
Ended June 30 Year Ended December 31
------------------ -----------------------------------------------
(dollar amounts in millions) 1994 1993 1993 1992 1991 1990 1989
-------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
EXCLUDING INTEREST ON DEPOSITS
Fixed charges:
Interest expense (other
than interest on deposits) $ 676 $ 587 $1,215 $1,126 $ 743 $ 912 $ 932
Interest factor in rent expense 53 56 112 95 82 85 93
Other 2 1 2 1 1 1 1
------ ------ ------ ------ ------ ------ ------
$ 731 $ 644 $1,329 $1,222 $ 826 $ 998 $1,026
====== ====== ====== ====== ====== ====== ======
Earnings:
Income from operations $1,038 $ 972 $1,954 $1,492 $1,124 $1,115 $1,103
Applicable income taxes 754 734 1,474 1,190 749 284 245
Fixed charges 731 644 1,329 1,222 826 998 1,026
Other (35) (12) (39) (14) (15) (16) (25)
------ ------ ------ ------ ------ ------ ------
$2,488 $2,338 $4,718 $3,890 $2,684 $2,381 $2,349
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges,
excluding interest on deposits 3.40 3.63 3.55 3.18 3.25 2.39 2.29
INCLUDING INTEREST ON DEPOSITS
Fixed charges:
Interest expense $2,126 $2,111 $4,186 $4,895 $5,388 $6,097 $5,536
Interest factor in rent expense 53 56 112 95 82 85 93
Other 2 1 2 1 1 1 1
------ ------ ------ ------ ------ ------ ------
$2,181 $2,168 $4,300 $4,991 $5,471 $6,183 $5,630
====== ====== ====== ====== ====== ====== ======
Earnings:
Income from operations $1,038 $ 972 $1,954 $1,492 $1,124 $1,115 $1,103
Applicable income taxes 754 734 1,474 1,190 749 284 245
Fixed charges 2,181 2,168 4,300 4,991 5,471 6,183 5,630
Other (35) (12) (39) (14) (15) (16) (25)
------ ------ ------ ------ ------ ------ ------
$3,938 $3,862 $7,689 $7,659 $7,329 $7,566 $6,953
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges,
including interest on deposits 1.81 1.78 1.79 1.53 1.34 1.22 1.23
</TABLE>
<PAGE>
Exhibit 12(a)
-------------
Page 2 of 3
-----------
BANKAMERICA CORPORATION
Ratio of Earnings to Fixed Charges and Preferred Dividends
<TABLE>
<CAPTION>
Six Months
Ended June 30 Year Ended December 31
------------------ -----------------------------------------------
(dollar amounts in millions) 1994 1993 1993 1992 1991 1990 1989
-------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
EXCLUDING INTEREST ON DEPOSITS
Fixed charges and preferred dividends:
Interest expense (other
than interest on deposits) $ 676 $ 587 1,215 $1,126 $ 743 $ 912 $ 932
Interest factor in rent expense 53 56 112 95 82 85 93
Preferred dividend requirements/a/ 209 211 423 304 102 58 66
Other 2 1 2 1 1 1 1
------ ------ ------ ------ ------ ------ ------
$ 940 $ 855 $1,752 $1,526 $ 928 $1,056 $1,092
====== ====== ====== ====== ====== ====== ======
Earnings:
Income from operations $1,038 $ 972 $1,954 $1,492 $1,124 $1,115 $1,103
Applicable income taxes 754 734 1,474 1,190 749 284 245
Fixed charges, excluding preferred
dividend requirements 731 644 1,329 1,222 826 998 1,026
Other (35) (12) (39) (14) (15) (16) (25)
------ ------ ------ ------ ------ ------ ------
$2,488 $2,338 $4,718 $3,890 $2,684 $2,381 $2,349
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges
and preferred dividends, excluding
interest on deposits 2.65 2.73 2.69 2.55 2.89 2.25 2.15
INCLUDING INTEREST ON DEPOSITS
Fixed charges and preferred dividends:
Interest expense $2,126 $2,111 $4,186 $4,895 5,388 $6,097 $5,536
Interest factor in rent expense 53 56 112 95 82 85 93
Preferred dividend requirements/a/ 209 211 423 304 102 58 66
Other 2 1 2 1 1 1 1
------ ------ ------ ------ ------ ------ ------
$2,390 $2,379 $4,723 $5,295 $5,573 $6,241 $5,696
====== ====== ====== ====== ====== ====== ======
Earnings:
Income from operations $1,038 $ 972 $1,954 $1,492 $1,124 $1,115 $1,103
Applicable income taxes 754 734 1,474 1,190 749 284 245
Fixed charges, excluding preferred
dividend requirements 2,181 2,168 4,300 4,991 5,471 6,183 5,630
Other (35) (12) (39) (14) (15) (16) (25)
------ ------ ------ ------ ------ ------ ------
$3,938 $3,862 $7,689 $7,659 $7,329 $7,566 $6,953
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges,
and preferred dividends, including
interest on deposits 1.65 1.62 1.63 1.45 1.32 1.21 1.22
</TABLE>
SEE NOTE ON PAGE 3 OF THIS EXHIBIT
<PAGE>
Exhibit 12(a)
-------------
Page 3 of 3
-----------
BANKAMERICA CORPORATION
Note to Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends
/a/ Preferred dividend requirements represent pretax earnings necessary to
cover preferred dividends declared of $121 million and $120 million for
the six months ended June 30, 1994 and 1993, respectively, and $241
million, $169 million, $61 million, $46 million, and $54 million for the
years ended December 31, 1993, 1992, 1991, 1990, and 1989, respectively.
<PAGE>
EXHIBIT 23.1(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Pre-Effective Amendment No. 1 to the Registration Statement on Form S-3 and
related Prospectus of BankAmerica Corporation for the registration of Debt
Securities, Debt Warrants, Preferred Stock, Depositary Shares, Preferred Stock
Warrants, Common Stock, Common Stock Warrants and Currency Warrants and to the
incorporation by reference therein of our report dated January 18, 1994, except
for Note 2, as to which the date is January 27, 1994, with respect to the
consolidated financial statements of BankAmerica incorporated by reference in
its Annual Report on Form 10-K for the year ended December 31 1993, filed with
the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Francisco, California
August 11, 1994
<PAGE>
EXHIBIT 23.2 (a)
CONSENT OF PRICE WATERHOUSE LLP
We hereby consent to the incorporation by reference in this Pre-Effective
Amendment No. 1 to the Registration Statement on Form S-3 relating to Debt
Securities and Debt Warrants, Preferred Shares, Depositary Shares and Preferred
Share Warrants, Common Stock and Common Stock Warrants, and Currency Warrants of
our report dated January 18, 1994, except as to Note 1, which is as of January
28, 1994, relating to the consolidated financial statements of Continental Bank
Corporation, which report is included in Continental Bank Corporation's Annual
Report on Form 10-K for the year ended December 31, 1993, and which report is
incorporated by reference in the Current Report on Form 8-K dated March 21, 1994
of BankAmerica Corporation. We also consent to the reference to our firm as
experts in accounting and auditing in Item 5 of such Form 8-K and in the section
"Experts" of this Pre-Effective Amendment No. 1 to the Registration Statement on
Form S-3.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Chicago, Illinois
August 17, 1994
