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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
--------------------
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
BANKAMERICA CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 94-1681731
(State of incorporation (I.R.S. employer
or organization) identification no.)
Bank of America Center
555 California Street
San Francisco, California 94104
(Address of principal (Zip Code)
executive offices)
SECURITIES TO BE REGISTERED PURSUANT TO
SECTION 12(b) OF THE ACT:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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1,788,000 shares of Adjustable
Rate Preferred Stock, Series 1,
and 12,000,000 Depositary New York Stock Exchange
Shares representing 3,000,000
Shares of Adjustable Rate
Cumulative Preferred Stock,
Series 2
SECURITIES TO BE REGISTERED PURSUANT TO
SECTION 12(g) OF THE ACT:
None
(Title of Class)
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Item 1. Description of Registrant's Securities to Be Registered.
The Adjustable Rate Preferred Stock, Series 1 and the Depositary Shares (each
Depositary Share evidencing a one-fourth interest in a share of the
Registrant's Adjustable Rate Cumulative Preferred Stock, Series 2) are
described under the caption "Description of BAC Capital Stock--BAC Adjustable
Rate Preferred Stock, Series 1" and "--BAC Adjustable Rate Cumulative Preferred
Stock, Series 2" on pages 71 through 74 of the Proxy Statement-Prospectus dated
May 23, 1994 contained in the Registration Statement on Form S-4 (File
No. 33-53667) filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, on May 17, 1994, and amendment No. 1
thereto, filed on May 20, 1994. Such pages are incorporated herein
by reference.
Item 2: Exhibits.*
The Adjustable Rate Preferred Stock, Series 1 and the Depositary Shares
representing the Registrant's Adjustable Rate Cumulative Preferred Stock,
Series 2, to be registered hereunder, are to be listed on the New York Stock
Exchange, on which other securities of the Registrant are listed.
Exhibit 1 Certificate of Designation, Preferences and Rights of Adjustable
Rate Preferred Stock, Series 1.
Exhibit 2 Certificate of Designation, Preferences and Rights of Adjustable
Rate Cumulative Preferred Stock, Series 2.
Exhibit 3a Certificate of Incorporation of Registrant.
Exhibit 3b Bylaws of Registrant, as amended; exhibit 3(b) for the Parent's
Registration Statement on Form S-4, filed as amended, dated
January 12, 1994, File No. 33-51333, incorporated herein by
reference.
Exhibit 4 Form of Deposit Agreement among the Registrant, Chemical Trust
Company of California, as depositary, and the holders from time
to time of the Depositary Shares.
* Per the EDGAR Interim Rules, Securities Exchange Act Release No. 31905,
Section IV.E.1., specimen stock certificates are no longer required as an
exhibit to Form 8-A, and are therefore not included herein.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the Registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
BANKAMERICA CORPORATION
By /s/ Cheryl A. Sorokin
----------------------------
Cheryl A. Sorokin
Executive Vice President
and Secretary
Dated: August 1, 1994
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INDEX TO EXHIBITS
Exhibit
Number Exhibit
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1 Certificate of Designation, Preferences
and Rights of Adjustable Rate Preferred
Stock, Series 1.
2 Certificate of Designation, Preferences
and Rights of Adjustable Rate Cumulative
Preferred Stock, Series 2.
3a Certificate of Incorporation of
Registrant.
3b Bylaws of Registrant, as amended;
exhibit 3(b) for the Parent's
Registration Statement on Form S-4,
filed as amended, dated January 12,
1994, File No. 33-51333, incorporated
herein by reference.
4 Form of Deposit Agreement among the
Registrant, Chemical Trust Company of
California, as depositary, and the
holders from time to time of the
Depositary Shares.
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Exhibit 1
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
of
ADJUSTABLE RATE PREFERRED STOCK, SERIES 1
of
BANKAMERICA CORPORATION
BankAmerica Corporation, a corporation organized and existing under the laws
of the State of Delaware (herein referred to as the "Corporation"), in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, does hereby CERTIFY:
1. The Certificate of Incorporation, as amended, of the Corporation fixes the
total number of shares of all classes of capital stock which the Corporation
shall have the authority to issue as seven hundred seventy million
(770,000,000) shares, of which seventy million (70,000,000) shares shall be
shares of Preferred Stock, without par value, and seven hundred million
(700,000,000) shares shall be Common Stock of the par value of $1.5625 per
share.
2. The Certificate of Incorporation, as amended, of the Corporation,
expressly grants to the Board of Directors of the Corporation authority to
provide for the issuance of the Preferred Stock in one or more series, to fix
the number of shares in each such series and to fix the designations and the
powers, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof, of each
such series.
3. Pursuant to the authority conferred upon the Board of Directors by the
Certificate of Incorporation, as amended, of the Corporation and Delaware law,
the Board of Directors, by actions duly taken on January 27, 1994, adopted the
following resolution authorizing the issuance of one million seven hundred
eighty-eight thousand (1,788,000) shares of Adjustable Rate Preferred Stock,
Series 1, without par value:
RESOLVED, that an issue of a series of the preferred stock, without par
value, of the Corporation (such preferred stock being herein referred to as
"Preferred Stock," which term shall include any additional shares of preferred
stock of the same class heretofore or hereafter authorized to be issued by the
Corporation), consisting of one million seven hundred eighty-eight thousand
(1,788,000) shares is hereby provided for, and the voting power, designation,
preference and relative, participating, optional or
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other special rights, and qualifications, limitations or restrictions thereof,
are fixed hereby as follows:
(1) Designation. The designation of the series of Preferred Stock created
by this resolution shall be "Adjustable Rate Preferred Stock, Series 1,"
without par value (hereinafter called this "Series"), and the number of shares
constituting this Series is one million seven hundred eighty-eight thousand
(1,788,000). Shares of this Series shall have a stated value of $50 per share.
The number of authorized shares of this Series may be reduced (but not below
the number of shares then outstanding) by further resolution duly adopted by
the Board of Directors of the Corporation and by the filing of a certificate
pursuant to the provisions of the General Corporation Law of the State of
Delaware stating that such reduction has been so authorized, but the number of
authorized shares of this Series shall not be increased.
(2) Dividend Rate.
(a) For each quarterly dividend period (hereinafter referred to
individually as a "Quarterly Dividend Period" or a "Dividend Period," and
collectively referred to as "Dividend Periods"), which Quarterly Dividend
Periods shall commence on January 1, April 1, July 1, and October 1 in each
year and shall end on and include the day next preceding the first day of the
next Quarterly Dividend Period, dividend rates on the shares of this Series
shall be at a rate per annum of the stated value thereof equal to the
Applicable Rate (as defined in paragraph (b) of this Section (2)) in respect
of such Quarterly Dividend Period. Dividends shall be cumulative from the
date of original issue of such shares and shall be payable, when and as
declared by the Board of Directors or by a committee of said Board duly
authorized by said Board to declare such dividends, on March 31, June 30,
September 30 and December 31 of each year. Each such dividend shall be paid
to the holders of record of shares of this Series as they appear on the stock
register of the Corporation on such record date, not exceeding 40 days
preceding the payment date thereof, as shall be fixed by the Board of
Directors or by a committee of said Board duly authorized to fix such date.
Dividends on account of arrears for any past Dividend Periods may be declared
and paid at any time, without reference to any regular dividend payment date,
to holders of record on such date, not exceeding 45 days preceding the
payment date thereof, as may be fixed by the Board of Directors or by a
committee of said Board duly authorized to fix such date. The initial
Quarterly Dividend Period with respect to this Series shall commence on
October 1, 1994, and the dividend payable for such initial Quarterly Dividend
Period shall be payable, when and as declared by the Board of Directors or by
a committee of said Board duly authorized by said Board to declare such
dividend, on December 31, 1994.
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(b) Except as provided below in this paragraph, the "Applicable Rate" for
any Quarterly Dividend Period shall be (1) 1.00% less than (2) the highest of
the Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Twenty
Year Constant Maturity Rate (each as hereinafter defined) for such Dividend
Period. In the event that the Corporation determines in good faith that for
any reason:
(i) any one of the Treasury Bill Rate, the Ten Year Constant Maturity
Rate and the Twenty Year Constant Maturity Rate cannot be determined for any
Quarterly Dividend Period, then the Applicable Rate for such Dividend Period
shall be 1.00% less than the higher of whichever two of such Rates can be so
determined;
(ii) only one of the Treasury Bill Rate, the Ten Year Constant Maturity
Rate and the Twenty Year Constant Maturity Rate can be determined for any
Quarterly Dividend Period, then the Applicable Rate for such Dividend Period
shall be 1.00% less than whichever such Rate can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten Year Constant Maturity Rate
and the Twenty Year Constant Maturity Rate can be determined for any
Quarterly Dividend Period, then the Applicable Rate in effect for the
preceding Dividend Period shall be continued for such Dividend Period.
Anything herein to the contrary notwithstanding, the Applicable Rate for any
Quarterly Dividend Period shall in no event be less than 7.50% per annum or
greater than 13.50% per annum.
(c) Except as provided below in this paragraph, the "Treasury Bill Rate"
for each Quarterly Dividend Period shall be the arithmetic average of the two
most recent weekly per annum secondary market discount rates (or the one
weekly per annum secondary market discount rate, if only one such rate shall
be published during the relevant Calendar Period as provided below) for
three-month U.S. Treasury bills, as published weekly by the Federal Reserve
Board during the Calendar Period immediately prior to the last ten calendar
days of March, June, September or December, as the case may be, prior to the
Quarterly Dividend Period for which the dividend rate on this Series is being
determined.
In the event that the Federal Reserve Board does not publish such a weekly
per annum secondary market discount rate during such Calendar Period, then
the Treasury Bill Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum secondary market discount
rates
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(or the one weekly per annum secondary market discount rate, if only one such
rate shall be published during the relevant Calendar Period as provided
below) for three-month U.S. Treasury bills, as published weekly during such
Calendar Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. In the event that a per
annum secondary market discount rate for three-month U.S. Treasury bills
shall not be published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such Calendar
Period, then the Treasury Bill Rate for such Dividend Period shall be the
arithmetic average of the two most recent weekly per annum secondary market
discount rates (or the one weekly per annum secondary market discount rate,
if only one such rate shall be published during the relevant Calendar Period
as provided below) for all of the U.S. Treasury bills then having maturities
of not less than 80 nor more than 100 days, as published during such Calendar
Period by the Federal Reserve Board or, if the Federal Reserve Board shall
not publish such rates, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. In the event that the
Corporation determines in good faith that for any reason no such U.S.
Treasury bill rates are published as provided above during such Calendar
Period, then the Treasury Bill Rate for such Dividend Period shall be the
arithmetic average of the per annum secondary market discount rates based
upon the closing bids during such Calendar Period for each of the issues of
marketable non-interest bearing U.S. Treasury securities with a maturity of
not less than 80 nor more than 100 days from the date of each such quotation,
as chosen and quoted daily for each business day in New York City (or less
frequently if daily quotations shall not be generally available) to the
Corporation by at least three recognized dealers in U.S. Government
securities selected by the Corporation. In the event that the Corporation
determines in good faith that for any reason the Corporation cannot determine
the Treasury Bill Rate for any Quarterly Dividend Period as provided above in
this paragraph, the Treasury Bill Rate for such Dividend Period shall be the
arithmetic average of the per annum secondary market discount rates based
upon the closing bids during such Calendar Period for each of the issues of
marketable interest-bearing U.S. Treasury securities with a maturity of not
less than 80 nor more than 100 days, as chosen and quoted daily for each
business day in New York City (or less frequently if daily quotations shall
not be generally available) to the Corporation by at least three recognized
dealers in U.S. Government securities selected by the Corporation.
(d) Except as provided below in this paragraph, the "Ten Year Constant
Maturity Rate" for each Quarterly Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Ten Year Average Yields (or
the one weekly per annum Ten Year Average Yield, if only
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one such Yield shall be published during the relevant Calendar Period as
provided below), as published weekly by the Federal Reserve Board during the
Calendar Period immediately prior to the last ten calendar days of March,
June, September or December, as the case may be, prior to the Quarterly
Dividend Period for which the dividend rate on this Series is being
determined. In the event that the Federal Reserve Board does not publish
such a weekly per annum Ten Year Average Yield during such Calendar Period,
then the Ten Year Constant Maturity Rate for such Dividend Period shall be
the arithmetic average of the two most recent weekly per annum Ten Year
Average Yields (or the one weekly per annum Ten Year Average Yield, if only
one such Yield shall be published during the relevant Calendar Period as
provided below), as published weekly during such Calendar Period by any
Federal Reserve Bank or by any U.S. Government department or agency selected
by the Corporation. In the event that a per annum Ten Year Average Yield
shall not be published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such Calendar
Period, then the Ten Year Constant Maturity Rate for such Dividend Period
shall be the arithmetic average of the two most recent weekly per annum
average yields to maturity (or the one weekly average yield to maturity, if
only one such yield shall be published during the relevant Calendar Period as
provided below) for all of the actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities) then having
maturities of not less than eight nor more than twelve years, as published
during such Calendar Period by the Federal Reserve Board or, if the Federal
Reserve Board shall not publish such yields, by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the Corporation. In
the event that the Corporation determines in good faith that for any reason
the Corporation cannot determine the Ten Year Constant Maturity Rate for any
Quarterly Dividend Period as provided above in this paragraph, then the Ten
Year Constant Maturity Rate for such Dividend Period shall be the arithmetic
average of the per annum average yields to maturity based upon the closing
bids during such Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than Special
Securities) with a final maturity date not less than eight nor more than
twelve years from the date of each such quotation, as chosen and quoted daily
for each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Corporation by at least
three recognized dealers in U.S. Government securities selected by the
Corporation.
(e) Except as provided below in this paragraph, the "Twenty Year Constant
Maturity Rate" for each Quarterly
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Dividend Period shall be the arithmetic average of the two most recent weekly
per annum Twenty Year Average Yields (or the one weekly per annum Twenty Year
Average Yield, if only one such Yield shall be published during the relevant
Calendar Period as provided below), as published weekly by the Federal
Reserve Board during the Calendar Period immediately prior to the last ten
calendar days of March, June, September or December, as the case may be,
prior to the Quarterly Dividend Period for which the dividend rate on this
Series is being determined. In the event that the Federal Reserve Board does
not publish such a weekly per annum Twenty Year Average Yield during such
Calendar Period, then the Twenty Year Constant Maturity Rate for such
Dividend Period shall be the arithmetic average of the two most recent weekly
per annum Twenty Year Average Yields (or the one weekly per annum Twenty Year
Average Yield, if only one such Yield shall be published during the relevant
Calendar Period as provided below), as published weekly during such Calendar
Period by any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Corporation. In the event that a per annum Twenty
Year Average Yield shall not be published by the Federal Reserve Board or by
any Federal Reserve Bank or by any U.S. Government department or agency
during such Calendar Period, then the Twenty Year Constant Maturity Rate for
such Dividend Period shall be the arithmetic average of the two most recent
weekly per annum average yields to maturity (or the one weekly average yield
to maturity, if only one such yield shall be published during the relevant
Calendar Period as provided below) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special Securities)
then having maturities of not less than eighteen nor more than twenty-two
years, as published during such Calendar Period by the Federal Reserve Board
or, if the Federal Reserve Board shall not publish such yields, by any
Federal Reserve Bank or by any U.S. Government department or agency selected
by the Corporation. In the event that the Corporation determines in good
faith that for any reason the Corporation cannot determine the Twenty Year
Constant Maturity Rate for any Quarterly Dividend Period as provided above in
this paragraph, then the Twenty Year Constant Maturity Rate for such Dividend
Period shall be the arithmetic average of the per annum average yields to
maturity based upon the closing bids during such Calendar Period for each of
the issues of actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a final maturity date not
less than eighteen nor more than twenty-two years from the date of each such
quotation, as chosen and quoted daily for each business day in New York City
(or less frequently if daily quotations shall not be generally available) to
the
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Corporation by at least three recognized dealers in U.S. Government securities
selected by the Corporation.
(f) The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the
Twenty Year Constant Maturity Rate shall each be rounded to the nearest five
hundredths of a percentage point.
(g) The Applicable Rate with respect to each Quarterly Dividend Period will
be calculated as promptly as practicable by the Corporation according to the
appropriate method described herein. The Corporation will cause each
Applicable Rate to be published in a newspaper of general circulation in New
York City prior to the commencement of the new Quarterly Dividend Period to
which it applies and will cause notice of such Applicable Rate to be enclosed
with the dividend payment checks next mailed to the holders of shares of this
Series.
(h) For purposes of this Section (2), the term
(1) "Calendar Period" shall mean 14 calendar days;
(2) "Special Securities" shall mean securities which can, at the option
of the holder, be surrendered at face value in payment of any Federal estate
tax or which provide tax benefits to the holder and are priced to reflect
such tax benefits or which were originally issued at a deep or substantial
discount;
(3) "Ten Year Average Yield" shall mean the average yield to maturity for
actively traded marketable U.S. Treasury fixed interest rate securities
(adjusted to constant maturities of ten years); and
(4) "Twenty Year Average Yield" shall mean the average yield to maturity
for actively traded marketable U.S. Treasury fixed interest rate securities
(adjusted to constant maturities of twenty years).
(3) Dividend Provisions.
(a) No full dividends shall be declared or paid or set apart for payment on
the Preferred Stock of any series ranking, as to dividends, on a parity with
or junior to this Series for any period unless full cumulative dividends have
been or contemporaneously are declared and paid, or declared and a sum
sufficient for the payment thereof set apart for such payment, on this Series
for all dividend payment periods terminating on or prior to the
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date of payment of such full cumulative dividends. When dividends are not
paid in full, as aforesaid, upon the shares of this Series and any other
Preferred Stock ranking on a parity as to dividends with this Series, all
dividends declared upon shares of this Series and any other Preferred Stock
ranking on a parity as to dividends with this Series shall be declared pro
rata so that the amount of dividends declared per share on this Series and
such other Preferred Stock shall in all cases bear to each other the same
ratio that accrued dividends per share on the shares of this Series and such
other Preferred Stock bear to each other. Holders of shares of this Series
shall not be entitled to any dividends, whether payable in cash, property or
stock, in excess of full cumulative dividends, as herein provided, on this
Series. No interest, or sum of money in lieu of interest, shall be payable
in respect of any dividend payment or payments on this Series which may be in
arrears.
(b) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior
to this Series as to dividends and upon liquidation and other than as
provided in paragraph (a) of this Section (3)) shall be declared or paid or
set aside for payment or other distribution declared or made upon the Common
Stock or upon any other stock ranking junior to or on a parity with this
Series as to dividends or upon liquidation, nor shall any Common Stock nor
any other stock of the Corporation ranking junior to or on a parity with this
Series as to dividends or upon liquidation be redeemed, purchased or
otherwise acquired for any consideration or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any such
stock by the Corporation (except by conversion into or exchange for stock of
the Corporation ranking junior to this Series as to dividends and upon
liquidation) unless, in each case, the full cumulative dividends on all
outstanding shares of this Series shall have been paid for all past Dividend
Periods.
(c) Dividends payable on this Series for each full Quarterly Dividend
Period shall be computed by dividing the Applicable Rate by four and
multiplying the result by the stated value. Dividends payable on this Series
for any period less than a full Quarterly Dividend Period shall be computed
on the basis of a 360-day year of twelve 30-day months.
(4) Redemption.
(a) The shares of this Series shall, with the prior written consent of the
Federal Reserve Board, if required, be redeemable, as a whole or in part, at
any time or from
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time to time, at the Corporation's option, at a redemption price of $50.00
per share, plus accrued and unpaid dividends thereon to the date fixed for
redemption.
(b) In the event that fewer than all the outstanding shares of this Series
are to be redeemed, the number of shares to be redeemed shall be determined
by the Board of Directors and the shares to be redeemed shall be determined
by lot or pro rata as may be determined by the Board of Directors or by any
other method as may be determined to be equitable by the Board of Directors
in its sole discretion.
(c) In the event the Corporation shall redeem shares of this Series, notice
of such redemption shall be given by first class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the redemption date,
to each holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock register of the Corporation. Each
such notice shall state: (1) the redemption date; (2) the number of shares
of this Series redeemed and the number of such shares to be redeemed from
such holder; (3) the redemption price; (4) the place or places where
certificates for such shares are to be surrendered for payment of the
redemption price; and (5) that dividends on the shares to be redeemed will
cease to accrue on such redemption date.
(d) Notice having been mailed as aforesaid from and after the redemption
date (unless default shall be made by the Corporation in providing money for
the payment of the redemption price) dividends on the shares of this Series
so called for redemption shall cease to accrue, and said shares shall no
longer be deemed to be outstanding, and all rights of the holders thereof as
stockholders of the Corporation (except the right to receive from the
Corporation the redemption price) shall cease. Upon surrender in accordance
with said notice of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors of the
Corporation shall so require and the notice shall so state), such shares
shall be redeemed by the Corporation at the redemption price aforesaid. In
case fewer than all the shares represented by any such certificate are
redeemed, a new certificate representing the unredeemed shares shall be
issued without cost to the holder thereof.
(e) Any shares of this Series which shall at any time have been redeemed
shall, after such redemption, have the status of authorized but unissued
shares of Preferred Stock, without designation as to series until such shares
are once more designated as part of a particular series by the Board of
Directors.
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(f) Notwithstanding the foregoing provisions of this Section (4), if any
dividends on this Series are in arrears, no shares of this Series shall be
redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any
shares of this Series; provided, however, that the foregoing shall not
prevent the purchase or acquisition of shares of this Series pursuant to a
purchase or exchange offer made on the same terms to holders of all
outstanding shares of this Series.
(5) Conversion or Exchange. The holders of shares of this Series shall not
have any rights herein to convert such shares into or exchange such shares for
shares of any other class or classes or of any other series of any class or
classes of capital stock of the Corporation.
(6) Voting. Except as expressly provided hereinafter in this Section (6) or
as otherwise from time to time required by law, the shares of this Series shall
have no voting power.
(a) Whenever, at any time or times, dividends payable on any share or
shares of the Preferred Stock shall be in arrears in an amount equal to at
least six full quarterly dividends (whether or not declared and whether or
not consecutive), the holders of record of the outstanding Preferred Stock of
all series shall have the exclusive right, voting separately as a single
class, to elect two directors of the Corporation at a special meeting of
stockholders of the Corporation or at the Corporation's next annual meeting
of stockholders, and at each subsequent annual meeting of stockholders, as
provided below. At elections for such directors, the holders of shares of
this Series shall be entitled to cast one vote for each share held.
(b) Upon the vesting of such right of the holders of the Preferred Stock,
the maximum authorized number of members of the Board of Directors shall
automatically be increased by two and the two vacancies so created shall be
filled by vote of the holders of the outstanding Preferred Stock as
hereinafter set forth. A special meeting of the stockholders of the
Corporation then entitled to vote shall be called by the Chairman of the
Board of Directors or the President or the Secretary of the Corporation, if
requested in writing by the holders of record of not less than 10% of the
Preferred Stock then outstanding. At such special meeting, or, if no such
special meeting shall have been called, then at the next annual meeting of
stockholders of the Corporation, the holders of the Preferred Stock shall
elect, voting as above provided, two directors of the Corporation to fill the
aforesaid vacancies created by the automatic increase in the number of
members of the Board of Directors. At any and all such
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meetings for such election, the holders of a majority of the outstanding
shares of the Preferred Stock of the Corporation shall be necessary to
constitute a quorum for such election, whether present in person or by proxy,
and such two directors shall be elected by the vote of at least a plurality
of shares held by such stockholders present or represented at the meeting.
Any director elected by holders of the Preferred Stock pursuant to this
Section may be removed at any annual or special meeting, by vote of a
majority of the stockholders voting as a class who elected such director,
with or without cause. In case any vacancy shall occur among the directors
elected by the holders of the Preferred Stock pursuant to this Section, such
vacancy may be filled by the remaining director so elected, or his successor
then in office, and the director so elected to fill such vacancy shall serve
until the next meeting of stockholders for the election of directors.
(c) The right of the holders of the Preferred Stock, voting separately as a
class, to elect two members of the Board of Directors of the Corporation as
aforesaid shall continue until, and only until, such time as all arrears in
dividends (whether or not declared) on the Preferred Stock shall have been
paid or declared and set apart for payment, at which time such right shall
terminate, except as herein or by law expressly provided, subject to
revesting in the event of each and every subsequent default of the character
above-mentioned. Upon any termination of the right of the holders of the
Preferred Stock as a class to vote for directors as herein provided, the term
of office of all directors then in office elected by the holders of the
Preferred Stock pursuant to this Section shall terminate immediately.
Whenever the term of office of the directors elected by the holders of the
Preferred Stock pursuant to this Section shall terminate and the special
voting powers vested in the holders of the Preferred Stock pursuant to this
Section shall have expired, the maximum number of members of the Board of
Directors of the Corporation shall be such number as may be provided for in
the By-Laws of the Corporation irrespective of any increase made pursuant to
the provisions of this Section.
(d) The consent of the holders of at least two-thirds of the number of
shares of Preferred Stock at the time outstanding, given in person or by
proxy, either in writing or at a meeting of stockholders at which the holders
of the Preferred Stock shall vote separately as a class without regard to
series, the holders of the shares of this Series being entitled to cast one
vote per share thereon, shall be necessary for effecting or validating:
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<PAGE> 12
(1) any change in the Certificate of Incorporation or certificate
supplement thereto or By-Laws of the Corporation which would materially and
adversely alter or change the preferences, privileges, rights or powers
given to the holders of the Preferred Stock, provided, that if one or more
but not all series of Preferred Stock at the time outstanding are so
affected, only the consent of the holders of at least two-thirds of each
series so affected, voting separately as a class, shall be required; or
(2) the issuance of any shares of any other class of stock of the
Corporation ranking prior to the Preferred Stock.
The term "ranking prior to the Preferred Stock" shall mean and include all
shares of stock of the Corporation in respect of which the rights of the
holders thereof as to the payment of dividends or as to distributions in the
event of a voluntary or an involuntary liquidation, dissolution or winding up
of the Corporation, are given preference over the rights of the holders of
the Preferred Stock.
(7) Liquidation Rights.
(a) Upon the dissolution, liquidation or winding up of the Corporation,
whether voluntary or involuntary, the holders of the shares of this Series
shall be entitled to receive out of the assets of the Corporation available
for distribution to stockholders, before any payment or distribution shall be
made on the Common Stock or any other class of stock ranking junior to the
Preferred Stock, upon liquidation, the amount of $50 per share, plus a sum
equal to all dividends (whether or not earned or declared) on such shares
accrued and unpaid thereon to the date of final distribution.
(b) Neither the sale, lease or exchange (for cash, shares of stock,
securities or other consideration) of all or substantially all the property
and assets of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation or the merger or consolidation
of any other corporation into or with the Corporation, shall be deemed to be
a dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes of this Section (7).
(c) After the payment to the holders of the shares of this Series of the
full preferential amounts provided for in this Section (7), the holders of
this Series as such shall have no right or claim to any of the remaining
assets of the Corporation.
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<PAGE> 13
(d) In the event the assets of the Corporation available for distribution
to the holders of shares of this Series upon any dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to paragraph (a) of this Section (7), no such distribution shall be
made on account of any shares of any other class or series of Preferred Stock
ranking on a parity with the shares of this Series upon such dissolution,
liquidation or winding up unless proportionate distributive amounts shall be
paid on account of the shares of this Series, ratably, in proportion to the
full distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up.
(8) Ranking. For purposes of this resolution, any stock of any class or
classes of the Corporation shall be deemed to rank:
(a) Prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the case may be, in
preference or priority to the holders of shares of this Series;
(b) On a parity with shares of this Series, either as to dividends or upon
liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking fund provisions, if
any, be different from those of this Series, if the holders of such stock
shall be entitled to the receipt of dividends or of amounts distributable
upon dissolution, liquidation or winding up of the Corporation, as the case
may be, in proportion to their respective dividend rates or liquidation
prices, without preference or priority, one over the other, as between the
holders of such stock and the holders of shares of this Series; and
(c) Junior to shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of shares
of this Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation,
as the case may be, in preference or priority to the holders of shares of
such class or classes.
IN WITNESS WHEREOF, BankAmerica Corporation has caused its corporate seal to
be hereunder affixed and this certificate to be signed by Richard M. Rosenberg,
its Chairman, and the same to be
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<PAGE> 14
attested by Cheryl Sorokin, its Executive Vice President and Secretary, this
1st day of August, 1994.
BANKAMERICA CORPORATION
By /s/ Richard M. Rosenberg
---------------------------------
Richard M. Rosenberg, Chairman
[Corporate Seal]
Attest:
/s/ Cheryl A. Sorokin
- ------------------------
Executive Vice President
and Secretary
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<PAGE> 1
Exhibit 2
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
of
ADJUSTABLE RATE CUMULATIVE PREFERRED STOCK, SERIES 2
of
BANKAMERICA CORPORATION
BankAmerica Corporation, a corporation organized and existing under the laws
of the State of Delaware (herein referred to as the "Corporation"), in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, does hereby CERTIFY:
A. The Certificate of Incorporation, as amended, of the Corporation fixes the
total number of shares of all classes of capital stock which the Corporation
shall have the authority to issue as seven hundred seventy million
(770,000,000) shares, of which seventy million (70,000,000) shares shall be
shares of Preferred Stock, without par value.
B. The Certificate of Incorporation, as amended, of the Corporation,
expressly grants to the Board of Directors of the Corporation authority to
provide for the issuance of the Preferred Stock in one or more series, to fix
the number of shares in each such series and to fix the designations and the
powers, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof, of each
such series.
C. Pursuant to the authority conferred upon the Board of Directors by the
Certificate of Incorporation, as amended, of the Corporation and Delaware law,
the Board of Directors, by actions duly taken on January 27, 1994, adopted the
following resolution authorizing the issuance of three million (3,000,000)
shares of Adjustable Rate Cumulative Preferred Stock, Series 2, without par
value:
RESOLVED that an issue of a series of the preferred stock, without par value,
of the Corporation (such preferred stock being herein referred to as "Preferred
Stock," which term shall include any additional shares of preferred stock of
the same class heretofore or hereafter authorized to be issued by the
Corporation), consisting of three million (3,000,000) shares is hereby provided
for, and the voting power, designation, preference and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, are fixed hereby as follows:
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<PAGE> 2
1. Designation. The designation of the series of Preferred Stock created by
this resolution shall be "Adjustable Rate Cumulative Preferred Stock, Series
2," without par value (hereinafter called this "Series"), and the number of
shares constituting this Series is 3,000,000. Shares of this Series shall have
a stated value of $100 per share. The number of authorized shares of this
Series may be reduced (but not below the number of shares then outstanding) or
increased by further resolution duly adopted by the Board of Directors of the
Corporation and by the filing of a certificate pursuant to the provisions of
the General Corporation Law of the State of Delaware stating that such increase
or reduction has been so authorized.
2. Dividend Rate.
(a) For each Quarterly Dividend Period (hereinafter individually referred to
as a "Quarterly Dividend Period" or a "Dividend Period," and collectively
referred to as "Dividend Periods"), which Quarterly Dividend Periods shall
commence on January 1, April 1, July 1 and October 1 in each year and shall end
on and include the day next preceding the first day of the next Quarterly
Dividend Period, dividend rates on the shares of this Series shall be at a rate
per annum of the stated value thereof equal to the Applicable Rate in respect
of such Quarterly Dividend Period.
(b) Except as provided below in this paragraph, the "Applicable Rate" for
any Quarterly Dividend Period shall be (1) 1.10% greater than (2) the highest
of the Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Twenty
Year Constant Maturity Rate (each as hereinafter defined) for such Dividend
Period. In the event that the Corporation determines in good faith that for
any reason:
(i) any one of the Treasury Bill Rate, the Ten Year Constant Maturity Rate
and the Twenty Year Constant Maturity Rate cannot be determined for any
Quarterly Dividend Period, then the Applicable Rate for such Dividend Period
shall be 1.10% greater than the higher of whichever two of such Rates can be
so determined;
(ii) only one of the Treasury Bill Rate, the Ten Year Constant Maturity
Rate and the Twenty Year Constant Maturity Rate can be determined for any
Quarterly Dividend Period, then the Applicable Rate for such Dividend Period
shall be 1.10% greater than whichever such Rate can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten Year Constant Maturity Rate
and the Twenty Year Constant Maturity Rate can be determined for any
Quarterly Dividend Period, then the Applicable Rate in effect for the
preceding Dividend Period shall be continued for such Dividend Period.
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<PAGE> 3
Anything herein to the contrary notwithstanding, the Applicable Rate for any
Quarterly Dividend Period shall in no event be less than 9.0% per annum or
greater than 15.75% per annum.
(c) Except as provided below in this paragraph, the "Treasury Bill Rate" for
each Quarterly Dividend Period shall be the arithmetic average of the two most
recent weekly per annum secondary market discount rates (or the one weekly per
annum secondary market discount rate, if only one such rate shall be published
during the relevant Calendar Period as provided below) for three-month U.S.
Treasury bills, as published weekly by the Federal Reserve Board during the
Calendar Period immediately prior to the last ten calendar days of December,
March, June or September, as the case may be, prior to the Quarterly Dividend
Period for which the dividend rate on this Series is being determined. In the
event that the Federal Reserve Board does not publish such a weekly per annum
secondary market discount rate during such Calendar Period, then the Treasury
Bill Rate for such Dividend Period shall be the arithmetic average of the two
most recent weekly per annum secondary market discount rates (or the one weekly
per annum secondary market discount rate, if only one such rate shall be
published during the relevant Calendar Period as provided below) for
three-month U.S. Treasury bills, as published weekly during such Calendar
Period by any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Corporation. In the event that a per annum secondary
market discount rate for three-month U.S. Treasury bills shall not be published
by the Federal Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period, then the Treasury
Bill Rate for such Dividend Period shall be the arithmetic average of the two
most recent weekly per annum secondary market discount rates (or the one weekly
per annum secondary market discount rate, if only one such rate shall be
published during the relevant Calendar Period as provided below) for all of the
U.S. Treasury bills then having maturities of not less than 80 nor more than
100 days, as published during such Calendar Period by the Federal Reserve Board
or, if the Federal Reserve Board shall not publish such rates, by any Federal
Reserve Bank or by any U.S. Government department or agency selected by the
Corporation. In the event that the Corporation determines in good faith that
for any reason no such U.S. Treasury bill rates are published as provided above
during such Calendar Period, then the Treasury Bill Rate for such Dividend
Period shall be the arithmetic average of the per annum secondary market
discount rates based upon the closing bids during such Calendar Period for each
of the issues of marketable non-interest bearing U.S. Treasury securities with
a maturity of not less than 80 nor more than 100 days from the date of each
such quotation, as chosen and quoted daily for each business day in New York
City (or less frequently if daily quotations shall not be generally available)
to the Corporation by at least three recognized dealers in U.S. Government
securities selected by the Corporation. In the event that the Corporation
determines in good faith that for any reason the Corporation cannot determine
the Treasury Bill Rate for any Quarterly Dividend Period as provided above in
this paragraph, the Treasury Bill Rate for such Dividend
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<PAGE> 4
Period shall be the arithmetic average of the per annum secondary market
discount rates based upon the closing bids during such Calendar Period for each
of the issues of marketable interest-bearing U.S. Treasury securities with a
maturity of not less than 80 nor more than 100 days, as chosen and quoted daily
for each business day in New York City (or less frequently if daily quotations
shall not be generally available) to the Corporation by at least three
recognized dealers in U.S. Government securities selected by the Corporation.
(d) Except as provided below in this paragraph, the "Ten Year Constant
Maturity Rate" for each Quarterly Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Ten Year Average Yields (or the
one weekly per annum Ten Year Average Yield, if only one such Yield shall be
published during the relevant Calendar Period as provided below), as published
weekly by the Federal Reserve Board during the Calendar Period immediately
prior to the last ten calendar days of December, March, June or September, as
the case may be, prior to the Quarterly Dividend Period for which the dividend
rate on this Series is being determined. In the event that the Federal Reserve
Board does not publish such a weekly per annum Ten Year Average Yield during
such Calendar Period, then the Ten Year Constant Maturity Rate for such
Dividend Period shall be the arithmetic average of the two most recent weekly
per annum Ten Year Average Yields (or the one weekly per annum Ten Year Average
Yield, if only one such Yield shall be published during the relevant Calendar
Period as provided below), as published weekly during such Calendar Period by
any Federal Reserve Bank or by any U.S. Government department or agency
selected by the Corporation. In the event that a per annum Ten Year Average
Yield should not be published by the Federal Reserve Board or by any Federal
Reserve Bank or by any U.S. Government department or agency during such
Calendar Period, then the Ten Year Constant Maturity Rate for such Dividend
Period shall be the arithmetic average of the two most recent weekly per annum
average yields to maturity (or the one weekly per annum average yield to
maturity, if only one such yield shall be published during the relevant
Calendar Period as provided below) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special Securities)
then having maturities of not less than eight nor more than twelve years, as
published during such Calendar Period by the Federal Reserve Board or, if the
Federal Reserve Board shall not publish such yields, by any Federal Reserve
Bank or by any U.S. Government department or agency selected by the
Corporation. In the event that the Corporation determines in good faith that
for any reason the Corporation cannot determine the Ten Year Constant Maturity
Rate for any Quarterly Dividend Period as provided above in this paragraph,
then the Ten Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the per annum average yields to maturity based upon the
closing bids during such Calendar Period for each of the issues of actively
traded marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than eight nor more
than twelve years from the date of each such quotation, as chosen and quoted
daily for
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<PAGE> 5
each business day in New York City (or less frequently if daily quotations
shall not be generally available) to the Corporation by at least three
recognized dealers in U.S. Government securities selected by the Corporation.
(e) Except as provided below in this paragraph, the "Twenty Year Constant
Maturity Rate" for each Quarterly Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Twenty Year Average Yields (or
the one weekly per annum Twenty Year Average Yield, if only one such Yield
shall be published during the relevant Calendar Period as provided below), as
published weekly by the Federal Reserve Board during the Calendar Period
immediately prior to the last ten calendar days of December, March, June or
September, as the case may be, prior to the Quarterly Dividend Period for which
the dividend rate on this Series is being determined. In the event that the
Federal Reserve Board does not publish such a weekly per annum Twenty Year
Average Yield during such Calendar Period, then the Twenty Year Constant
Maturity Rate for such Dividend Period shall be the arithmetic average of the
two most recent weekly per annum Twenty Year Average Yields (or the one weekly
per annum Twenty Year Average Yield, if only one such Yield shall be published
during the relevant Calendar Period as provided below), as published weekly
during such Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the event that
a per annum Twenty Year Average Yield shall not be published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Twenty Year Constant
Maturity Rate for such Dividend Period shall be the arithmetic average of the
two most recent weekly per annum average yields to maturity (or the one weekly
per annum average yield to maturity, if only one such yield shall be published
during the relevant Calendar Period as provided below) for all of the actively
traded marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) then having maturities of not less than eighteen nor more
than twenty-two years, as published during such Calendar Period by the Federal
Reserve Board or, if the Federal Reserve Board shall not publish such yields,
by any Federal Reserve Bank or any U.S. Government department or agency
selected by the Corporation. In the event that the Corporation determines in
good faith that for any reason the Corporation cannot determine the Twenty Year
Constant Maturity Rate for any Quarterly Dividend Period as provided above in
this paragraph, then the Twenty Year Constant Maturity Rate for such Dividend
Period shall be the arithmetic average of the per annum average yields to
maturity based upon the closing bids during such Calendar Period for each of
the issues of actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a final maturity date not less
than eighteen nor more than twenty-two years from the date of each such
quotation, as chosen and quoted daily for each business day in New York City
(or less frequently if daily quotations shall not be generally available) to
the Corporation by at least three recognized dealers in U.S. Government
securities selected by the Corporation.
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<PAGE> 6
(f) The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the
Twenty Year Constant Maturity Rate shall each be rounded to the nearest five
hundredths of a percentage point.
(g) The Applicable Rate with respect to each Quarterly Dividend Period will
be calculated as promptly as practicable by the Corporation according to the
appropriate method described herein. The Corporation will cause each
Applicable Rate to be published in a newspaper of general circulation in New
York City prior to the commencement of the new Quarterly Dividend Period to
which it applies and will cause notice of such Applicable Rate to be enclosed
with the dividend payment checks next mailed to the holders of shares of this
Series.
(h) For purposes of this Section 2, the term:
(1) "Calendar Period" shall mean 14 calendar days;
(2) "Special Securities" shall mean securities which can, at the option of
the holder, be surrendered at face value in payment of any Federal estate tax
or which provide tax benefits to the holder and are priced to reflect such
tax benefits or which were originally issued at a deep or substantial
discount;
(3) "Ten Year Average Yield" shall mean the average yield to maturity for
actively traded marketable U.S. Treasury fixed interest rate securities
(adjusted to constant maturities of ten years); and
(4) "Twenty Year Average Yield" shall mean the average yield to maturity
for actively traded marketable U.S. Treasury fixed interest rate securities
(adjusted to constant maturities of twenty years).
3. Dividend Provisions.
(a) No full dividends shall be declared or paid or set apart for payment on
shares of any class or any series ranking, as to dividends, on a parity with or
junior to this Series for any period unless full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on this Series for all dividend
payment periods terminating on or prior to the last day of the dividend payment
period in which such full dividends are to be paid. When dividends are not
paid in full, as aforesaid, upon the shares of this Series and any other class
or series ranking on a parity as to dividends with this Series, all dividends
declared upon shares of this Series and any other class or series ranking on a
parity as to dividends with this Series shall be declared pro rata so that the
amount of dividends declared per share on this Series and such other class or
series ranking on a parity with this Series shall in all cases bear to each
other the same ratio that accrued dividends per share on the shares of this
Series and such other class or series
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<PAGE> 7
ranking on a parity with this Series bear to each other. Holders of shares of
this Series shall not be entitled to any dividends, whether payable in cash,
property or stock, in excess of full cumulative dividends, as herein provided,
on this Series. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on this Series which may
be in arrears.
(b) So long as any shares of this Series are outstanding, no dividend (other
than a dividend in Common Stock or in any other stock ranking junior to this
Series as to dividends and upon liquidation and other than as provided in
paragraph (a) of this Section 3) shall be declared or paid or set aside for
payment or other distribution declared or made upon the Common Stock or upon
any other stock ranking junior to or on a parity with this Series as to
dividends or upon liquidation, nor shall any Common Stock nor any other stock
of the Corporation ranking junior to or on a parity with this Series as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any shares of any such stock) by the Corporation
(except by conversion into or exchange for stock of the Corporation ranking
junior to this Series as to dividends and upon liquidation) unless, in each
case, the full cumulative dividends on all outstanding shares of this Series
shall have been paid for all past dividend payment periods, or are
concurrently, declared, paid or a sum sufficient for the payment thereof set
apart for payment.
(c) Dividends payable on shares of this Series for each full Quarterly
Dividend Period shall be computed by dividing the Applicable Rate by four and
multiplying the result by the stated value. Dividends payable on shares of
this Series for any period less than a full Quarterly Dividend Period shall be
computed on the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed in the period for which a dividend is payable.
(d) Dividends shall be cumulative from the date of original issue of such
shares and shall be payable when and as declared by the Board of Directors or
by a committee of said Board duly authorized by said Board to declare such
dividends, on December 31, March 31, June 30 and September 30 of each year.
Each such dividend shall be paid to the holders of record of shares of this
Series as they appear on the stock register of the Corporation on such record
date, not exceeding 40 days preceding the payment date thereof, as shall be
fixed by the Board of Directors of the Corporation or by a committee of said
Board of Directors duly authorized to fix such date. Dividends on account of
arrears for any past Dividend Periods may be declared and paid at any time,
without reference to any regular dividend payment date, to holders of record on
such date, not exceeding 45 days preceding the payment date thereof, as may be
fixed by the Board of Directors of the Corporation or by a committee of said
Board of Directors duly authorized to fix such date. The initial Quarterly
Dividend Period with respect to this Series shall
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<PAGE> 8
commence on October 1, 1994, and the dividend payable for such initial
Quarterly Dividend Period shall be payable, when and as declared by the Board
of Directors or by a committee of said Board duly authorized by said Board to
declare such dividend, on December 31, 1994.
4. Redemption.
(a) The shares of this Series shall, with the prior consent of the Board of
Governors of the Federal Reserve System, if required, be redeemable as a whole
or in part, at any time or from time to time, at the Corporation's option, at a
redemption price of (1) $108.00 per share in the case of any redemption
occurring on or before August 15, 1999 and (2) $100.00 per share in the case of
any redemption occurring after August 15, 1999, plus an amount equal to accrued
and unpaid dividends thereon to the date fixed for redemption (computed on the
basis of a 360-day year of twelve 30-day months and the actual number of days
elapsed in the period).
(b) In the event that fewer than all the outstanding shares of this Series
are to be redeemed, the number of shares to be redeemed shall be determined by
the Board of Directors and the shares to be redeemed shall be determined by lot
or pro rata as may be determined by the Board of Directors or by any other
method as may be determined to be equitable by the Board of Directors in its
sole discretion.
(c) In the event the Corporation shall redeem shares of this Series, notice
of such redemption shall be given by first class mail, postage prepaid, mailed
not less than 30 nor more than 60 days prior to the redemption date, to each
holder of record of the shares to be redeemed, at such holder's address as the
same appears on the stock register of the Corporation. Each such notice shall
state: (1) the redemption date; (2) the number of shares of this Series to be
redeemed and, if fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (3) the
redemption price; (4) the place or places where certificates for such shares
are to be surrendered for payment of the redemption price; and (5) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date.
(d) Notice having been mailed as aforesaid, from and after the redemption
date (unless default shall be made by the Corporation in providing money for
the payment of the redemption price) dividends on the shares of this Series so
called for redemption shall cease to accrue, and said shares shall no longer be
deemed to be outstanding, and all rights of the holders thereof as stockholders
of the Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said notice
of the certificates for any shares so redeemed (properly endorsed or assigned
for transfer, if the Board of Directors of the Corporation shall so require and
the notice shall so state), such shares shall be redeemed by the Corporation at
the redemption price aforesaid. In case fewer than all the shares represented
by any
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<PAGE> 9
such certificate are redeemed, a new certificate representing the unredeemed
shares shall be issued without cost to the holder thereof.
(e) Any shares of this Series which shall at any time have been redeemed
shall, after such redemption, have the status of authorized but unissued shares
of Preferred Stock, without designation as to series until such shares are once
more designated as part of a particular series by the Board of Directors of the
Corporation or any duly authorized committee of the Board of Directors of the
Corporation.
(f) Notwithstanding the foregoing provisions of this Section 4, if any
dividends on this Series are in arrears, no shares of this Series shall be
redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any
shares of this Series; provided, however, that the foregoing shall not prevent
the purchase or acquisition of shares of this Series pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding shares of
this Series.
5. Voting. Except as expressly provided hereinafter in this Section 5 or as
otherwise from time to time required by law, the shares of this Series shall
have no voting power.
(a) Whenever, at any time or times, dividends payable on any share or shares
of this Series shall be in arrears in an amount equal to at least six full
quarterly dividends (whether or not declared and whether or not consecutive),
the holders of record of the outstanding Preferred Stock of all series shall
have the exclusive right, voting separately as a single class, to elect two
directors of the Corporation at a special meeting of stockholders of the
Corporation or at the Corporation's next annual meeting of stockholders, and at
each subsequent annual meeting of stockholders, as provided below. At
elections for such directors, the holders of shares of this Series shall be
entitled to cast one vote for each share held.
(b) Upon the vesting of such right of the holders of the Preferred Stock,
the maximum authorized number of members of the Board of Directors shall
automatically be increased by two and the two vacancies so created shall be
filled by vote of the holders of the outstanding Preferred Stock as hereinafter
set forth. A special meeting of the stockholders of the Corporation then
entitled to vote shall be called by the Chairman or the President or the
Secretary of the Corporation, if requested in writing by the holders of record
of not less than 10% of the Preferred Stock then outstanding. At such special
meeting, or, if no such special meeting shall have been called, then at the
next annual meeting of stockholders of the Corporation, the holders of the
shares of the Preferred Stock shall elect, voting as above provided, two
directors of the Corporation to fill the aforesaid vacancies created by the
automatic increase in the number of members of the Board of Directors. At any
and all
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<PAGE> 10
such meetings for such election, the holders of a majority of the outstanding
shares of the Preferred Stock shall be necessary to constitute a quorum for
such election, whether present in person or by proxy, and such two directors
shall be elected by the vote of at least a plurality of shares held by such
stockholders present or represented at the meeting. Any director elected by
holders of shares of the Preferred Stock pursuant to this Section may be
removed at any annual or special meeting, by vote of a majority of the
stockholders voting as a class who elected such director, with or without
cause. In case any vacancy shall occur among the directors elected by the
holders of the Preferred Stock pursuant to this Section, such vacancy may be
filled by the remaining director so elected, or his successor then in office,
and the director so elected to fill such vacancy shall serve until the next
meeting of stockholders for the election of directors.
(c) The right of the holders of the Preferred Stock, voting separately as a
class, to elect two members of the Board of Directors of the Corporation as
aforesaid shall continue until, and only until, such time as all arrears in
dividends (whether or not declared) on the Preferred Stock shall have been paid
or declared and set apart for payment, at which time such right shall
terminate, except as herein or by law expressly provided, subject to revesting
in the event of each and every subsequent default of the character
above-mentioned. Upon any termination of the right of the holders of the
shares of the Preferred Stock as a class to vote for directors as herein
provided, the term of office of all directors then in office elected by the
holders of Preferred Stock pursuant to this Section shall terminate
immediately. Whenever the term of office of the directors elected by the
holders of the Preferred Stock pursuant to this Section shall terminate and the
special voting powers vested in the holders of the Preferred Stock pursuant to
this Section shall have expired, the maximum number of members of the Board of
Directors of the Corporation shall be such number as may be provided for in the
By-laws of the Corporation irrespective of any increase made pursuant to the
provisions of this Section.
(d) The consent of the holders of at least two-thirds of the number of
shares of Preferred Stock at the time outstanding, given in person or by proxy,
either in writing or at a meeting of stockholders at which the holders of the
Preferred Stock shall vote separately as a class, the holders of the Preferred
Stock being entitled to cast one vote per share thereon, shall be necessary for
effecting or validating:
(i) any change in the Certificate of Incorporation, as amended, or
certificate supplemental thereto or By-laws of the Corporation which would
materially and adversely alter or change the preferences, privileges, rights
or powers given to the holders of the Preferred Stock, provided that if one
or more but not all series of Preferred Stock at the time outstanding are so
affected, only the consent of the holders of at least two-thirds of
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<PAGE> 11
each series so affected, voting separately as a class, shall be required; or
(ii) the issuance of any shares of any other class of stock of the
Corporation ranking prior to the Preferred Stock.
The term "ranking prior to the Preferred Stock" shall mean and include all
shares of stock of the Corporation in respect of which the rights of the
holders thereof as to the payment of dividends or as to distributions in the
event of a voluntary or an involuntary liquidation, dissolution or winding up
of the Corporation, are given preference over the rights of the holders of the
Preferred Stock.
6. Liquidation Rights.
(a) Upon the dissolution, liquidation or winding up of the Corporation, the
holders of the shares of this Series shall be entitled to receive out of the
assets of the Corporation, before any payment or distribution shall be made on
the Common Stock, or on any other class or series of stock ranking junior to
this Series, upon liquidation, the amount of $100.00 per share, plus a sum
equal to all dividends (whether or not earned or declared) on such shares
accrued and unpaid thereon to the date of final distribution.
(b) Neither the sale, lease or exchange (for cash, shares of stock,
securities or other consideration) of all or substantially all the property and
assets of the Corporation nor the merger or consolidation of the Corporation
into or with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purposes of this
Section 6.
(c) After the payment to the holders of the shares of this Series of the
full preferential amounts provided for in this Section 6, the holders of this
Series as such shall have no right or claim to any of the remaining assets of
the Corporation.
(d) In the event the assets of the Corporation available for distribution to
the holders of shares of this Series upon any dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to paragraph (a) of this Section 6, no such distribution shall be made
on account of any shares of any other class or series of capital stock ranking
on a parity with the shares of this Series upon such dissolution, liquidation
or winding up unless proportionate distributive amounts shall be paid on
account of the shares of this Series, ratably, in proportion to the full
distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up.
-11-
<PAGE> 12
(e) Upon the dissolution, liquidation or winding up of the Corporation, the
holders of shares of this Series then outstanding shall be entitled to be paid
out of the assets of the Corporation available for distribution to its
stockholders all amounts to which such holders are entitled pursuant to
paragraph (a) of this Section 6 before any payment shall be made to the holders
of any class of capital stock of the Corporation ranking junior upon
liquidation to this Series.
7. Ranking. The Corporation's Adjustable Rate Preferred Stock, Series 1,
shall rank, both as to dividends and upon liquidation, on a parity with the
shares of this Series, and any stock of any class or classes of the Corporation
shall be deemed to rank:
(a) Prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be, in preference or priority
to the holders of shares of this Series;
(b) On a parity with shares of this Series, either as to dividends or upon
liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking fund provisions, if any,
be different from those of this Series, if the holders of such stock shall be
entitled to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case may be,
in proportion to their respective dividend rates or liquidation prices, without
preference or priority, one over the other, as between the holders of such
stock and the holders of shares of this Series; and
(c) Junior to shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of shares of
this Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation,
as the case may be, in preference or priority to the holders of shares of such
class or classes.
IN WITNESS WHEREOF, BankAmerica Corporation has caused its corporate seal to
be hereunder affixed and this certificate to be signed by Richard M. Rosenberg,
its Chairman, and the same to be
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<PAGE> 13
attested by Cheryl Sorokin, its Executive Vice President and Secretary, this
1st day of August, 1994.
BANKAMERICA CORPORATION
By /s/ Richard M. Rosenberg
--------------------------------
Richard M. Rosenberg, Chairman
[Corporate Seal]
Attest:
/s/ Cheryl A. Sorokin
- -------------------------
Executive Vice President
and Secretary
-13-
<PAGE> 1
Exhibit 3a
CERTIFICATE OF INCORPORATION
_____________________________
BANKAMERICA CORPORATION
LAST AMENDED ON
OR ABOUT AUGUST 1, 1994
<PAGE> 2
INDEX
BANKAMERICA CERTIFICATE OF INCORPORATION
<TABLE>
<CAPTION>
ARTICLE SECTION PAGE
<S> <C> <C> <C>
Agent, Registered.............................2 1
Amendments to Certificate of Incorporation....7 8
Amendments to By-laws.........................7 8
By-laws, Amendment of.........................7 8
Capital Stock.................................4 I 1
Certificate of Incorporation, Amendments of...7 8
Corporation:
Address of..................................2 1
Name of.....................................1 1
Purpose of..................................3 1
Directors, Election of........................4 II(3) 3
Director Liability............................9 8
Dividend Rights...............................4 II(2) 2
Incorporator:
Address of..................................5 8
Name of.....................................5 8
Liquidation Rights............................4 II(5) 7
Preferred Stock...............................4 II(1) 1, 1a,
1b, 1c,
1d,
1e, 1f,
1g, 1h,
1i, 1j,
1k, 1l,
1m, 1n
Stockholders:
Dividend Rights of..........................4 II(2) 2
Liquidation Rights of.......................4 II(5) 7
Meetings of.................................6 8
Voting Rights of............................4 II(3) 3
Action by Written Consent Denied............8 8
Stock:
Capital.....................................4 I 1
Dividend Rights.............................4 II(2) 2
Liquidation of..............................4 II(5) 7
Preferred...................................4 II(1) 1, 1a,
1b,
1c,
1d,
1e, 1f,
1g, 1h,
1i, 1j,
1k, 1l,
1m, 1n
Redemption Provisions.......................4 II(4) 5
Voting Rights...............................4 II(3) 3
</TABLE>
-i-
<PAGE> 3
INDEX
BANKAMERICA CERTIFICATE OF INCORPORATION
ARTICLE SECTION PAGE
Certificate of Designation, Preferences and Rights of
Cumulative Adjustable Preferred Stock, Series A 1a-12a
Certificate of Designation, Preferences and Rights of
Cumulative Adjustable Preferred Stock, Series B 1b-12b
Certificate of Designation of Cumulative Participating
Preferred Stock, Series E 1c-10c
Certificate of Designation of Cumulative Preferred
Stock, Series F 1d-8d
Certificate of Designation of Cumulative Convertible
Preferred Stock, Series G 1e-17e
Certificate of Designation of Cumulative Preferred
Stock, Series H 1f-8f
Certificate of Designation of 11% Preferred Stock,
Series I 1g-11g
Certificate of Designation of 11% Preferred Stock,
Series J 1h-11h
Certificate of Designation of Cumulative Preferred
Stock, Series K 1i-9i
Certificate of Designation of Cumulative Preferred
Stock, Series L 1j-9j
Certificate of Designation of 7 7/8% Cumulative Preferred
Stock, Series M 1k-9k
Certificate of Designation of 8 1/2% Cumulative Preferred
Stock, Series N 1l-10l
Certificate of Designation of Adjustable Rate Preferred
Stock, Series 1 1m-15m
-ii-
<PAGE> 4
INDEX
BANKAMERICA CERTIFICATE OF INCORPORATION
ARTICLE SECTION PAGE
Certificate of Designation of Adjustable Rate Cumulative
Preferred Stock, Series 2 1n-13n
-iii-
<PAGE> 5
CERTIFICATE OF INCORPORATION
OF
BANKAMERICA CORPORATION
FIRST. The name of the Corporation is
BankAmerica Corporation
SECOND. The address of its registered office in the State
of Delaware is No. 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of its registered agent at such address is The Corporation
Trust Company.
THIRD. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
FOURTH. I. The Corporation may issue 770,000,000 shares of
capital stock, including 70,000,000 preferred shares, without par value, and
700,000,000 common shares, par value $1.5625 per share. Except as otherwise
expressly provided by this Certificate of Incorporation or the resolution or
resolutions of the Board of Directors providing for the issue of a series of
preferred stock, stock of any class or classes may be increased or decreased by
the affirmative vote of the holders of a majority of the stock of the
Corporation at the time entitled to vote.
II. A statement of the designations and the powers,
preferences and rights, and the qualifications, limitations or restrictions
thereof, in respect of the classes of capital stock of this Corporation is as
follows:
1. Series of Preferred Stock. The preferred stock
shall be issuable in one or more series with such voting powers, full or
limited, and such designations, preferences and relative, participating,
optional or other special rights and qualifications, limitations or
restrictions thereof, as shall be stated and expressed in this Certificate of
Incorporation or any amendment hereto, or in the resolution or resolutions
providing for the issue of such stock, or series thereof, adopted, at any time
and from time to time, by the Board of Directors of the Corporation pursuant to
the authority hereby expressly vested in the Board of Directors.
Except as otherwise expressly provided by the Delaware law
or this Certificate of Incorporation, there shall be no limitation or
restriction on variation between any of the different series of preferred
stock. All preferred stock of all series shall share pro rata in the payment
of all
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<PAGE> 6
dividends on the preferred stock at the various rates fixed for each series and
in any amounts payable or distributable upon liquidation, dissolution or
winding up of the Corporation to the extent of the respective liquidation
preferences fixed for each series; and, except for variations between the
different series of preferred stock, as herein expressly provided or permitted,
all series of preferred stock shall rank on a parity. All preferred stock of
any one series shall be entitled to the same dividend rate and shall have the
same voting, redemption, conversion, liquidation and other rights, preferences,
privileges, limitations and restrictions.
2. Dividend Rights. The holders of the preferred stock
of all series shall be entitled to receive, when and as declared by the Board
of Directors, dividends at the rate or rates fixed for the respective series,
and no more, without priority of one series over any other series, out of funds
of the Corporation legally available therefor, payable in cash quarterly on
such dates as may be fixed by the Board of Directors as to any series of
preferred stock (the periods between any such dates, commencing on such dates,
being herein designated as "dividend periods"). Dividends on the preferred
stock of any series shall be cumulative from and after such date as may be
fixed by the Board of Directors prior to the issuance thereof. Such dividends
on the preferred stock of all series shall be declared and paid or set apart
for payment before any dividend shall be declared or paid or set apart for
payment on, or any other distribution made in respect of, the common stock, and
shall be cumulative as above provided so that if, in any dividend period,
dividends at the respective rates fixed for each such series shall not have
been declared and paid or set apart for payment on all outstanding shares of
each such series for such dividend period and all preceding dividend periods
from and after the date from which dividends on each such series shall be
cumulative, then the aggregate deficiency shall be fully paid or declared and
set apart for payment, but without interest, before any dividends shall be
declared or paid or set apart for payment on, or any other distribution made in
respect of the common stock.
After full cumulative dividends on the outstanding preferred
stock of all series shall have been paid or set apart for payment for all
previous dividend periods and for the then current dividend period, as above
provided, and after sufficient funds shall have been set aside to meet all
matured obligations, if any, of the Corporation with respect to all sinking
funds, retirement funds or purchase funds for any series of preferred stock,
then and not otherwise, as long as any preferred stock of any series shall
remain outstanding, dividends may be declared and paid or set apart for payment
on the common stock in the discretion of the Board of Directors out of any
funds of the Corporation thereafter remaining and legally available therefor.
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<PAGE> 7
Accumulations of dividends, whether declared or passed,
shall not bear interest.
3. Voting Rights. Except as otherwise expressly
provided by Delaware law or this Certificate of Incorporation or the resolution
or resolutions of the Board of Directors providing for the issue of a series of
preferred stock, the holders of the common stock shall possess exclusive voting
power for the election of Directors and for all other purposes. Every holder
of record of common stock entitled to vote and, except as otherwise expressly
provided in the resolution or resolutions of the Board of Directors providing
for the issue of a series of preferred stock, every holder of record of any
series of preferred stock at the time entitled to vote, shall be entitled to
one vote for each share held.
Whenever and as often as dividends payable on the preferred
stock at the time outstanding shall be accumulated and unpaid in an amount
equivalent to or exceeding six quarterly dividends (whether or not declared and
whether consecutive or not), the holders of record of the preferred stock of
all series shall thereafter have the right, as a single class, to elect two
directors, and, subject to the terms of any outstanding series of preferred
stock, the holders of record of the common stock, as a single class, shall have
the right to elect the remaining authorized number of Directors.
Upon the happening of the six (6) dividend defaults
hereinabove set forth, a special meeting of stockholders of the Corporation
then entitled to vote shall be called by the Chairman of the Board or the
President or the Secretary of the Corporation, if requested in writing by the
holders of record of not less than ten (10) per cent of the preferred stock
then outstanding. At such special meeting, or, if no such special meeting
shall have been called, then at the next annual meeting of stockholders, the
stockholders of the Corporation then entitled to vote shall elect, voting as
above provided, an entirely new Board of Directors, and the term of office of
the Directors in office at the time of such election shall expire upon the
election of their successors at such meeting; provided, however, that nothing
herein contained shall be construed to be a bar to the re-election of any
Director at such meeting. At all meetings of stockholders at which holders of
preferred stock shall be entitled to vote for Directors as a single class, the
holders of a majority of the outstanding shares of each class or series of
capital stock of the Corporation having the right to vote as a single class
shall be necessary to constitute a quorum, whether present in person or by
proxy, for the election by that class or series of its designated Directors.
In order to validate an election of Directors by stockholders voting as a
class, such Directors shall be elected by the vote of at least a plurality of
shares held by such stockholders present or
-3-
<PAGE> 8
represented at the meeting. At any such meeting, the election of Directors by
stockholders voting as a class shall be valid notwithstanding that a quorum of
other stockholders voting as one or more classes may not be present or
represented at such meeting, and if any stockholders voting as a class shall
elect Directors, the Directors so elected shall be deemed to be Directors of
the Corporation unless and until the other stockholders entitled to vote as one
or more classes shall elect their Directors.
While class voting is in effect with respect to the
preferred stock, any Director elected by holders of preferred stock voting as a
class may be removed at any annual or special meeting, by vote of a majority of
the stockholders voting as a class who elected such Director, for any cause
deemed sufficient by such stockholders present at such meeting. In case any
vacancy shall occur among the Directors elected by such stockholders voting as
a class, such vacancy may be filled by the remaining Director so elected, or
his successor then in office, and the Director so elected to fill such vacancy
shall serve until the next meeting of stockholders for the election of
Directors.
Such voting rights of the holders of preferred stock as a
single class, once effective, shall continue only until all arrears in
dividends (whether or not declared) on the preferred stock shall have been paid
or declared and set apart for payment at which time the right of the preferred
stock to vote as a single class for the election of Directors, as hereinabove
set forth, shall terminate. Upon such termination, a special meeting of the
stockholders of the corporation then entitled to vote may be called by the
Chairman of the Board or the President, and shall be called by the Chairman of
the Board or the President or the Secretary of the Corporation if requested in
writing by the holders of record of not less than one (1) per cent of the
common stock then outstanding, and at such special meeting, or if no such
special meeting shall have been called then at the next annual meeting of the
stockholders, the stockholders of the Corporation then entitled to vote shall
elect an entirely new Board of Directors and the term of office of the
Directors in office at the time of such election shall expire upon the election
of their successors at such meeting; provided, however, that nothing herein
contained shall be construed to be a bar to the re-election of any such
Director at such meeting.
The consent of the holders of at least two-thirds of the
number of shares of preferred stock at the time outstanding, given in person or
by proxy, either in writing or at a meeting of stockholders at which the
holders of the preferred stock shall vote separately as a class, shall be
necessary for effecting or validating:
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<PAGE> 9
(a) any change in the Certificate of Incorporation or
By-laws of the Corporation which would materially and adversely alter or change
the preferences, privileges, rights or powers given to the holders of the
preferred stock, provided, that if one or more but not all series of preferred
stock at the time outstanding are so affected, only the consent of the holders
of at least two-thirds of each series so affected, voting separately as a
class, shall be required; or
(b) the issuance of any shares of any other class of
stock of the Corporation ranking prior to the preferred stock.
The term "ranking prior to the preferred stock" shall mean
and include all shares of stock of the Corporation in respect of which the
rights of the holders thereof as to the payment of dividends or as to
distributions in the event of a voluntary or an involuntary liquidation,
dissolution or winding up of the Corporation, are given preference over the
rights of the holders of the preferred stock.
4. Redemption Provisions. Every series of preferred
stock shall be subject to redemption at the election of the Corporation and by
operation of the respective sinking funds, retirement funds or purchase funds
of any series thereof, in whole or in part, at any time or from time to time,
at such price or prices and upon such other terms and conditions as stated in
this Certificate of Incorporation, or at such price or prices and upon such
other terms and conditions, not inconsistent with the express provisions of
this Certificate of Incorporation, as shall be fixed in the resolution or
resolutions of the Board of Directors providing for the issue of such series of
preferred stock.
The following additional conditions shall apply to the
redemption of all series of preferred stock:
Notice of any proposed redemption shall be given by the
Corporation by publication (not less than 30 days nor more than 90 days prior
to the redemption date) at least once in a newspaper printed in the English
language and of general circulation in the City and County of San Francisco,
State of California (upon any secular day of the week) stating such election on
the part of the Corporation and that on the redemption date there will become
due and payable upon each of the shares to be redeemed, at the place or places
specified in such notice, the applicable redemption price therein specified. A
similar notice shall be mailed by the Corporation, postage prepaid, not less
than 30 days nor more than 90 days prior to the date fixed for redemption, to
each holder of record of such shares to be redeemed at his address as shown on
the records of the Corporation. The failure to mail
-5-
<PAGE> 10
such notice or any defect in such mailing shall not invalidate the redemption
of such shares.
If less than all the shares of preferred stock of any series
are to be redeemed, redemption shall be made by lot or pro rata, in any manner
determined by the Board of Directors to be fair and proper, and the notice of
redemption shall specify the shares to be redeemed. From and after the date
fixed for redemption, unless default shall be made by the Corporation in
payment of the redemption price, all dividends on the shares of preferred stock
called for redemption shall cease to accrue and all rights of the holders of
such shares as shareholders of the Corporation shall cease and terminate,
except the right to receive the applicable redemption price, without interest,
upon surrender of the certificates representing the shares so called for
redemption, duly endorsed for transfer, if required.
If the Corporation, on or prior to the date fixed for the
redemption of any of the preferred stock, shall deposit with a bank or trust
company doing business in San Francisco, California, as a trust fund for the
benefit of the respective holders of such shares to be redeemed, sums
sufficient to redeem such shares called for redemption, with irrevocable
instructions and authority to such depositary to publish, in the name of the
Corporation, the notice of redemption thereof (if not theretofore published)
and to pay on or after the date fixed for such redemption to the respective
holders of such shares the redemption price thereof upon surrender of the
certificates representing the shares so called for redemption, then from and
after the time of such deposit (although prior to the date fixed for
redemption) such shares so called for redemption shall be deemed to be redeemed
and dividends thereon shall cease to accrue after said date fixed for
redemption. Said deposit shall be deemed to constitute full payment of such
shares to the respective holders thereof and such shares shall no longer be
deemed to be outstanding and the holders thereof shall cease to be shareholders
with respect to such shares and shall have no rights with respect thereto,
except only the right to receive from such bank or trust company payment of the
redemption price of such shares, without interest, upon surrender of the
certificates representing the shares so called for redemption and the right to
exercise any existing conversion rights in accordance with the express terms of
such shares. All funds so deposited and not used for redemption because of any
such conversions shall be returned to the Corporation.
No redemption or purchase of any preferred stock of any
series, through the operation of any sinking fund, retirement fund or purchase
fund therefor, or otherwise, shall be made unless full cumulative dividends on
all preferred stock of all series then outstanding which are not to be redeemed
or purchased, to the end of the dividend period next preceding such
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<PAGE> 11
redemption or purchase (and for the current dividend period if such redemption
or purchase is on a dividend payment date), shall have been paid or declared
and set apart for payment, 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.
Subject to the foregoing, the Corporation may, to the extent permitted by
Delaware law, purchase or acquire preferred stock of any series (in addition to
purchases through the respective sinking funds, retirement funds or purchase
funds for such series) at prices not exceeding the respective then applicable
voluntary redemption prices thereof, plus customary brokerage commissions paid
in connection with the purchase or acquisition thereof.
All preferred stock redeemed or otherwise retired shall
immediately on the redemption or retirement thereof be cancelled and restored
to the status of authorized but unissued preferred stock.
5. Liquidation Rights. In the event of any
liquidation, dissolution or winding up of the Corporation, voluntary or
involuntary, the holders of all shares of preferred stock of all series shall
be entitled to be paid in full out of the assets of the Corporation, without
priority between series, the respective voluntary or involuntary liquidation
price fixed for such series, and no more, plus all accrued and unpaid dividends
thereon to the date that payment is made available to the holders of such
shares, prior to any payment or distribution of any assets of the Corporation
to the holders of the common stock. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the assets of the
Corporation shall be insufficient to permit the payment in full of the amounts
payable as aforesaid to the holders of the preferred stock of all series, then,
to the exclusion of the holders of the common stock, the holders of the
preferred stock of all series shall share ratably in proportion to the amounts
which they are respectively entitled to receive in the distribution of the
entire amount of the assets of the Corporation according to the number of
shares of all series of the preferred stock which they respectively hold.
After payment to the holders of the preferred stock of all
series of the full preferential amounts to which they are respectively
entitled, as aforesaid, the holders of the common stock shall be entitled to
receive as a class, pro rata, all remaining assets of the Corporation available
for distribution to its stockholders.
Consolidation or merger of the Corporation with or into
another corporation or corporations, or a sale, whether for cash, shares of
stock, securities or properties, of all or substantially all of the assets of
the
-7-
<PAGE> 12
Corporation, shall not be deemed or construed to be a liquidation, dissolution
or winding up of the Corporation within the meaning of this paragraph 5.
FIFTH. The name and mailing address of the incorporator is
as follows:
Name: Eric Sutcliffe.
Address: 405 Montgomery Street
San Francisco, California 94104
SIXTH. Meetings of stockholders may be held within or
without the State of Delaware as the By-laws may provide. The books of the
Corporation may be kept, subject to any provision contained in the statutes,
outside the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the By-laws of the Corporation.
Elections of Directors need not be by written ballot unless a By-law of the
Corporation shall so provide.
SEVENTH. The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred on stockholders herein are granted subject to this
reservation. The Directors of the Corporation shall have the power to make,
alter or repeal By-laws of the Corporation.
EIGHTH. No action may be taken by the stockholders except
at an annual or special meeting of stockholders, and the power of stockholders
to act by written consent, without a meeting, is specifically denied.
NINTH. A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of the Delaware General Corporation Law, or (iv) for any transaction from which
the director derives any improper personal benefit. Notwithstanding the
foregoing, if the Delaware General Corporation Law is amended to further
eliminate or limit the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended,
without further stockholder action.
-8-
<PAGE> 13
Any repeal or modification of the foregoing paragraph shall
not result in any liability for a director with respect to any action or
omission occurring prior to such repeal or modification.
-9-
<PAGE> 14
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
of
CUMULATIVE ADJUSTABLE PREFERRED STOCK, SERIES A
of
BANKAMERICA CORPORATION
BANKAMERICA CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (herein referred to as the
"Corporation"), in accordance with the provisions of Section 151 of the General
Corporation Law of the State of Delaware, does hereby CERTIFY:
1. The Certificate of Incorporation, as amended, of the
Corporation fixes the total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue as two hundred ten
million (210,000,000) shares, of which ten million (10,000,000) shares shall be
shares of preferred stock, without par value, and two hundred million
(200,000,000) shares shall be common stock, of the par value of $1.5625 per
share.
2. The Certificate of Incorporation, as amended, of the
Corporation, expressly grants to the Board of Directors of the Corporation
authority to provide for the issuance of the preferred stock in one or more
series, with such voting powers, full or limited, or without voting powers, and
with such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the Certificate of Incorporation or any
amendment thereto, or in the resolution or resolutions providing for the issue
of such stock adopted by the Board of Directors.
3. Pursuant to the authority conferred upon the Board
of Directors by the Certificate of Incorporation, as amended, of the
Corporation, the Board of Directors, by actions duly taken on October 22, 1982,
adopted the following resolution providing for an initial series of the
preferred stock:
"RESOLVED that an issue of a series of the preferred stock,
without par value, of the Corporation (such preferred stock being herein
referred to as "Preferred Stock", which term shall include any additional
shares of preferred stock of the same class heretofore or hereafter authorized
to be issued by the Corporation), consisting of five million one hundred
seventy eight thousand (5,178,000) shares is hereby provided for, and the
voting power, designation, preference and relative, participating,
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<PAGE> 15
optional or other special rights, and qualifications, limitations or
restrictions thereof, are fixed hereby as follows:
1. Designation. The designation of such
series shall be "Cumulative Adjustable Preferred Stock, Series A"
(hereinafter referred to as the "Series A Preferred Stock") and the
number of shares constituting such series is five million one
hundred seventy eight thousand (5,178,000). Shares of Series A
Preferred Stock shall have a stated value of $50 per share. The
number of authorized shares of Series A Preferred Stock may be
reduced by further resolution duly adopted by the Board of Directors
of the Corporation or the Executive Committee of the Board of
Directors and by the filing of a certificate pursuant to the
provisions of the General Corporation Law of the State of Delaware
stating that such reduction has been so authorized, but the number
of authorized shares of Series A Preferred Stock shall not be
increased.
2. Dividends. Dividend rates on the shares
of Series A Preferred Stock shall be: (i) for the period (the
"Initial Dividend Period") from the respective dates of original
issue thereof to and including February 28, 1983, the rate shall be
10.25% per annum, and (ii) for each Quarterly Dividend Period
(hereinafter referred to as a "Quarterly Dividend Period"; and the
Initial Dividend Period or any Quarterly Dividend Period being
hereinafter individually referred to as a "Dividend Period" and
collectively referred to as "Dividend Periods") thereafter, which
Quarterly Dividend Periods shall commence on March 1, June 1,
September 1 and December 1 in each year and shall end on and include
the day next preceding the first day of the next Quarterly Dividend
Period, at a rate per annum of the stated value thereof equal to the
Applicable Rate (as defined in Section 3) in respect of such
Quarterly Dividend Period. Such dividends shall be cumulative from
the respective dates of original issue of such shares and shall be
payable, when and as declared by the Board of Directors, on February
28, May 31, August 31 and November 30 of each year, commencing
November 30, 1982. Each such dividend shall be paid to the holders
of record of shares of Series A Preferred Stock as they appear on
the stock register of the Corporation on such record date, not
exceeding 30 days preceding the payment date thereof, as shall be
fixed by the Board of Directors of the Corporation. Dividends on
account of arrears for any past Dividend Periods may be declared and
paid at any time, without reference to any regular dividend payment
date, to holders of record on such date, not exceeding 45 days
preceding the payment date thereof, as may be fixed by the Board of
Directors of the Corporation. If there shall be outstanding shares
of any other series of Preferred Stock ranking on a parity as to
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<PAGE> 16
dividends with the Series A Preferred Stock, the Corporation, in
making any dividend payment on account of arrears on the Series A
Preferred Stock or such other series of Preferred Stock, shall make
payments ratably upon all outstanding shares of Series A Preferred
Stock and such other series of Preferred Stock in proportion to the
respective amounts of dividends in arrears upon all such outstanding
shares of Series A Preferred Stock and such other series of
Preferred Stock to the date of such dividend payment. No interest,
or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments which may be in arrears.
The amount of dividends per share payable for each
Quarterly Dividend Period shall be computed by dividing the dividend
rate for such Dividend Period by four and applying such rate against
the stated value per share of the Series A Preferred Stock.
Dividends payable on the Series A Preferred Stock for any period
less than a full Quarterly Dividend Period, and for any portion of
the Initial Dividend Period occurring prior to November 30, 1982,
shall be computed on the basis of a 360-day year of four 90-day
quarters and the actual number of days elapsed in the period for
which payable.
3. Definition of Applicable Rate, etc.
Except as provided below in this paragraph, the "Applicable Rate"
for any Quarterly Dividend Period shall be (a) 2.00% less than (b)
the highest of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate or the Twenty Year Constant Maturity Rate (each as
hereinafter defined) for such Dividend Period. If the Corporation
determines in good faith that for any reason one or more of such
rates cannot be determined for any Dividend Period, then the
Applicable Rate for such Dividend Period shall be 2.00% less than
the higher of whichever of such rates can be so determined. If the
Corporation determines in good faith that none of such rates can be
determined for any Dividend Period, then the Applicable Rate in
effect for the preceding Dividend Period shall be continued for such
Dividend Period. Anything herein to the contrary notwithstanding,
the Applicable Rate for any Quarterly Dividend Period shall in no
event be less than 6.50% per annum or greater than 14.50% per annum.
Except as provided below in this paragraph, the
"Treasury Bill Rate" for each Quarterly Dividend Period shall be the
arithmetic average of the two weekly per annum market discount rates
(or the one weekly per annum market discount rate, if only one such
rate shall be published during the relevant Calendar Period as
provided below) for three-month U.S. Treasury bills, as published
weekly by the Federal Reserve Board during the Calendar Period
immediately prior to the ten
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<PAGE> 17
calendar days immediately preceding the February 28, May 31, August
31 and November 30, as the case may be, prior to the Quarterly
Dividend Period for which the dividend rate on the Series A
Preferred Stock is being determined. If the Federal Reserve Board
does not publish such a weekly per annum market discount rate during
such Calendar Period, then the Treasury Bill Rate for such Dividend
Period shall be the arithmetic average of the two weekly per annum
market discount rates (or the one weekly per annum market discount
rate, if only one such rate shall be published during the relevant
Calendar Period as provided below) for three-month U.S. Treasury
bills, as published weekly during such Calendar Period by any
Federal Reserve Bank or by any U.S. Government department or agency
selected by the Corporation. If a per annum market discount rate
for three-month U.S. Treasury bills shall not be published by the
Federal Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period, then
the Treasury Bill Rate for such Dividend Period shall be the
arithmetic average of the two weekly per annum market discount rates
(or the one weekly per annum market discount rate, if only one such
rate shall be published during the relevant Calendar Period as
provided below) for all the U.S. Treasury bills then having
maturities of not less than 80 nor more than 100 days, as finally
published during such Calendar Period by the Federal Reserve Board
or, if the Federal Reserve Board shall not publish such rates, by
any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Corporation. If the Corporation determines
in good faith that for any reason no such U.S. Treasury bill rates
are published as provided above during such Calendar Period, then
the Treasury Bill Rate for such Dividend Period shall be the
arithmetic average of the per annum market discount rates based upon
the closing bids during such Calendar Period for each of the issues
of marketable non-interest bearing U.S. Treasury securities with a
maturity of not less than 80 nor more than 100 days from the date of
each such quotation, as chosen and quoted daily for each business
day in New York City (or less frequently if daily quotations shall
not be generally available) to the Corporation by at least three
recognized U.S. Government securities dealers selected by the
Corporation. If the Corporation determines in good faith that for
any reason the Corporation cannot determine the Treasury Bill Rate
for any Quarterly Dividend Period as provided above in this
paragraph, the Treasury Bill Rate for such Dividend Period shall be
the arithmetic average of the per annum market discount rates based
upon the closing bids during such Calendar Period for each of the
issues of marketable interest-bearing U.S. Treasury securities with
a maturity of not less than 80 nor more than 100 days from the date
of each such quotation, as chosen and quoted daily for each business
day in New York City (or
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<PAGE> 18
less frequently if daily quotations shall not be generally available) to the
Corporation by at least three recognized U.S. Government securities dealers
selected by the Corporation.
Except as provided below in this paragraph, the "Ten
Year Constant Maturity Rate" for each Quarterly Dividend Period
shall be the arithmetic average of the two weekly per annum Ten Year
Average Yields (or the one weekly per annum Ten Year Average Yield,
if only one such Yield shall be published during the relevant
Calendar Period as provided below), as published weekly by the
Federal Reserve Board during the Calendar Period immediately prior
to the ten calendar days immediately preceding the February 28, May
31, August 31 and November 30, as the case may be, prior to the
Quarterly Dividend Period for which the dividend rate on the Series
A Preferred Stock is being determined. If the Federal Reserve Board
does not publish such a weekly per annum Ten Year Average Yield
during such Calendar Period, then the Ten Year Constant Maturity
Rate for such Dividend Period shall be the arithmetic average of the
two weekly per annum Ten Year Average Yields (or the one weekly per
annum Ten Year Average Yield, if only one such Yield shall be
published during the relevant Calendar Period as provided below), as
published weekly during such Calendar Period by any Federal Reserve
Bank or by any U.S. Government department or agency selected by the
Corporation. If a per annum Ten Year Average Yield shall not be
published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such
Calendar Period, then the Ten Year Constant Maturity Rate for such
Dividend Period shall be the arithmetic average of the two per
weekly annum average yields to maturity (or the one weekly average
yield to maturity, if only one such yield shall be published during
the relevant Calendar Period as provided below) for all of the
actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) then having maturities of
not less than eight nor more than twelve years, as finally published
during such Calendar Period by the Federal Reserve Board or, if the
Federal Reserve Board shall not publish such yields, by any Federal
Reserve Bank or by any U.S. Government department or agency selected
by the Corporation. If the Corporation determines in good faith
that for any reason the Corporation cannot determine the Ten Year
Constant Maturity Rate for any Quarterly Dividend Period as provided
above in this paragraph, then the Ten Year Constant Maturity Rate
for such Dividend Period shall be the arithmetic average of the per
annum average yields to maturity based upon the closing bids during
such Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than
Special Securities) with a final maturity date not less than eight
nor
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<PAGE> 19
more than twelve years from the date of each such quotation, as
chosen and quoted daily for each business day in New York City (or
less frequently if daily quotations shall not be generally
available) to the Corporation by at least three recognized U.S.
Government securities dealers selected by the Corporation.
Except as provided below in this paragraph, the
"Twenty Year Constant Maturity Rate" for each Quarterly Dividend
Period shall be the arithmetic average of the two weekly per annum
Twenty Year Average Yields (or the one weekly per annum Twenty Year
Average Yield, if only one such Yield shall be published during the
relevant Calendar Period as provided below), as published weekly by
the Federal Reserve Board during the Calendar Period immediately
prior to the ten calendar days immediately preceding the February
28, May 31, August 31 and November 30, as the case may be, prior to
the Quarterly Dividend Period for which the dividend rate on the
Series A Preferred Stock is being determined. If the Federal
Reserve Board does not publish such a weekly per annum Twenty Year
Average Yield during such Calendar Period, then the Twenty Year
Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the two weekly per annum Twenty Year Average
Yields (or the one weekly per annum Twenty Year Average Yield, if
only one such yield shall be published during the relevant Calendar
Period as provided below), as published weekly during such Calendar
Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. If a per annum
Twenty Year Average Yield shall not be published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period, then
the Twenty Year Constant Maturity Rate for such Dividend Period
shall be the arithmetic average of the two weekly per annum average
yields to maturity (or the one weekly average yield to maturity, if
only one such yield shall be published during the relevant Calendar
Period as provided below) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special
Securities) then having maturities of not less than eighteen nor
more than twenty-two years, as finally published during such
Calendar Period by the Federal Reserve Board or, if the Federal
Reserve Board shall not publish such yields, by any Federal Reserve
Bank or by any U.S. Government department or agency selected by the
Corporation. If the Corporation determines in good faith that for
any reason the Corporation cannot determine the Twenty Year Constant
Maturity Rate for any Quarterly Dividend Period as provided above in
this paragraph, then the Twenty Year Constant Maturity Rate for such
Dividend Period shall be the arithmetic average of the per annum
average yields to maturity based upon the closing bids during such
Calendar Period for
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<PAGE> 20
each of the issues of actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities) with a
final maturity date not less than eighteen nor more than twenty-two
years from the date of each such quotation, as chosen and quoted
daily for each business day in New York City (or less frequently if
daily quotations shall not be generally available) to the
Corporation by at least three recognized U.S. Government securities
dealers selected by the Corporation.
The Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Twenty Year Constant Maturity Rate shall each
be rounded to the nearest five hundredths of a percentage point.
The Applicable Rate with respect to each Quarterly
Dividend Period will be calculated as promptly as practicable by the
Corporation according to the appropriate method described herein.
The mathematical accuracy of each such calculation will be confirmed
in writing by independent accountants of recognized standing. The
Corporation will cause each Applicable Rate to be published in a
newspaper of general circulation in New York City and San Francisco
prior to the commencement of the new Quarterly Dividend Period to
which it applies and will cause notice of such Applicable Rate to be
enclosed with the dividend payment checks next mailed to the holders
of the Series A Preferred Stock.
For purposes of this Section, the term
(i) "Calendar Period" shall mean 14 calendar
days;
(ii) "Special Securities" shall mean
securities which can, at the option of the holder, be surrendered at
face value in payment of any Federal estate tax or which provide tax
benefits to the holder and are priced to reflect such tax benefits
or which were originally issued at a deep or substantial discount;
(iii) "Ten Year Average Yield" shall mean the
average yield to maturity for actively traded marketable U.S.
Treasury fixed interest rate securities (adjusted to constant
maturities of ten years); and
(iv) "Twenty Year Average Yield" shall mean
the average yield to maturity for actively traded marketable U.S.
Treasury fixed interest rate securities (adjusted to constant
maturities of twenty years).
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<PAGE> 21
4. Redemption. The Corporation, at its option, may
redeem shares of the Series A Preferred Stock, as a whole or in part, at
any time or from time to time, at a redemption price of $50 per share plus
accrued and unpaid dividends thereon to the date fixed for redemption;
provided, however, that no shares of Series A Preferred Stock shall be
redeemed hereunder prior to November 30, 1987; and provided, further, that
in the event of any such redemption on or after November 30, 1987 and prior
to November 30, 1992, shares of the Series A Preferred Stock may be
redeemed only at a redemption price of $51.50 per share plus accrued and
unpaid dividends thereon to the date fixed for redemption.
If the Corporation shall redeem shares of Series A Preferred
Stock, notice of such redemption shall be given by first class mail,
postage prepaid, mailed not less than 60 days nor more than 90 days prior
to the redemption date, to each holder of record of the shares to be
redeemed, at such holder's address as the same appears on the stock
register of the Corporation. Each such notice shall state: (1) the
redemption date; (2) the number of shares of Series A Preferred Stock to be
redeemed and, if less than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (3)
the redemption price; (4) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price; and (5)
that dividends on the shares to be redeemed will cease to accrue on such
redemption date. Notice having been mailed as aforesaid, from and after
the redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on the
shares of the Series A Preferred Stock so called for redemption shall cease
to accrue, and said shares shall no longer be deemed to be outstanding, and
all rights of the holders thereof as stockholders of the Corporation
(except the right to receive from the Corporation the redemption price)
shall cease. Upon surrender in accordance with said notice of the
certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the Board of Directors of the Corporation shall so require and
the notice shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. If less than all the
outstanding shares of Series A Preferred Stock are to be redeemed, shares
to be redeemed shall be selected by the Corporation from outstanding shares
of Series A Preferred Stock not previously called for redemption by lot or
pro rata (as nearly as may be) or by any other method determined by the
Corporation in its sole discretion to be equitable.
In no event shall the Corporation redeem less than all the
outstanding shares of Series A Preferred Stock pursuant to the first
paragraph of this Section 4 unless full cumulative dividends shall have
been paid or declared and set apart for payment upon all outstanding shares
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<PAGE> 22
of Series A 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.
5. Shares to be Retired. All shares of Series A
Preferred Stock redeemed by the Corporation shall be retired and cancelled
and shall be restored to the status of authorized but unissued shares of
Preferred Stock, without designation as to series, and may thereafter be
issued.
6. Conversion or Exchange. The holders of shares of
Series A Preferred Stock shall not have any rights herein to convert such
shares into or exchange such shares for shares of any other class or
classes or of any other series of any class or classes of capital stock of
the Corporation.
7. Voting. Except as hereinafter in this Section 7
expressly provided or as otherwise required by law, the Series A Preferred
Stock shall have no voting power.
Whenever and as often as dividends payable on any share or
shares of the Preferred Stock at the time outstanding shall be accumulated
and unpaid in an amount equivalent to or exceeding six quarterly dividends
(whether or not declared and whether or not consecutive), the holders of
record of the Preferred Stock of all series shall thereafter have the
right, as a single class, to elect two directors, and, subject to the terms
of any outstanding series of Preferred Stock, the holders of record of the
common stock, as a single class, shall have the right to elect the
remaining authorized number of Directors. In any such election, the
holders of shares of Series A Preferred Stock shall be entitled to cast one
vote per share.
Upon the happening of the six dividend defaults hereinabove
set forth, a special meeting of stockholders of the Corporation then
entitled to vote shall be called by the Chairman of the Board or the
President or the Secretary of the Corporation, if requested in writing by
the holders of record of not less than ten percent of the Preferred Stock
then outstanding. At such special meeting, or, if no such special meeting
shall have been called, then at the next annual meeting of stockholders,
the stockholders of the Corporation then entitled to vote shall elect,
voting as above provided, an entirely new Board of Directors, and the term
of office of the Directors in office at the time of such election shall
expire upon the election of their successors at such meeting; provided,
however, that nothing herein contained shall be construed to be a bar to
the re-election of any Director at such meeting. At all meetings of
stockholders
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<PAGE> 23
at which holders of Preferred Stock shall be entitled to vote for Directors
as a single class, the holders of a majority of the outstanding shares of
each class or series of capital stock of the Corporation having the right
to vote as a single class shall be necessary to constitute a quorum,
whether present in person or by proxy, for the election by that class or
series of its designated Directors. In order to validate an election of
Directors by stockholders voting as a class, such Directors shall be
elected by the vote of at least a plurality of shares held by such
stockholders present or represented at the meeting. At any such meeting,
the election of Directors by stockholders voting as a class shall be valid
notwithstanding that a quorum of other stockholders voting as one or more
classes may not be present or represented at such meeting, and if any
stockholders voting as a class shall elect Directors, the Directors so
elected shall be deemed to be Directors of the Corporation unless and until
the other stockholders entitled to vote as one or more classes shall elect
their Directors.
While class voting is in effect with respect to the Preferred
Stock, any Director elected by holders of Preferred Stock voting as a class
may be removed at any annual or special meeting, by vote of a majority of
the stockholders voting as a class who elected such Director, for any cause
deemed sufficient by such stockholders present at such meeting. In case
any vacancy shall occur among the Directors elected by such stockholders
voting as a class, such vacancy may be filled by the remaining Director so
elected, or his successor then in office, and the Director so elected to
fill such vacancy shall serve until the next meeting of stockholders for
the election of Directors.
Such voting rights of the holders of Preferred Stock as a
single class, once effective, shall continue only until all arrears in
dividends (whether or not declared) on the Preferred Stock shall have been
paid or declared and set apart for payment at which time the right of the
Preferred Stock to vote as a single class for the election of Directors, as
hereinabove set forth, shall terminate. Upon such termination, a special
meeting of the stockholders of the Corporation then entitled to vote may be
called by the Chairman of the Board or the President, and shall be called
by the Chairman of the Board or the President or the Secretary of the
Corporation if requested in writing by the holders of record of not less
than one percent of the common stock then outstanding, and at such special
meeting, or if no such special meeting shall have been called then at the
next annual meeting of the stockholders, the stockholders of the
Corporation then entitled to vote shall elect an entirely new Board of
Directors and the term of office of the Directors in office at the time of
such election shall expire upon the election of their successors at such
meeting;
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<PAGE> 24
provided, however, that nothing herein contained shall be construed to be a
bar to the re-election of any such Director at such meeting.
The consent of the holders of at least two-thirds of the
number of shares of Preferred Stock at the time outstanding, given in
person or by proxy, either in writing or at a meeting of stockholders at
which the holders of the Preferred Stock shall vote separately as a class
without regards to series, the holders of shares of Series A Preferred
Stock being entitled to cast one vote per share thereon, shall be necessary
for effecting or validating:
(a) Any change in the Certificate of Incorporation
or certificate supplemental thereto or By-laws of the Corporation
which would materially and adversely alter or change the
preferences, privileges, rights or powers given to the holders of
the Preferred Stock, provided, that if one or more but not all
series of Preferred Stock at the time outstanding are so affected,
only the consent of the holders of at least two-thirds of each
series so affected, voting separately as a class, shall be required;
or
(b) the issuance of any shares of any other class
of stock of the Corporation ranking prior to the Preferred Stock.
The term "ranking prior to the Preferred Stock" shall mean
and include all shares of stock of the Corporation in respect of which the
rights of the holders thereof as to the payment of dividends or as to
distributions in the event of a voluntary or an involuntary liquidation,
dissolution or winding up of the Corporation, are given preference over the
rights of the holders of the Preferred Stock.
8. Liquidation Preference. In the event of any
liquidation, dissolution or winding up of the Corporation, voluntary or
involuntary, the holders of all shares of Series A Preferred Stock shall be
entitled to be paid in full out of the assets of the Corporation available
for distribution to stockholders, before any distribution of assets shall
be made to the holders of common stock or of any other shares of stock of
the Corporation ranking as to such distribution junior to the Series A
Preferred Stock, an amount equal to $50 per share plus an amount equal to
any accrued and unpaid dividends thereon to the date fixed for payment of
such distribution. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the amounts payable with
respect to the Series A Preferred Stock and any other shares of stock of
the Corporation ranking as to any such distribution on a parity with the
Series A Preferred Stock are not paid in full, the holders of the Series A
Preferred Stock and of such other shares shall share ratably in any such
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<PAGE> 25
distribution of assets of the Corporation in proportion to the full
respective preferential amounts to which they are entitled. After payment
to the holders of the Series A Preferred Stock of the full preferential
amounts provided for in this Section 8, the holders of the Series A
Preferred Stock shall be entitled to no further participation in any
distribution of assets by the Corporation.
Consolidation or merger of the Corporation with or into
another corporation or corporations, or a sale, whether for cash, shares of
stock, securities or properties, of all or substantially all of the assets
of the Corporation, shall not be deemed or construed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this
Paragraph 8.
9. Limitation on Dividends on Junior Ranking Stock. So
long as any Series A Preferred Stock shall be outstanding, the Corporation
shall not declare any dividends on the common stock of the Corporation or
any other stock of the Corporation ranking as to dividends or distribution
of assets junior to the Series A Preferred Stock (the common stock and any
such other stock being herein referred to as "Junior Stock"), or make any
payment on account of, or set apart money for, a sinking or other analogous
fund for the purchase, redemption or other retirement of any shares of
Junior Stock, or make any distribution in respect thereof, whether in cash
or property or in obligations or stock of the Corporation, other than
Junior Stock (such dividends, payments, setting apart and distributions
being herein called "Junior Stock Payments"), unless all of the conditions
set forth in the following subsections A and B shall exist at the date of
such declaration in the case of any such dividend, or the date of such
setting apart in the case of any such fund, or the date of such payment or
distribution in the case of any other Junior Stock Payment:
A. Full cumulative dividends shall have been paid or
declared and set apart for payment upon all outstanding shares of Preferred
Stock other than Junior Stock.
B. The Corporation shall not be in default or in arrears
with respect to any sinking or other analogous fund or any call for tenders
obligation or other agreement for the purchase, redemption or other
retirement of any shares of Preferred Stock other than Junior Stock."
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<PAGE> 26
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
of
CUMULATIVE ADJUSTABLE PREFERRED STOCK, SERIES B
of
BANKAMERICA CORPORATION
BANKAMERICA CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (herein referred to as the
"Corporation"), in accordance with the provisions of Section 151 of the General
Corporation Law of the State of Delaware, does hereby CERTIFY:
1. The Certificate of Incorporation, as amended, of the
Corporation fixes the total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue at two hundred ten
million (210,000,000) shares, of which ten million (10,000,000) shares shall be
shares of preferred stock, without par value, and two hundred million
(200,000,000) shares shall be common stock, of the par value of $1.5625 per
share.
2. The Certificate of Incorporation, as amended, of the
Corporation, expressly grants to the Board of Directors of the Corporation
authority to provide for the issuance of the preferred stock in one or more
series, with such voting powers, full or limited, or without voting powers, and
with such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the Certificate of Incorporation or any
amendment thereto, or in the resolution or resolutions providing for the issue
of such stock adopted by the Board of Directors.
3. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
the Board of Directors, by actions duly taken on October 22, 1982, authorized
the issuance of six million (6,000,000) shares of Cumulative Adjustable
Preferred Stock, Series A, without par value.
4. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
the Board of Directors, by actions duly taken on February 11, 1983, adopted the
following resolution providing for an additional series of the preferred stock:
"RESOLVED, that an issue of a series of the preferred stock, without
par value, of the Corporation (such preferred stock being herein referred to
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<PAGE> 27
as "Preferred Stock", which term shall include any additional shares of
preferred stock of the same class heretofore or hereafter authorized to be
issued by the Corporation), consisting of three million five hundred forty six
thousand one hundred (3,546,100) shares is hereby provided for, and the voting
power, designation, preference and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof, are
fixed hereby as follows:
1. Designation. The designation of such series shall be
"Cumulative Adjustable Preferred Stock, Series B" (hereinafter referred to
as the "Series B Preferred Stock") and the number of shares constituting
such series is three million five hundred forty six thousand one hundred
(3,546,100). Shares of Series B Preferred Stock shall have a stated value
of $100.00 per share. The number of authorized shares of Series B
Preferred Stock may be reduced by further resolution duly adopted by the
Board of Directors of the Corporation or the Executive Committee of the
Board of Directors and by the filing of a certificate pursuant to the
provisions of the General Corporation Law of the State of Delaware stating
that such reduction has been so authorized, but the number of authorized
shares of Series B Preferred Stock shall not be increased.
2. Dividends. Dividend rates on the shares of Series B
Preferred Stock shall be: (i) for the period (the "Initial Dividend
Period") from the respective dates of original issue thereof to and
including May 31, 1983, the rate shall be 9.25% per annum, and (ii) for
each Quarterly Dividend Period (hereinafter referred to as a "Quarterly
Dividend Period"; and the Initial Dividend Period or any Quarterly Dividend
Period being hereinafter individually referred to as a "Dividend Period"
and collectively referred to as "Dividend Periods") thereafter, which
Quarterly Dividend Periods shall commence on March 1, June 1, September 1
and December 1 in each year and shall end on and include the day next
preceding the first day of the next Quarterly Dividend Period, at a rate
per annum of the stated value thereof equal to the Applicable Rate (as
defined in Section 3) in respect of such Quarterly Dividend Period. Such
dividends shall be cumulative from the respective dates of original issue
of such shares and shall be payable, when and as declared by the Board of
Directors, on February 28, May 31, August 31 and November 30 of each year,
commencing February 28, 1983. Each such dividend shall be paid to the
holders of record of shares of Series B Preferred Stock as they appear on
the stock register of the Corporation on such record date, not exceeding 30
days preceding the payment date thereof, as shall be fixed by the Board of
Directors of the Corporation. Dividends on account of arrears for any past
Dividend Periods may be declared and paid at any time, without reference to
any regular dividend payment date, to holders of record on such date, not
exceeding 45 days preceding the payment date thereof, as may
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be fixed by the Board of Directors of the Corporation. If there shall be
outstanding shares of any other series of Preferred Stock ranking on a
parity as to dividends with the Series B Preferred Stock, the Corporation,
in making any dividend payment on account of arrears on the Series B
Preferred Stock or such other series of Preferred Stock, shall make
payments ratably upon all outstanding shares of Series B Preferred Stock
and such other series of Preferred Stock in proportion to the respective
amounts of dividends in arrears upon all such outstanding shares of Series
B Preferred Stock and such other series of Preferred Stock to the date of
such dividend payment. No interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or payments which may
be in arrears.
The amount of dividends per share payable for each Quarterly
Dividend Period shall be computed by dividing the dividend rate for such
Dividend Period by four and applying such rate against the stated value per
share of the Series B Preferred Stock. Dividends payable on the Series B
Preferred Stock for any period less than a full Quarterly Dividend Period,
and for any portion of the Initial Dividend Period occurring prior to
February 28, 1983, shall be computed on the basis of a 360-day year of four
90-day quarters and the actual number of days elapsed in the period for
which payable.
3. Definition of Applicable Rate, etc. Except as
provided below in this paragraph, the "Applicable Rate" for any Quarterly
Dividend Period shall be (a) 4.00% less than (b) the highest of the
Treasury Bill Rate, the Ten Year Constant maturity Rate or the Twenty Year
Constant Maturity Rate (each as hereinafter defined) for such Dividend
Period. If the Corporation determines in good faith that for any reason
one or more of such rates cannot be determined for any Dividend Period,
then the Applicable Rate for such Dividend Period shall be 4.00% less than
the higher of whichever of such rates can be so determined. If the
Corporation determines in good faith that none of such rates can be
determined for any Dividend Period, then the Applicable Rate in effect for
the preceding Dividend Period shall be continued for such Dividend Period.
Anything herein to the contrary notwithstanding, the Applicable Rate for
any Quarterly Dividend Period shall in no event be less than 6.00% per
annum or greater than 12.00% per annum.
Except as provided below in this paragraph, the "Treasury
Bill Rate" for each Quarterly Dividend Period shall be the arithmetic
average of the two weekly per annum market discount rates (or the one
weekly per annum market discount rate, if only one such rate shall be
published during the relevant Calendar Period as provided below) for
three-month U.S. Treasury bills, as published weekly by the Federal Reserve
Board during the Calendar
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Period immediately prior to the ten calendar days immediately preceding the
February 28, May 31, August 31 and November 30, as the case may be, prior
to the Quarterly Dividend Period for which the dividend rate on the Series
B Preferred Stock is being determined. If the Federal Reserve Board does
not publish such a weekly per annum market discount rate during such
Calendar Period, then the Treasury Bill Rate for such Dividend Period shall
be the arithmetic average of the two weekly per annum market discount rates
(or the one weekly per annum market discount rate, if only one such rate
shall be published during the relevant Calendar Period as provided below)
for three-month U.S. Treasury bills, as published weekly during such
Calendar Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. If a per annum market
discount rate for three-month U.S. Treasury bills shall not be published by
the Federal Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period, then the
Treasury Bill Rate for such Dividend Period shall be the arithmetic average
of the two weekly per annum market discount rates (or the one weekly per
annum market discount rate, if only one such rate shall be published during
the relevant Calendar Period as provided below) for all the U.S. Treasury
bills then having maturities of not less than 80 nor more than 100 days, as
finally published during such Calendar Period by the Federal Reserve Board
or, if the Federal Reserve Board shall not publish such rates, by any
Federal Reserve Bank or by any U.S. Government department or agency
selected by the Corporation. If the Corporation determines in good faith
that for any reason no such U.S. Treasury bill rates are published as
provided above during such Calendar Period, then the Treasury Bill Rate for
such Dividend Period shall be the arithmetic average of the per annum
market discount rates based upon the closing bids during such Calendar
Period for each of the issues of marketable non-interest bearing U.S.
Treasury securities with a maturity of not less than 80 nor more than 100
days from the date of each such quotation, as chosen and quoted daily for
each business day in New York City (or less frequently if daily quotations
shall not be generally available) to the Corporation by at least three
recognized U.S. Government securities dealers selected by the Corporation.
If the Corporation determines in good faith that for any reason the
Corporation cannot determine the Treasury Bill Rate for any Quarterly
Dividend Period as provided above in this paragraph, the Treasury Bill Rate
for such Dividend Period shall be the arithmetic average of the per annum
market discount rates based upon the closing bids during such Calendar
Period for each of the issues of marketable interest-bearing U.S. Treasury
securities with a maturity of not less than 80 nor more than 100 days from
the date of each such quotation, as chosen and quoted daily for each
business day in New York City (or less frequently if daily quotations shall
not be generally available) to the Corporation by at least
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three recognized U.S. Government securities dealers selected by the
Corporation.
Except as provided below in this paragraph, the "Ten Year
Constant Maturity Rate" for each Quarterly Dividend Period shall be the
arithmetic average of the two weekly per annum Ten Year Average Yields (or
the one weekly per annum Ten Year Average Yield, if only one such Yield
shall be published during the relevant Calendar Period as provided below),
as published weekly by the Federal Reserve Board during the Calendar Period
immediately prior to the ten calendar days immediately preceding the
February 28, May 31, August 31 and November 30, as the case may be, prior
to the Quarterly Dividend Period for which the dividend rate on the Series
B Preferred Stock is being determined. If the Federal Reserve Board does
not publish such a weekly per annum Ten Year Average Yield during such
Calendar Period, then the Ten Year Constant Maturity Rate for such Dividend
Period shall be the arithmetic average of the two weekly per annum Ten Year
Average Yields (or the one weekly per annum Ten Year Average Yield, if only
one such Yield shall be published during the relevant Calendar Period as
provided below), as published weekly during such Calendar Period by any
Federal Reserve Bank or by any U.S. Government department or agency
selected by the Corporation. If a per annum Ten Year Average Yield shall
not be published by the Federal Reserve Board or by any Federal Reserve
Bank or by any U.S. Government department or agency during such Calendar
Period, then the Ten Year Constant Maturity Rate for such Dividend Period
shall be the arithmetic average of the two weekly per annum average yields
to maturity (or the one weekly average yield to maturity, if only one such
yield shall be published during the relevant Calendar Period as provided
below) for all of the actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities) then having
maturities of not less than eight nor more than twelve years, as finally
published during such Calendar Period by the Federal Reserve Board or, if
the Federal Reserve Board shall not publish such yields, by any Federal
Reserve Bank or by any U.S. Government department or agency selected by
the Corporation. If the Corporation determines in good faith that for any
reason the Corporation cannot determine the Ten Year Constant Maturity Rate
for any Quarterly Dividend Period as provided above in this paragraph, then
the Ten Year Constant Maturity Rate for such Dividend Period shall be the
arithmetic average of the per annum average yields to maturity based upon
the closing bids during such Calendar Period for each of the issues of
actively traded marketable U.S. Treasury fixed interest rate securities
(other than Special Securities) with a final maturity date not less than
eight nor more than twelve years from the date of each such quotation, as
chosen and quoted daily for each business day in New York City (or less
frequently if daily quotations shall not be generally available) to the
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<PAGE> 31
Corporation by at least three recognized U.S. Government securities dealers
selected by the Corporation.
Except as provided below in this paragraph, the "Twenty Year
Constant Maturity Rate" for each Quarterly Dividend Period shall be the
arithmetic average of the two weekly per annum Twenty Year Average Yields
(or the one weekly per annum Twenty Year Average Yield, if only one such
Yield shall be published during the relevant Calendar Period as provided
below), as published weekly by the Federal Reserve Board during the
Calendar Period immediately prior to the ten calendar days immediately
preceding the February 28, May 31, August 31 and November 30, as the case
may be, prior to the Quarterly Dividend Period for which the dividend rate
on the Series B Preferred Stock is being determined. If the Federal
Reserve Board does not publish such a weekly per annum Twenty Year Average
Yield during such Calendar Period, then the Twenty Year Constant Maturity
Rate for such Dividend Period shall be the arithmetic average of the two
weekly per annum Twenty Year Average Yields (or the one weekly per annum
Twenty Year Average Yield, if only one such Yield shall be published during
the relevant Calendar Period as provided below), as published weekly during
such Calendar Period by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. If a per annum Twenty
Year Average Yield shall not be published by the Federal Reserve Board or
by any Federal Reserve Bank or by any U.S. Government department or agency
during such Calendar Period, then the Twenty Year Constant Maturity Rate
for such Dividend Period shall be the arithmetic average of the two weekly
per annum average yields to maturity (or the one weekly average yield to
maturity, if only one such yield shall be published during the relevant
Calendar Period as provided below) for all of the actively traded
marketable U.S. Treasury fixed interest rate securities (other than Special
Securities) then having maturities of not less than eighteen nor more than
twenty-two years, as finally published during such Calendar Period by the
Federal Reserve Board or, if the Federal Reserve Board shall not publish
such yields, by any Federal Reserve Bank or by any U.S. Government
department or agency selected by the Corporation. If the Corporation
determines in good faith that for any reason the Corporation cannot
determine the Twenty Year Constant Maturity Rate for any Quarterly Dividend
Period as provided above in this paragraph, then the Twenty Year Constant
Maturity Rate for such Dividend Period shall be the arithmetic average of
the per annum average yields to maturity based upon the closing bids during
such Calendar Period for each of the issues of actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special
Securities) with a final maturity date not less than eighteen nor more than
twenty-two years from the date of each such quotation, as chosen and quoted
daily for each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Corporation by at least
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three recognized U.S. Government securities dealers selected by the
Corporation.
The Treasury Bill Rate, the Ten Year Constant Maturity Rate
and the Twenty Year Constant Maturity Rate shall each be rounded to the
nearest five hundredths of a percentage point.
The Applicable Rate with respect to each Quarterly Dividend
Period will be calculated as promptly as practicable by the Corporation
according to the appropriate method described herein. The mathematical
accuracy of each such calculation will be confirmed in writing by
independent accountants of recognized standing. The Corporation will cause
each Applicable Rate to be published in a newspaper of general circulation
in New York City and San Francisco prior to the commencement of the new
Quarterly Dividend Period to which it applies and will cause notice of such
Applicable Rate to be enclosed with the dividend payment checks next mailed
to the holders of the Series B Preferred Stock.
For purposes of this Section, the term
(i) "Calendar Period" shall mean 14 calendar
days;
(ii) "Special Securities" shall mean
securities which can, at the option of the holder, be surrendered at
face value in payment of any Federal estate tax or which provide tax
benefits to the holder and are priced to reflect such tax benefits
or which were originally issued at a deep or substantial discount;
(iii) "Ten Year Average Yield" shall mean the
average yield to maturity for actively traded marketable U.S.
Treasury fixed interest rate securities (adjusted to constant
maturities of ten years); and
(iv) "Twenty Year Average Yield" shall mean
the average yield to maturity for actively traded marketable U.S.
Treasury fixed interest rate securities (adjusted to constant
maturities of twenty years).
4. Redemption. The Corporation, at its option, may
redeem shares of the Series B Preferred Stock, as a whole or in part, at
any time or from time to time, at a redemption price of $100.00 per share
plus accrued and unpaid dividends thereon to the date fixed for redemption;
provided, however, that no shares of Series B Preferred Stock shall be
redeemed hereunder prior to February 28, 1988; and provided, further, that
in the event of any such redemption on or after February 28, 1988 and prior
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<PAGE> 33
to February 28, 1993, shares of the Series B Preferred Stock may be
redeemed only at a redemption price of $103.00 per share plus accrued and
unpaid dividends thereon to the date fixed for redemption.
If the Corporation shall redeem shares of Series B Preferred
Stock, notice of such redemption shall be given by first class mail,
postage prepaid, mailed not less than 60 nor more than 90 days prior to the
redemption date, to each holder of record of the shares to be redeemed, at
such holder's address as the same appears on the stock register of the
Corporation. Each such notice shall state: (1) the redemption date; (2)
the number of shares of Series B Preferred Stock to be redeemed and, if
less than all the shares held by such holder are to be redeemed, the number
of such shares to be redeemed from such holder; (3) the redemption price;
(4) the place or places where certificates for such shares are to be
surrendered for payment of the redemption price; and (5) that dividends on
the shares to be redeemed will cease to accrue on such redemption date.
Notice having been mailed as aforesaid, from and after the redemption date
(unless default shall be made by the Corporation in providing money for the
payment of the redemption price) dividends on the shares of the Series B
Preferred Stock so called for redemption shall cease to accrue, and said
shares shall no longer be deemed to be outstanding, and all rights of the
holders thereof as stockholders of the Corporation (except the right to
receive from the Corporation the redemption price) shall cease. Upon
surrender in accordance with said notice of the certificates for any shares
so redeemed (properly endorsed or assigned for transfer, if the Board of
Directors of the Corporation shall so require and the notice shall so
state), such shares shall be redeemed by the Corporation at the redemption
price aforesaid. If less than all the outstanding shares of Series B
Preferred Stock are to be redeemed, shares to be redeemed shall be selected
by the Corporation from outstanding shares of Series B Preferred Stock not
previously called for redemption by lot or pro rata (as nearly as may be)
in any method determined by the Corporation in its sole discretion to be
equitable.
In no event shall the Corporation redeem less than all the
outstanding shares of Series B Preferred Stock pursuant to the first
paragraph of this Section 4 unless full cumulative dividends shall have
been paid or declared and set apart for payment upon all outstanding shares
of Series B 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.
5. Shares to be Retired. All shares of Series B
Preferred Stock redeemed by the Corporation shall be retired and cancelled
and shall
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be restored to the status of authorized but unissued shares of Preferred
Stock, without designation as to series, and may thereafter be issued.
6. Conversion or Exchange. The holders of shares of
Series B Preferred Stock shall not have any rights herein to convert such
shares into or exchange such shares for shares of any other class or
classes or of any other series of any class or classes of capital stock of
the Corporation.
7. Voting. Except as hereinafter in this Section 7
expressly provided or as otherwise required by law, the Series B Preferred
Stock shall have no voting power.
Whenever and as often as dividends payable on any share or
shares of the Preferred Stock at the time outstanding shall be accumulated
and unpaid in an amount equivalent to or exceeding six quarterly dividends
(whether or not declared and whether or not consecutive), the holders of
record of the Preferred Stock of all series shall thereafter have the
right, as a single class, to elect two directors, and, subject to the terms
of any outstanding series of Preferred Stock, the holders of record of the
common stock, as a single class, shall have the right to elect the
remaining authorized number of Directors. In any such election, the
holders of shares of Series B Preferred Stock shall be entitled to cast one
vote per share.
Upon the happening of the six dividend defaults hereinabove
set forth, a special meeting of stockholders of the Corporation then
entitled to vote shall be called by the Chairman of the Board or the
President or the Secretary of the Corporation, if requested in writing by
the holders of record of not less than ten percent of the Preferred Stock
then outstanding. At such special meeting, or, if no such special meeting
shall have been called, then at the next annual meeting of stockholders,
the stockholders of the Corporation then entitled to vote shall elect,
voting as above provided, an entirely new Board of Directors, and the term
of office of the Directors in office at the time of such election shall
expire upon the election of their successors at such meeting; provided,
however, that nothing herein contained shall be construed to be a bar to
the re-election of any Director at such meeting. At all meetings of
stockholders at which holders of Preferred Stock shall be entitled to vote
for Directors as a single class, the holders of a majority of the
outstanding shares of each class or series of capital stock of the
Corporation having the right to vote as a single class shall be necessary
to constitute a quorum, whether present in person or by proxy, for the
election by that class or series of its designated Directors. In order to
validate an election of Directors by stockholders voting as a class, such
Directors shall be elected by the vote
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<PAGE> 35
of at least a plurality of shares held by such stockholders present or
represented at the meeting. At any such meeting, the election of Directors
by stockholders voting as a class shall be valid notwithstanding that a
quorum of other stockholders voting as one or more classes may not be
present or represented at such meeting, and if any stockholders voting as a
class shall elect Directors, the Directors so elected shall be deemed to be
Directors of the Corporation unless and until the other stockholders
entitled to vote as one or more classes shall elect their Directors.
While class voting is in effect with respect to the Preferred
Stock, any Director elected by holders of Preferred Stock voting as a class
may be removed at any annual or special meeting, by vote of a majority of
the stockholders voting as a class who elected such Director, for any cause
deemed sufficient by such stockholders present at such meeting. In case
any vacancy shall occur among the Directors elected by such stockholders
voting as a class, such vacancy may be filled by the remaining Director so
elected, or his successor then in office, and the Director so elected to
fill such vacancy shall serve until the next meeting of stockholders for
the election of Directors.
Such voting rights of the holders of Preferred Stock as a
single class, once effective, shall continue only until all arrears in
dividends (whether or not declared) on the Preferred Stock shall have been
paid or declared and set apart for payment at which time the right of the
Preferred Stock to vote as a single class for the election of Directors, as
hereinabove set forth, shall terminate. Upon such termination, a special
meeting of the stockholders of the Corporation then entitled to vote may be
called by the Chairman of the Board or the President, and shall be called
by the Chairman of the Board or the President or the Secretary of the
Corporation if requested in writing by the holders of record of not less
than one percent of the common stock then outstanding, and at such special
meeting, or if no such special meeting shall have been called then at the
next annual meeting of the stockholders, the stockholders of the
Corporation then entitled to vote shall elect an entirely new Board of
Directors and the term of office of the Directors in office at the time of
such election shall expire upon the election of their successors at such
meeting; provided, however, that nothing herein contained shall be
construed to be a bar to the re-election of any such Director at such
meeting.
The consent of the holders of at least two-thirds of the
number of shares of Preferred Stock at the time outstanding, given in
person or by proxy, either in writing or at a meeting of stockholders at
which the holders of the Preferred Stock shall vote separately as a class
without regard to series, the holders of shares of Series B Preferred Stock
being
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<PAGE> 36
entitled to cast one vote per share thereon, shall be necessary for
effecting or validating:
(a) any change in the Certificate of Incorporation
or certificate supplemental thereto or By-laws of the Corporation
which would materially and adversely alter or change the
preferences, privileges, rights or powers given to the holders of
the Preferred Stock, provided, that if one or more but not all
series of Preferred Stock at the time outstanding are so affected,
only the consent of the holders of at least two-thirds of each
series so affected, voting separately as a class, shall be required;
or
(b) the issuance of any shares of any other class
of stock of the Corporation ranking prior to the Preferred Stock.
The term "ranking prior to the Preferred Stock" shall mean
and include all shares of stock of the Corporation in respect of which the
rights of the holders thereof as to the payment of dividends or as to
distributions in the event of a voluntary or an involuntary liquidation,
dissolution or winding up of the Corporation, are given preference over the
rights of the holders of the Preferred Stock.
8. Liquidation Preference. In the event of any
liquidation, dissolution or winding up of the Corporation, voluntary or
involuntary, the holders of all shares of Series B Preferred Stock shall be
entitled to be paid in full out of the assets of the Corporation available
for distribution to stockholders, before any distribution of assets shall
be made to the holders of common stock or of any other shares of stock of
the Corporation ranking as to such distribution junior to the Series B
Preferred Stock, an amount equal to $100.00 per share plus an amount equal
to any accrued and unpaid dividends thereon to the date fixed for payment
of such distribution. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the amounts payable with
respect to the Series B Preferred Stock and any other shares of stock of
the Corporation ranking as to any such distribution on a parity with the
Series B Preferred Stock are not paid in full, the holders of the Series B
Preferred Stock and of such other shares shall 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
to the holders of the Series B Preferred Stock of the full preferential
amounts provided for in this Section 8, the holders of the Series B
Preferred Stock shall be entitled to no further participation in any
distribution of assets by the Corporation.
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Consolidation or merger of the Corporation with or into
another corporation or corporations, or a sale, whether for cash, shares of
stock, securities or properties, of all or substantially all of the assets
of the Corporation, shall not be deemed or construed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this
paragraph 8.
9. Limitation on Dividends on Junior Ranking Stock. So
long as any Series B Preferred Stock shall be outstanding, the Corporation
shall not declare any dividends on the common stock of the Corporation or
any other stock of the Corporation ranking as to dividends or distribution
of assets junior to the Series B Preferred Stock (the common stock and any
such other stock being herein referred to as "Junior Stock"), or make any
payment on account of, or set apart money for, a sinking or other analogous
fund for the purchase, redemption or other retirement of any shares of
Junior Stock, or make any distribution in respect thereof, whether in cash
or property or in obligations or stock of the Corporation, other than
Junior Stock (such dividends, payments, setting apart and distributions
being herein called "Junior Stock Payments"), unless all of the conditions
set forth in the following subsections A and B shall exist at the date of
such declaration in the case of any such dividend, or the date of such
setting apart in the case of any such fund, or the date of such payment or
distribution in the case of any other Junior Stock Payment:
A. Full cumulative dividends shall have been paid or
declared and set apart for payment upon all outstanding shares of Preferred
Stock other than Junior Stock.
B. The Corporation shall not be in default or in arrears
with respect to any sinking or other analogous fund or any call for tenders
obligation or other agreement for the purchase, redemption or other
retirement of any shares of Preferred Stock other than Junior Stock."
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<PAGE> 38
CERTIFICATE OF DESIGNATION
of
CUMULATIVE PARTICIPATING PREFERRED STOCK, SERIES E
of
BANKAMERICA CORPORATION
BANKAMERICA CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (herein referred to as the "Corporation"), in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, does hereby CERTIFY:
1. The Certificate of Incorporation, as amended, of the
Corporation fixes the total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue at three hundred fifty
million (350,000,000) shares, of which fifty million (50,000,000) shares shall
be shares of preferred stock, without par value, and three hundred million
(300,000,000) shares shall be common stock, of the par value of $1.5625 per
share.
2. The Certificate of Incorporation, as amended, of the
Corporation, expressly grants to the Board of Directors of the Corporation
authority to provide for the issuance of the preferred stock in one or more
series, with such voting powers, full or limited, or without voting powers, and
with such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the Certificate of Incorporation or any
amendment thereto, or in the resolution or resolutions providing for the issue
of such stock adopted by the Board of Directors.
3. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
the Board of Directors, (i) by action duly taken on October 22, 1982,
authorized the issuance of six million (6,000,000) shares of Cumulative
Adjustable Preferred Stock, Series A, without par value, (ii) by action duly
taken on February 11, 1983, authorized the issuance of four million (4,000,000)
shares of Cumulative Adjustable Preferred Stock, Series B, without par value,
(iii) by action duly taken on June 6, 1983, authorized the issuance of five
million two hundred thousand (5,200,000) shares of Cumulative Preferred Stock,
Special Series, without par value, and (iv) by action duly taken on October 5,
1987, authorized the issuance of one hundred thousand (100,000) shares of 9
1/2% Cumulative Convertible Preferred Stock, Series D, without par value.
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<PAGE> 39
4. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
the Board of Directors, by action duly taken on April 11, 1988, adopted the
following resolution providing for an additional series of the preferred stock:
"RESOLVED, that an issue of a series of the preferred stock, without
par value, of the Corporation (such preferred stock being herein referred to as
"Preferred Stock", which term shall include any additional shares of preferred
stock of the same class heretofore or hereafter authorized to be issued by the
Corporation), consisting of seven million (7,000,000) shares is hereby provided
for, and the voting power, designation, preference and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, are fixed hereby as follows:
1. Designation. The designation of such series shall be
"Cumulative Participating Preferred Stock, Series E" (hereinafter referred to
as the "Series E Preferred Stock") and the number of shares constituting such
series is seven million (7,000,000). Such number of shares may be increased or
decreased by resolution of the Board of Directors or the Executive Committee of
the Board of Directors; provided, that no decrease shall reduce the number of
shares of Series E Preferred Stock to a number less than the number of shares
then outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the conversion of
any outstanding securities issued by the Corporation convertible into Series E
Preferred Stock.
2. Dividends. The holders of shares of Series E Preferred
Stock, in preference to the holders of Common Stock, par value $1.5625 per
share (the "Common Stock"), of the Corporation, and of any other stock of the
Corporation ranking as to dividends or distribution of assets junior to the
Series E Preferred Stock (the Common Stock and any such other stock being
herein referred to as "Junior Stock"), shall be entitled to receive, when, as
and if declared by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on February 28, May 31, August
31 and November 30 of each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series E Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $1.00 or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share amount of
all cash dividends, plus 100 times the fair market value (as determined in good
faith by the Board of Directors of the Corporation, whose determination shall
be described in a statement filed with the Secretary of the Corporation and
with each transfer agent for the Series E Preferred
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<PAGE> 40
Stock, and a brief summary of which shall be mailed to each holder of Series E
Preferred Stock) in cash of the aggregate per share amount of all non-cash
dividends or other distributions, other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series E Preferred Stock. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation
of the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the amount to
which holders of shares of Series E Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
The Corporation shall declare a dividend or distribution on the
Series E Preferred Stock as provided in the preceding paragraph of this Section
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share
on the Series E Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
Dividends shall begin to accrue and be cumulative on outstanding
shares of Series E Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall begin to accrue from
the date of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the determination
of holders of shares of Series E Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Each dividend shall be paid to the
holders of record of shares of Series E Preferred Stock as they appear on the
stock register of the Corporation on such record date, not exceeding 30 days
preceding the payment date thereof, as shall be fixed
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by the Board of Directors of the Corporation. Dividends on account of arrears
for any past Quarterly Dividend Payment Date may be declared and paid at any
time, without reference to any regular dividend payment date, to holders of
record on such date, not exceeding 45 days preceding the payment date thereof,
as may be fixed by the Board of Directors of the Corporation. If there shall
be outstanding shares of any other series of Preferred Stock ranking on a
parity as to dividends with the Series E Preferred Stock, the Corporation, in
making any dividend payment on account of arrears on the Series E Preferred
Stock or such other series of Preferred Stock, shall make payments ratably upon
all outstanding shares of Series E Preferred Stock and such other series of
Preferred Stock in proportion to the respective amounts of dividends in arrears
upon all such outstanding shares of Series E Preferred Stock and such other
series of Preferred Stock to the date of such dividend payment. No interest,
or sum of money in lieu of interest, shall be payable in respect of any
dividend payment or payments which may be in arrears.
3. Redemption. The Corporation, at its option, may redeem
shares of the Series E Preferred Stock, as a whole or in part, at any time or
from time to time, at a per share redemption price equal to the sum of (a) all
accrued and unpaid dividends thereon to the date fixed for redemption and (b)
the higher of (i) 100 times the Purchase Price (as such term is defined in the
Rights Agreement, dated as of April 11, 1988, between the Corporation and
Manufacturers Hanover Trust Company of California (the "Rights Agreement") and
as may be adjusted from time to time pursuant thereto) of one-hundredth of a
share of Series E Preferred Stock in effect on the date of the notice of such
redemption referred to below, and (ii) the product of the current per share
market price of the Common Stock (as computed pursuant to Section 11(d)(i) of
the Rights Agreement) and the number of votes per share of Series E Preferred
Stock that a holder thereof is then entitled to on all matters submitted to a
vote of the stockholders of the Corporation, in each case as of the date of the
notice of such redemption referred to below.
If the Corporation shall redeem shares of Series E Preferred Stock,
notice of such redemption shall be given by (i) publication (not less than 30
nor more than 60 days prior to the redemption date) at least once in a
newspaper printed in the English language and of general circulation in the
City and County of San Francisco, State of California (upon any secular day of
the week) and (ii) first class mail, postage prepaid, mailed not less than 30
nor more than 60 days prior to the redemption date, to each holder of record of
the shares to be redeemed, at such holder's address as the same appears on the
stock register of the Corporation. The failure to mail such notice to any
particular holder or any defect in such mailing shall not invalidate the
redemption of any shares the holders of which received notice as provided
above. Each such notice shall state: (1) the redemption date;
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(2) the number of shares of Series E Preferred Stock to be redeemed and, if
less than all the shares held by such holder are to be redeemed, the number of
such shares to be redeemed from such holder; (3) the redemption price; (4) the
place or places where certificates for such shares are to be surrendered for
payment of the redemption price; and (5) that dividends on the shares to be
redeemed will cease to accrue on such redemption date. Notice having been
mailed as aforesaid, from and after the redemption date (unless default shall
be made by the Corporation in providing money for the payment of the redemption
price) dividends on the shares of the Series E Preferred Stock so called for
redemption shall cease to accrue, and said shares shall no longer be deemed to
be outstanding, and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the redemption
price) shall cease. Upon surrender in accordance with said notice of the
certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the Board of Directors of the Corporation shall so require and the
notice shall so state), such shares shall be redeemed by the Corporation at the
redemption price aforesaid. If less than all the outstanding shares of Series
E Preferred Stock are to be redeemed, shares to be redeemed shall be selected
by the Corporation from outstanding shares of Series E Preferred Stock not
previously called for redemption by lot or pro rata (as nearly as may be) in
any method determined by the Corporation in its sole discretion to be
equitable.
In no event shall the Corporation redeem less than all the
outstanding shares of Series E Preferred Stock pursuant to the first paragraph
of this Section 3 unless full cumulative dividends shall have been paid or
declared and set apart for payment upon all outstanding shares of Series E
Preferred Stock for all past Quarterly Dividend Payment Dates, 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.
4. Shares to be Retired. All shares of Series E Preferred Stock
redeemed by the Corporation shall be retired and cancelled and shall, upon the
making of all necessary filings with the Secretary of State of Delaware, be
restored to the status of authorized but unissued shares of Preferred Stock,
without designation as to series, and may thereafter be issued.
5. Conversion or Exchange. Subject to Section 8 below, the
holders of shares of Series E Preferred Stock shall not have any rights herein
to convert such shares into or exchange such shares for shares of any other
class or classes or of any other series of any class or classes of capital
stock of the Corporation.
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<PAGE> 43
6. Voting. Subject to the provision for adjustment hereinafter
set forth, each share of Series E Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the stockholders of
the Corporation. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the number of votes per share to which holders of shares
of Series E Preferred Stock were entitled immediately prior to such event shall
be adjusted by multiplying such number by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Except as otherwise provided herein, in the Certificate of
Incorporation, in any other Certificate of Designation creating a series of
Preferred Stock or any similar stock, or by law, the holders of shares of
Series E Preferred Stock and the holders of shares of Common Stock and any
other capital stock of the Corporation having general voting rights shall vote
together as a single class on all matters submitted to a vote of stockholders
of the Corporation.
In addition to the foregoing, whenever and as often as dividends
payable on any share or shares of the Preferred Stock at the time outstanding
shall be accumulated and unpaid in an amount equivalent to or exceeding six
quarterly dividends (whether or not declared and whether or not consecutive),
the holders of record of the Preferred Stock of all series shall thereafter
have the right, as a single class, to elect two directors, and, subject to the
terms of any outstanding series of Preferred Stock, the holders of record of
the Common Stock and the Series E Preferred Stock, as a single class, shall
have the right to elect the remaining authorized number of Directors. In any
election by the holders of record of the Preferred Stock of all series as a
single class, the holders of shares of Series E Preferred Stock shall be
entitled to cast one vote per share.
Upon the happening of the six dividend defaults hereinabove set
forth, a special meeting of stockholders of the Corporation then entitled to
vote shall be called by the Chairman of the Board or the President or the
Secretary of the Corporation, if requested in writing by the holders of record
of not less than ten percent of the Preferred Stock then outstanding. At such
special meeting, or, if no such special meeting shall have been called, then at
the next annual meeting of stockholders, the stockholders of the Corporation
then entitled to vote shall elect, voting as above provided,
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<PAGE> 44
an entirely new Board of Directors, and the term of office of the Directors in
office at the time of such election shall expire upon the election of their
successors at such meeting; provided, however, that nothing herein contained
shall be construed to be a bar to the re- election of any Director at such
meeting. At all meetings of stockholders at which holders of Preferred Stock
shall be entitled to vote for Directors as a single class, the holders of a
majority of the outstanding shares of each class or series of capital stock of
the Corporation having the right to vote as a single class shall be necessary
to constitute a quorum, whether present in person or by proxy, for the election
by that class or series of its designated Directors. In order to validate an
election of Directors by stockholders voting as a class, such Directors shall
be elected by the vote of at least a plurality of shares held by such
stockholders present or represented at the meeting. At any such meeting, the
election of Directors by stockholders voting as a class shall be valid
notwithstanding that a quorum of other stockholders voting as one or more
classes may not be present or represented at such meeting, and if any
stockholders voting as a class shall elect Directors, the Directors so elected
shall be deemed to be Directors of the Corporation unless and until the other
stockholders entitled to vote as one or more classes shall elect their
Directors.
While class voting is in effect with respect to the Preferred Stock,
any Director elected by holders of Preferred Stock voting as a class may be
removed at any annual or special meeting, by vote of a majority of the
stockholders voting as a class who elected such Director, for any cause deemed
sufficient by such stockholders present at such meeting. In case any vacancy
shall occur among the Directors elected by such stockholders voting as a class,
such vacancy may be filled by the remaining Director so elected, or his
successor then in office, and the Director so elected to fill such vacancy
shall serve until the next meeting of stockholders for the election of
Directors.
Such voting rights of the holders of Preferred Stock as a single
class, once effective, shall continue only until all arrears in dividends
(whether or not declared) on the Preferred Stock shall have been paid or
declared and set apart for payment at which time the right of the Preferred
Stock to vote as a single class for the election of Directors, as hereinabove
set forth, shall terminate. Upon such termination, a special meeting of the
stockholders of the Corporation then entitled to vote may be called by the
Chairman of the Board or the President, and shall be called by the Chairman of
the Board or the President or the Secretary of the Corporation if requested in
writing by the holders of record of not less than one percent of the Common
Stock then outstanding, and at such special meeting, or if no such special
meeting shall have been called then at the next annual meeting of the
stockholders, the stockholders of the Corporation
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<PAGE> 45
then entitled to vote shall elect an entirely new Board of Directors and the
term of office of the Directors in office at the time of such election shall
expire upon the election of their successors at such meeting; provided,
however, that nothing herein contained shall be construed to be a bar to the
re-election of any such Director at such meeting.
The consent of the holders of at least two-thirds of the number of
shares of Preferred Stock at the time outstanding, given in person or by proxy,
either in writing or at a meeting of stockholders at which the holders of the
Preferred Stock shall vote separately as a class without regard to series, the
holders of shares of Series E Preferred Stock being entitled to cast one vote
per share thereon, shall be necessary for effecting or validating:
(a) any change in the Certificate of Incorporation or
certificate supplemental thereto or By-laws of the Corporation which
would materially and adversely alter or change the preferences,
privileges, rights or powers given to the holders of the Preferred
Stock, provided, that if one or more but not all series of Preferred
Stock at the time outstanding are so affected, only the consent of
the holders of at least two-thirds of each series so affected,
voting separately as a class, shall be required; or
(b) the issuance of any shares of any other class of
stock of the Corporation ranking prior to the Preferred Stock.
The term "ranking prior to the Preferred Stock" shall mean and
include all shares of stock of the Corporation in respect of which the rights
of the holders thereof as to the payment of dividends or as to distributions in
the event of a voluntary or an involuntary liquidation, dissolution or winding
up of the Corporation, are given preference over the rights of the holders of
the Preferred Stock.
7. Liquidation Preference. In the event of any liquidation,
dissolution or winding up of the Corporation, voluntary or involuntary, the
holders of all shares of Series E Preferred Stock shall be entitled to be paid
in full out of the assets of the Corporation available for distribution to
stockholders, before any distribution of assets shall be made to the holders of
Common Stock or of any other shares of stock of the Corporation ranking as to
such distribution junior to the Series E Preferred Stock, an amount equal to
the greater of (a) $100.00 per share plus an amount equal to any accrued and
unpaid dividends thereon to the date fixed for payment of such distribution,
and (b) an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of shares of Common
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<PAGE> 46
Stock. In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of shares of
Series E Preferred Stock were entitled immediately prior to such event under
the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
If, upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the amounts payable with respect to the Series E
Preferred Stock and any other shares of stock of the Corporation ranking as to
any such distribution on a parity with the Series E Preferred Stock are not
paid in full, the holders of the Series E Preferred Stock and of such other
shares shall share ratably in any such distribution of assets of the
Corporation in proportion to the full respective preferential amounts to which
they are entitled.
Consolidation or merger of the Corporation with or into another
corporation or corporations, or a sale, whether for cash, shares of stock,
securities or properties, of all or substantially all of the assets of the
Corporation, shall not be deemed or construed to be a liquidation, dissolution
or winding up of the Corporation within the meaning of this paragraph 7.
8. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series E Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of
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<PAGE> 47
Series E Preferred Stock shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
9. Limitation on Dividends on Junior Ranking Stock. So long as
any Series E Preferred Stock shall be outstanding, the Corporation shall not
declare any dividends on Junior Stock, or make any payment on account of, or
set apart money for, a sinking or other analogous fund for the purchase,
redemption or other retirement of any shares of Junior Stock, or make any
distribution in respect thereof, whether in cash or property or in obligations
or stock of the Corporation, other than Junior Stock (such dividends, payments,
setting apart and distributions being herein called "Junior Stock Payments"),
unless all of the conditions set forth in the following subsections A and B
shall exist at the date of such declaration in the case of any such dividend,
or the date of such setting apart in the case of any such fund, or the date of
such payment or distribution in the case of any other Junior Stock Payment:
A. Full cumulative dividends shall have been paid or declared
and set apart for payment upon all outstanding shares of Preferred Stock other
than Junior Stock.
B. The Corporation shall not be in default or in arrears with
respect to any sinking or other analogous fund or any call for tenders
obligation or other agreement for the purchase, redemption or other retirement
of any shares of Preferred Stock other than Junior Stock."
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<PAGE> 48
CERTIFICATE OF DESIGNATION
of
9-5/8% CUMULATIVE PREFERRED STOCK, SERIES F
of
BANKAMERICA CORPORATION
BANKAMERICA CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (herein referred to as the "Corporation"), in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, does hereby CERTIFY:
1. The Certificate of Incorporation, as amended, of the
Corporation fixes the total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue at five hundred fifty
million (550,000,000) shares, of which fifty million (50,000,000) shares shall
be shares of preferred stock, without par value, and five hundred million
(500,000,000) shares shall be common stock, of the par value of $1.5625 per
share.
2. The Certificate of Incorporation, as amended, of the
Corporation, expressly grants to the Board of Directors of the Corporation
authority to provide for the issuance of the preferred stock in one or more
series, with such voting powers, full or limited, or without voting powers, and
with such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the Certificate of Incorporation or any
amendment thereto, or in the resolution or resolutions providing for the issue
of such stock adopted by the Board of Directors.
3. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
the Board of Directors, (i) by action duly taken on October 22, 1982,
authorized the issuance of six million (6,000,000) shares of Cumulative
Adjustable Preferred Stock, Series A, without par value, (ii) by action duly
taken on February 11, 1983, authorized the issuance of four million (4,000,000)
shares of Cumulative Adjustable Preferred Stock, Series B, without par value,
(iii) by action duly taken on June 6, 1983, authorized the issuance of five
million two hundred thousand (5,200,000) shares of Cumulative Preferred Stock,
Special Series, without par value and (iv) by action duly taken on April 11,
1988, authorized the issuance of three million (3,000,000) shares of Cumulative
Participating Preferred Stock, Series E, without par value.
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<PAGE> 49
4. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
and the authority conferred upon the Pricing Committee of the Board of
Directors by the resolutions adopted by the Board of Directors on January 7,
1991, the Board of Directors, by actions duly taken on January 7, 1991, and the
Pricing Committee of the Board of Directors, by actions duly taken on March 22,
1991, adopted resolutions that compositely provide for an additional series of
the preferred stock as follows:
"RESOLVED, that an issue of a series of the preferred stock, without
par value, of the Corporation (such preferred stock being herein referred to as
"Preferred Stock", which term shall include any additional shares of preferred
stock of the same class heretofore or hereafter authorized to be issued by the
Corporation), consisting of seven million two hundred fifty thousand
(7,250,000) shares is hereby provided for, and the voting power, designation,
preference and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, are fixed hereby as
follows:
1. Designation. The designation of such series shall be
9-5/8% Cumulative Preferred Stock, Series F (hereinafter referred to as the
"Series F Preferred Stock") and the number of shares constituting such
series is seven million two hundred fifty thousand (7,250,000). Shares of
Series F Preferred Stock shall have a stated value of $25 per share. The
number of authorized shares of Series F Preferred Stock may be reduced by
further resolution duly adopted by the Board of Directors of the
Corporation or the Executive Committee of the Board of Directors and by the
filing of a certificate pursuant to the provisions of the General
Corporation Law of the State of Delaware stating that such reduction has
been so authorized, but the number of authorized shares of Series F
Preferred Stock shall not be increased.
2. Dividends. Quarterly Dividend Periods shall commence
on March 1, June 1, September 1 and December 1 in each year and shall end
on and include the day next preceding the first day of the next Quarterly
Dividend Period. Such dividends shall be cumulative from the respective
dates of original issue of shares of Series F Stock and shall be payable,
when and as declared by the Board of Directors, on February 28, May 31,
August 31 and November 30 of each year, commencing May 31, 1991. Each such
dividend shall be paid to the holders of record of shares of Series F
Preferred Stock as they appear on the stock register of the Corporation on
such record date, not exceeding 30 days preceding the payment date thereof,
as shall be fixed by the Board of Directors of the Corporation. Dividends
on account of arrears for any past Dividend Periods may be declared and
paid at any time, without reference to any regular dividend payment date,
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<PAGE> 50
to holders of record on such date, not exceeding 45 days preceding the
payment date thereof, as may be fixed by the Board of Directors of the
Corporation. If there shall be outstanding shares of any other series of
Preferred Stock ranking on a parity as to dividends with the Series F
Preferred Stock, the Corporation, in making any dividend payment on account
of arrears on the Series F Preferred Stock or such other series of
Preferred Stock, shall make payments ratably upon all outstanding shares of
Series F Preferred Stock and such other series of Preferred Stock in
proportion to the respective amounts of dividends in arrears upon all such
outstanding shares of Series F Preferred Stock and such other series of
Preferred Stock to the date of such dividend payment. No interest, or sum
of money in lieu of interest, shall be payable in respect of any dividend
payment or payments which may be in arrears.
The amount of dividends per share payable for each Quarterly
Dividend Period shall be computed by dividing the dividend rate for such
Dividend Period by four and applying such rate against the stated value per
share of the Series F Preferred Stock. Dividends payable on the Series F
Preferred Stock for any period less than a full Quarterly Dividend Period,
and for any portion of the Initial Dividend Period occurring prior to June
1, 1991, shall be computed on the basis of a 360-day year of four 90-day
quarters and the actual number of days elapsed in the period for which
payable.
3. Dividend Rate. The Dividend Rate on the shares of
Series F Preferred Stock for the period (the "Initial Dividend Period")
from the respective dates of original issue thereof to and including May
31, 1991, and for each Quarterly Dividend Period thereafter shall be 9-5/8%
per annum.
4. Redemption. The Corporation, at its option, may
redeem shares of the Series F Preferred Stock, as a whole or in part, at
any time or from time to time after April 15, 1996, at $25 per share, plus
accrued and unpaid dividends thereon to the date fixed for redemption.
If the Corporation shall redeem shares of Series F Preferred
Stock pursuant to this Section 4, notice of such redemption shall be given
by publication (not less than 30 nor more than 90 days prior to the
redemption date) at least once in a newspaper printed in the English
language and of general circulation in the City and County of San
Francisco, State of California (upon any secular day of the week) stating
such election on the part of the Corporation and that on the redemption
date there will become due and payable upon each of the shares to be
redeemed, at the place or places specified in such notice, the applicable
redemption price therein specified. A similar notice shall be mailed by
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first class mail, postage prepaid, not less than 30 nor more than 90 days
prior to the redemption date, to each holder of record of the shares to be
redeemed, at such holder's address as the same appears on the stock
register of the Corporation. Each such notice shall state: (a) the
redemption date; (b) the number of shares of Series F Preferred Stock to be
redeemed and, if less than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (c)
the redemption price; (d) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price; and (e)
that dividends on the shares to be redeemed will cease to accrue on such
redemption date. Notice having been mailed as aforesaid, from and after
the redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on the
shares of the Series F Preferred Stock so called for redemption shall cease
to accrue, and said shares shall no longer be deemed to be outstanding, and
all rights of the holders thereof as stockholders of the Corporation
(except the right to receive from the Corporation the redemption price)
shall cease. Upon surrender in accordance with said notice of the
certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the Board of Directors of the Corporation shall so require and
the notice shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. If less than all the
outstanding shares of Series F Preferred Stock are to be redeemed, shares
to be redeemed shall be selected by the Corporation from outstanding shares
of Series F Preferred Stock not previously called for redemption by lot or
pro rata (as nearly as may be) in any method determined by the Corporation
in its sole discretion to be equitable.
In no event shall the Corporation redeem less than all the
outstanding shares of Series F Preferred Stock pursuant to this Section 4
unless full cumulative dividends shall have been paid or declared and set
apart for payment upon all outstanding shares of Series F 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.
5. Shares to be Retired. All shares of Series F
Preferred Stock redeemed by the Corporation shall be retired and cancelled
and shall be restored to the status of authorized but unissued shares of
Preferred Stock, without designation as to series, and may thereafter be
issued.
6. Conversion or Exchange. The holders of shares of
Series F Preferred Stock shall not have any rights herein to convert such
shares into or exchange such shares for shares of any other class or
classes or of
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any other series of any class or classes of capital stock of the
Corporation.
7. Voting. Except as hereinafter in this Section 7
expressly provided or as otherwise required by law, the Series F Preferred
Stock shall have no voting power.
Whenever and as often as dividends payable on any share or
shares of the Preferred Stock at the time outstanding shall be accumulated
and unpaid in an amount equivalent to or exceeding six quarterly dividends
(whether or not declared and whether or not consecutive), the holders of
record of the Preferred Stock of all series shall thereafter have the
right, as a single class, to elect two directors, and, subject to the terms
of any outstanding series of Preferred Stock, the holders of record of the
common stock, as a single class, shall have the right to elect the
remaining authorized number of Directors. In any such election, the
holders of shares of Series F Preferred Stock shall be entitled to cast one
vote per share.
Upon the happening of the six dividend defaults hereinabove
set forth, a special meeting of stockholders of the Corporation then
entitled to vote shall be called by the Chairman of the Board or the
President or the Secretary of the Corporation, if requested in writing by
the holders of record of not less than ten percent of the Preferred Stock
then outstanding. At such special meeting, or, if no such special meeting
shall have been called, then at the next annual meeting of stockholders,
the stockholders of the Corporation then entitled to vote shall elect,
voting as above provided, an entirely new Board of Directors, and the term
of office of the Directors in office at the time of such election shall
expire upon the election of their successors at such meeting; provided,
however, that nothing herein contained shall be construed to be a bar to
the re-election of any Director at such meeting. At all meetings of
stockholders at which holders of Preferred Stock shall be entitled to vote
for Directors as a single class, the holders of a majority of the
outstanding shares of each class or series of capital stock of the
Corporation having the right to vote as a single class shall be necessary
to constitute a quorum, whether present in person or by proxy, for the
election by that class or series of its designated Directors. In order to
validate an election of Directors by stockholders voting as a class, such
Directors shall be elected by the vote of at least a plurality of shares
held by such stockholders present or represented at the meeting. At any
such meeting, the election of Directors by stockholders voting as a class
shall be valid notwithstanding that a quorum of other stockholders voting
as one or more classes may not be present or represented at such meeting,
and if any stockholders voting as a class shall elect Directors, the
Directors so
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elected shall be deemed to be Directors of the Corporation unless and until
the other stockholders entitled to vote as one or more classes shall elect
their Directors.
While class voting is in effect with respect to the Preferred
Stock, any Director elected by holders of Preferred Stock voting as a class
may be removed at any annual or special meeting, by vote of a majority of
the stockholders voting as a class who elected such Director, for any cause
deemed sufficient by such stockholders present at such meeting. In case
any vacancy shall occur among the Directors elected by such stockholders
voting as a class, such vacancy may be filled by the remaining Director so
elected, or his successor then in office, and the Director so elected to
fill such vacancy shall serve until the next meeting of stockholders for
the election of Directors.
Such voting rights of the holders of Preferred Stock as a
single class, once effective, shall continue only until all arrears in
dividends (whether or not declared) on the Preferred Stock shall have been
paid or declared and set apart for payment at which time the right of the
Preferred Stock to vote as a single class for the election of Directors, as
hereinabove set forth, shall terminate. Upon such termination, a special
meeting of the stockholders of the Corporation then entitled to vote may be
called by the Chairman of the Board or the President, and shall be called
by the Chairman of the Board or the President or the Secretary of the
Corporation if requested in writing by the holders of record of not less
than one percent of the common stock then outstanding, and at such special
meeting, or if no such special meeting shall have been called then at the
next annual meeting of the stockholders, the stockholders of the
Corporation then entitled to vote shall elect an entirely new Board of
Directors and the term of office of the Directors in office at the time of
such election shall expire upon the election of their successors at such
meeting; provided, however, that nothing herein contained shall be
construed to be a bar to the re-election of any such Director at such
meeting.
The consent of the holders of at least two-thirds of the
number of shares of Preferred Stock at the time outstanding, given in
person or by proxy, either in writing or at a meeting of stockholders at
which the holders of the Preferred Stock shall vote separately as a class
without regard to series, the holders of shares of Series F Preferred Stock
being entitled to cast one vote per share thereon, shall be necessary for
effecting or validating:
(i) any change in the Certificate of Incorporation
or certificate supplemental thereto or By-laws of the Corporation
which
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would materially and adversely alter or change the preferences,
privileges, rights or powers given to the holders of the Preferred
Stock, provided, that if one or more but not all series of
Preferred Stock at the time outstanding are so affected, only the
consent of the holders of at least two-thirds of each series so
affected, voting separately as a class, shall be required; or
(ii) the issuance of any shares of any other class
of stock of the Corporation ranking prior to the Preferred Stock.
The term "ranking prior to the Preferred Stock" shall mean
and include all shares of stock of the Corporation in respect of which the
rights of the holders thereof as to the payment of dividends or as to
distributions in the event of a voluntary or an involuntary liquidation,
dissolution or winding up of the Corporation, are given preference over the
rights of the holders of the Preferred Stock.
8. Liquidation Preference. In the event of any
liquidation, dissolution or winding up of the Corporation, voluntary or
involuntary, the holders of all shares of Series F Preferred Stock shall be
entitled to be paid in full out of the assets of the Corporation available
for distribution to stockholders, before any distribution of assets shall
be made to the holders of common stock or of any other shares of stock of
the Corporation ranking as to such distribution junior to the Series F
Preferred Stock, an amount equal to $25 per share plus an amount equal to
any accrued and unpaid dividends thereon to the date fixed for payment of
such distribution. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the amounts payable with
respect to the Series F Preferred Stock and any other shares of stock of
the Corporation ranking as to any such distribution on a parity with the
Series F Preferred Stock are not paid in full, the holders of the Series F
Preferred Stock and of such other shares shall 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
to the holders of the Series F Preferred Stock of the full preferential
amounts provided for in this Section 8, the holders of the Series F
Preferred Stock shall be entitled to no further participation in any
distribution of assets by the Corporation.
Consolidation or merger of the Corporation with or into
another corporation or corporations, or a sale, whether for cash, shares of
stock, securities or properties, of all or substantially all of the assets
of the Corporation, shall not be deemed or construed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this
paragraph 8.
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9. Limitation on Dividends on Junior Ranking Stock. So
long as any Series F Preferred Stock shall be outstanding, the Corporation
shall not declare any dividends on the common stock of the Corporation or
any other stock of the Corporation ranking as to dividends or distribution
of assets junior to the Series F Preferred Stock (the common stock and any
such other stock being herein referred to as "Junior Stock"), or make any
payment on account of, or set apart money for, a sinking or other analogous
fund for the purchase, redemption or other retirement of any shares of
Junior Stock, or make any distribution in respect thereof, whether in cash
or property or in obligations or stock of the Corporation, other than
Junior Stock (such dividends, payments, setting apart and distributions
being herein called "Junior Stock Payments"), unless all of the conditions
set forth in the following subsections A and B shall exist at the date of
such declaration in the case of any such dividend, or the date of such
setting apart in the case of any such fund, or the date of such payment or
distribution in the case of any other Junior Stock Payment:
A. Full cumulative dividends shall have been paid or
declared and set apart for payment upon all outstanding shares of Preferred
Stock other than Junior Stock.
B. The Corporation shall not be in default or in arrears
with respect to any sinking or other analogous fund or any call for tenders
obligation or other agreement for the purchase, redemption or other
retirement of any shares of Preferred Stock other than Junior Stock."
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CERTIFICATE OF DESIGNATION
of
6-l/2% CUMULATIVE CONVERTIBLE
PREFERRED STOCK, SERIES G
of
BANKAMERICA CORPORATION
BANKAMERICA CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (herein referred to as the "Corporation"), in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, does hereby CERTIFY:
1. The Certificate of Incorporation, as amended, of the
Corporation fixes the total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue at five hundred fifty
million (550,000,000) shares, of which fifty million (50,000,000) shares shall
be shares of preferred stock, without par value, and five hundred million
(500,000,000) shares shall be common stock, of the par value of $1.5625 per
share.
2. The Certificate of Incorporation, as amended, of the
Corporation, expressly grants to the Board of Directors of the Corporation
authority to provide for the issuance of the preferred stock in one or more
series, with such voting powers, full or limited, or without voting powers, and
with such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the Certificate of Incorporation or any
amendment thereto, or in the resolution or resolutions providing for the issue
of such stock adopted by the Board of Directors.
3. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
the Board of Directors, (i) by action duly taken on October 22, 1982,
authorized the issuance of six million (6,000,000) shares of Cumulative
Adjustable Preferred Stock, Series A, without par value, (ii) by action duly
taken on February 11, 1983, authorized the issuance of four million (4,000,000)
shares of Cumulative Adjustable Preferred Stock, Series B, without par value,
(iii) by action duly taken on June 6, 1983, authorized the issuance of five
million two hundred thousand (5,200,000) shares of Cumulative Preferred Stock,
Special Series, without par value, (iv) by action duly taken on April 11, 1988,
authorized the issuance of three million (3,000,000) shares of Cumulative
Participating Preferred Stock, Series E, without par value and (v) by action
duly taken on January 7, 1991, and the
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Pricing Committee of the Board of Directors by action duly taken on March 22,
1991, authorized the issuance of seven million two hundred fifty thousand
(7,250,000) shares of 9-5/8% Cumulative Preferred Stock, Series F, without par
value.
4. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
and the authority conferred upon the Pricing Committee of the Board of
Directors by the resolutions adopted by the Board of Directors on April 29,
1991, the Board of Directors, by actions duly taken on April 29, 1991, and the
Pricing Committee of the Board of Directors, by actions duly taken on May 21,
1991, adopted resolutions that compositely provide for an additional series of
the preferred stock as follows:
"RESOLVED, that an issue of a series of the preferred stock, without
par value, of the Corporation (such preferred stock being herein referred to as
"Preferred Stock", which term shall include any additional shares of preferred
stock of the same class heretofore or hereafter authorized to be issued by the
Corporation), consisting of five million (5,000,000) shares is hereby provided
for, and the voting power, designation, preference and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, are fixed hereby as follows:
1. Designation. The designation of such series shall be
6-1/2% Cumulative Convertible Preferred Stock, Series G (hereinafter
referred to as the "Series G Preferred Stock") and the number of shares
constituting such series is five million (5,000,000). Shares of Series G
Preferred Stock shall have a stated value of $50 per share. The number of
authorized shares of Series G Preferred Stock may be reduced by further
resolution duly adopted by the Board of Directors of the Corporation or the
Executive Committee of the Board of Directors and by the filing of a
certificate pursuant to the provisions of the General Corporation Law of
the State of Delaware stating that such reduction has been so authorized,
but the number of authorized shares of Series G Preferred Stock shall not
be increased.
2. Dividends. Quarterly Dividend Periods shall commence
on March 1, June 1, September 1 and December 1 in each year and shall end
on and include the day next preceding the first day of the next Quarterly
Dividend Period. Such dividends shall be cumulative from the respective
dates of original issue of shares of Series G Stock and shall be payable,
when and as declared by the Board of Directors, on February 28, May 31,
August 31 and November 30 of each year, commencing August 31, 1991. Each
such dividend shall be paid to the holders of record of shares of Series G
Preferred Stock as they appear on the stock register of the Corporation on
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such record date, not exceeding 30 days preceding the payment date thereof,
as shall be fixed by the Board of Directors of the Corporation. Dividends
on account of arrears for any past Dividend Periods may be declared and
paid at any time, without reference to any regular dividend payment date,
to holders of record on such date, not exceeding 45 days preceding the
payment date thereof, as may be fixed by the Board of Directors of the
Corporation. If there shall be outstanding shares of any other series of
Preferred Stock ranking on a parity as to dividends with the Series G
Preferred Stock, the Corporation, in making any dividend payment on account
of arrears on the Series G Preferred Stock or such other series of
Preferred Stock, shall make payments ratably upon all outstanding shares of
Series G Preferred Stock and such other series of Preferred Stock in
proportion to the respective amounts of dividends in arrears upon all such
outstanding shares of Series G Preferred Stock and such other series of
Preferred Stock to the date of such dividend payment. No interest, or sum
of money in lieu of interest, shall be payable in respect of any dividend
payment or payments which may be in arrears.
The amount of dividends per share payable for each Quarterly
Dividend Period shall be computed by dividing the dividend rate for such
Dividend Period by four and applying such rate against the stated value per
share of the Series G Preferred Stock. Dividends payable on the Series G
Preferred Stock for any period less than a full Quarterly Dividend Period,
and for any portion of the Initial Dividend Period occurring prior to June
1, 1991, shall be computed on the basis of a 360-day year of four 90-day
quarters and the actual number of days elapsed in the period for which
payable.
3. Dividend Rate. The Dividend Rate on the shares of
Series G Preferred Stock for the period (the "Initial Dividend Period")
from the respective dates of original issue thereof to and including August
31, 1991, and for each Quarterly Dividend Period thereafter shall be 6-1/2%
per annum.
4. Redemption. (a) The Corporation, at its option, may
redeem shares of the Series G Preferred Stock, as a whole or in part, at
any time or from time to time, at a redemption price as set forth below,
plus accrued and unpaid dividends thereon to the date fixed for redemption:
Date of Redemption Redemption Price per Share
On or after May 31, 1995,
but prior to May 31, 1996, $51.95
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On or after May 31, 1996,
but prior to May 31, 1997, $51.625
On or after May 31, 1997,
but prior to May 31, 1998, $51.30
On or after May 31, 1998,
but prior to May 31, 1999, $50.975
Date of Redemption Redemption Price per Share
On or after May 31, 1999,
but prior to May 31, 2000, $50.65
On or after May 31, 2000,
but prior to May 31, 2001, $50.325
On or after May 31, 2001, $50.00
Notwithstanding the foregoing, no shares of Series G Preferred Stock shall
be redeemed hereunder prior to May 31, 1995.
If the Corporation shall redeem shares of Series G Preferred
Stock pursuant to this subparagraph (a), notice of such redemption shall be
given by publication (not less than 30 nor more than 90 days prior to the
redemption date) at least once in a newspaper printed in the English
language and of general circulation in the City and County of San
Francisco, State of California (upon any secular day of the week) stating
such election on the part of the Corporation and that on the redemption
date there will become due and payable upon each of the shares to be
redeemed, at the place or places specified in such notice, the applicable
redemption price therein specified. A similar notice shall be mailed by
first class mail, postage prepaid, not less than 30 nor more than 90 days
prior to the redemption date, to each holder of record of the shares to be
redeemed, at such holder's address as the same appears on the stock
register of the Corporation. Each such notice shall state: (a) the
redemption date; (b) the number of shares of Series G Preferred Stock to be
redeemed and, if less than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (c)
the redemption price; (d) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price; and (e)
that dividends on the shares to be redeemed will cease to accrue on such
redemption date. Notice having been mailed as aforesaid, from and after
the redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on
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the shares of the Series G Preferred Stock so called for redemption shall
cease to accrue, and said shares shall no longer be deemed to be
outstanding, and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said
notice of the certificates for any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors of the Corporation shall
so require and the notice shall so state), such shares shall be redeemed by
the Corporation at the redemption price aforesaid. If less than all the
outstanding shares of Series G Preferred Stock are to be redeemed, shares
to be redeemed shall be selected by the Corporation from outstanding shares
of Series G Preferred Stock not previously called for redemption by lot or
pro rata (as nearly as may be) in any method determined by the Corporation
in its sole discretion to be equitable.
(a) In no event shall the Corporation redeem or purchase
any shares of Series G Preferred Stock pursuant to this Section 4 unless
full cumulative dividends shall have been paid or declared and set apart
for payment upon all outstanding shares of Series G 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.
5. Shares to be Retired. All shares of Series G
Preferred Stock redeemed by the Corporation shall be retired and cancelled
and shall be restored to the status of authorized but unissued shares of
Preferred Stock, without designation as to series, and may thereafter be
issued.
6. Conversion Rights. (a) The holder of any share or
shares of Series G Preferred Stock shall have the right, at any time, to
convert any shares of Series G Preferred Stock (except any share of Series
G Preferred Stock which shall have been called for redemption pursuant to
the provisions hereof, the conversion right with respect thereto shall
terminate on the close of business of the date fixed for redemption) into
fully paid and non-assessable shares of the common stock of the
Corporation, at a conversion rate of 1.09649 shares of common stock for
each share of Series G Preferred Stock, subject to adjustment as
hereinafter provided. The conversion right herein granted shall be
exercised by the surrender of a certificate or certificates for Series G
Preferred Stock to be so converted at the office of any transfer agent for
the Series G Preferred Stock, at any time during its usual business hours,
together with written notice that the holder elects to convert the same, or
a stated number of shares thereof, which notice shall state the name or
names (with addresses) in which the certificate or certificates of common
stock shall be issued. Every such notice of election to convert shall
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constitute a contract between the holder of such Series G Preferred Stock
and the Corporation, whereby such holder shall be deemed to subscribe for
the amount of common stock which he will be entitled to receive upon such
conversion and, in payment and satisfaction of such subscription (and any
cash adjustment to which he may be entitled), to surrender such Series G
Preferred Stock and to release the Corporation from all obligation on the
shares to be converted and whereby the Corporation shall be deemed to agree
that the surrender of such shares and the extinguishment of obligation
thereon shall constitute full payment for the common stock so subscribed
for and to be issued upon such conversion.
(b) As promptly as practicable after the surrender for
conversion of any Series G Preferred Stock and the payment in cash of any
amount required by paragraph (i) of this Section 6, the Corporation shall
deliver or cause to be delivered to or upon the written order of the holder
of such Series G Preferred Stock certificates representing the number of
shares of common stock issuable upon such conversion, issued in such name
or names as such holder shall have directed, together with cash in respect
of any fractional interest in a share of Common Stock issuable upon such
conversion and, if only a part of such Series G Preferred Stock is
converted, a certificate or certificates for the unconverted shares of
Series G Preferred Stock. Such conversion shall be deemed to have been
made at the close of business on the day of surrender of the Series G
Preferred Stock for conversion, and the rights of the holder of such stock
as a Series G Preferred Stockholder, in respect of the stock surrendered
for conversion, shall cease at such time and the person or persons in whose
name or names the certificates for such shares are to be issued shall be
treated for all purposes as having become the record holder or holders of
common stock at such time and such conversion shall be at the conversion
rate in effect at such time; provided, however, that no such surrender on
any date when the stock transfer books of the Corporation shall be closed
shall be effective to constitute the person or persons entitled to receive
the shares of common stock upon such conversion as the record holder or
holders of such shares on such date, but such surrender shall be effective
to constitute the person or persons entitled to receive such shares of
common stock as the record holder or holders thereof for all purposes at
the opening of business on the next succeeding day on which such stock
transfer books are open and such conversion shall be at the conversion rate
in effect at the opening of business on such next succeeding day.
If the last day for the exercise of the conversion is a legal
holiday in the city in which the transfer agent to which shares are
presented for conversion is located, then such conversion right may be
exercised (at the conversion rate in effect on such last day) upon the next
succeeding day not in such city a legal holiday.
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(c) No payment or adjustment shall be made upon any
conversion in respect of dividends accrued and unpaid on the Series G
Preferred Stock to the date of conversion or in respect of any dividends on
the common stock issued upon such conversion.
(d) The conversion rate shall be subject to adjustment
from time to time as follows:
(i) In case the Corporation shall at any time (A)
pay a dividend or make a distribution on shares of its common stock
in shares of its capital stock (whether shares of common stock or of
capital stock of any other class), (B) subdivide or reclassify its
outstanding shares of common stock into a greater number of
securities (including shares of common stock), or (C) combine or
reclassify its outstanding shares of common stock into a smaller
number of shares (including shares of common stock), the conversion
rate in effect immediately prior thereto shall be adjusted so that
the holder of record of any shares of Series G Preferred Stock
thereafter surrendered for conversion shall be entitled to receive
the number of shares of the Corporation which he would have owned or
have been entitled to receive after the happening of any of the
events described above had such shares of Series G Preferred Stock
been converted immediately prior to the happening of such event. An
adjustment made pursuant to this subparagraph (i) shall become
effective immediately after the record date in the case of a
dividend and shall become effective immediately after the effective
date in the case of a subdivision or combination. If, as a result
of an adjustment made pursuant to this subparagraph (i), the holder
of any Series G Preferred Stock thereafter converted shall become
entitled to receive shares of two or more classes of capital stock
of the Corporation, the Board of Directors of the Corporation (whose
determination shall be conclusive) shall determine the allocation of
the adjusted conversion rate between or among shares of such classes
of capital stock.
In the event that at any time, as a result of an adjustment made
pursuant to this subparagraph (i), the holder of any Series G
Preferred Stock thereafter converted shall become entitled to
receive any shares or other securities of the Corporation other than
shares of common stock, thereafter the number of such other shares
so received upon conversion of any Series G Preferred Stock shall be
subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to
the shares of common stock contained in this paragraph 6(d), and
other provisions of this Section 6 with respect to the shares of
common stock shall apply on like term to any such other shares or
other securities.
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(ii) In case the Corporation shall fix a record date
for the issuance of rights or warrants to all holders of its common
stock (or securities convertible into common stock) entitling them
(for a period expiring within 45 days after such record date) to
subscribe for or purchase common stock at a price per share (or a
conversion price per share) less than the current market price per
share of common stock (as defined in subparagraph (iv) below) at
such record date, the conversion rate in effect immediately prior
thereto shall be adjusted so that the same shall equal the rate
determined by multiplying the conversion rate in effect immediately
prior to such record date by a fraction of which the numerator shall
be the number of shares of common stock outstanding on such record
date plus the number of additional shares of common stock offered
for subscription or purchase (or into which the convertible
securities so offered are initially convertible), and of which the
denominator shall be the number of shares of common stock
outstanding on such record date plus the number of shares which the
aggregate offering price of the total number of shares so offered
(or the aggregate initial conversion price of the convertible
securities so offered) would purchase at such current market price.
Such adjustment shall be made successively whenever such a record
date is fixed, and shall become effective immediately after such
record date. In determining whether any rights or warrants entitle
the holders to subscribe for or purchase shares of common stock at
less than such current market price, and in determining the
aggregate offering price of such shares, there shall be taken into
account any consideration received by the Corporation for such
rights or warrants, the value of such consideration, if other than
cash, to be determined by the Board of Directors of the Corporation.
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 required under this subparagraph (ii).
(iii) In case the Corporation shall fix a record
date for making a distribution to all holders of its common stock
evidences of its indebtedness or assets (excluding regular quarterly
or other periodic or recurring cash dividends or distributions and
cash dividends or distributions paid from retained earnings or
referred to in subparagraph (i) above) or rights or warrants to
subscribe or purchase (excluding those referred to in subparagraph
(ii) above), then in each such case the conversion rate shall be
adjusted so that the same shall equal the rate determined by
multiplying the conversion rate in effect immediately prior to such
record date by a fraction of which the numerator shall be the
current market price (as defined in subparagraph (iv) below) per
share of the common stock on such record
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date, and the denominator of which shall be such current market
price per share of common stock, less the then fair market value (as
determined in good faith by the Board of Directors, whose
determination shall be conclusive) of the portion of the assets or
evidences of indebtedness so distributed or of such rights or
warrants applicable to one share of common stock. Such adjustment
shall be made successively whenever such a record date is fixed and
shall become effective immediately after such record date.
Notwithstanding the foregoing, in the event that the Corporation
shall distribute any rights or warrants to acquire capital stock
("Rights") pursuant to this subparagraph (iii), the distribution of
separate certificates representing such Rights subsequent to their
initial distribution (whether or not such distribution shall have
occurred prior to the date of the issuance of such Series G Preferred
Stock) shall be deemed to be the distribution of such Rights for
purposes of this subparagraph (iii); provided that the Corporation
may, in lieu of making any adjustment pursuant to this subparagraph
(iii) upon a distribution of separate certificates representing such
Rights, make proper provision so that each holder of such Series G
Preferred Stock who converts such Series G Preferred Stock (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 Rights and (B) after
such record date and prior to the expiration, redemption or
termination of such 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 Rights as would a holder of
the number of shares of common stock that such Series G Preferred
Stock so converted would have entitled the holder thereof to
purchase in accordance with the terms and provisions of and
applicable to the Rights if such Series G Preferred Stock 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 required
under this subparagraph (iii).
(iv) For the purpose of any computation under
subparagraph (ii) and (iii) above, the current market price per
share of common stock at any date shall be deemed to be the average
of the daily Closing Prices for the thirty consecutive business days
commencing forty-five business days before the day in question. The
Closing Price for any day shall be (A) if the common stock is listed
or admitted for trading on any national securities exchange, the
last sale price (regular way), or the average of the closing bid and
ask prices, if no sale occurred, of common stock on the principal
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securities exchange on which the common stock is listed, (B) if
not listed as described in (A), the mean between the closing high bid
and low asked quotations of common stock in the National Association
of Securities Dealers, Inc., Automated Quotation System, or any
similar system or automated dissemination of quotations of securities
prices then in common use, if so quoted, or (C) if not quoted as
described in clause (B), the mean between the high bid and low asked
quotations for common stock as reported by the National Quotation
Bureau Incorporated if at least two securities dealers have inserted
both bid and asked quotations for common stock on at least 5 of the
10 preceding days. If none of the conditions set forth above is
met, the Closing Price of common stock on any day or the average of
such Closing Prices for any period shall be the fair market value
of common stock as determined by a member firm of the New York
Stock Exchange, Inc. selected by the Corporation.
(v) (A) Nothing contained herein shall be construed
to require an adjustment in the conversion rate as a result of the
issuance of common stock pursuant to, or the granting or exercise of
any rights under, the Corporation's Shareholder Investment Plan or
any successor plans providing for the purchase of shares of common
stock by the Corporation's shareholders 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.
(B) In addition, no adjustment in the conversion
rate shall be required unless such adjustment would require an
increase or decrease of at least 1% in such rate; provided, however,
that any adjustments which by reason of this subparagraph (v)(B) are
not required to be made shall be carried forward and taken into
account in any subsequent adjustment; further provided, however,
that any adjustments which by reason of this subparagraph (v)(B) are
not otherwise required to be made shall be made no later than 3
years after the date on which occurs an event that requires an
adjustment to be made or carried forward.
(C) All calculations under this Section 6 shall be
made to the nearest cent or to the nearest one-hundredth of a share,
as the case may be. Anything in this Section 6 to the contrary
notwithstanding, the Corporation shall be entitled to make such
increases in the conversion rate, in addition to those required by
this paragraph (d), as it in its discretion shall determine to be
advisable in order that any stock dividends, subdivision of shares,
distribution of rights to purchase stock or securities, or
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distribution of securities convertible into or exchangeable for
stock hereafter made by the Corporation to its shareholders shall
not be taxable.
(vi) In any case in which this paragraph (d)
provides that an adjustment shall become effective immediately after
a record date for an event, the Corporation may defer until the
occurrence of such event (A) delivering to the holder of any Series
G Preferred Stock converted after such record date and before the
occurrence of such event the additional shares of common stock
deliverable upon such conversion by reason of the adjustment
required by such event over and above the common stock deliverable
upon such conversion before giving effect to such adjustment and (B)
paying to such holder any amount in cash in lieu of any fraction
pursuant to paragraph (e), provided, however, that the Corporation
shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder's rights to receive such
additional shares, and such cash, upon the occurrence of the event
requiring such adjustment. If such event does not occur, no
adjustments shall be made pursuant to this paragraph (d).
(e) No fractional shares of stock shall be issued upon
the conversion of any Series G Preferred Stock. If more than one share of
Series G Preferred Stock shall be surrendered for conversion at one time by
the same holder, the number of full shares of common stock which shall be
issuable upon conversion thereof shall be computed on the basis of the
aggregate number of shares of Series G Preferred Stock so surrendered.
Instead of any fractional share of common stock which would otherwise be
issuable upon conversion of any Series G Preferred Stock, the Corporation
shall pay a cash adjustment in respect of such fraction in an amount equal
to the same fraction of the Closing Price per share of common stock on the
business day which immediately precedes the day of conversion.
(f) In case any of the following shall occur while any
Series G Preferred Stock is outstanding: (i) any reclassification or
change of the outstanding shares of common stock deliverable upon
conversion of the Series G Preferred Stock (other than a change in par
value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination, but including any
change in the shares of common stock into two or more classes or series of
securities); or (ii) any consolidation or merger to which the Corporation
is a party (other than a consolidation or a merger in which the Corporation
is the continuing corporation and which does not result in any
reclassification of, or change other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination) in, the outstanding shares of
common stock issuable upon conversion
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of the Series G Preferred Stock); or (iii) any sale or conveyance to
another corporation of the properties and assets of the Corporation as an
entirety or substantially as an entirety; then the Corporation, or such
successor or purchasing corporation, as the case may be, shall make
appropriate provision in its charter or otherwise so that the holders of
the Series G Preferred Stock then outstanding shall have the right at any
time thereafter to convert such Series G Preferred Stock into the kind and
amount of shares of stock and other securities and property receivable upon
such reclassification, change, consolidation, merger, sale or conveyance by
a holder of the number of shares of common stock issuable upon conversion
of such Series G Preferred Stock immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance. Such
provision shall provide for adjustments which shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Section 6.
The above provisions of this paragraph (f) shall similarly apply to
successive reclassifications, changes, consolidations, mergers, sales or
conveyances.
(g) The Corporation will at all times reserve and keep
available out of its authorized but unissued or treasury stock, solely for
the purpose of issue upon conversion of the Series G Preferred Stock as
provided in this Section 6, such number of shares of common stock as shall
from time to time be sufficient to effect the conversion of all outstanding
Series G Preferred Stock.
(h) Before taking any action which would cause an
adjustment increasing the conversion rate so that the liquidation value
divided by the conversion rate is below the then par value of the shares of
common stock, the Corporation will take any corporate action which may, in
the opinion of its counsel, be necessary in order that the Corporation may
validly and legally issue fully paid and non-assessable shares of common
stock at the conversion rate as so adjusted.
(i) The issuance of certificates for shares of common
stock upon conversion of Series G Preferred Stock shall be made without
charge to the converting stockholder for such certificates or for any tax
in respect of the issuance of such certificates, and such certificates
shall be issued in the name of, or in such name or names as may be directed
by, the holder of the Series G Preferred Stock converted. However, if any
such certificate is to be issued in a name other than that of the holder of
the converted Series G Preferred Stock, the Corporation shall not be
required to issue or deliver any stock certificate or certificates unless
and until the holder has paid to the Corporation the amount of any tax
which may be payable in respect of any transfer involved in such issuance
or shall establish to the satisfaction of the Corporation that such tax has
been paid.
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(j) Whenever the conversion rate then in effect is
adjusted as herein provided, the Corporation shall mail to each holder of
the Series G Preferred Stock at such holder's address as it shall appear on
the books of the Corporation a statement setting forth the adjusted
conversion rate, then and thereafter effective under the provisions hereof
together with the facts, in reasonable detail, upon which such adjustment
is based.
(k) In case (i) the Corporation shall declare a dividend
(or any other distribution) on its common stock other than in cash out of
its current or retained earnings, or (ii) other than pursuant to the
Shareholder Investment Plan or any successor plan in accordance with
paragraph (d)(v)(A) above, the Corporation shall authorize the granting to
the holders of its common stock of rights or warrants to subscribe for or
purchase any shares of capital stock of any class or of any other rights or
warrants, or (iii) of any reclassification or change of the common stock of
the Corporation (other than a subdivision or combination of its outstanding
shares of common stock, or a change in par value, or from par value to no
par value, or from no par value to par value), or of any consolidation or
merger to which the Corporation is a party and for which approval of any
stockholders of the Corporation is required or the sale or transfer of all
or substantially all of the assets of the Corporation, or (iv) of the
voluntary or involuntary dissolution, liquidation or winding up of the
Corporation; the Corporation shall mail to each holder of Series G
Preferred Stock at such holder's address as it shall appear on the books of
the Corporation, at least fifteen days prior to the applicable record date
hereinafter specified, a notice stating (x) the record date for such
dividend, distribution or rights, or, if a record is not to be taken, the
date as of which the holders of common stock of record to be entitled to
such dividend, distribution or rights are to be determined, or (y) the date
on which such reclassification, consolidation, merger, dissolution,
liquidation or winding up is expected to become effective, and the date as
of which it is expected that holders of common stock of record shall be
entitled to exchange their shares of common stock for securities or other
property deliverable upon such reclassification, consolidation, merger,
dissolution, liquidation or winding up. No failure to mail such notice nor
any defect therein or in the mailing thereof shall affect the legality or
validity of any such transaction or any adjustment in the conversion rate
or conversion price required by this Section 6.
7. Voting. Except as hereinafter in this Section 7
expressly provided or as otherwise required by law, the Series G Preferred
Stock shall have no voting power.
Whenever and as often as dividends payable on any share or
shares of the Preferred Stock at the time outstanding shall be accumulated
and
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unpaid in an amount equivalent to or exceeding six quarterly dividends
(whether or not declared and whether or not consecutive), the holders of
record of the Preferred Stock of all series shall thereafter have the
right, as a single class, to elect two directors, and, subject to the terms
of any outstanding series of Preferred Stock, the holders of record of the
common stock, as a single class, shall have the right to elect the
remaining authorized number of Directors. In any such election, the
holders of shares of Series G Preferred Stock shall be entitled to cast one
vote per share.
Upon the happening of the six dividend defaults hereinabove
set forth, a special meeting of stockholders of the Corporation then
entitled to vote shall be called by the Chairman of the Board or the
President or the Secretary of the Corporation, if requested in writing by
the holders of record of not less than ten percent of the Preferred Stock
then outstanding. At such special meeting, or, if no such special meeting
shall have been called, then at the next annual meeting of stockholders,
the stockholders of the Corporation then entitled to vote shall elect,
voting as above provided, an entirely new Board of Directors, and the term
of office of the Directors in office at the time of such election shall
expire upon the election of their successors at such meeting; provided,
however, that nothing herein contained shall be construed to be a bar to
the re-election of any Director at such meeting. At all meetings of
stockholders at which holders of Preferred Stock shall be entitled to vote
for Directors as a single class, the holders of a majority of the
outstanding shares of each class or series of capital stock of the
Corporation having the right to vote as a single class shall be necessary
to constitute a quorum, whether present in person or by proxy, for the
election by that class or series of its designated Directors. In order to
validate an election of Directors by stockholders voting as a class, such
Directors shall be elected by the vote of at least a plurality of shares
held by such stockholders present or represented at the meeting. At any
such meeting, the election of Directors by stockholders voting as a class
shall be valid notwithstanding that a quorum of other stockholders voting
as one or more classes may not be present or represented at such meeting,
and if any stockholders voting as a class shall elect Directors, the
Directors so elected shall be deemed to be Directors of the Corporation
unless and until the other stockholders entitled to vote as one or more
classes shall elect their Directors.
While class voting is in effect with respect to the Preferred
Stock, any Director elected by holders of Preferred Stock voting as a class
may be removed at any annual or special meeting, by vote of a majority of
the stockholders voting as a class who elected such Director, for any cause
deemed sufficient by such stockholders present at such meeting. In case
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any vacancy shall occur among the Directors elected by such stockholders
voting as a class, such vacancy may be filled by the remaining Director so
elected, or his successor then in office, and the Director so elected to
fill such vacancy shall serve until the next meeting of stockholders for
the election of Directors.
Such voting rights of the holders of Preferred Stock as a
single class, once effective, shall continue only until all arrears in
dividends (whether or not declared) on the Preferred Stock shall have been
paid or declared and set apart for payment at which time the right of the
Preferred Stock to vote as a single class for the election of Directors, as
hereinabove set forth, shall terminate. Upon such termination, a special
meeting of the stockholders of the Corporation then entitled to vote may be
called by the Chairman of the Board or the President, and shall be called
by the Chairman of the Board or the President or the Secretary of the
Corporation if requested in writing by the holders of record of not less
than one percent of the common stock then outstanding, and at such special
meeting, or if no such special meeting shall have been called then at the
next annual meeting of the stockholders, the stockholders of the
Corporation then entitled to vote shall elect an entirely new Board of
Directors and the term of office of the Directors in office at the time of
such election shall expire upon the election of their successors at such
meeting; provided, however, that nothing herein contained shall be
construed to be a bar to the re-election of any such Director at such
meeting.
The consent of the holders of at least two-thirds of the
number of shares of Preferred Stock at the time outstanding, given in
person or by proxy, either in writing or at a meeting of stockholders at
which the holders of the Preferred Stock shall vote separately as a class
without regard to series, the holders of shares of Series G Preferred Stock
being entitled to cast one vote per share thereon, shall be necessary for
effecting or validating:
(i) any change in the Certificate of Incorporation
or certificate supplemental thereto or By-laws of the Corporation
which would materially and adversely alter or change the
preferences, privileges, rights or powers given to the holders of
the Preferred Stock, provided, that if one or more but not all
series of Preferred Stock at the time outstanding are so affected,
only the consent of the holders of at least two-thirds of each
series so affected, voting separately as a class, shall be required;
or
(ii) the issuance of any shares of any other class of
stock of the Corporation ranking prior to the Preferred Stock.
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The term "ranking prior to the Preferred Stock" shall mean
and include all shares of stock of the Corporation in respect of which
the rights of the holders thereof as to the payment of dividends or as to
distributions in the event of a voluntary or an involuntary liquidation,
dissolution or winding up of the Corporation, are given preference over the
rights of the holders of the Preferred Stock.
8. Liquidation Preference. In the event of any
liquidation, dissolution or winding up of the Corporation, voluntary or
involuntary, the holders of all shares of Series G Preferred Stock shall be
entitled to be paid in full out of the assets of the Corporation available
for distribution to stockholders, before any distribution of assets shall
be made to the holders of common stock or of any other shares of stock of
the Corporation ranking as to such distribution junior to the Series G
Preferred Stock, an amount equal to $50 per share plus an amount equal to
any accrued and unpaid dividends thereon to the date fixed for payment of
such distribution. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the amounts payable with
respect to the Series G Preferred Stock and any other shares of stock of
the Corporation ranking as to any such distribution on a parity with the
Series G Preferred Stock are not paid in full, the holders of the Series G
Preferred Stock and of such other shares shall 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
to the holders of the Series G Preferred Stock of the full preferential
amounts provided for in this Section 8, the holders of the Series G
Preferred Stock shall be entitled to no further participation in any
distribution of assets by the Corporation.
Consolidation or merger of the Corporation with or into
another corporation or corporations, or a sale, whether for cash, shares of
stock, securities or properties, of all or substantially all of the assets
of the Corporation, shall not be deemed or construed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this
paragraph 8.
9. Limitation on Dividends on Junior Ranking Stock. So
long as any Series G Preferred Stock shall be outstanding, the Corporation
shall not declare any dividends on the common stock of the Corporation or
any other stock of the Corporation ranking as to dividends or distribution
of assets junior to the Series G Preferred Stock (the common stock and any
such other stock being herein referred to as "Junior Stock"), or make any
payment on account of, or set apart money for, a sinking or other analogous
fund for the purchase, redemption or other retirement of any shares of
Junior Stock, or make any distribution in respect thereof, whether in cash
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or property or in obligations or stock of the Corporation, other than
Junior Stock (such dividends, payments, setting apart and distributions
being herein called "Junior Stock Payments"), unless all of the conditions
set forth in the following subsections A and B shall exist at the date of
such declaration in the case of any such dividend, or the date of such
setting apart in the case of any such fund, or the date of such payment or
distribution in the case of any other Junior Stock Payment:
A. Full cumulative dividends shall have been paid or
declared and set apart for payment upon all outstanding shares of Preferred
Stock other than Junior Stock.
B. The Corporation shall not be in default or in arrears
with respect to any sinking or other analogous fund or any call for tenders
obligation or other agreement for the purchase, redemption or other
retirement of any shares of Preferred Stock other than Junior Stock."
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CERTIFICATE OF DESIGNATION
of
9% CUMULATIVE PREFERRED STOCK, SERIES H
of
BANKAMERICA CORPORATION
BANKAMERICA CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (herein referred to as the "Corporation"), in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, does hereby CERTIFY:
1. The Certificate of Incorporation, as amended, of the
Corporation fixes the total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue at five hundred fifty
million (550,000,000) shares, of which fifty million (50,000,000) shares shall
be shares of preferred stock, without par value, and five hundred million
(500,000,000) shares shall be common stock, of the par value of $1.5625 per
share.
2. The Certificate of Incorporation, as amended, of the
Corporation, expressly grants to the Board of Directors of the Corporation
authority to provide for the issuance of the preferred stock in one or more
series, with such voting powers, full or limited, or without voting powers, and
with such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the Certificate of Incorporation or any
amendment thereto, or in the resolution or resolutions providing for the issue
of such stock adopted by the Board of Directors.
3. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
the Board of Directors, (i) by action duly taken on October 22, 1982,
authorized the issuance of six million (6,000,000) shares of Cumulative
Adjustable Preferred Stock, Series A, without par value, (ii) by action duly
taken on February 11, 1983, authorized the issuance of four million (4,000,000)
shares of Cumulative Adjustable Preferred Stock, Series B without par value,
(iii) by action duly taken on June 6, 1983, authorized the issuance of five
million two hundred thousand (5,200,000) shares of Cumulative Preferred Stock,
Special Series, without par value, (iv) by actions duly taken on April 11, 1988
and on October 7, 1991, authorized the issuance of five million (5,000,000)
shares of Cumulative Participating Preferred Stock, Series E, without par
value, (v) by action duly taken on January 7, 1991, and the Pricing Committee
of the Board of Directors by action duly taken on
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March 22, 1991, authorized the issuance of seven million two hundred fifty
thousand (7,250,000) shares of 9-5/8% Cumulative Preferred Stock, Series F,
without par value and (vi) by action duly taken on April 29, 1991, and the
Pricing Committee of the Board of Directors by action duly taken on May 21,
1991, authorized the issuance of five million (5,000,000) shares of 6-1/2%
Cumulative Convertible Preferred Stock, Series G, without par value.
4. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
and the authority conferred upon the Pricing Committee and the Pricing
Subcommittee of the Board of Directors by the resolutions adopted by the Board
of Directors on August 5, 1991, the Board of Directors, by actions duly taken
on August 5, 1991, the Pricing Committee of the Board of Directors, by actions
duly taken on November 22, 1991, and the Pricing Subcommittee of the Board of
Directors, by actions duly taken on December 13, 1991, adopted resolutions that
compositely provide for an additional series of the preferred stock as follows:
"RESOLVED, that an issue of a series of the preferred stock, without
par value, of the Corporation (such preferred stock being herein referred to as
"Preferred Stock", which term shall include any additional shares of preferred
stock of the same class heretofore or hereafter authorized to be issued by the
Corporation), consisting of eleven million two hundred fifty thousand
(11,250,000) shares is hereby provided for, and the voting power, designation,
preference and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, are fixed hereby as
follows:
1. Designation. The designation of such series shall be
9% Cumulative Preferred Stock, Series H (hereinafter referred to as the
"Series H Preferred Stock") and the number of shares constituting such
series is eleven million two hundred fifty thousand (11,250,000). Shares
of Series H Preferred Stock shall have a stated value of $25 per share.
The number of authorized shares of Series H Preferred Stock may be reduced
by further resolution duly adopted by the Board of Directors of the
Corporation or the Executive Committee of the Board of Directors and by the
filing of a certificate pursuant to the provisions of the General
Corporation Law of the State of Delaware stating that such reduction has
been so authorized, but the number of authorized shares of Series H
Preferred Stock shall not be increased.
2. Dividends. Quarterly Dividend Periods shall commence
on March 1, June 1, September 1 and December 1 in each year and shall end
on and include the day next preceding the first day of the next Quarterly
Dividend Period. Such dividends shall be cumulative from the respective
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dates of original issue of shares of Series H Stock and shall be payable,
when and as declared by the Board of Directors, on February 28, May 31,
August 31 and November 30 of each year, commencing February 28, 1992. Each
such dividend shall be paid to the holders of record of shares of Series H
Preferred Stock as they appear on the stock register of the Corporation on
such record date, not exceeding 30 days preceding the payment date thereof,
as shall be fixed by the Board of Directors of the Corporation. Dividends
on account of arrears for any past Dividend Periods may be declared and
paid at any time, without reference to any regular dividend payment date,
to holders of record on such date, not exceeding 45 days preceding the
payment date thereof, as may be fixed by the Board of Directors of the
Corporation. If there shall be outstanding shares of any other series of
Preferred Stock ranking on a parity as to dividends with the Series H
Preferred Stock, the Corporation, in making any dividend payment on account
of arrears on the Series H Preferred Stock or such other series of
Preferred Stock, shall make payments ratably upon all outstanding shares of
Series H Preferred Stock and such other series of Preferred Stock in
proportion to the respective amounts of dividends in arrears upon all such
outstanding shares of Series H Preferred Stock and such other series of
Preferred Stock to the date of such dividend payment. No interest, or sum
of money in lieu of interest, shall be payable in respect of any dividend
payment or payments which may be in arrears.
The amount of dividends per share payable for each Quarterly
Dividend Period shall be computed by dividing the dividend rate for such
Dividend Period by four and applying such rate against the stated value per
share of the Series H Preferred Stock. Dividends payable on the Series H
Preferred Stock for any period less than a full Quarterly Dividend Period,
and for any portion of the Initial Dividend Period occurring prior to March
1, 1992, shall be computed on the basis of a 360-day year of four 90-day
quarters and the actual number of days elapsed in the period for which
payable.
3. Dividend Rate. The Dividend Rate on the shares of
Series H Preferred Stock for the period (the "Initial Dividend Period")
from the respective dates of original issue thereof to and including
February 28, 1992, and for each Quarterly Dividend Period thereafter shall
be 9% per annum.
4. Redemption. The Corporation, at its option, may
redeem shares of the Series H Preferred Stock, as a whole or in part, at
any time or from time to time on or after January 15, 1997, at $25 per
share, plus accrued and unpaid dividends thereon to the date fixed for
redemption.
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If the Corporation shall redeem shares of Series H Preferred
Stock pursuant to this Section 4, notice of such redemption shall be given
by publication (not less than 30 nor more than 90 days prior to the
redemption date) at least once in a newspaper printed in the English
language and of general circulation in the City and County of San
Francisco, State of California (upon any secular day of the week) stating
such election on the part of the Corporation and that on the redemption
date there will become due and payable upon each of the shares to be
redeemed, at the place or places specified in such notice, the applicable
redemption price therein specified. A similar notice shall be mailed by
first class mail, postage prepaid, not less than 30 nor more than 90 days
prior to the redemption date, to each holder of record of the shares to be
redeemed, at such holder's address as the same appears on the stock
register of the Corporation. Each such notice shall state: (a) the
redemption date; (b) the number of shares of Series H Preferred Stock to be
redeemed and, if less than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (c)
the redemption price; (d) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price; and (e)
that dividends on the shares to be redeemed will cease to accrue on such
redemption date. Notice having been mailed as aforesaid, from and after
the redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on the
shares of the Series H Preferred Stock so called for redemption shall cease
to accrue, and said shares shall no longer be deemed to be outstanding, and
all rights of the holders thereof as stockholders of the Corporation
(except the right to receive from the Corporation the redemption price)
shall cease. Upon surrender in accordance with said notice of the
certificates for any shares so redeemed (properly endorsed or assigned for
transfer, if the Board of Directors of the Corporation shall so require and
the notice shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. If less than all the
outstanding shares of Series H Preferred Stock are to be redeemed, shares
to be redeemed shall be selected by the Corporation from outstanding shares
of Series H Preferred Stock not previously called for redemption by lot or
pro rata (as nearly as may be) in any method determined by the Corporation
in its sole discretion to be equitable.
In no event shall the Corporation redeem or purchase any shares of
Series H Preferred Stock pursuant to this Section 4 unless full cumulative
dividends shall have been paid or declared and set apart for payment upon
all outstanding shares of Series H 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.
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5. Shares to be Retired. All shares of Series H
Preferred Stock redeemed by the Corporation shall be retired and cancelled
and shall be restored to the status of authorized but unissued shares of
Preferred Stock, without designation as to series, and may thereafter be
issued.
6. Conversion or Exchange. The holders of shares of
Series H Preferred Stock shall not have any rights herein to convert such
shares into or exchange such shares for shares of any other class or
classes or of any other series of any class or classes of capital stock of
the Corporation.
7. Voting. Except as hereinafter in this Section 7
expressly provided or as otherwise required by law, the Series H Preferred
Stock shall have no voting power.
Whenever and as often as dividends payable on any share or
shares of the Preferred Stock at the time outstanding shall be accumulated
and unpaid in an amount equivalent to or exceeding six quarterly dividends
(whether or not declared and whether or not consecutive), the holders of
record of the Preferred Stock of all series shall thereafter have the
right, as a single class, to elect two directors, and, subject to the terms
of any outstanding series of Preferred Stock, the holders of record of the
common stock, as a single class, shall have the right to elect the
remaining authorized number of Directors. In any such election, the
holders of shares of Series H Preferred Stock shall be entitled to cast one
vote per share.
Upon the happening of the six dividend defaults hereinabove
set forth, a special meeting of stockholders of the Corporation then
entitled to vote shall be called by the Chairman of the Board or the
President or the Secretary of the Corporation, if requested in writing by
the holders of record of not less than ten percent of the Preferred Stock
then outstanding. At such special meeting, or, if no such special meeting
shall have been called, then at the next annual meeting of stockholders,
the stockholders of the Corporation then entitled to vote shall elect,
voting as above provided, an entirely new Board of Directors, and the term
of office of the Directors in office at the time of such election shall
expire upon the election of their successors at such meeting; provided,
however, that nothing herein contained shall be construed to be a bar to
the re-election of any Director at such meeting. At all meetings of
stockholders at which holders of Preferred Stock shall be entitled to vote
for Directors as a single class, the holders of a majority of the
outstanding shares of each class or series of capital stock of the
Corporation having the right to vote as a single class shall be necessary
to constitute a quorum, whether present in person or by proxy, for the
election by that class or
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series of its designated Directors. In order to validate an election of
Directors by stockholders voting as a class, such Directors shall be
elected by the vote of at least a plurality of shares held by such
stockholders present or represented at the meeting. At any such meeting,
the election of Directors by stockholders voting as a class shall be valid
notwithstanding that a quorum of other stockholders voting as one or more
classes may not be present or represented at such meeting, and if any
stockholders voting as a class shall elect Directors, the Directors so
elected shall be deemed to be Directors of the Corporation unless and until
the other stockholders entitled to vote as one or more classes shall elect
their Directors.
While class voting is in effect with respect to the Preferred
Stock, any Director elected by holders of Preferred Stock voting as a class
may be removed at any annual or special meeting, by vote of a majority of
the stockholders voting as a class who elected such Director, for any cause
deemed sufficient by such stockholders present at such meeting. In case
any vacancy shall occur among the Directors elected by such stockholders
voting as a class, such vacancy may be filled by the remaining Director so
elected, or his successor then in office, and the Director so elected to
fill such vacancy shall serve until the next meeting of stockholders for
the election of Directors.
Such voting rights of the holders of Preferred Stock as a
single class, once effective, shall continue only until all arrears in
dividends (whether or not declared) on the Preferred Stock shall have been
paid or declared and set apart for payment at which time the right of the
Preferred Stock to vote as a single class for the election of Directors, as
hereinabove set forth, shall terminate. Upon such termination, a special
meeting of the stockholders of the Corporation then entitled to vote may be
called by the Chairman of the Board or the President, and shall be called
by the Chairman of the Board or the President or the Secretary of the
Corporation if requested in writing by the holders of record of not less
than one percent of the common stock then outstanding, and at such special
meeting, or if no such special meeting shall have been called then at the
next annual meeting of the stockholders, the stockholders of the
Corporation then entitled to vote shall elect an entirely new Board of
Directors and the term of office of the Directors in office at the time of
such election shall expire upon the election of their successors at such
meeting; provided, however, that nothing herein contained shall be
construed to be a bar to the re-election of any such Director at such
meeting.
The consent of the holders of at least two-thirds of the
number of shares of Preferred Stock at the time outstanding, given in
person or by
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proxy, either in writing or at a meeting of stockholders at which the
holders of the Preferred Stock shall vote separately as a class without
regard to series, the holders of shares of Series H Preferred Stock being
entitled to cast one vote per share thereon, shall be necessary for
effecting or validating:
(i) Any change in the Certificate of Incorporation
or certificate supplemental thereto or By-laws of the Corporation
which would materially and adversely alter or change the
preferences, privileges, rights or powers given to the holders of
the Preferred Stock, provided, that if one or more but not all
series of Preferred Stock at the time outstanding are so affected,
only the consent of the holders of at least two-thirds of each
series so affected, voting separately as a class, shall be required;
or
(ii) The issuance of any shares of any other class
of stock of the Corporation ranking prior to the Preferred Stock.
The term "ranking prior to the Preferred Stock" shall mean
and include all shares of stock of the Corporation in respect of which the
rights of the holders thereof as to the payment of dividends or as to
distributions in the event of a voluntary or an involuntary liquidation,
dissolution or winding up of the Corporation, are given preference over the
rights of the holders of the Preferred Stock.
8. Liquidation Preference. In the event of any
liquidation, dissolution or winding up of the Corporation, voluntary or
involuntary, the holders of all shares of Series H Preferred Stock shall be
entitled to be paid in full out of the assets of the Corporation available
for distribution to stockholders, before any distribution of assets shall
be made to the holders of common stock or of any other shares of stock of
the Corporation ranking as to such distribution junior to the Series H
Preferred Stock, an amount equal to $25 per share plus an amount equal to
any accrued and unpaid dividends thereon to the date fixed for payment of
such distribution. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the amounts payable with
respect to the Series H Preferred Stock and any other shares of stock of
the Corporation ranking as to any such distribution on a parity with the
Series H Preferred Stock are not paid in full, the holders of the Series H
Preferred Stock and of such other shares shall 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
to the holders of the Series H Preferred Stock of the full preferential
amounts provided for in this Section 8, the holders of the Series H
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Preferred Stock shall be entitled to no further participation in any
distribution of assets by the Corporation.
Consolidation or merger of the Corporation with or into
another corporation or corporations, or a sale, whether for cash, shares of
stock, securities or properties, of all or substantially all of the assets
of the Corporation, shall not be deemed or construed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this
paragraph 8.
9. Limitation on Dividends on Junior Ranking Stock. So
long as any Series H Preferred Stock shall be outstanding, the Corporation
shall not declare any dividends on the common stock of the Corporation or
any other stock of the Corporation ranking as to dividends or distribution
of assets junior to the Series H Preferred Stock (the common stock and any
such other stock being herein referred to as "Junior Stock"), or make any
payment on account of, or set apart money for, a sinking or other analogous
fund for the purchase, redemption or other retirement of any shares of
Junior Stock, or make any distribution in respect thereof, whether in cash
or property or in obligations or stock of the Corporation, other than
Junior Stock (such dividends, payments, setting apart and distributions
being herein called "Junior Stock Payments"), unless all of the conditions
set forth in the following subsections A and B shall exist at the date of
such declaration in the case of any such dividend, or the date of such
setting apart in the case of any such fund, or the date of such payment or
distribution in the case of any other Junior Stock Payment:
A. Full cumulative dividends shall have been paid or
declared and set apart for payment upon all outstanding shares of Preferred
Stock other than Junior Stock.
B. The Corporation shall not be in default or in arrears
with respect to any sinking or other analogous fund or any call for tenders
obligation or other agreement for the purchase, redemption or other
retirement of any shares of Preferred Stock other than Junior Stock."
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<PAGE> 81
CERTIFICATE OF DESIGNATION
OF
11% PREFERRED STOCK, SERIES I
OF
BANKAMERICA CORPORATION
BANKAMERICA CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (herein referred to as the "Corporation"), in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, does hereby CERTIFY:
1. The Certificate of Incorporation, as amended, of the
Corporation fixes the total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue at seven hundred
seventy million (770,000,000) shares, of which seventy million (70,000,000)
shares shall be shares of preferred stock, without par value, and seven hundred
million (700,000,000) shares shall be common stock, of the par value of $1.5625
per share.
2. The Certificate of Incorporation, as amended, of the
Corporation, expressly grants to the Board of Directors of the Corporation
authority to provide for the issuance of the preferred stock in one or more
series, with such voting powers, full or limited, or without voting powers, and
with such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the Certificate of Incorporation or any
amendment thereto, or in the resolution or resolutions providing for the issue
of such stock adopted by the Board of Directors.
3. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
the Board of Directors, (i) by action duly taken on October 22, 1982,
authorized the issuance of six million (6,000,000) shares of Cumulative
Adjustable Preferred Stock, Series A, without par value (the "Series A
Preferred Stock"), and by action duly taken on March 2, 1992, reduced the
number of authorized shares of Series A Preferred Stock to five million one
hundred seventy eight thousand (5,178,000) shares, (ii) by action duly taken on
February 11, 1983, authorized the issuance of four million (4,000,000) shares
of Cumulative Adjustable Preferred Stock, Series B, without par value (the
"Series B Preferred Stock"), and by action duly taken on March 2, 1992, reduced
the number of authorized shares of Series B Preferred Stock to three million
five hundred forty-six thousand one hundred (3,546,100) shares, (iii) by action
duly taken on June 6, 1983, authorized the issuance of five
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<PAGE> 82
million two hundred thousand (5,200,000) shares of Cumulative Preferred Stock,
Special Series, without par value (the "Special Preferred Stock"), and by
action duly taken on March 2, 1992, eliminated the Special Preferred Stock,
(iv) by actions duly taken on April 11, 1988 and on October 7, 1991, authorized
the issuance of seven million (7,000,000) shares of Cumulative Participating
Preferred Stock, Series E, without par value, (v) by action duly taken on
January 7, 1991, and the Pricing Committee of the Board of Directors by action
duly taken on March 22, 1991, authorized the issuance of seven million two
hundred fifty thousand (7,250,000) shares of 9-5/8% Cumulative Preferred Stock,
Series F, without par value, (vi) by action duly taken on April 29, 1991, and
the Pricing Committee of the Board of Directors by action duly taken on May 21,
1991, authorized the issuance of five million (5,000,000) shares of 6-1/2%
Cumulative Convertible Preferred Stock, Series G, without par value, (vii) by
action duly taken on August 5, 1991, the Pricing Committee of the Board of
Directors by action duly taken on November 22, 1991, and the Pricing
Subcommittee of the Board of Directors by action duly taken on December 13,
1991, authorized the issuance of eleven million two hundred fifty thousand
(11,250,000) shares of 9% Cumulative Preferred Stock, Series H, without par
value, and (viii) by action duly taken on January 6, 1992, the Pricing
Committee of the Board of Directors by action duly taken on January 27, 1992,
and the Pricing Subcommittee of the Board of Directors by action duly taken on
February 5, 1992, authorized the issuance of fourteen million six hundred
thousand (14,600,000) shares of 8-3/8% Cumulative Preferred Stock, Series K,
without par value.
4. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
the Board of Directors, by action duly taken on August 11, 1991, and the
Pricing Committee of the Board of Directors by action duly taken on April 15,
1992, adopted resolutions that compositely provide for an additional series of
the preferred stock as follows:
NOW, THEREFORE, BE IT RESOLVED, that there is hereby designated one
series of preferred stock, entitled, "11% Preferred Stock, Series I," such
series to consist of two hundred thousand (200,000) shares; and
RESOLVED FURTHER, that the issue of up to two hundred thousand
(200,000) shares of 11% Preferred Stock, Series I, without par value, of the
Corporation is hereby authorized and the preferences and privileges and the
relative, participating, optional and other special rights, and the
qualifications, limitations and restrictions thereof, of all such authorized
shares of such series, in addition to those set forth in the Certificate of
Incorporation of the Corporation and those established by the resolutions of
the Board of Directors of the Corporation adopted August 11, 1991, and by
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the resolutions of the Pricing Committee of the Board of Directors adopted
April 15, 1992, are hereby fixed as follows:
11% Preferred Stock, Series I
1. Number of Shares. (a) The designation of the series of
Preferred Stock, without par value, provided for herein shall be "11% Preferred
Stock, Series I" (hereinafter referred to as the "Series I Preferred") and the
number of authorized shares constituting Series I Preferred is two hundred
thousand (200,000). The number of authorized shares of Series I Preferred may
be reduced or increased by further resolution duly adopted by the Board of
Directors of the Corporation or any duly authorized committee thereof and by
the filing of a certificate pursuant to the provisions of the General
Corporation Law of the State of Delaware stating that such reduction or
increase has been so authorized.
(b) All shares of Series I Preferred redeemed or
purchased by the Corporation shall be retired and cancelled and shall be
restored to the status of authorized but unissued shares of preferred stock,
without designation as to series, and may thereafter be issued, but not as
shares of Series I Preferred.
2. Dividends. (a) The holders of the shares of Series I
Preferred shall be entitled to receive, when, as and if declared by the Board
of Directors of the Corporation or by any duly authorized committee thereof,
out of funds legally available therefor, cash dividends at the rate of 11% of
the liquidation preference per annum. Dividends shall be payable on the shares
of Series I Preferred for the Initial Dividend Period (as defined below) and
each quarterly dividend period thereafter (the Initial Dividend Period and each
such subsequent quarterly dividend period being hereinafter referred to as a
"Dividend Period" and collectively referred to as "Dividend Periods"), which
quarterly dividend periods shall commence on March 31, June 30, September 30
and December 31 in each year, and shall end on and include the day next
preceding the first day of the next Dividend Period. The Initial Dividend
Period is the period commencing on the most recent date next preceding the
effective time of the merger of the Corporation with Security Pacific
Corporation (the "Effective Time"), on which a dividend was paid on the 11%
Preferred Stock, Series I, of Security Pacific Corporation (or commencing on
the date of the Effective Time if such date was such a dividend payment date)
and shall end on and include the date next preceding the first day of the next
Dividend Period; provided, however, that in the event the Effective Time shall
occur after the record date for the payment of a regular quarterly dividend on
the 11% Preferred Stock, Series I, of Security Pacific Corporation but prior to
the payment date for such dividend, then the Initial Dividend Period shall be
the first regular
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quarterly dividend period commencing after the date of the Effective Time.
Dividends shall be cumulative from the date on which the Initial Dividend
Period commences and shall be payable on March 31, June 30, September 30 and
December 31 of each year, commencing with such date that next follows the end
of the Initial Dividend Period. Each such dividend shall be paid to the
holders of record of shares of Series I Preferred as they appear on the stock
register of the Corporation on such record date, not exceeding 30 days
preceding the payment date thereof, as shall be fixed by the Board of Directors
of the Corporation or by any duly authorized committee thereof. Dividends on
account of arrears for any past dividend periods may be declared and paid at
any time, without reference to any regular dividend payment date, to holders of
record on such date, not exceeding 45 days preceding the payment date thereof,
as may be fixed by the Board of Directors of the Corporation or by any duly
authorized committee thereof.
(b) (i) No full dividends shall be declared or paid or set
apart for payment on the common stock, $1.5625 par value, of the
Corporation ("Common Stock") or on any other stock of the Corporation
ranking, as to dividends, on a parity with or junior to the Series I
Preferred for any period unless full dividends (including any accumulated
dividends) have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for such payment on
shares of Series I Preferred. When dividends are not paid in full, as
aforesaid, upon the shares of Series I Preferred and any other series of
preferred stock of the Corporation ranking on a parity as to dividends with
the Series I Preferred, all dividends declared or made upon shares of
Series I Preferred and any other series of preferred stock of the
Corporation ranking on a parity as to dividends with the Series I Preferred
shall be declared pro rata so that the amount of dividends declared per
share on the Series I Preferred and such other series of preferred stock
shall in all cases bear to each other the same ratio that accrued dividends
per share on the shares of Series I Preferred and such other series of
preferred stock bear to each other. Holders of shares of Series I Preferred
shall not be entitled to any dividend, whether payable in cash, property or
stock, in excess of full cumulative dividends, as herein provided, on the
Series I Preferred. No interest, or sum of money in lieu of interest, shall
be payable in respect of any dividend payment or payments on the Series I
Preferred which may be in arrears.
(ii) So long as any shares of Series I Preferred are
outstanding, no dividend (other than dividends or distributions paid in
shares of, or options, warrants or rights to subscribe for or purchase
shares of, Common Stock or any other stock of the Corporation ranking
junior to the Series I Preferred as to dividends and upon liquidation and
other than as provided in subparagraph (b)(i) of this Section 2) shall be
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<PAGE> 85
declared or paid or set aside for payment or other distribution declared or
made upon the Common Stock or any other stock of the Corporation ranking
junior to or on a parity with the Series I Preferred as to dividends or
upon liquidation, nor shall the Common Stock nor any other stock of the
Corporation ranking junior to or on a parity with the Series I Preferred as
to dividends or upon liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or made available
for a sinking fund for the redemption of any shares of any such stock) by
the Corporation (except by conversion into or exchange for stock of the
Corporation ranking junior to the Series I Preferred as to dividends and
upon liquidation) unless, in each case, the full cumulative dividends on
all outstanding shares of Series I Preferred shall have been paid or
declared and set aside for payment.
(iii) Dividends payable on the Series I Preferred
for each Dividend Period shall be computed by annualizing the applicable
dividend rate and dividing by four. Dividends payable on the Series I
Preferred for any period less than a full Dividend Period, including the
Initial Dividend Period, shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. Any dividend payment made on shares of
Series I Preferred shall first be credited against the earliest accrued but
unpaid dividend due with respect to shares of Series I Preferred.
3. Redemption. (a) Optional Redemption. The shares of Series I
Preferred shall not be redeemable prior to September 30, 1995. The
Corporation, at its option, may, with the prior consent of the Board of
Governors of the Federal Reserve System ("Board of Governors") or any successor
government agency (so long as the Board of Governors or such agency has
jurisdiction over the capital of the Corporation under applicable federal
banking laws), redeem, out of funds legally available therefor, the Series I
Preferred, as a whole or in part, at any time or from time to time, on or after
September 30, 1995, at the redemption price set forth below, plus an amount
equal to the sum of all accrued and unpaid dividends thereon whether or not
earned or declared to the date fixed for redemption:
<TABLE>
<CAPTION>
Redemption
Price
Date of Redemption Per Share
------------------ -----------
<S> <C>
On or after September 30, 1995, but
prior to September 30, 1996 $527.50
On or after September 30, 1996, but
prior to September 30, 1997 $522.00
On or after September 30, 1997, but
prior to September 30, 1998 $516.50
</TABLE>
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<PAGE> 86
On or after September 30, 1998, but
prior to September 30, 1999 $511.00
On or after September 30, 1999, but
prior to September 30, 2000 $505.50
On or after September 30, 2000 $500.00
(b) If fewer than all of the outstanding shares of
Series I Preferred are to be redeemed, the number of shares to be redeemed
shall be determined by the Board of Directors of the Corporation or any duly
authorized committee thereof, and such shares shall be redeemed pro rata from
the holders of record of shares of Series I Preferred in proportion to the
number of such shares held by such holders (with adjustments to avoid
redemption of fractional shares).
(c) If the Corporation shall redeem shares of Series I
Preferred, notice of such redemption shall be mailed or caused to be mailed by
the Corporation by first class mail, postage prepaid, to each holder of the
shares to be redeemed, at such holder's address as the same appears on the
stock books of the Corporation. Such notice shall be so mailed not less than
40 nor more than 70 days prior to the date fixed for redemption. Each such
notice shall state: (i) the redemption date, (ii) the number of shares of
Series I Preferred to be redeemed, (iii) the redemption price, (iv) the place
or places where certificates for such shares of Series I Preferred are to be
surrendered for payment of the redemption price; and (v) that dividends on the
shares to be redeemed will cease to accrue on such redemption date. If fewer
than all shares held by any holder are to be redeemed, the notice mailed to
such holder shall also specify the number of shares to be redeemed from such
holder.
(d) Notwithstanding the foregoing provisions of
paragraph (a) of this Section 3, if any dividends on shares of Series I
Preferred are in arrears, no shares of Series I Preferred shall be redeemed
unless all outstanding shares of Series I Preferred are simultaneously redeemed
and the Corporation shall not purchase or otherwise acquire any shares of
Series I Preferred; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of Series I Preferred pursuant to a purchase
or exchange offer made on the same terms to all holders of the outstanding
shares of Series I Preferred.
(e) If notice of redemption has been given under
paragraph (c) of this Section 3, from and after the redemption date for the
shares of Series I Preferred called for redemption (unless default shall be
made by the Corporation in providing money for the payment of the redemption
price of the shares so called for redemption), dividends on the shares of
Series I Preferred so called for redemption shall cease to accrue and said
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<PAGE> 87
shares shall no longer be deemed to be outstanding, and all rights of the
holders thereof as stockholders of the Corporation (except the right to receive
the redemption price) shall cease. Upon surrender in accordance with such
notice of the certificates representing any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors of the Corporation
shall require and the notice shall so state), such shares shall be redeemed by
the Corporation at the redemption price aforesaid. If fewer than all of the
shares represented by any such certificate are redeemed, a new certificate
shall be issued representing the unredeemed shares without cost to the holder
thereof.
(f) Any shares of Series I Preferred which shall at any
time have been redeemed shall, after such redemption, be retired and restored
to the status of authorized but unissued shares of preferred stock, without
designation as to series until such shares are once more designated as part of
a particular series by the Board of Directors of the Corporation or any duly
authorized committee thereof; provided, however, that such shares may not be
designated as Series I Preferred.
4. Conversion. The holders of shares of Series I Preferred
shall not have any rights to convert such shares into shares of any other class
or series of capital stock of the Corporation.
5. Voting. Except as otherwise required by law, the shares of
the Series I Preferred shall have no voting powers, either general or special,
except that:
(a) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the consent of the
holders of at least 66-2/3% of the shares of the Series I Preferred at the time
outstanding, given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of shares of Series I
Preferred shall vote together as a separate class, shall be necessary for
authorizing, effecting or validating the amendment, alteration or repeal of any
of the provisions of the Certificate of Incorporation or of any certificate
amendatory thereof or supplemental thereto (including any Certificate of
Designations or any similar document relating to any series of preferred stock)
which would adversely affect the powers, preferences, privileges or rights of
the Series I Preferred; 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 or of any other
series of preferred stock, in each case ranking on a parity with or junior to
the Series I Preferred with respect to the payment of dividends and the
distribution of assets upon liquidation,
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<PAGE> 88
dissolution or winding up, shall not be deemed to materially and adversely
affect the powers, preferences, privileges or rights of the Series I Preferred;
(b) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the consent of the
holders of at least 66-2/3% of all of the shares of the Series I Preferred and
all other series of preferred stock ranking on a parity with shares of the
Series I 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 as a single
class on the matters set forth in this subparagraph (b), at the time
outstanding, given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of shares of the Series I
Preferred and such other series of preferred stock shall vote together as a
single class without regard to series, shall be necessary for authorizing or
issuance of any shares of any class or stock of the Corporation ranking prior
to the shares of the Series I Preferred as to dividends or upon liquidation, or
the reclassification of any authorized stock of the Corporation into any such
prior shares, or creation, authorization or issuance of any obligation or
security convertible into or evidencing the right to purchase any such prior
shares;
(c) The holders of the shares of Series I Preferred may
vote for the election of directors pursuant to Article FOURTH, Section II(3) of
the Certificate of Incorporation. Any director elected by holders of the
Series I Preferred and the holders of any series of preferred stock of the
Corporation ranking on a parity with the Series I Preferred as to dividends and
upon liquidation and which is granted in the Certificate of Incorporation
(including any Certificate of Designations) the right to vote together with the
Series I Preferred as a single class on the election of directors (such Series
I Preferred and the other preferred stock of all such series, the "Voting
Parity Preferred Stock") (herein called a "Preferred Director") may be removed
without cause by, and shall not be removed without cause except by, the vote of
the holders of record of the outstanding shares of Voting Parity Preferred
Stock, voting together as a single class without regard to series, at a meeting
of the Corporation's stockholders, or of the holders of shares of Voting Parity
Preferred Stock, called for such purpose. While class voting is in effect with
respect to the preferred stock (A) any vacancy in the office of a Preferred
Director may be filled (except as provided in the following clause (B)) by a
person appointed by an instrument in writing signed by the remaining Preferred
Director and filed with the Corporation and (B) in the case of removal of any
Preferred Director, the vacancy may be filled by a person elected by the vote
of the holders of the outstanding shares of Voting Parity Preferred Stock,
voting together as a
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<PAGE> 89
single class without regard to series, at the same meeting at which such
removal shall be voted. Each director appointed as aforesaid by the remaining
Preferred Director shall be deemed, for all purposes hereof, to be a Preferred
Director.
6. Liquidation Rights. (a) Upon the dissolution, liquidation
or winding up of the Corporation, whether voluntary or involuntary, the holders
of the shares of Series I Preferred shall be entitled to receive and to be paid
out of the assets of the Corporation available for distribution to its
stockholders, before any payment or distribution of assets shall be made to the
holders of the Common Stock or any other stock of the Corporation ranking
junior to the Series I Preferred upon liquidation, the amount of $500.00 per
share, plus an amount equal to the sum of all accrued and unpaid dividends
(whether or not earned or declared) for the then-current dividend period and
all dividend periods prior thereto.
(b) Neither the sale of all or substantially all of the
property and assets of the Corporation, nor the merger or consolidation of the
Corporation into or with any other corporation nor the merger or consolidation
of any other corporation into or with the Corporation shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes of this Section 6.
(c) After the payment of the holders of the shares of
Series I Preferred of the full preferential amounts provided for in this
Section 6, the holders of the Series I Preferred, as such, shall have no right
or claim to any of the remaining assets of the Corporation.
(d) In the event the assets of the Corporation available
for distribution to the holders of shares of Series I Preferred upon any
dissolution, liquidation or winding up of the Corporation, whether voluntary or
involuntary, shall be insufficient to pay in full all amounts to which such
holders are entitled pursuant to paragraph (a) of this Section 6, no such
distribution shall be made on account of any shares of any other series of
preferred stock or other securities of the Corporation ranking as to any such
distribution on a parity with the shares of Series I Preferred upon such
dissolution, liquidation or winding up unless proportionate distributive
amounts shall be paid on account of the shares of Series I Preferred, ratably,
in proportion to the full distributive amounts for which holders of all such
parity shares are respectively entitled upon such dissolution, liquidation or
winding up.
(e) Subject to the rights of the holders of the series
or class or classes of stock ranking on a parity with or prior to the shares of
Series I Preferred upon liquidation, dissolution or winding up, upon any
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liquidation, dissolution or winding up of the Corporation, after payment shall
have been made in full to the holders of the shares of Series I Preferred as
provided in this Section 6, but not prior thereto, any other series or class or
classes of stock ranking junior to the shares of Series I Preferred upon
liquidation shall, subject to the respective terms and provisions (if any)
applying thereto, be entitled to receive any and all assets remaining to be
paid or distributed, and the holders of the shares of Series I Preferred shall
not be entitled to share therein.
7. Ranking. For the purposes of this resolution, any stock of
any series or class or classes of the Corporation shall be deemed to rank:
(a) prior to the shares of Series I Preferred, either as
dividends or upon liquidation, if the holders of such stock shall be entitled
to the receipt of dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the case may be, in preference
or priority to the holders of shares of Series I Preferred;
(b) on a parity with shares of Series I Preferred,
either as to dividends or upon liquidation, whether or not the dividend rates,
dividend payment dates or redemption or liquidation prices per share or sinking
fund provisions, if any, be different from those of the Series I Preferred, if
the holders of such stock shall be entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in proportion to their respective dividend
rates or liquidation prices, without preference or priority, one over the
other, as between the holders of such stock and the holders of shares of Series
I Preferred; and
(c) junior to shares of Series I Preferred, either as to
dividends or upon liquidation, if such stock shall be the Common Stock or if
the holders of shares of Series I Preferred shall be entitled to the receipt of
dividends or of amounts distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, in preference or priority to the
holders of shares of such stock.
8. Priority of Series I Preferred. The shares of Series I
Preferred will rank on a parity, both as to payment of dividends and the
distribution of assets upon dissolution, liquidation or winding up with
Cumulative Adjustable Preferred Stock, Series A, Cumulative Adjustable
Preferred Stock, Series B, Cumulative Participating Preferred Stock, Series E,
9-5/8% Cumulative Preferred Stock, Series F, 6-1/2% Cumulative Convertible
Preferred Stock, Series G, 9% Cumulative Preferred Stock,
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Series H, and 8-3/8% Cumulative Preferred Stock, Series K, of the Corporation.
The Series I Preferred will rank prior, both as to payment of dividends and the
distribution of assets upon dissolution, liquidation or winding up, to the
Common Stock of the Corporation.
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CERTIFICATE OF DESIGNATION
OF
11% PREFERRED STOCK, SERIES J
OF
BANKAMERICA CORPORATION
BANKAMERICA CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (herein referred to as the "Corporation"), in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, does hereby CERTIFY:
1. The Certificate of Incorporation, as amended, of the
Corporation fixes the total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue at seven hundred
seventy million (770,000,000) shares, of which seventy million (70,000,000)
shares shall be shares of preferred stock, without par value, and seven hundred
million (700,000,000) shares shall be common stock, of the par value of $1.5625
per share.
2. The Certificate of Incorporation, as amended, of the
Corporation, expressly grants to the Board of Directors of the Corporation
authority to provide for the issuance of the preferred stock in one or more
series, with such voting powers, full or limited, or without voting powers, and
with such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the Certificate of Incorporation or any
amendment thereto, or in the resolution or resolutions providing for the issue
of such stock adopted by the Board of Directors.
3. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
the Board of Directors, (i) by action duly taken on October 22, 1982,
authorized the issuance of six million (6,000,000) shares of Cumulative
Adjustable Preferred Stock, Series A, without par value (the "Series A
Preferred Stock"), and by action duly taken on March 2, 1992, reduced the
number of authorized shares of Series A Preferred Stock to five million one
hundred seventy eight thousand (5,178,000) shares, (ii) by action duly taken on
February 11, 1983, authorized the issuance of four million (4,000,000) shares
of Cumulative Adjustable Preferred Stock, Series B, without par value (the
"Series B Preferred Stock"), and by action duly taken on March 2, 1992, reduced
the number of authorized shares of Series B Preferred Stock to three million
five hundred forty-six thousand one hundred (3,546,100) shares, (iii) by action
duly taken on June 6, 1983, authorized the issuance of five
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million two hundred thousand (5,200,000) shares of Cumulative Preferred Stock,
Special Series, without par value (the "Special Preferred Stock"), and by
action duly taken on March 2, 1992, eliminated the Special Preferred Stock,
(iv) by actions duly taken on April 11, 1988 and on October 7, 1991, authorized
the issuance of seven million (7,000,000) shares of Cumulative Participating
Preferred Stock, Series E, without par value, (v) by action duly taken on
January 7, 1991, and the Pricing Committee of the Board of Directors by action
duly taken on March 22, 1991, authorized the issuance of seven million two
hundred fifty thousand (7,250,000) shares of 9-5/8% Cumulative Preferred Stock,
Series F, without par value, (vi) by action duly taken on April 29, 1991, and
the Pricing Committee of the Board of Directors by action duly taken on May 21,
1991, authorized the issuance of five million (5,000,000) shares of 6-1/2%
Cumulative Convertible Preferred Stock, Series G, without par value, (vii) by
action duly taken on August 5, 1991, the Pricing Committee of the Board of
Directors by action duly taken on November 22, 1991, and the Pricing
Subcommittee of the Board of Directors by action duly taken on December 13,
1991, authorized the issuance of eleven million two hundred fifty thousand
(11,250,000) shares of 9% Cumulative Preferred Stock, Series H, without par
value, (viii) by action duly taken on August 11, 1991, and the Pricing
Committee of the Board of Directors by action duly taken on April 15, 1992,
authorized the issuance of two hundred thousand (200,000) shares of 11%
Preferred Stock, Series I, without par value, and (ix) by action duly taken on
January 6, 1992, the Pricing Committee of the Board of Directors by action duly
taken on January 27, 1992, and the Pricing Subcommittee of the Board of
Directors by action duly taken on February 5, 1992, authorized the issuance of
fourteen million six hundred thousand (14,600,000) shares of 8-3/8% Cumulative
Preferred Stock, Series K, without par value.
4. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
the Board of Directors, by action duly taken on August 11, 1991, and the
Pricing Committee of the Board of Directors by action duly taken on April 15,
1992, adopted resolutions that compositely provide for an additional series of
the preferred stock as follows:
NOW, THEREFORE, BE IT RESOLVED, that there is hereby designated one
series of preferred stock, entitled, "11% Preferred Stock, Series J," such
series to consist of four hundred thousand (400,000) shares; and
RESOLVED FURTHER, that the issue of up to four hundred thousand
(400,000) shares of 11% Preferred Stock, Series J, without par value, of the
Corporation is hereby authorized and the preferences and privileges and the
relative, participating, optional and other special rights, and the
qualifications, limitations and restrictions thereof, of all such authorized
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shares of such series, in addition to those set forth in the Certificate of
Incorporation of the Corporation and those established by the resolutions of
the Board of Directors of the Corporation adopted August 11, 1991, and by the
resolutions of the Pricing Committee of the Board of Directors adopted April
15, 1992, are hereby fixed as follows:
11% Preferred Stock, Series J
1. Number of Shares. (a) The designation of the series of
Preferred Stock, without par value, provided for herein shall be "11% Preferred
Stock, Series J" (hereinafter referred to as the "Series J Preferred") and the
number of authorized shares constituting Series J Preferred is four hundred
thousand (400,000). The number of authorized shares of Series J Preferred may
be reduced or increased by further resolution duly adopted by the Board of
Directors of the Corporation or any duly authorized committee thereof and by
the filing of a certificate pursuant to the provisions of the General
Corporation Law of the State of Delaware stating that such reduction or
increase has been so authorized.
(b) All shares of Series J Preferred redeemed or
purchased by the Corporation shall be retired and cancelled and shall be
restored to the status of authorized but unissued shares of preferred stock,
without designation as to series, and may thereafter be issued, but not as
shares of Series J Preferred.
2. Dividends. (a) The holders of the shares of Series J
Preferred shall be entitled to receive, when, as and if declared by the Board
of Directors of the Corporation or by any duly authorized committee thereof,
out of funds legally available therefor, cash dividends at the rate of 11% of
the liquidation preference per annum. Dividends shall be payable on the shares
of Series J Preferred for the Initial Dividend Period (as defined below) and
each quarterly dividend period thereafter (the Initial Dividend Period and each
such subsequent quarterly dividend period being hereinafter referred to as a
"Dividend Period" and collectively referred to as "Dividend Periods"), which
quarterly dividend periods shall commence on March 31, June 30, September 30
and December 31 in each year, and shall end on and include the day next
preceding the first day of the next Dividend Period. The Initial Dividend
Period is the period commencing on the most recent date next preceding the
effective time of the merger of the Corporation with Security Pacific
Corporation (the "Effective Time"), on which a dividend was paid on the 11%
Preferred Stock, Series J, of Security Pacific Corporation (or commencing on
the date of the Effective Time if such date was such a dividend payment date)
and shall end on and include the date next preceding the first day of the next
Dividend Period; provided, however, that in the event the Effective Time shall
occur after the record date for
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the payment of a regular quarterly dividend on the 11% Preferred Stock, Series
J, of Security Pacific Corporation but prior to the payment date for such
dividend, then the Initial Dividend Period shall be the first regular quarterly
dividend period commencing after the date of the Effective Time. Dividends
shall be cumulative from the date on which the Initial Dividend Period
commences and shall be payable on March 31, June 30, September 30 and December
31 of each year, commencing with such date that next follows the end of the
Initial Dividend Period. Each such dividend shall be paid to the holders of
record of shares of Series J Preferred as they appear on the stock register of
the Corporation on such record date, not exceeding 30 days preceding the
payment date thereof, as shall be fixed by the Board of Directors of the
Corporation or by any duly authorized committee thereof. Dividends on account
of arrears for any past dividend periods may be declared and paid at any time,
without reference to any regular dividend payment date, to holders of record on
such date, not exceeding 45 days preceding the payment date thereof, as may be
fixed by the Board of Directors of the Corporation or by any duly authorized
committee thereof.
(b) (i) No full dividends shall be declared or paid or set
apart for payment on the common stock, $1.5625 par value, of the Corporation
("Common Stock") or on any other stock of the Corporation ranking, as to
dividends, on a parity with or junior to the Series J Preferred for any period
unless full dividends (including any accumulated dividends) have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on shares of Series J Preferred.
When dividends are not paid in full, as aforesaid, upon the shares of Series J
Preferred and any other series of preferred stock of the Corporation ranking on
a parity as to dividends with the Series J Preferred, all dividends declared or
made upon shares of Series J Preferred and any other series of preferred stock
of the Corporation ranking on a parity as to dividends with the Series J
Preferred shall be declared pro rata so that the amount of dividends declared
per share on the Series J Preferred and such other series of preferred stock
shall in all cases bear to each other the same ratio that accrued dividends per
share on the shares of Series J Preferred and such other series of preferred
stock bear to each other. Holders of shares of Series J Preferred shall not be
entitled to any dividend, whether payable in cash, property or stock, in excess
of full cumulative dividends, as herein provided, on the Series J Preferred. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Series J Preferred which may be in
arrears.
(ii) So long as any shares of Series J Preferred are
outstanding, no dividend (other than dividends or distributions paid in shares
of, or options, warrants or rights to subscribe for or purchase
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<PAGE> 96
shares of, Common Stock or any other stock of the Corporation ranking junior to
the Series J Preferred as to dividends and upon liquidation and other than as
provided in subparagraph (b)(i) of this Section 2) shall be declared or paid or
set aside for payment or other distribution declared or made upon the Common
Stock or any other stock of the Corporation ranking junior to or on a parity
with the Series J Preferred as to dividends or upon liquidation, nor shall the
Common Stock nor any other stock of the Corporation ranking junior to or on a
parity with the Series J Preferred as to dividends or upon liquidation be
redeemed, purchased or otherwise acquired for any consideration (or any moneys
be paid to or made available for a sinking fund for the redemption of any
shares of any such stock) by the Corporation (except by conversion into or
exchange for stock of the Corporation ranking junior to the Series J Preferred
as to dividends and upon liquidation) unless, in each case, the full cumulative
dividends on all outstanding shares of Series J Preferred shall have been paid
or declared and set aside for payment.
(iii) Dividends payable on the Series J Preferred for each
Dividend Period shall be computed by annualizing the applicable dividend rate
and dividing by four. Dividends payable on the Series J Preferred for any
period less than a full Dividend Period, including the Initial Dividend Period,
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months. Any dividend payment made on shares of Series J Preferred shall first
be credited against the earliest accrued but unpaid dividend due with respect
to shares of Series J Preferred.
3. Redemption. (a) Optional Redemption. The shares of Series
J Preferred shall not be redeemable prior to March 31, 1996. The Corporation,
at its option, may, with the prior consent of the Board of Governors of the
Federal Reserve System ("Board of Governors") or any successor government
agency (so long as the Board of Governors or such agency has jurisdiction over
the capital of the Corporation under applicable federal banking laws), redeem,
out of funds legally available therefor, the Series J Preferred, as a whole or
in part, at any time or from time to time, on or after March 31, 1996, at the
redemption price set forth below, plus an amount equal to the sum of all
accrued and unpaid dividends thereon whether or not earned or declared to the
date fixed for redemption:
Redemption
Price
Date of Redemption Per Share
On or after March 31, 1996, but
prior to March 31, 1997 $527.50
On or after March 31, 1997, but
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prior to March 31, 1998 $522.00
On or after March 31, 1998, but
prior to March 31, 1999 $516.50
On or after March 31, 1999, but
prior to March 31, 2000 $511.00
On or after March 31, 2000, but
prior to March 31, 2001 $505.50
On or after March 31, 2001 $500.00
(b) If fewer than all of the outstanding shares of
Series J Preferred are to be redeemed, the number of shares to be redeemed
shall be determined by the Board of Directors of the Corporation or any duly
authorized committee thereof, and such shares shall be redeemed pro rata from
the holders of record of shares of Series J Preferred in proportion to the
number of such shares held by such holders (with adjustments to avoid
redemption of fractional shares).
(c) If the Corporation shall redeem shares of Series J
Preferred, notice of such redemption shall be mailed or caused to be mailed by
the Corporation by first class mail, postage prepaid, to each holder of the
shares to be redeemed, at such holder's address as the same appears on the
stock books of the Corporation. Such notice shall be so mailed not less than
40 nor more than 70 days prior to the date fixed for redemption. Each such
notice shall state: (i) the redemption date, (ii) the number of shares of
Series J Preferred to be redeemed, (iii) the redemption price, (iv) the place
or places where certificates for such shares of Series J Preferred are to be
surrendered for payment of the redemption price; and (v) that dividends on the
shares to be redeemed will cease to accrue on such redemption date. If fewer
than all shares held by any holder are to be redeemed, the notice mailed to
such holder shall also specify the number of shares to be redeemed from such
holder.
(d) Notwithstanding the foregoing provisions of
paragraph (a) of this Section 3, if any dividends on shares of Series J
Preferred are in arrears, no shares of Series J Preferred shall be redeemed
unless all outstanding shares of Series J Preferred are simultaneously redeemed
and the Corporation shall not purchase or otherwise acquire any shares of
Series J Preferred; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of Series J Preferred pursuant to a purchase
or exchange offer made on the same terms to all holders of the outstanding
shares of Series J Preferred.
(e) If notice of redemption has been given under
paragraph (c) of this Section 3, from and after the redemption date for the
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<PAGE> 98
shares of Series J Preferred called for redemption (unless default shall be
made by the Corporation in providing money for the payment of the redemption
price of the shares so called for redemption), dividends on the shares of
Series J Preferred so called for redemption shall cease to accrue and said
shares shall no longer be deemed to be outstanding, and all rights of the
holders thereof as stockholders of the Corporation (except the right to receive
the redemption price) shall cease. Upon surrender in accordance with such
notice of the certificates representing any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors of the Corporation
shall require and the notice shall so state), such shares shall be redeemed by
the Corporation at the redemption price aforesaid. If fewer than all of the
shares represented by any such certificate are redeemed, a new certificate
shall be issued representing the unredeemed shares without cost to the holder
thereof.
(f) Any shares of Series J Preferred which shall at any
time have been redeemed shall, after such redemption, be retired and restored
to the status of authorized but unissued shares of preferred stock, without
designation as to series until such shares are once more designated as part of
a particular series by the Board of Directors of the Corporation or any duly
authorized committee thereof; provided, however, that such shares may not be
designated as Series J Preferred.
4. Conversion. The holders of shares of Series J Preferred
shall not have any rights to convert such shares into shares of any other class
or series of capital stock of the Corporation.
5. Voting. Except as otherwise required by law, the shares of
the Series J Preferred shall have no voting powers, either general or special,
except that:
(a) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the consent of the
holders of at least 66-2/3% of the shares of the Series J Preferred at the time
outstanding, given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of shares of Series J
Preferred shall vote together as a separate class, shall be necessary for
authorizing, effecting or validating the amendment, alteration or repeal of any
of the provisions of the Certificate of Incorporation or of any certificate
amendatory thereof or supplemental thereto (including any Certificate of
Designations or any similar document relating to any series of preferred stock)
which would adversely affect the powers, preferences, privileges or rights of
the Series J Preferred; 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
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decrease in the amount of authorized shares or issued shares of the Series J
Preferred or of any other series of preferred stock, in each case ranking on a
parity with or junior to the Series J Preferred with respect to the payment of
dividends and the distribution of assets upon liquidation, dissolution or
winding up, shall not be deemed to materially and adversely affect the powers,
preferences, privileges or rights of the Series J Preferred;
(b) Unless the vote or consent of the holders of a
greater number of shares shall then be required by law, the consent of the
holders of at least 66-2/3% of all of the shares of the Series J Preferred and
all other series of preferred stock ranking on a parity with shares of the
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 J Preferred as a single
class on the matters set forth in this subparagraph (b), at the time
outstanding, given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of shares of the Series J
Preferred and such other series of preferred stock shall vote together as a
single class without regard to series, shall be necessary for authorizing or
issuance of any shares of any class or stock of the Corporation ranking prior
to the shares of the 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 creation, authorization or issuance of any obligation or
security convertible into or evidencing the right to purchase any such prior
shares;
(c) The holders of the shares of Series J Preferred may
vote for the election of directors pursuant to Article FOURTH, Section II(3) of
the Certificate of Incorporation. Any director elected by holders of the
Series J Preferred and holders of any series of preferred stock of the
Corporation ranking on a parity with the Series J Preferred as to dividends and
upon liquidation and which is granted in the Certificate of Incorporation
(including any Certificate of Designations) the right to vote together with the
Series J Preferred as a single class on the election of directors (such Series
J Preferred and the other preferred stock of all such series, the "Voting
Parity Preferred Stock") (herein called a "Preferred Director") may be removed
without cause by, and shall not be removed without cause except by, the vote of
the holders of record of the outstanding shares of Voting Parity Preferred
Stock, voting together as a single class without regard to series, at a meeting
of the Corporation's stockholders, or of the holders of shares of Voting Parity
Preferred Stock, called for such purpose. While class voting is in effect with
respect to the preferred stock (A) any vacancy in the office of a Preferred
Director may be filled (except as provided in the following clause (B)) by a
person appointed by an instrument
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<PAGE> 100
in writing signed by the remaining Preferred Director and filed with the
Corporation and (B) in the case of removal of any Preferred Director, the
vacancy may be filled by a person elected by the vote of the holders of the
outstanding shares of Voting Parity Preferred Stock, voting together as a
single class without regard to series, at the same meeting at which such
removal shall be voted. Each director appointed as aforesaid by the remaining
Preferred Director shall be deemed, for all purposes hereof, to be a Preferred
Director.
6. Liquidation Rights. (a) Upon the dissolution, liquidation
or winding up of the Corporation, whether voluntary or involuntary, the holders
of the shares of Series J Preferred shall be entitled to receive and to be paid
out of the assets of the Corporation available for distribution to its
stockholders, before any payment or distribution of assets shall be made to the
holders of the Common Stock or any other stock of the Corporation ranking
junior to the Series J Preferred upon liquidation, the amount of $500.00 per
share, plus an amount equal to the sum of all accrued and unpaid dividends
(whether or not earned or declared) for the then-current dividend period and
all dividend periods prior thereto.
(b) Neither the sale of all or substantially all of the
property and assets of the Corporation, nor the merger or consolidation of the
Corporation into or with any other corporation nor the merger or consolidation
of any other corporation into or with the Corporation shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes of this Section 6.
(c) After the payment of the holders of the shares of
Series J Preferred of the full preferential amounts provided for in this
Section 6, the holders of the Series J Preferred, as such, shall have no right
or claim to any of the remaining assets of the Corporation.
(d) In the event the assets of the Corporation available
for distribution to the holders of shares of Series J Preferred upon any
dissolution, liquidation or winding up of the Corporation, whether voluntary or
involuntary, shall be insufficient to pay in full all amounts to which such
holders are entitled pursuant to paragraph (a) of this Section 6, no such
distribution shall be made on account of any shares of any other series of
preferred stock or other securities of the Corporation ranking as to any such
distribution on a parity with the shares of Series J Preferred upon such
dissolution, liquidation or winding up unless proportionate distributive
amounts shall be paid on account of the shares of Series J Preferred, ratably,
in proportion to the full distributive amounts for which holders of all such
parity shares are respectively entitled upon such dissolution, liquidation or
winding up.
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(e) Subject to the rights of the holders of the series
or class or classes of stock ranking on a parity with or prior to the shares of
Series J Preferred upon liquidation, dissolution or winding up, upon any
liquidation, dissolution or winding up of the Corporation, after payment shall
have been made in full to the holders of the shares of Series J Preferred as
provided in this Section 6, but not prior thereto, any other series or class or
classes of stock ranking junior to the shares of Series J Preferred upon
liquidation shall, subject to the respective terms and provisions (if any)
applying thereto, be entitled to receive any and all assets remaining to be
paid or distributed, and the holders of the shares of Series J Preferred shall
not be entitled to share therein.
7. Ranking. For the purposes of this resolution, any stock of
any series or class or classes of the Corporation shall be deemed to rank:
(a) prior to the shares of Series J Preferred, either as
dividends or upon liquidation, if the holders of such stock shall be entitled
to the receipt of dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the case may be, in preference
or priority to the holders of shares of Series J Preferred;
(b) on a parity with shares of Series J Preferred,
either as to dividends or upon liquidation, whether or not the dividend rates,
dividend payment dates or redemption or liquidation prices per share or sinking
fund provisions, if any, be different from those of the Series J Preferred, if
the holders of such stock shall be entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation or winding up of the
Corporation, as the case may be, in proportion to their respective dividend
rates or liquidation prices, without preference or priority, one over the
other, as between the holders of such stock and the holders of shares of Series
J Preferred; and
(c) junior to shares of Series J Preferred, either as to
dividends or upon liquidation, if such stock shall be the Common Stock or if
the holders of shares of Series J Preferred shall be entitled to the receipt of
dividends or of amounts distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, in preference or priority to the
holders of shares of such stock.
8. Priority of Series J Preferred. The shares of Series J
Preferred will rank on a parity, both as to payment of dividends and the
distribution of assets upon dissolution, liquidation or winding up with
Cumulative Adjustable Preferred Stock, Series A, Cumulative Adjustable
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Preferred Stock, Series B, Cumulative Participating Preferred Stock, Series E,
9-5/8% Cumulative Preferred Stock, Series F, 6-1/2% Cumulative Convertible
Preferred Stock, Series G, 9% Cumulative Preferred Stock, Series H, 11%
Preferred Stock, Series I, and 8-3/8% Cumulative Preferred Stock, Series K, of
the Corporation. The Series J Preferred will rank prior, both as to payment of
dividends and the distribution of assets upon dissolution, liquidation or
winding up, to the Common Stock of the Corporation.
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CERTIFICATE OF DESIGNATIONS
of
8-3/8% CUMULATIVE PREFERRED STOCK, Series K
of
BANKAMERICA CORPORATION
BANKAMERICA CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (herein referred to as the "Corporation"), in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, does hereby CERTIFY:
1. The Certificate of Incorporation, as amended, of the
Corporation fixes the total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue at seven hundred
seventy million (770,000,000) shares, of which seventy million (70,000,000)
shares shall be shares of preferred stock, without par value, and seven hundred
million (700,000,000) shares shall be common stock, of the par value of $1.5625
per share.
2. The Certificate of Incorporation, as amended, of the
Corporation, expressly grants to the Board of Directors of the Corporation
authority to provide for the issuance of the preferred stock in one or more
series, with such voting powers, full or limited, or without voting powers, and
with such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the Certificate of Incorporation or any
amendment thereto, or in the resolution or resolutions providing for the issue
of such stock adopted by the Board of Directors.
3. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
the Board of Directors, (i) by action duly taken on October 22, 1982,
authorized the issuance of six million (6,000,000) shares of Cumulative
Adjustable Preferred Stock, Series A, without par value, (ii) by action duly
taken on February 11, 1983, authorized the issuance of four million (4,000,000)
shares of Cumulative Adjustable Preferred Stock, Series B without par value,
(iii) by action duly taken on June 6, 1983, authorized the issuance of five
million two hundred thousand (5,200,000) shares of Cumulative Preferred Stock,
Special Series, without par value, (iv) by actions duly taken on April 11, 1988
and on October 7, 1991, authorized the issuance of five million (5,000,000)
shares of Cumulative Participating Preferred Stock, Series E, without par
value, (v) by action
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duly taken on January 7, 1991, and the Pricing Committee of the Board of
Directors by action duly taken on March 22, 1991, authorized the issuance of
seven million two hundred fifty thousand (7,250,000) shares of 9-5/8%
Cumulative Preferred Stock, Series F, without par value, (vi) by action duly
taken on April 29, 1991, and the Pricing Committee of the Board of Directors by
action duly taken on May 21, 1991, authorized the issuance of five million
(5,000,000) shares of 6-1/2% Cumulative Convertible Preferred Stock, Series G,
without par value and (vii) by action duly taken on August 5, 1991, the Pricing
Committee of the Board of Directors by action duly taken on November 22, 1991,
and the Pricing Subcommittee of the Board of Directors by action duly taken on
December 13, 1991, authorized the issuance of eleven million two hundred fifty
thousand (11,250,000) shares of 9% Cumulative Preferred Stock, Series H,
without par value.
4. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
and the authority conferred upon the Pricing Committee and the Pricing
Subcommittee of the Board of Directors by the resolutions adopted by the Board
of Directors on January 6, 1992, the Board of Directors, by actions duly taken
on January 6, 1992, the Pricing Committee of the Board of Directors, by actions
duly taken on January 27, 1992, and the Pricing Subcommittee of the Board of
Directors, by actions duly taken on February 5, 1992, adopted resolutions that
compositely provide for an additional series of the preferred stock as follows:
"RESOLVED, that an issue of a series of the preferred stock, without
par value, of the Corporation (such preferred stock being herein referred to as
"Preferred Stock", which term shall include any additional shares of preferred
stock of the same class heretofore or hereafter authorized to be issued by the
Corporation), consisting of fourteen million six hundred thousand (14,600,000)
shares is hereby provided for, and the voting power, designation, preference
and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, are fixed hereby as
follows:
1. Designation. The designation of such series shall
be 8-3/8% Cumulative Preferred Stock, Series K (hereinafter referred to as
the "Series K Preferred Stock") and the number of shares constituting such
series is fourteen million six hundred thousand (14,600,000). Shares of
Series K Preferred Stock shall have a stated value of $25 per share. The
number of authorized shares of Series K Preferred Stock may be reduced by
further resolution duly adopted by the Board of Directors of the Corporation
or the Executive Committee of the Board of Directors and by the filing of a
certificate pursuant
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to the provisions of the General Corporation Law of the State of Delaware
stating that such reduction has been so authorized, but the number of
authorized shares of Series K Preferred Stock shall not be increased.
2. Dividends. Quarterly Dividend Periods shall
commence on March 1, June 1, September 1 and December 1 in each year and
shall end on and include the day next preceding the first day of the next
Quarterly Dividend Period. Such dividends shall be cumulative from the
respective dates of original issue of shares of Series K Stock and shall be
payable, when and as declared by the Board of Directors, on February 28, May
31, August 31 and November 30 of each year, commencing May 31, 1992. Each
such dividend shall be paid to the holders of record of shares of Series K
Preferred Stock as they appear on the stock register of the Corporation on
such record date, not exceeding 30 days preceding the payment date thereof,
as shall be fixed by the Board of Directors of the Corporation. Dividends on
account of arrears for any past Dividend Periods may be declared and paid at
any time, without reference to any regular dividend payment date, to holders
of record on such date, not exceeding 45 days preceding the payment date
thereof, as may be fixed by the Board of Directors of the Corporation. If
there shall be outstanding shares of any other series of Preferred Stock
ranking on a parity as to dividends with the Series K Preferred Stock, the
Corporation, in making any dividend payment on account of arrears on the
Series K Preferred Stock or such other series of Preferred Stock, shall make
payments ratably upon all outstanding shares of Series K Preferred Stock and
such other series of Preferred Stock in proportion to the respective amounts
of dividends in arrears upon all such outstanding shares of Series K
Preferred Stock and such other series of Preferred Stock to the date of such
dividend payment. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments which may be in
arrears.
The amount of dividends per share payable for each Quarterly
Dividend Period shall be computed by dividing the dividend rate for such
Dividend Period by four and applying such rate against the stated value per
share of the Series K Preferred Stock. Dividends payable on the Series K
Preferred Stock for any period less than a full Quarterly Dividend Period,
and for any portion of the Initial Dividend Period occurring prior to June 1,
1992, shall be computed on the basis of a 360-day year of four 90-day
quarters and the actual number of days elapsed in the period for which
payable.
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3. Dividend Rate. The Dividend Rate on the shares of
Series K Preferred Stock for the period (the "Initial Dividend Period") from
the respective dates of original issue thereof to and including May 31, 1992,
and for each Quarterly Dividend Period thereafter shall be 8-3/8% per annum.
4. Redemption. The Corporation, at its option, may
redeem shares of the Series K Preferred Stock, as a whole or in part, at any
time or from time to time on or after February 15, 1997, at $25 per share,
plus accrued and unpaid dividends thereon to the date fixed for redemption.
If the Corporation shall redeem shares of Series K Preferred
Stock pursuant to this Section 4, notice of such redemption shall be given by
publication (not less than 30 nor more than 90 days prior to the redemption
date) at least once in a newspaper printed in the English language and of
general circulation in the City and County of San Francisco, State of
California (upon any secular day of the week) stating such election on the
part of the Corporation and that on the redemption date there will become due
and payable upon each of the shares to be redeemed, at the place or places
specified in such notice, the applicable redemption price therein specified.
A similar notice shall be mailed by first class mail, postage prepaid, not
less than 30 nor more than 90 days prior to the redemption date, to each
holder of record of the shares to be redeemed, at such holder's address as
the same appears on the stock register of the Corporation. Each such notice
shall state: (a) the redemption date; (b) the number of shares of Series K
Preferred Stock to be redeemed and, if less than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (c) the redemption price; (d) the place or places where certificates
for such shares are to be surrendered for payment of the redemption price;
and (e) that dividends on the shares to be redeemed will cease to accrue on
such redemption date. Notice having been mailed as aforesaid, from and after
the redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on the
shares of the Series K Preferred Stock so called for redemption shall cease
to accrue, and said shares shall no longer be deemed to be outstanding, and
all rights of the holders thereof as stockholders of the Corporation (except
the right to receive from the Corporation the redemption price) shall cease.
Upon surrender in accordance with said notice of the certificates for any
shares so redeemed (properly endorsed or assigned for transfer, if the Board
of Directors of the Corporation shall so require and the notice
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shall so state), such shares shall be redeemed by the Corporation at the
redemption price aforesaid. If less than all the outstanding shares of
Series K Preferred Stock are to be redeemed, shares to be redeemed shall be
selected by the Corporation from outstanding shares of Series K Preferred
Stock not previously called for redemption by lot or pro rata (as nearly as
may be) in any method determined by the Corporation in its sole discretion to
be equitable.
In no event shall the Corporation redeem or purchase any
shares of Series K Preferred Stock pursuant to this Section 4 unless full
cumulative dividends shall have been paid or declared and set apart for
payment upon all outstanding shares of Series K 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.
5. Shares to be Retired. All shares of Series K
Preferred Stock redeemed by the Corporation shall be retired and cancelled
and shall be restored to the status of authorized but unissued shares of
Preferred Stock, without designation as to series, and may thereafter be
issued.
6. Conversion or Exchange. The holders of shares of
Series K Preferred Stock shall not have any rights herein to convert such
shares into or exchange such shares for shares of any other class or classes
or of any other series of any class or classes of capital stock of the
Corporation.
7. Voting. Except as hereinafter in this Section 7
expressly provided or as otherwise required by law, the Series K Preferred
Stock shall have no voting power.
Whenever and as often as dividends payable on any share or
shares of the Preferred Stock at the time outstanding shall be accumulated
and unpaid in an amount equivalent to or exceeding six quarterly dividends
(whether or not declared and whether or not consecutive), the holders of
record of the Preferred Stock of all series shall thereafter have the right,
as a single class, to elect two directors, and, subject to the terms of any
outstanding series of Preferred Stock, the holders of record of the common
stock, as a single class, shall have the right to elect the remaining
authorized number of Directors. In any such election, the holders of shares
of Series K Preferred Stock shall be entitled to cast one vote per share.
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Upon the happening of the six dividend defaults hereinabove
set forth, a special meeting of stockholders of the Corporation then entitled
to vote shall be called by the Chairman of the Board or the President or the
Secretary of the Corporation, if requested in writing by the holders of
record of not less than ten percent of the Preferred Stock then outstanding.
At such special meeting, or, if no such special meeting shall have been
called, then at the next annual meeting of stockholders, the stockholders of
the Corporation then entitled to vote shall elect, voting as above provided,
an entirely new Board of Directors, and the term of office of the Directors
in office at the time of such election shall expire upon the election of
their successors at such meeting; provided, however, that nothing herein
contained shall be construed to be a bar to the reelection of any Director at
such meeting. At all meetings of stockholders at which holders of Preferred
Stock shall be entitled to vote for Directors as a single class, the holders
of a majority of the outstanding shares of each class or series of capital
stock of the Corporation having the right to vote as a single class shall be
necessary to constitute a quorum, whether present in person or by proxy, for
the election by that class or series of its designated Directors. In order
to validate an election of Directors by stockholders voting as a class, such
Directors shall be elected by the vote of at least a plurality of shares held
by such stockholders present or represented at the meeting. At any such
meeting, the election of Directors by stockholders voting as a class shall be
valid notwithstanding that a quorum of other stockholders voting as one or
more classes may not be present or represented at such meeting, and if any
stockholders voting as a class shall elect Directors, the Directors so
elected shall be deemed to be Directors of the Corporation unless and until
the other stockholders entitled to vote as one or more classes shall elect
their Directors.
While class voting is in effect with respect to the
Preferred Stock, any Director elected by holders of Preferred Stock voting as
a class may be removed at any annual or special meeting, by vote of a
majority of the stockholders voting as a class who elected such Director, for
any cause deemed sufficient by such stockholders present at such meeting. In
case any vacancy shall occur among the Directors elected by such stockholders
voting as a class, such vacancy may be filled by the remaining Director so
elected, or his successor then in office, and the Director so elected to fill
such vacancy shall serve until the next meeting of stockholders for the
election of Directors.
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<PAGE> 109
Such voting rights of the holders of Preferred Stock as a
single class, once effective, shall continue only until all arrears in
dividends (whether or not declared) on the Preferred Stock shall have been
paid or declared and set apart for payment at which time the right of the
Preferred Stock to vote as a single class for the election of Directors, as
hereinabove set forth, shall terminate. Upon such termination, a special
meeting of the stockholders of the Corporation then entitled to vote may be
called by the Chairman of the Board or the President, and shall be called by
the Chairman of the Board or the President or the Secretary of the
Corporation if requested in writing by the holders of record of not less than
one percent of the common stock then outstanding, and at such special
meeting, or if no such special meeting shall have been called then at the
next annual meeting of the stockholders, the stockholders of the Corporation
then entitled to vote shall elect an entirely new Board of Directors and the
term of office of the Directors in office at the time of such election shall
expire upon the election of their successors at such meeting; provided,
however, that nothing herein contained shall be construed to be a bar to the
reelection of any such Director at such meeting.
The consent of the holders of at least two-thirds of the
number of shares of Preferred Stock at the time outstanding, given in person
or by proxy, either in writing or at a meeting of stockholders at which the
holders of the Preferred Stock shall vote separately as a class without
regard to series, the holders of shares of Series K Preferred Stock being
entitled to cast one vote per share thereon, shall be necessary for effecting
or validating:
(i) any change in the Certificate of Incorporation
or certificate supplemental thereto or By-laws of the Corporation
which would materially and adversely alter or change the preferences,
privileges, rights or powers given to the holders of the Preferred
Stock, provided, that if one or more but not all series of Preferred
Stock at the time outstanding are so affected, only the consent of
the holders of at least two-thirds of each series so affected, voting
separately as a class, shall be required; or
(ii) the issuance of any shares of any other class
of stock of the Corporation ranking prior to the Preferred Stock.
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The term "ranking prior to the Preferred Stock" shall mean
and include all shares of stock of the Corporation in respect of which the
rights of the holders thereof as to the payment of dividends or as to
distributions in the event of a voluntary or an involuntary liquidation,
dissolution or winding up of the Corporation, are given preference over the
rights of the holders of the Preferred Stock.
8. Liquidation Preference. In the event of any
liquidation, dissolution or winding up of the Corporation, voluntary or
involuntary, the holders of all shares of Series K Preferred Stock shall be
entitled to be paid in full out of the assets of the Corporation available
for distribution to stockholders, before any distribution of assets shall be
made to the holders of common stock or of any other shares of stock of the
Corporation ranking as to such distribution junior to the Series K Preferred
Stock, an amount equal to $25 per share plus an amount equal to any accrued
and unpaid dividends thereon to the date fixed for payment of such
distribution. If, upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the amounts payable with respect to the
Series K Preferred Stock and any other shares of stock of the Corporation
ranking as to any such distribution on a parity with the Series K Preferred
Stock are not paid in full, the holders of the Series K Preferred Stock and
of such other shares shall 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 to the holders of the Series K
Preferred Stock of the full preferential amounts provided for in this Section
8, the holders of the Series K Preferred Stock shall be entitled to no
further participation in any distribution of assets by the Corporation.
Consolidation or merger of the Corporation with or into
another corporation or corporations, or a sale, whether for cash, shares of
stock, securities or properties, of all or substantially all of the assets of
the Corporation, shall not be deemed or construed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this
paragraph 8.
9. Limitation on Dividends on Junior Ranking Stock. So
long as any Series K Preferred Stock shall be outstanding, the Corporation
shall not declare any dividends on the common stock of the Corporation or any
other stock of the Corporation ranking as to dividends or distribution of
assets junior to the Series K Preferred Stock (the common stock and any such
other stock being herein referred to as "Junior Stock"), or make any payment
on account of, or set apart
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money for, a sinking or other analogous fund for the purchase, redemption or
other retirement of any shares of Junior Stock, or make any distribution in
respect thereof, whether in cash or property or in obligations or stock of
the Corporation, other than Junior Stock (such dividends, payments, setting
apart and distributions being herein called "Junior Stock Payments"), unless
all of the conditions set forth in the following subsections A and B shall
exist at the date of such declaration in the case of any such dividend, or
the date of such setting apart in the case of any such fund, or the date of
such payment or distribution in the case of any other Junior Stock Payment:
A. Full cumulative dividends shall have been paid or
declared and set apart for payment upon all outstanding shares of Preferred
Stock other than Junior Stock.
B. The Corporation shall not be in default or in
arrears with respect to any sinking or other analogous fund or any call for
tenders obligation or other agreement for the purchase, redemption or other
retirement of any shares of Preferred Stock other than Junior Stock."
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CERTIFICATE OF DESIGNATIONS
of
8.16% CUMULATIVE PREFERRED STOCK, SERIES L
of
BANKAMERICA CORPORATION
BANKAMERICA CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (herein referred to as the "Corporation"), in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, does hereby CERTIFY:
1. The Certificate of Incorporation, as amended, of the
Corporation fixes the total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue at seven hundred
seventy million (770,000,000) shares, of which seventy million (70,000,000)
shares shall be shares of preferred stock, without par value, and seven hundred
million (700,000,000) shares shall be common stock, of the par value of $1.5625
per share.
2. The Certificate of Incorporation, as amended, of the
Corporation, expressly grants to the Board of Directors of the Corporation
authority to provide for the issuance of the preferred stock in one or more
series, with such voting powers, full or limited, or without voting powers, and
with such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the Certificate of Incorporation or any
amendment thereto, or in the resolution or resolutions providing for the issue
of such stock adopted by the Board of Directors.
3. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
the Board of Directors, (i) by action duly taken on October 22, 1982,
authorized the issuance of six million (6,000,000) shares of Cumulative
Adjustable Preferred Stock, Series A, without par value (the "Series A
Preferred Stock"), and by action duly taken on March 2, 1992, reduced the
number of authorized shares of Series A Preferred Stock to five million one
hundred seventy eight thousand (5,178,000) shares, (ii) by action duly taken on
February 11, 1983, authorized the issuance of four million (4,000,000) shares
of Cumulative Adjustable Preferred Stock, Series B without par value (the
"Series B Preferred Stock"), and by action duly taken on March 2, 1992, reduced
the number of authorized shares of Series B Preferred Stock to three million
five hundred forty-six thousand
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one hundred (3,546,100) shares, (iii) by actions duly taken on April 11, 1988
and on October 7, 1991, authorized the issuance of seven million (7,000,000)
shares of Cumulative Participating Preferred Stock, Series E, without par
value, (iv) by action duly taken on January 7, 1991, and the Pricing Committee
of the Board of Directors by action duly taken on March 22, 1991, authorized
the issuance of seven million two hundred fifty thousand (7,250,000) shares of
9-5/8% Cumulative Preferred Stock, Series F, without par value, (v) by action
duly taken on April 29, 1991, and the Pricing Committee of the Board of
Directors by action duly taken on May 21, 1991, authorized the issuance of five
million (5,000,000) shares of 6-1/2% Cumulative Convertible Preferred Stock,
Series G, without par value, (vi) by action duly taken on August 5, 1991, the
Pricing Committee of the Board of Directors by action duly taken on November
22, 1991, and the Pricing Subcommittee of the Board of Directors by action duly
taken on December 13, 1991, authorized the issuance of eleven million two
hundred fifty thousand (11,250,000) shares of 9% Cumulative Preferred Stock,
Series H, without par value, (vii) by action duly taken on August 11, 1991, and
the Pricing Committee of the Board of Directors by action duly taken on April
15, 1992, authorized the issuance of two hundred thousand (200,000) shares of
11% Preferred Stock, Series I, without par value, (viii) by action duly taken
on August 11, 1991, and the Pricing Committee of the Board of Directors by
action duly taken on April 15, 1992, authorized the issuance of four hundred
thousand (400,000) shares of 11% Preferred Stock, Series J, without par value,
and (ix) by action duly taken on January 6, 1992, the Pricing Committee of the
Board of Directors by action duly taken on January 27, 1992, and the Pricing
Subcommittee of the Board of Directors by action duly taken on February 5,
1992, authorized the issuance of fourteen million six hundred thousand
(14,600,000) shares of 8-3/8% Cumulative Preferred Stock, Series K, without par
value.
4. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
and the authority conferred upon the Pricing Committee and the Pricing
Subcommittee of the Board of Directors by the resolutions adopted by the Board
of Directors on March 2, 1992 and June 23, 1992, the Board of Directors by
actions duly taken on March 2, 1992 and June 23, 1992, and the Pricing
Subcommittee of the Board of Directors, by action duly taken on July 6, 1992,
adopted resolutions that compositely provide for an additional series of the
preferred stock as follows:
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"RESOLVED, that an issue of a series of the preferred stock, without
par value, of the Corporation (such preferred stock being herein referred to as
"Preferred Stock", which term shall include any additional shares of preferred
stock of the same class heretofore or hereafter authorized to be issued by the
Corporation), consisting of eight hundred thousand (800,000) shares is hereby
provided for, and the voting power, designation, preference and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, are fixed hereby as follows:
1. Designation. The designation of such series shall
be 8.16% Cumulative Preferred Stock, Series L (hereinafter referred to as the
"Series L Preferred Stock") and the number of shares constituting such series
is eight hundred thousand (800,000). Shares of Series L Preferred Stock
shall have a stated value of $500 per share. The number of authorized shares
of Series L Preferred Stock may be reduced by further resolution duly adopted
by the Board of Directors of the Corporation or the Executive Committee of
the Board of Directors and by the filing of a certificate pursuant to the
provisions of the General Corporation Law of the State of Delaware stating
that such reduction has been so authorized, but the number of authorized
shares of Series L Preferred Stock shall not be increased.
2. Dividends. Quarterly Dividend Periods shall
commence on March 1, June 1, September 1 and December 1 in each year and
shall end on and include the day next preceding the first day of the next
Quarterly Dividend Period. Such dividends shall be cumulative from the
respective dates of original issue of shares of Series L Preferred Stock and
shall be payable, when and as declared by the Board of Directors, on February
28, May 31, August 31 and November 30 of each year, commencing August 31,
1992. Each such dividend shall be paid to the holders of record of shares of
Series L Preferred Stock as they appear on the stock register of the
Corporation on such record date, not exceeding 30 days preceding the payment
date thereof, as shall be fixed by the Board of Directors of the Corporation.
Dividends on account of arrears for any past Dividend Periods may be declared
and paid at any time, without reference to any regular dividend payment date,
to holders of record on such date, not exceeding 45 days preceding the
payment date thereof, as may be fixed by the Board of Directors of the
Corporation. If there shall be outstanding shares of any other series of
Preferred Stock ranking on a parity as to dividends with the Series L
Preferred Stock, the Corporation, in making any dividend payment on account
of arrears on the Series L Preferred Stock or such other series of Preferred
Stock,
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shall make payments ratably upon all outstanding shares of Series L Preferred
Stock and such other series of Preferred Stock in proportion to the
respective amounts of dividends in arrears upon all such outstanding shares
of Series L Preferred Stock and such other series of Preferred Stock to the
date of such dividend payment. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments
which may be in arrears.
The amount of dividends per share payable for each Quarterly
Dividend Period shall be computed by dividing the Dividend Rate (as defined
below) for such Dividend Period by four and applying such rate against the
stated value per share of the Series L Preferred Stock. Dividends payable on
the Series L Preferred Stock for any period less than a full Quarterly
Dividend Period shall be computed on the basis of a 360-day year consisting
of twelve 30-day months.
3. Dividend Rate. The Dividend Rate on the shares of
Series L Preferred Stock for the period (the "Initial Dividend Period") from
the respective dates of original issue thereof to and including August 31,
1992, and for each Quarterly Dividend Period thereafter shall be 8.16% per
annum.
4. Redemption. The Corporation, at its option, may,
with the prior consent of the Board of Governors of the Federal Reserve
System, if required, redeem shares of the Series L Preferred Stock, as a
whole or in part, at any time or from time to time on or after July 13, 1997,
at $500 per share, plus accrued and unpaid dividends thereon to the date
fixed for redemption.
If the Corporation shall redeem shares of Series L Preferred
Stock pursuant to this Section 4, notice of such redemption shall be given by
publication (not less than 40 nor more than 90 days prior to the redemption
date) at least once in a newspaper printed in the English language and of
general circulation in the City and County of San Francisco, State of
California (upon any secular day of the week) stating such election on the
part of the Corporation and that on the redemption date there will become due
and payable upon each of the shares to be redeemed, at the place or places
specified in such notice, the applicable redemption price therein specified.
A similar notice shall be mailed by first class mail, postage prepaid, not
less than 40 nor more than 90 days prior to the redemption date, to each
holder of record of the shares to be redeemed, at such holder's address as
the same appears on the stock register of the Corporation.
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Each such notice shall state: (a) the redemption date; (b) the number of
shares of Series L Preferred Stock to be redeemed and, if less than all the
shares held by such holder are to be redeemed, the number of such shares to
be redeemed from such holder; (c) the redemption price; (d) the place or
places where certificates for such shares are to be surrendered for payment
of the redemption price; and (e) that dividends on the shares to be redeemed
will cease to accrue on such redemption date. Notice having been mailed as
aforesaid, from and after the redemption date (unless default shall be made
by the Corporation in providing money for the payment of the redemption
price) dividends on the shares of the Series L Preferred Stock so called for
redemption shall cease to accrue, and said shares shall no longer be deemed
to be outstanding, and all rights of the holders thereof as stockholders of
the Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said notice
of the certificates for any shares so redeemed (properly endorsed or assigned
for transfer, if the Board of Directors of the Corporation shall so require
and the notice shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. If less than all the
outstanding shares of Series L Preferred Stock are to be redeemed, shares to
be redeemed shall be selected by the Corporation from outstanding shares of
Series L Preferred Stock not previously called for redemption by lot or pro
rata (as nearly as may be) in any method determined by the Corporation in its
sole discretion to be equitable.
In no event shall the Corporation redeem or purchase any
shares of Series L Preferred Stock pursuant to this Section 4 unless full
cumulative dividends shall have been paid or declared and set apart for
payment upon all outstanding shares of Series L 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.
5. Shares to be Retired. All shares of Series L
Preferred Stock redeemed by the Corporation shall be retired and cancelled
and shall be restored to the status of authorized but unissued shares of
Preferred Stock, without designation as to series, and may thereafter be
issued.
6. Conversion or Exchange. The holders of shares of
Series L Preferred Stock shall not have any rights herein to convert such
shares into or exchange such shares for shares of any other class
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or classes or of any other series of any class or classes of capital stock of
the Corporation.
7. Voting. Except as hereinafter in this Section 7
expressly provided or as otherwise required by law, the Series L Preferred
Stock shall have no voting power.
Whenever and as often as dividends payable on any share or
shares of the Preferred Stock at the time outstanding shall be accumulated
and unpaid in an amount equivalent to or exceeding six quarterly dividends
(whether or not declared and whether or not consecutive), the holders of
record of the Preferred Stock of all series shall thereafter have the right,
as a single class, to elect two directors, and, subject to the terms of any
outstanding series of Preferred Stock, the holders of record of the common
stock, as a single class, shall have the right to elect the remaining
authorized number of Directors. In any such election, the holders of shares
of Series L Preferred Stock shall be entitled to cast one vote per share.
Upon the happening of the six dividend defaults hereinabove
set forth, a special meeting of stockholders of the Corporation then entitled
to vote shall be called by the Chairman of the Board or the President or the
Secretary of the Corporation, if requested in writing by the holders of
record of not less than ten percent of the Preferred Stock then outstanding.
At such special meeting, or, if no such special meeting shall have been
called, then at the next annual meeting of stockholders, the stockholders of
the Corporation then entitled to vote shall elect, voting as above provided,
an entirely new Board of Directors, and the term of office of the Directors
in office at the time of such election shall expire upon the election of
their successors at such meeting; provided, however, that nothing herein
contained shall be construed to be a bar to the reelection of any Director at
such meeting. At all meetings of stockholders at which holders of Preferred
Stock shall be entitled to vote for Directors as a single class, the holders
of a majority of the outstanding shares of each class or series of capital
stock of the Corporation having the right to vote as a single class shall be
necessary to constitute a quorum, whether present in person or by proxy, for
the election by that class or series of its designated Directors. In order
to validate an election of Directors by stockholders voting as a class, such
Directors shall be elected by the vote of at least a plurality of shares held
by such stockholders present or represented at the meeting. At any such
meeting, the election of Directors by stockholders voting as a class shall be
valid
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notwithstanding that a quorum of other stockholders voting as one or more
classes may not be present or represented at such meeting, and if any
stockholders voting as a class shall elect Directors, the Directors so
elected shall be deemed to be Directors of the Corporation unless and until
the other stockholders entitled to vote as one or more classes shall elect
their Directors.
While class voting is in effect with respect to the
Preferred Stock, any Director elected by holders of Preferred Stock voting as
a class may be removed at any annual or special meeting, by vote of a
majority of the stockholders voting as a class who elected such Director, for
any cause deemed sufficient by such stockholders present at such meeting. In
case any vacancy shall occur among the Directors elected by such stockholders
voting as a class, such vacancy may be filled by the remaining Director so
elected, or his successor then in office, and the Director so elected to fill
such vacancy shall serve until the next meeting of stockholders for the
election of Directors.
Such voting rights of the holders of Preferred Stock as a
single class, once effective, shall continue only until all arrears in
dividends (whether or not declared) on the Preferred Stock shall have been
paid or declared and set apart for payment at which time the right of the
Preferred Stock to vote as a single class for the election of Directors, as
hereinabove set forth, shall terminate. Upon such termination, a special
meeting of the stockholders of the Corporation then entitled to vote may be
called by the Chairman of the Board or the President, and shall be called by
the Chairman of the Board or the President or the Secretary of the
Corporation if requested in writing by the holders of record of not less than
one percent of the common stock then outstanding, and at such special
meeting, or if no such special meeting shall have been called then at the
next annual meeting of the stockholders, the stockholders of the Corporation
then entitled to vote shall elect an entirely new Board of Directors and the
term of office of the Directors in office at the time of such election shall
expire upon the election of their successors at such meeting; provided,
however, that nothing herein contained shall be construed to be a bar to the
reelection of any such Director at such meeting.
The consent of the holders of at least two-thirds of the
number of shares of Preferred Stock at the time outstanding, given in person
or by proxy, either in writing or at a meeting of stockholders at which the
holders of the Preferred Stock shall vote separately as a
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class without regard to series, the holders of shares of Series L Preferred
Stock being entitled to cast one vote per share thereon, shall be necessary
for effecting or validating:
(i) any change in the Certificate of Incorporation
or certificate supplemental thereto or By-laws of the Corporation
which would materially and adversely alter or change the preferences,
privileges, rights or powers given to the holders of the Preferred
Stock, provided, that if one or more but not all series of Preferred
Stock at the time outstanding are so affected, only the consent of
the holders of at least two-thirds of each series so affected, voting
separately as a class, shall be required; or
(ii) the issuance of any shares of any other class
of stock of the Corporation ranking prior to the Preferred Stock.
The term "ranking prior to the Preferred Stock" shall mean
and include all shares of stock of the Corporation in respect of which the
rights of the holders thereof as to the payment of dividends or as to
distributions in the event of a voluntary or an involuntary liquidation,
dissolution or winding up of the Corporation, are given preference over the
rights of the holders of the Preferred Stock.
8. Liquidation Preference. In the event of any
liquidation, dissolution or winding up of the Corporation, voluntary or
involuntary, the holders of all shares of Series L Preferred Stock shall be
entitled to be paid in full out of the assets of the Corporation available
for distribution to stockholders, before any distribution of assets shall be
made to the holders of common stock or of any other shares of stock of the
Corporation ranking as to such distribution junior to the Series L Preferred
Stock, an amount equal to $500 per share plus an amount equal to any accrued
and unpaid dividends thereon to the date fixed for payment of such
distribution. If, upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the amounts payable with respect to the
Series L Preferred Stock and any other shares of stock of the Corporation
ranking as to any such distribution on a parity with the Series L Preferred
Stock are not paid in full, the holders of the Series L Preferred Stock and
of such other shares shall 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 to the holders of the Series L
Preferred Stock of the
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full preferential amounts provided for in this Section 8, the holders of the
Series L Preferred Stock shall be entitled to no further participation in any
distribution of assets by the Corporation.
Consolidation or merger of the Corporation with or into
another corporation or corporations, or a sale, whether for cash, shares of
stock, securities or properties, of all or substantially all of the assets of
the Corporation, shall not be deemed or construed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this
paragraph 8.
9. Limitation on Dividends on Junior Ranking Stock. So
long as any Series L Preferred Stock shall be outstanding, the Corporation
shall not declare any dividends on the common stock of the Corporation or any
other stock of the Corporation ranking as to dividends or distribution of
assets junior to the Series L Preferred Stock (the common stock and any such
other stock being herein referred to as "Junior Stock"), or make any payment
on account of, or set apart money for, a sinking or other analogous fund for
the purchase, redemption or other retirement of any shares of Junior Stock,
or make any distribution in respect thereof, whether in cash or property or
in obligations or stock of the Corporation, other than Junior Stock (such
dividends, payments, setting apart and distributions being herein called
"Junior Stock Payments"), unless all of the conditions set forth in the
following subsections A and B shall exist at the date of such declaration in
the case of any such dividend, or the date of such setting apart in the case
of any such fund, or the date of such payment or distribution in the case of
any other Junior Stock Payment:
A. Full cumulative dividends shall have been paid or
declared and set apart for payment upon all outstanding shares of Preferred
Stock other than Junior Stock.
B. The Corporation shall not be in default or in
arrears with respect to any sinking or other analogous fund or any call for
tenders obligation or other agreement for the purchase, redemption or other
retirement of any shares of Preferred Stock other than Junior Stock.
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CERTIFICATE OF DESIGNATION
of
7-7/8% CUMULATIVE PREFERRED STOCK, SERIES M
of
BANKAMERICA CORPORATION
BANKAMERICA CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (herein referred to as the "Corporation"), in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, does hereby CERTIFY:
1. The Certificate of Incorporation, as amended, of the
Corporation fixes the total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue at seven hundred
seventy million (770,000,000) shares, of which seventy million (70,000,000)
shares shall be shares of preferred stock, without par value, and seven hundred
million (700,000,000) shares shall be common stock, of the par value of $1.5625
per share.
2. The Certificate of Incorporation, as amended, of the
Corporation, expressly grants to the Board of Directors of the Corporation
authority to provide for the issuance of the preferred stock in one or more
series, with such voting powers, full or limited, or without voting powers, and
with such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the Certificate of Incorporation or any
amendment thereto, or in the resolution or resolutions providing for the issue
of such stock adopted by the Board of Directors.
3. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
the Board of Directors, (i) by action duly taken on October 22, 1982,
authorized the issuance of six million (6,000,000) shares of Cumulative
Adjustable Preferred Stock, Series A, without par value (the "Series A
Preferred Stock"), and by action duly taken on March 2, 1992, reduced the
number of authorized shares of Series A Preferred Stock to five million one
hundred seventy eight thousand (5,178,000) shares, (ii) by action duly taken on
February 11, 1983, authorized the issuance of four million (4,000,000) shares
of Cumulative Adjustable Preferred Stock, Series B without par value (the
"Series B Preferred Stock"), and by action duly taken on March 2, 1992, reduced
the number of authorized shares of Series B Preferred Stock to three million
five hundred forty-six thousand
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one hundred (3,546,100) shares, (iii) by actions duly taken on April 11, 1988
and on October 7, 1991, authorized the issuance of seven million (7,000,000)
shares of Cumulative Participating Preferred Stock, Series E, without par
value, (iv) by action duly taken on January 7, 1991, and the Pricing Committee
of the Board of Directors by action duly taken on March 22, 1991, authorized
the issuance of seven million two hundred fifty thousand (7,250,000) shares of
9-5/8% Cumulative Preferred Stock, Series F, without par value, (v) by action
duly taken on April 29, 1991, and the Pricing Committee of the Board of
Directors by action duly taken on May 21, 1991, authorized the issuance of five
million (5,000,000) shares of 6-1/2% Cumulative Convertible Preferred Stock,
Series G, without par value, (vi) by action duly taken on August 5, 1991, the
Pricing Committee of the Board of Directors by action duly taken on November
22, 1991, and the Pricing Subcommittee of the Board of Directors by action duly
taken on December 13, 1991, authorized the issuance of eleven million two
hundred fifty thousand (11,250,000) shares of 9% Cumulative Preferred Stock,
Series H, without par value, (vii) by action duly taken on August 11, 1991, and
the Pricing Committee of the Board of Directors by action duly taken on April
15, 1992, authorized the issuance of two hundred thousand (200,000) shares of
11% Preferred Stock, Series I, without par value, (viii) by action duly taken
on August 11, 1991, and the Pricing Committee of the Board of Directors by
action duly taken on April 15, 1992, authorized the issuance of four hundred
thousand (400,000) shares of 11% Preferred Stock, Series J, without par value,
(ix) by action duly taken on January 6, 1992, the Pricing Committee of the
Board of Directors by action duly taken on January 27, 1992, and the Pricing
Subcommittee of the Board of Directors by action duly taken on February 5,
1992, authorized the issuance of fourteen million six hundred thousand
(14,600,000) shares of 8-3/8% Cumulative Preferred Stock, Series K, without par
value, and (x) by action duly taken on March 2, 1992 and June 23, 1992, and the
Pricing Subcommittee of the Board of Directors by action duly taken on July 6,
1992, authorized the issuance of eight hundred thousand (800,000) shares of
8.16% Cumulative Preferred Stock, Series L, without par value.
4. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
and the authority conferred upon the Pricing Committee and the Pricing
Subcommittee of the Board of Directors by the resolutions adopted by the Board
of Directors on August 3, 1992 and September 8, 1992, the Board of Directors by
actions duly taken on August 3, 1992 and September 8, 1992, and the Pricing
Subcommittee of the Board of Directors, by action duly taken on September 22,
1992, adopted resolutions that compositely provide for an additional series of
the preferred stock as follows:
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"RESOLVED, that an issue of a series of the preferred stock, without
par value, of the Corporation (such preferred stock being herein referred to as
"Preferred Stock", which term shall include any additional shares of preferred
stock of the same class heretofore or hereafter authorized to be issued by the
Corporation), consisting of seven hundred thousand (700,000) shares is hereby
provided for, and the voting power, designation, preference and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, are fixed hereby as follows:
1. Designation. The designation of such series shall
be 7-7/8% Cumulative Preferred Stock, Series M (hereinafter referred to as
the "Series M Preferred Stock") and the number of shares constituting such
series is seven hundred thousand (700,000). Shares of Series M Preferred
Stock shall have a stated value of $500 per share. The number of authorized
shares of Series M Preferred Stock may be reduced by further resolution duly
adopted by the Board of Directors of the Corporation or the Executive
Committee of the Board of Directors and by the filing of a certificate
pursuant to the provisions of the General Corporation Law of the State of
Delaware stating that such reduction has been so authorized, but the number
of authorized shares of Series M Preferred Stock shall not be increased.
2. Dividends. Quarterly Dividend Periods shall
commence on March 1, June 1, September 1 and December 1 in each year and
shall end on and include the day next preceding the first day of the next
Quarterly Dividend Period. Such dividends shall be cumulative from the
respective dates of original issue of shares of Series M Preferred Stock and
shall be payable, when and as declared by the Board of Directors, on February
28, May 31, August 31 and November 30 of each year, commencing November 30,
1992. Each such dividend shall be paid to the holders of record of shares of
Series M Preferred Stock as they appear on the stock register of the
Corporation on such record date, not exceeding 30 days preceding the payment
date thereof, as shall be fixed by the Board of Directors of the Corporation.
Dividends on account of arrears for any past Dividend Periods may be declared
and paid at any time, without reference to any regular dividend payment date,
to holders of record on such date, not exceeding 45 days preceding the
payment date thereof, as may be fixed by the Board of Directors of the
Corporation. If there shall be outstanding shares of any other series of
Preferred Stock ranking on a parity as to dividends with the Series M
Preferred Stock, the Corporation, in making any dividend payment on account
of arrears on the Series M Preferred Stock or such other series of Preferred
Stock,
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shall make payments ratably upon all outstanding shares of Series M Preferred
Stock and such other series of Preferred Stock in proportion to the
respective amounts of dividends in arrears upon all such outstanding shares
of Series M Preferred Stock and such other series of Preferred Stock to the
date of such dividend payment. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments
which may be in arrears.
The amount of dividends per share payable for each Quarterly
Dividend Period shall be computed by dividing the Dividend Rate (as defined
below) for such Dividend Period by four and applying such rate against the
stated value per share of the Series M Preferred Stock. Dividends payable on
the Series M Preferred Stock for any period less than a full Quarterly
Dividend Period shall be computed on the basis of a 360-day year consisting
of twelve 30-day months.
3. Dividend Rate. The Dividend Rate on the shares of
Series M Preferred Stock for the period (the "Initial Dividend Period") from
the respective dates of original issue thereof to and including November 30,
1992, and for each Quarterly Dividend Period thereafter shall be 7-7/8% per
annum.
4. Redemption. The Corporation, at its option, may,
with the prior consent of the Board of Governors of the Federal Reserve
System, if required, redeem shares of the Series M Preferred Stock, as a
whole or in part, at any time or from time to time on or after September 30,
1997, at $500 per share, plus accrued and unpaid dividends thereon to the
date fixed for redemption.
If the Corporation shall redeem shares of Series M Preferred
Stock pursuant to this Section 4, notice of such redemption shall be given by
publication (not less than 40 nor more than 90 days prior to the redemption
date) at least once in a newspaper printed in the English language and of
general circulation in the City and County of San Francisco, State of
California (upon any secular day of the week) stating such election on the
part of the Corporation and that on the redemption date there will become due
and payable upon each of the shares to be redeemed, at the place or places
specified in such notice, the applicable redemption price therein specified.
A similar notice shall be mailed by first class mail, postage prepaid, not
less than 40 nor more than 90 days prior to the redemption date, to each
holder of record of the shares to be redeemed, at such holder's address as
the same appears on the stock register of the Corporation.
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Each such notice shall state: (a) the redemption date; (b) the number of
shares of Series M Preferred Stock to be redeemed and, if less than all the
shares held by such holder are to be redeemed, the number of such shares to
be redeemed from such holder; (c) the redemption price; (d) the place or
places where certificates for such shares are to be surrendered for payment
of the redemption price; and (e) that dividends on the shares to be redeemed
will cease to accrue on such redemption date. Notice having been mailed as
aforesaid, from and after the redemption date (unless default shall be made
by the Corporation in providing money for the payment of the redemption
price) dividends on the shares of the Series M Preferred Stock so called for
redemption shall cease to accrue, and said shares shall no longer be deemed
to be outstanding, and all rights of the holders thereof as stockholders of
the Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said notice
of the certificates for any shares so redeemed (properly endorsed or assigned
for transfer, if the Board of Directors of the Corporation shall so require
and the notice shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. If less than all the
outstanding shares of Series M Preferred Stock are to be redeemed, shares to
be redeemed shall be selected by the Corporation from outstanding shares of
Series M Preferred Stock not previously called for redemption by lot or pro
rata (as nearly as may be) in any method determined by the Corporation in its
sole discretion to be equitable.
In no event shall the Corporation redeem or purchase any shares of
Series M Preferred Stock pursuant to this Section 4 unless full cumulative
dividends shall have been paid or declared and set apart for payment upon all
outstanding shares of Series M 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.
5. Shares to be Retired. All shares of Series M
Preferred Stock redeemed by the Corporation shall be retired and cancelled
and shall be restored to the status of authorized but unissued shares of
Preferred Stock, without designation as to series, and may thereafter be
issued.
6. Conversion or Exchange. The holders of shares of
Series M Preferred Stock shall not have any rights herein to convert such
shares into or exchange such shares for shares of any other class
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or classes or of any other series of any class or classes of capital stock of
the Corporation.
7. Voting. Except as hereinafter in this Section 7
expressly provided or as otherwise required by law, the Series M Preferred
Stock shall have no voting power.
Whenever and as often as dividends payable on any share or
shares of the Preferred Stock at the time outstanding shall be accumulated
and unpaid in an amount equivalent to or exceeding six quarterly dividends
(whether or not declared and whether or not consecutive), the holders of
record of the Preferred Stock of all series shall thereafter have the right,
as a single class, to elect two directors, and, subject to the terms of any
outstanding series of Preferred Stock, the holders of record of the common
stock, as a single class, shall have the right to elect the remaining
authorized number of Directors. In any such election, the holders of shares
of Series M Preferred Stock shall be entitled to cast one vote per share.
Upon the happening of the six dividend defaults hereinabove
set forth, a special meeting of stockholders of the Corporation then entitled
to vote shall be called by the Chairman of the Board or the President or the
Secretary of the Corporation, if requested in writing by the holders of
record of not less than ten percent of the Preferred Stock then outstanding.
At such special meeting, or, if no such special meeting shall have been
called, then at the next annual meeting of stockholders, the stockholders of
the Corporation then entitled to vote shall elect, voting as above provided,
an entirely new Board of Directors, and the term of office of the Directors
in office at the time of such election shall expire upon the election of
their successors at such meeting; provided, however, that nothing herein
contained shall be construed to be a bar to the reelection of any Director at
such meeting. At all meetings of stockholders at which holders of Preferred
Stock shall be entitled to vote for Directors as a single class, the holders
of a majority of the outstanding shares of each class or series of capital
stock of the Corporation having the right to vote as a single class shall be
necessary to constitute a quorum, whether present in person or by proxy, for
the election by that class or series of its designated Directors. In order
to validate an election of Directors by stockholders voting as a class, such
Directors shall be elected by the vote of at least a plurality of shares held
by such stockholders present or represented at the meeting. At any such
meeting, the election of Directors by stockholders voting as a class shall be
valid
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notwithstanding that a quorum of other stockholders voting as one or more
classes may not be present or represented at such meeting, and if any
stockholders voting as a class shall elect Directors, the Directors so
elected shall be deemed to be Directors of the Corporation unless and until
the other stockholders entitled to vote as one or more classes shall elect
their Directors.
While class voting is in effect with respect to the
Preferred Stock, any Director elected by holders of Preferred Stock voting as
a class may be removed at any annual or special meeting, by vote of a
majority of the stockholders voting as a class who elected such Director, for
any cause deemed sufficient by such stockholders present at such meeting. In
case any vacancy shall occur among the Directors elected by such stockholders
voting as a class, such vacancy may be filled by the remaining Director so
elected, or his successor then in office, and the Director so elected to fill
such vacancy shall serve until the next meeting of stockholders for the
election of Directors.
Such voting rights of the holders of Preferred Stock as a
single class, once effective, shall continue only until all arrears in
dividends (whether or not declared) on the Preferred Stock shall have been
paid or declared and set apart for payment at which time the right of the
Preferred Stock to vote as a single class for the election of Directors, as
hereinabove set forth, shall terminate. Upon such termination, a special
meeting of the stockholders of the Corporation then entitled to vote may be
called by the Chairman of the Board or the President, and shall be called by
the Chairman of the Board or the President or the Secretary of the
Corporation if requested in writing by the holders of record of not less than
one percent of the common stock then outstanding, and at such special
meeting, or if no such special meeting shall have been called then at the
next annual meeting of the stockholders, the stockholders of the Corporation
then entitled to vote shall elect an entirely new Board of Directors and the
term of office of the Directors in office at the time of such election shall
expire upon the election of their successors at such meeting; provided,
however, that nothing herein contained shall be construed to be a bar to the
reelection of any such Director at such meeting.
The consent of the holders of at least two-thirds of the
number of shares of Preferred Stock at the time outstanding, given in person
or by proxy, either in writing or at a meeting of stockholders at which the
holders of the Preferred Stock shall vote separately as a
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class without regard to series, the holders of shares of Series M Preferred
Stock being entitled to cast one vote per share thereon, shall be necessary
for effecting or validating:
(i) any change in the Certificate of Incorporation
or certificate supplemental thereto or By-laws of the Corporation
which would materially and adversely alter or change the preferences,
privileges, rights or powers given to the holders of the Preferred
Stock, provided, that if one or more but not all series of Preferred
Stock at the time outstanding are so affected, only the consent of
the holders of at least two-thirds of each series so affected, voting
separately as a class, shall be required; or
(ii) the issuance of any shares of any other class
of stock of the Corporation ranking prior to the Preferred Stock.
The term "ranking prior to the Preferred Stock" shall mean
and include all shares of stock of the Corporation in respect of which the
rights of the holders thereof as to the payment of dividends or as to
distributions in the event of a voluntary or an involuntary liquidation,
dissolution or winding up of the Corporation, are given preference over the
rights of the holders of the Preferred Stock.
8. Liquidation Preference. In the event of any
liquidation, dissolution or winding up of the Corporation, voluntary or
involuntary, the holders of all shares of Series M Preferred Stock shall be
entitled to be paid in full out of the assets of the Corporation available
for distribution to stockholders, before any distribution of assets shall be
made to the holders of common stock or of any other shares of stock of the
Corporation ranking as to such distribution junior to the Series M Preferred
Stock, an amount equal to $500 per share plus an amount equal to any accrued
and unpaid dividends thereon to the date fixed for payment of such
distribution. If, upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the amounts payable with respect to the
Series M Preferred Stock and any other shares of stock of the Corporation
ranking as to any such distribution on a parity with the Series M Preferred
Stock are not paid in full, the holders of the Series M Preferred Stock and
of such other shares shall 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 to the holders of the Series M
Preferred Stock of the
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full preferential amounts provided for in this Section 8, the holders of the
Series M Preferred Stock shall be entitled to no further participation in any
distribution of assets by the Corporation.
Consolidation or merger of the Corporation with or into
another corporation or corporations, or a sale, whether for cash, shares of
stock, securities or properties, of all or substantially all of the assets of
the Corporation, shall not be deemed or construed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this
paragraph 8.
9. Limitation on Dividends on Junior Ranking Stock. So
long as any Series M Preferred Stock shall be outstanding, the Corporation
shall not declare any dividends on the common stock of the Corporation or any
other stock of the Corporation ranking as to dividends or distribution of
assets junior to the Series M Preferred Stock (the common stock and any such
other stock being herein referred to as "Junior Stock"), or make any payment
on account of, or set apart money for, a sinking or other analogous fund for
the purchase, redemption or other retirement of any shares of Junior Stock,
or make any distribution in respect thereof, whether in cash or property or
in obligations or stock of the Corporation, other than Junior Stock (such
dividends, payments, setting apart and distributions being herein called
"Junior Stock Payments"), unless all of the conditions set forth in the
following subsections A and B shall exist at the date of such declaration in
the case of any such dividend, or the date of such setting apart in the case
of any such fund, or the date of such payment or distribution in the case of
any other Junior Stock Payment:
A. Full cumulative dividends shall have been paid or
declared and set apart for payment upon all outstanding shares of Preferred
Stock other than Junior Stock.
B. The Corporation shall not be in default or in
arrears with respect to any sinking or other analogous fund or any call for
tenders obligation or other agreement for the purchase, redemption or other
retirement of any shares of Preferred Stock other than Junior Stock.
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CERTIFICATE OF DESIGNATIONS
of
8-1/2% CUMULATIVE PREFERRED STOCK, SERIES N
of
BANKAMERICA CORPORATION
BANKAMERICA CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (herein referred to as the "Corporation"), in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, does hereby CERTIFY:
1. The Certificate of Incorporation, as amended, of the
Corporation fixes the total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue at seven hundred
seventy million (770,000,000) shares, of which seventy million (70,000,000)
shares shall be shares of preferred stock, without par value, and seven hundred
million (700,000,000) shares shall be common stock, of the par value of $1.5625
per share.
2. The Certificate of Incorporation, as amended, of the
Corporation, expressly grants to the Board of Directors of the Corporation
authority to provide for the issuance of the preferred stock in one or more
series, with such voting powers, full or limited, or without voting powers, and
with such designations, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
as shall be stated and expressed in the Certificate of Incorporation or any
amendment thereto, or in the resolution or resolutions providing for the issue
of such stock adopted by the Board of Directors.
3. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
the Board of Directors, (i) by action duly taken on October 22, 1982,
authorized the issuance of six million (6,000,000) shares of Cumulative
Adjustable Preferred Stock, Series A, without par value (the "Series A
Preferred Stock"), and by action duly taken on March 2, 1992, reduced the
number of authorized shares of Series A Preferred Stock to five million one
hundred seventy eight thousand (5,178,000) shares, (ii) by action duly taken on
February 11, 1983, authorized the issuance of four million (4,000,000) shares
of Cumulative Adjustable Preferred Stock, Series B without par value (the
"Series B Preferred Stock"), and by action duly taken on March 2, 1992, reduced
the number of authorized shares of
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Series B Preferred Stock to three million five hundred forty-six thousand one
hundred (3,546,100) shares, (iii) by actions duly taken on April 11, 1988 and
on October 7, 1991, authorized the issuance of seven million (7,000,000) shares
of Cumulative Participating Preferred Stock, Series E, without par value, (iv)
by action duly taken on January 7, 1991, and the Pricing Committee of the Board
of Directors by action duly taken on March 22, 1991, authorized the issuance of
seven million two hundred fifty thousand (7,250,000) shares of 9-5/8%
Cumulative Preferred Stock, Series F, without par value, (v) by action duly
taken on April 29, 1991, and the Pricing Committee of the Board of Directors by
action duly taken on May 21, 1991, authorized the issuance of five million
(5,000,000) shares of 6-1/2% Cumulative Convertible Preferred Stock, Series G,
without par value, (vi) by action duly taken on August 5, 1991, the Pricing
Committee of the Board of Directors by action duly taken on November 22, 1991,
and the Pricing Subcommittee of the Board of Directors by action duly taken on
December 13, 1991, authorized the issuance of eleven million two hundred fifty
thousand (11,250,000) shares of 9% Cumulative Preferred Stock, Series H,
without par value, (vii) by action duly taken on August 11, 1991, and the
Pricing Committee of the Board of Directors by action duly taken on April 15,
1992, authorized the issuance of two hundred thousand (200,000) shares of 11%
Preferred Stock, Series I, without par value, (viii) by action duly taken on
August 11, 1991, and the Pricing Committee of the Board of Directors by action
duly taken on April 15, 1992, authorized the issuance of four hundred thousand
(400,000) shares of 11% Preferred Stock, Series J, without par value, (ix) by
action duly taken on January 6, 1992, the Pricing Committee of the Board of
Directors by action duly taken on January 27, 1992, and the Pricing
Subcommittee of the Board of Directors by action duly taken on February 5,
1992, authorized the issuance of fourteen million six hundred thousand
(14,600,000) shares of 8-3/8% Cumulative Preferred Stock, Series K, without par
value, (x) by action duly taken on March 2, 1992, and June 23, 1992, and the
Pricing Subcommittee of the Board of Directors by action duly taken on July 6,
1992, authorized the issuance of eight hundred thousand (800,000) shares of
8.16% Cumulative Preferred Stock, Series L, without par value, and (xi) by
actions duly taken on August 3, 1992 and September 8, 1992, and the Pricing
Subcommittee of the Board of Directors by action duly taken on September 22,
1992, authorized the issuance of seven hundred thousand (700,000) shares of
7-7/8% Cumulative Preferred Stock, Series M, without par value.
4. Pursuant to the authority conferred upon the Board of
Directors by the Certificate of Incorporation, as amended, of the Corporation,
and the authority conferred upon the Pricing Committee and the Pricing
Subcommittee of the Board of Directors by the resolutions adopted by
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the Board of Directors on October 5, 1992, the Board of Directors by action
duly taken on October 5, 1992, the Pricing Committee of the Board of Directors
by action duly taken on November 9, 1992, and the Pricing Subcommittee of the
Board of Directors, by action duly taken on December 7, 1992, adopted
resolutions that compositely provide for an additional series of the preferred
stock as follows:
"RESOLVED, that an issue of a series of the preferred stock, without
par value, of the Corporation (such preferred stock being herein referred to as
"Preferred Stock", which term shall include any additional shares of preferred
stock of the same class heretofore or hereafter authorized to be issued by the
Corporation), consisting of four hundred seventy-five thousand (475,000) shares
is hereby provided for, and the voting power, designation, preference and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, are fixed hereby as follows:
1. Designation. The designation of such series shall
be 8-1/2% Cumulative Preferred Stock, Series N (hereinafter referred to as
the "Series N Preferred Stock") and the number of shares constituting such
series is four hundred seventy-five thousand (475,000). Shares of Series N
Preferred Stock shall have a stated value of $500 per share. The number of
authorized shares of Series N Preferred Stock may be reduced by further
resolution duly adopted by the Board of Directors of the Corporation or the
Executive Committee of the Board of Directors and by the filing of a
certificate pursuant to the provisions of the General Corporation Law of the
State of Delaware stating that such reduction has been so authorized, but the
number of authorized shares of Series N Preferred Stock shall not be
increased.
2. Dividends. Quarterly Dividend Periods shall
commence on March 1, June 1, September 1 and December 1 in each year and
shall end on and include the day next preceding the first day of the next
Quarterly Dividend Period. Such dividends shall be cumulative from the
respective dates of original issue of shares of Series N Preferred Stock and
shall be payable, when and as declared by the Board of Directors, on February
28, May 31, August 31 and November 30 of each year, commencing February 28,
1993. Each such dividend shall be paid to the holders of record of shares of
Series N Preferred Stock as they appear on the stock register of the
Corporation on such record date, not exceeding 30 days preceding the payment
date thereof, as shall be fixed by the Board of Directors of the Corporation.
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Dividends on account of arrears for any past Dividend Periods may be declared
and paid at any time, without reference to any regular dividend payment date,
to holders of record on such date, not exceeding 45 days preceding the
payment date thereof, as may be fixed by the Board of Directors of the
Corporation. If there shall be outstanding shares of any other series of
Preferred Stock ranking on a parity as to dividends with the Series N
Preferred Stock, the Corporation, in making any dividend payment on account
of arrears on the Series N Preferred Stock or such other series of Preferred
Stock, shall make payments ratably upon all outstanding shares of Series N
Preferred Stock and such other series of Preferred Stock in proportion to the
respective amounts of dividends in arrears upon all such outstanding shares
of Series N Preferred Stock and such other series of Preferred Stock to the
date of such dividend payment. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments
which may be in arrears.
The amount of dividends per share payable for each Quarterly
Dividend Period shall be computed by dividing the Dividend Rate (as defined
below) for such Dividend Period by four and applying such rate against the
stated value per share of the Series N Preferred Stock. Dividends payable on
the Series N Preferred Stock for any period less than a full Quarterly
Dividend Period shall be computed on the basis of a 360-day year consisting
of twelve 30-day months.
3. Dividend Rate. The Dividend Rate on the shares of
Series N Preferred Stock for the period (the "Initial Dividend Period") from
the respective dates of original issue thereof to and including February 28,
1993, and for each Quarterly Dividend Period thereafter shall be 8-1/2% per
annum.
4. Redemption. The Corporation, at its option, may,
with the prior consent of the Board of Governors of the Federal Reserve
System, if required, redeem shares of the Series N Preferred Stock, as a
whole or in part, at any time or from time to time on or after December 15,
1997, at $500 per share, plus accrued and unpaid dividends thereon to the
date fixed for redemption.
If the Corporation shall redeem shares of Series N Preferred
Stock pursuant to this Section 4, notice of such redemption shall be given by
publication (not less than 40 nor more than 90 days prior to the redemption
date) at least once in a newspaper printed in
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the English language and of general circulation in the City and County of San
Francisco, State of California (upon any secular day of the week) stating
such election on the part of the Corporation and that on the redemption date
there will become due and payable upon each of the shares to be redeemed, at
the place or places specified in such notice, the applicable redemption price
therein specified. A similar notice shall be mailed by first class mail,
postage prepaid, not less than 40 nor more than 90 days prior to the
redemption date, to each holder of record of the shares to be redeemed, at
such holder's address as the same appears on the stock register of the
Corporation. Each such notice shall state: (a) the redemption date; (b) the
number of shares of Series N Preferred Stock to be redeemed and, if less than
all the shares held by such holder are to be redeemed, the number of such
shares to be redeemed from such holder; (c) the redemption price; (d) the
place or places where certificates for such shares are to be surrendered for
payment of the redemption price; and (e) that dividends on the shares to be
redeemed will cease to accrue on such redemption date. Notice having been
mailed as aforesaid, from and after the redemption date (unless default shall
be made by the Corporation in providing money for the payment of the
redemption price) dividends on the shares of the Series N Preferred Stock so
called for redemption shall cease to accrue, and said shares shall no longer
be deemed to be outstanding, and all rights of the holders thereof as
stockholders of the Corporation (except the right to receive from the
Corporation the redemption price) shall cease. Upon surrender in accordance
with said notice of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors of the
Corporation shall so require and the notice shall so state), such shares
shall be redeemed by the Corporation at the redemption price aforesaid. If
less than all the outstanding shares of Series N Preferred Stock are to be
redeemed, shares to be redeemed shall be selected by the Corporation from
outstanding shares of Series N Preferred Stock not previously called for
redemption by lot or pro rata (as nearly as may be) in any method determined
by the Corporation in its sole discretion to be equitable.
In no event shall the Corporation redeem or purchase any shares of
Series N Preferred Stock pursuant to this Section 4 unless full cumulative
dividends shall have been paid or declared and set apart for payment upon all
outstanding shares of Series N Preferred Stock for all past Dividend Periods,
and unless all matured obligations of the Corporation with respect to all
sinking funds, retirement funds or
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purchase funds for all series of Preferred Stock then outstanding have been
met.
5. Shares to be Retired. All shares of Series N
Preferred Stock redeemed by the Corporation shall be retired and cancelled
and shall be restored to the status of authorized but unissued shares of
Preferred Stock, without designation as to series, and may thereafter be
issued.
6. Conversion or Exchange. The holders of shares of
Series N Preferred Stock shall not have any rights herein to convert such
shares into or exchange such shares for shares of any other class or classes
or of any other series of any class or classes of capital stock of the
Corporation.
7. Voting. Except as hereinafter in this Section 7
expressly provided or as otherwise required by law, the Series N Preferred
Stock shall have no voting power.
Whenever and as often as dividends payable on any share or
shares of the Preferred Stock at the time outstanding shall be accumulated
and unpaid in an amount equivalent to or exceeding six quarterly dividends
(whether or not declared and whether or not consecutive), the holders of
record of the Preferred Stock of all series shall thereafter have the right,
as a single class, to elect two directors, and, subject to the terms of any
outstanding series of Preferred Stock, the holders of record of the common
stock, as a single class, shall have the right to elect the remaining
authorized number of Directors. In any such election, the holders of shares
of Series N Preferred Stock shall be entitled to cast one vote per share.
Upon the happening of the six dividend defaults hereinabove
set forth, a special meeting of stockholders of the Corporation then entitled
to vote shall be called by the Chairman of the Board or the President or the
Secretary of the Corporation, if requested in writing by the holders of
record of not less than ten percent of the Preferred Stock then outstanding.
At such special meeting, or, if no such special meeting shall have been
called, then at the next annual meeting of stockholders, the stockholders of
the Corporation then entitled to vote shall elect, voting as above provided,
an entirely new Board of Directors, and the term of office of the Directors
in office at the time of such election shall expire upon the election of
their successors at such meeting; provided,
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however, that nothing herein contained shall be construed to be a bar to the
reelection of any Director at such meeting. At all meetings of stockholders
at which holders of Preferred Stock shall be entitled to vote for Directors
as a single class, the holders of a majority of the outstanding shares of
each class or series of capital stock of the Corporation having the right to
vote as a single class shall be necessary to constitute a quorum, whether
present in person or by proxy, for the election by that class or series of
its designated Directors. In order to validate an election of Directors by
stockholders voting as a class, such Directors shall be elected by the vote
of at least a plurality of shares held by such stockholders present or
represented at the meeting. At any such meeting, the election of Directors
by stockholders voting as a class shall be valid notwithstanding that a
quorum of other stockholders voting as one or more classes may not be present
or represented at such meeting, and if any stockholders voting as a class
shall elect Directors, the Directors so elected shall be deemed to be
Directors of the Corporation unless and until the other stockholders entitled
to vote as one or more classes shall elect their Directors.
While class voting is in effect with respect to the
Preferred Stock, any Director elected by holders of Preferred Stock voting as
a class may be removed at any annual or special meeting, by vote of a
majority of the stockholders voting as a class who elected such Director, for
any cause deemed sufficient by such stockholders present at such meeting. In
case any vacancy shall occur among the Directors elected by such stockholders
voting as a class, such vacancy may be filled by the remaining Director so
elected, or his successor then in office, and the Director so elected to fill
such vacancy shall serve until the next meeting of stockholders for the
election of Directors.
Such voting rights of the holders of Preferred Stock as a
single class, once effective, shall continue only until all arrears in
dividends (whether or not declared) on the Preferred Stock shall have been
paid or declared and set apart for payment at which time the right of the
Preferred Stock to vote as a single class for the election of Directors, as
hereinabove set forth, shall terminate. Upon such termination, a special
meeting of the stockholders of the Corporation then entitled to vote may be
called by the Chairman of the Board or the President, and shall be called by
the Chairman of the Board or the President or the Secretary of the
Corporation if requested in writing by the holders of record of not less than
one
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percent of the common stock then outstanding, and at such special meeting, or
if no such special meeting shall have been called then at the next annual
meeting of the stockholders, the stockholders of the Corporation then
entitled to vote shall elect an entirely new Board of Directors and the term
of office of the Directors in office at the time of such election shall
expire upon the election of their successors at such meeting; provided,
however, that nothing herein contained shall be construed to be a bar to the
reelection of any such Director at such meeting.
The consent of the holders of at least two-thirds of the
number of shares of Preferred Stock at the time outstanding, given in person
or by proxy, either in writing or at a meeting of stockholders at which the
holders of the Preferred Stock shall vote separately as a class without
regard to series, the holders of shares of Series N Preferred Stock being
entitled to cast one vote per share thereon, shall be necessary for effecting
or validating:
(i) any change in the Certificate of Incorporation
or certificate supplemental thereto or By-laws of the Corporation
which would materially and adversely alter or change the preferences,
privileges, rights or powers given to the holders of the Preferred
Stock, provided, that if one or more but not all series of Preferred
Stock at the time outstanding are so affected, only the consent of
the holders of at least two-thirds of each series so affected, voting
separately as a class, shall be required; or
(ii) the issuance of any shares of any other class
of stock of the Corporation ranking prior to the Preferred Stock.
The term "ranking prior to the Preferred Stock" shall mean
and include all shares of stock of the Corporation in respect of which the
rights of the holders thereof as to the payment of dividends or as to
distributions in the event of a voluntary or an involuntary liquidation,
dissolution or winding up of the Corporation, are given preference over the
rights of the holders of the Preferred Stock.
8. Liquidation Preference. In the event of any
liquidation, dissolution or winding up of the Corporation, voluntary or
involuntary, the holders of all shares of Series N Preferred Stock shall be
entitled to be paid in full out of the assets of the
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Corporation available for distribution to stockholders, before any
distribution of assets shall be made to the holders of common stock or of any
other shares of stock of the Corporation ranking as to such distribution
junior to the Series N Preferred Stock, an amount equal to $500 per share
plus an amount equal to any accrued and unpaid dividends thereon to the date
fixed for payment of such distribution. If, upon any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, the
amounts payable with respect to the Series N Preferred Stock and any other
shares of stock of the Corporation ranking as to any such distribution on a
parity with the Series N Preferred Stock are not paid in full, the holders of
the Series N Preferred Stock and of such other shares shall 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 to
the holders of the Series N Preferred Stock of the full preferential amounts
provided for in this Section 8, the holders of the Series N Preferred Stock
shall be entitled to no further participation in any distribution of assets
by the Corporation.
Consolidation or merger of the Corporation with or into
another corporation or corporations, or a sale, whether for cash, shares of
stock, securities or properties, of all or substantially all of the assets of
the Corporation, shall not be deemed or construed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this
paragraph 8.
9. Limitation on Dividends on Junior Ranking Stock. So
long as any Series N Preferred Stock shall be outstanding, the Corporation
shall not declare any dividends on the common stock of the Corporation or any
other stock of the Corporation ranking as to dividends or distribution of
assets junior to the Series N Preferred Stock (the common stock and any such
other stock being herein referred to as "Junior Stock"), or make any payment
on account of, or set apart money for, a sinking or other analogous fund for
the purchase, redemption or other retirement of any shares of Junior Stock,
or make any distribution in respect thereof, whether in cash or property or
in obligations or stock of the Corporation, other than Junior Stock (such
dividends, payments, setting apart and distributions being herein called
"Junior Stock Payments"), unless all of the conditions set forth in the
following subsections A and B shall exist at the date of such declaration in
the case of any such dividend, or the date of such setting apart in the case
of any such fund, or the date of such payment or distribution in the case of
any other Junior Stock Payment:
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A. Full cumulative dividends shall have been paid or
declared and set apart for payment upon all outstanding shares of Preferred
Stock other than Junior Stock.
B. The Corporation shall not be in default or in
arrears with respect to any sinking or other analogous fund or any call for
tenders obligation or other agreement for the purchase, redemption or other
retirement of any shares of Preferred Stock other than Junior Stock.
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CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
of
ADJUSTABLE RATE PREFERRED STOCK, SERIES 1
of
BANKAMERICA CORPORATION
BankAmerica Corporation, a corporation organized and existing under the laws
of the State of Delaware (herein referred to as the "Corporation"), in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, does hereby CERTIFY:
1. The Certificate of Incorporation, as amended, of the Corporation
fixes the total number of shares of all classes of capital stock which the
Corporation shall have the authority to issue as seven hundred seventy million
(770,000,000) shares, of which seventy million (70,000,000) shares shall be
shares of Preferred Stock, without par value, and seven hundred million
(700,000,000) shares shall be Common Stock of the par value of $1.5625 per
share.
2. The Certificate of Incorporation, as amended, of the Corporation,
expressly grants to the Board of Directors of the Corporation authority to
provide for the issuance of the Preferred Stock in one or more series, to fix
the number of shares in each such series and to fix the designations and the
powers, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof, of each
such series.
3. Pursuant to the authority conferred upon the Board of Directors by
the Certificate of Incorporation, as amended, of the Corporation and Delaware
law, the Board of Directors, by actions duly taken on January 27, 1994, adopted
the following resolution authorizing the issuance of one million seven hundred
eighty-eight thousand (1,788,000) shares of Adjustable Rate Preferred Stock,
Series 1, without par value:
RESOLVED, that an issue of a series of the preferred stock, without par
value, of the Corporation (such preferred stock being herein referred to as
"Preferred Stock," which term shall include any additional shares of preferred
stock of the same class heretofore or hereafter authorized to be
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issued by the Corporation), consisting of one million seven hundred
eighty-eight thousand (1,788,000) shares is hereby provided for, and the voting
power, designation, preference and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions thereof, are
fixed hereby as follows:
(1) Designation. The designation of the series of Preferred Stock
created by this resolution shall be "Adjustable Rate Preferred Stock, Series
1," without par value (hereinafter called this "Series"), and the number of
shares constituting this Series is one million seven hundred eighty-eight
thousand (1,788,000). Shares of this Series shall have a stated value of $50
per share. The number of authorized shares of this Series may be reduced (but
not below the number of shares then outstanding) by further resolution duly
adopted by the Board of Directors of the Corporation and by the filing of a
certificate pursuant to the provisions of the General Corporation Law of the
State of Delaware stating that such reduction has been so authorized, but the
number of authorized shares of this Series shall not be increased.
(2) Dividend Rate.
(a) For each quarterly dividend period (hereinafter referred to
individually as a "Quarterly Dividend Period" or a "Dividend Period," and
collectively referred to as "Dividend Periods"), which Quarterly Dividend
Periods shall commence on January 1, April 1, July 1, and October 1 in each
year and shall end on and include the day next preceding the first day of the
next Quarterly Dividend Period, dividend rates on the shares of this Series
shall be at a rate per annum of the stated value thereof equal to the
Applicable Rate (as defined in paragraph (b) of this Section (2)) in respect
of such Quarterly Dividend Period. Dividends shall be cumulative from the
date of original issue of such shares and shall be payable, when and as
declared by the Board of Directors or by a committee of said Board duly
authorized by said Board to declare such dividends, on March 31, June 30,
September 30 and December 31 of each year. Each such dividend shall be paid
to the holders of record of shares of this Series as they appear on the stock
register of the Corporation on such record date, not exceeding 40 days
preceding the payment date thereof, as shall be fixed by the Board of
Directors or by a committee of said Board duly authorized to fix such date.
Dividends on account of arrears for any past Dividend Periods may be declared
and paid at any time, without reference to any regular dividend payment date,
to holders of record on such date,
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not exceeding 45 days preceding the payment date thereof, as may be fixed by
the Board of Directors or by a committee of said Board duly authorized to fix
such date.
(b) Except as provided below in this paragraph, the "Applicable
Rate" for any Quarterly Dividend Period shall be (1) 1.00% less than (2) the
highest of the Treasury Bill Rate, the Ten Year Constant Maturity Rate and
the Twenty Year Constant Maturity Rate (each as hereinafter defined) for such
Dividend Period. In the event that the Corporation determines in good faith
that for any reason:
(i) any one of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate and the Twenty Year Constant Maturity Rate
cannot be determined for any Quarterly Dividend Period, then the
Applicable Rate for such Dividend Period shall be 1.00% less than the
higher of whichever two of such Rates can be so determined;
(ii) only one of the Treasury Bill Rate, the Ten Year
Constant Maturity Rate and the Twenty Year Constant Maturity Rate can
be determined for any Quarterly Dividend Period, then the Applicable
Rate for such Dividend Period shall be 1.00% less than whichever such
Rate can be so determined; or
(iii) none of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Twenty Year Constant Maturity Rate can be
determined for any Quarterly Dividend Period, then the Applicable
Rate in effect for the preceding Dividend Period shall be continued
for such Dividend Period.
Anything herein to the contrary notwithstanding, the Applicable Rate for any
Quarterly Dividend Period shall in no event be less than 7.50% per annum or
greater than 13.50% per annum.
(c) Except as provided below in this paragraph, the "Treasury Bill
Rate" for each Quarterly Dividend Period shall be the arithmetic average of
the two most recent weekly per annum secondary market discount rates (or the
one weekly per annum secondary market discount rate, if only one such rate
shall be published during the relevant Calendar Period as provided below) for
three-month U.S. Treasury bills, as published weekly by the
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Federal Reserve Board during the Calendar Period immediately prior to the
last ten calendar days of March, June, September or December, as the case may
be, prior to the Quarterly Dividend Period for which the dividend rate on
this Series is being determined.
In the event that the Federal Reserve Board does not publish such a
weekly per annum secondary market discount rate during such Calendar Period,
then the Treasury Bill Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum secondary market discount
rates (or the one weekly per annum secondary market discount rate, if only
one such rate shall be published during the relevant Calendar Period as
provided below) for three-month U.S. Treasury bills, as published weekly
during such Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the event
that a per annum secondary market discount rate for three-month U.S. Treasury
bills shall not be published by the Federal Reserve Board or by any Federal
Reserve Bank or by any U.S. Government department or agency during such
Calendar Period, then the Treasury Bill Rate for such Dividend Period shall
be the arithmetic average of the two most recent weekly per annum secondary
market discount rates (or the one weekly per annum secondary market discount
rate, if only one such rate shall be published during the relevant Calendar
Period as provided below) for all of the U.S. Treasury bills then having
maturities of not less than 80 nor more than 100 days, as published during
such Calendar Period by the Federal Reserve Board or, if the Federal Reserve
Board shall not publish such rates, by any Federal Reserve Bank or by any
U.S. Government department or agency selected by the Corporation. In the
event that the Corporation determines in good faith that for any reason no
such U.S. Treasury bill rates are published as provided above during such
Calendar Period, then the Treasury Bill Rate for such Dividend Period shall
be the arithmetic average of the per annum secondary market discount rates
based upon the closing bids during such Calendar Period for each of the
issues of marketable non-interest bearing U.S. Treasury securities with a
maturity of not less than 80 nor more than 100 days from the date of each
such quotation, as chosen and quoted daily for each business day in New York
City (or less frequently if daily quotations shall not be generally
available) to the Corporation by at least three recognized dealers in U.S.
Government securities selected by the Corporation. In the event that the
Corporation determines in good faith that for any reason the Corporation
cannot determine the Treasury Bill Rate for any Quarterly Dividend Period as
provided above in this paragraph, the Treasury Bill
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Rate for such Dividend Period shall be the arithmetic average of the per
annum secondary market discount rates based upon the closing bids during such
Calendar Period for each of the issues of marketable interest-bearing U.S.
Treasury securities with a maturity of not less than 80 nor more than 100
days, as chosen and quoted daily for each business day in New York City (or
less frequently if daily quotations shall not be generally available) to the
Corporation by at least three recognized dealers in U.S. Government
securities selected by the Corporation.
(d) Except as provided below in this paragraph, the "Ten Year
Constant Maturity Rate" for each Quarterly Dividend Period shall be the
arithmetic average of the two most recent weekly per annum Ten Year Average
Yields (or the one weekly per annum Ten Year Average Yield, if only one such
Yield shall be published during the relevant Calendar Period as provided
below), as published weekly by the Federal Reserve Board during the Calendar
Period immediately prior to the last ten calendar days of March, June,
September or December, as the case may be, prior to the Quarterly Dividend
Period for which the dividend rate on this Series is being determined. In
the event that the Federal Reserve Board does not publish such a weekly per
annum Ten Year Average Yield during such Calendar Period, then the Ten Year
Constant Maturity Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Ten Year Average Yields (or
the one weekly per annum Ten Year Average Yield, if only one such Yield shall
be published during the relevant Calendar Period as provided below), as
published weekly during such Calendar Period by any Federal Reserve Bank or
by any U.S. Government department or agency selected by the Corporation. In
the event that a per annum Ten Year Average Yield shall not be published by
the Federal Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period, then the Ten
Year Constant Maturity Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum average yields to maturity
(or the one weekly average yield to maturity, if only one such yield shall be
published during the relevant Calendar Period as provided below) for all of
the actively traded marketable U.S. Treasury fixed interest rate securities
(other than Special Securities) then having maturities of not less than eight
nor more than twelve years, as published during such Calendar Period by the
Federal Reserve Board or, if the Federal Reserve Board shall not publish such
yields, by any Federal Reserve Bank or by
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any U.S. Government department or agency selected by the Corporation. In the
event that the Corporation determines in good faith that for any reason the
Corporation cannot determine the Ten Year Constant Maturity Rate for any
Quarterly Dividend Period as provided above in this paragraph, then the Ten
Year Constant Maturity Rate for such Dividend Period shall be the arithmetic
average of the per annum average yields to maturity based upon the closing
bids during such Calendar Period for each of the issues of actively traded
marketable U.S. Treasury fixed interest rate securities (other than Special
Securities) with a final maturity date not less than eight nor more than
twelve years from the date of each such quotation, as chosen and quoted daily
for each business day in New York City (or less frequently if daily
quotations shall not be generally available) to the Corporation by at least
three recognized dealers in U.S. Government securities selected by the
Corporation.
(e) Except as provided below in this paragraph, the "Twenty Year
Constant Maturity Rate" for each Quarterly Dividend Period shall be the
arithmetic average of the two most recent weekly per annum Twenty Year
Average Yields (or the one weekly per annum Twenty Year Average Yield, if
only one such Yield shall be published during the relevant Calendar Period as
provided below), as published weekly by the Federal Reserve Board during the
Calendar Period immediately prior to the last ten calendar days of March,
June, September or December, as the case may be, prior to the Quarterly
Dividend Period for which the dividend rate on this Series is being
determined. In the event that the Federal Reserve Board does not publish
such a weekly per annum Twenty Year Average Yield during such Calendar
Period, then the Twenty Year Constant Maturity Rate for such Dividend Period
shall be the arithmetic average of the two most recent weekly per annum
Twenty Year Average Yields (or the one weekly per annum Twenty Year Average
Yield, if only one such Yield shall be published during the relevant Calendar
Period as provided below), as published weekly during such Calendar Period by
any Federal Reserve Bank or by any U.S. Government department or agency
selected by the Corporation. In the event that a per annum Twenty Year
Average Yield shall not be published by the Federal Reserve Board or by any
Federal Reserve Bank or by any U.S. Government department or agency during
such Calendar Period, then the Twenty Year Constant Maturity Rate for such
Dividend Period shall be the arithmetic average of the two most recent weekly
per annum average yields to maturity (or the one weekly average yield
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to maturity, if only one such yield shall be published during the relevant
Calendar Period as provided below) for all of the actively traded marketable
U.S. Treasury fixed interest rate securities (other than Special Securities)
then having maturities of not less than eighteen nor more than twenty-two
years, as published during such Calendar Period by the Federal Reserve Board
or, if the Federal Reserve Board shall not publish such yields, by any
Federal Reserve Bank or by any U.S. Government department or agency selected
by the Corporation. In the event that the Corporation determines in good
faith that for any reason the Corporation cannot determine the Twenty Year
Constant Maturity Rate for any Quarterly Dividend Period as provided above in
this paragraph, then the Twenty Year Constant Maturity Rate for such Dividend
Period shall be the arithmetic average of the per annum average yields to
maturity based upon the closing bids during such Calendar Period for each of
the issues of actively traded marketable U.S. Treasury fixed interest rate
securities (other than Special Securities) with a final maturity date not
less than eighteen nor more than twenty-two years from the date of each such
quotation, as chosen and quoted daily for each business day in New York City
(or less frequently if daily quotations shall not be generally available) to
the Corporation by at least three recognized dealers in U.S. Government
securities selected by the Corporation.
(f) The Treasury Bill Rate, the Ten Year Constant Maturity Rate and
the Twenty Year Constant Maturity Rate shall each be rounded to the nearest
five hundredths of a percentage point.
(g) The Applicable Rate with respect to each Quarterly Dividend
Period will be calculated as promptly as practicable by the Corporation
according to the appropriate method described herein. The Corporation will
cause each Applicable Rate to be published in a newspaper of general
circulation in New York City prior to the commencement of the new Quarterly
Dividend Period to which it applies and will cause notice of such Applicable
Rate to be enclosed with the dividend payment checks next mailed to the
holders of shares of this Series.
(h) For purposes of this Section (2), the term
(1) "Calendar Period" shall mean 14 calendar days;
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(2) "Special Securities" shall mean securities which can,
at the option of the holder, be surrendered at face value in payment
of any Federal estate tax or which provide tax benefits to the holder
and are priced to reflect such tax benefits or which were originally
issued at a deep or substantial discount;
(3) "Ten Year Average Yield" shall mean the average yield
to maturity for actively traded marketable U.S. Treasury fixed
interest rate securities (adjusted to constant maturities of ten
years); and
(4) "Twenty Year Average Yield" shall mean the average
yield to maturity for actively traded marketable U.S. Treasury fixed
interest rate securities (adjusted to constant maturities of twenty
years).
(3) Dividend Provisions.
(a) No full dividends shall be declared or paid or set apart for
payment on the Preferred Stock of any series ranking, as to dividends, on a
parity with or junior to this Series for any period unless full cumulative
dividends have been or contemporaneously are declared and paid, or declared
and a sum sufficient for the payment thereof set apart for such payment, on
this Series for all dividend payment periods terminating on or prior to the
date of payment of such full cumulative dividends. When dividends are not
paid in full, as aforesaid, upon the shares of this Series and any other
Preferred Stock ranking on a parity as to dividends with this Series, all
dividends declared upon shares of this Series and any other Preferred Stock
ranking on a parity as to dividends with this Series shall be declared pro
rata so that the amount of dividends declared per share on this Series and
such other Preferred Stock shall in all cases bear to each other the same
ratio that accrued dividends per share on the shares of this Series and such
other Preferred Stock bear to each other. Holders of shares of this Series
shall not be entitled to any dividends, whether payable in cash, property or
stock, in excess of full cumulative dividends, as herein provided, on this
Series. No interest, or sum of money in lieu of interest, shall be payable
in respect of any dividend payment or payments on this Series which may be in
arrears.
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(b) So long as any shares of this Series are outstanding, no
dividend (other than a dividend in Common Stock or in any other stock ranking
junior to this Series as to dividends and upon liquidation and other than as
provided in paragraph (a) of this Section (3)) shall be declared or paid or
set aside for payment or other distribution declared or made upon the Common
Stock or upon any other stock ranking junior to or on a parity with this
Series as to dividends or upon liquidation, nor shall any Common Stock nor
any other stock of the Corporation ranking junior to or on a parity with this
Series as to dividends or upon liquidation be redeemed, purchased or
otherwise acquired for any consideration or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any such
stock by the Corporation (except by conversion into or exchange for stock of
the Corporation ranking junior to this Series as to dividends and upon
liquidation) unless, in each case, the full cumulative dividends on all
outstanding shares of this Series shall have been paid for all past Dividend
Periods.
(c) Dividends payable on this Series for each full Quarterly
Dividend Period shall be computed by dividing the Applicable Rate by four and
multiplying the result by the stated value. Dividends payable on this Series
for any period less than a full Quarterly Dividend Period shall be computed
on the basis of a 360-day year of twelve 30-day months.
(4) Redemption.
(a) The shares of this Series shall, with the prior written consent
of the Federal Reserve Board, if required, be redeemable, as a whole or in
part, at any time or from time to time, at the Corporation's option, at a
redemption price of $50.00 per share, plus accrued and unpaid dividends
thereon to the date fixed for redemption.
(b) In the event that fewer than all the outstanding shares of this
Series are to be redeemed, the number of shares to be redeemed shall be
determined by the Board of Directors and the shares to be redeemed shall be
determined by lot or pro rata as may be determined by the Board of Directors
or by any other method as may be determined to be equitable by the Board of
Directors in its sole discretion.
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(c) In the event the Corporation shall redeem shares of this Series,
notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
redemption date, to each holder of record of the shares to be redeemed, at
such holder's address as the same appears on the stock register of the
Corporation. Each such notice shall state: (1) the redemption date; (2) the
number of shares of this Series redeemed and the number of such shares to be
redeemed from such holder; (3) the redemption price; (4) the place or places
where certificates for such shares are to be surrendered for payment of the
redemption price; and (5) that dividends on the shares to be redeemed will
cease to accrue on such redemption date.
(d) Notice having been mailed as aforesaid from and after the
redemption date (unless default shall be made by the Corporation in providing
money for the payment of the redemption price) dividends on the shares of
this Series so called for redemption shall cease to accrue, and said shares
shall no longer be deemed to be outstanding, and all rights of the holders
thereof as stockholders of the Corporation (except the right to receive from
the Corporation the redemption price) shall cease. Upon surrender in
accordance with said notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board of Directors of the
Corporation shall so require and the notice shall so state), such shares
shall be redeemed by the Corporation at the redemption price aforesaid. In
case fewer than all the shares represented by any such certificate are
redeemed, a new certificate representing the unredeemed shares shall be
issued without cost to the holder thereof.
(e) Any shares of this Series which shall at any time have been
redeemed shall, after such redemption, have the status of authorized but
unissued shares of Preferred Stock, without designation as to series until
such shares are once more designated as part of a particular series by the
Board of Directors.
(f) Notwithstanding the foregoing provisions of this Section (4), if
any dividends on this Series are in arrears, no shares of this Series shall
be redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any
shares of
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this Series; provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of this Series pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding shares of
this Series.
(5) Conversion or Exchange. The holders of shares of this Series shall not
have any rights herein to convert such shares into or exchange such shares for
shares of any other class or classes or of any other series of any class or
classes of capital stock of the Corporation.
(6) Voting. Except as expressly provided hereinafter in this Section (6) or
as otherwise from time to time required by law, the shares of this Series shall
have no voting power.
(a) Whenever, at any time or times, dividends payable on any share
or shares of the Preferred Stock shall be in arrears in an amount equal to at
least six full quarterly dividends (whether or not declared and whether or
not consecutive), the holders of record of the outstanding Preferred Stock of
all series shall have the exclusive right, voting separately as a single
class, to elect two directors of the Corporation at a special meeting of
stockholders of the Corporation or at the Corporation's next annual meeting
of stockholders, and at each subsequent annual meeting of stockholders, as
provided below. At elections for such directors, the holders of shares of
this Series shall be entitled to cast one vote for each share held.
(b) Upon the vesting of such right of the holders of the Preferred
Stock, the maximum authorized number of members of the Board of Directors
shall automatically be increased by two and the two vacancies so created
shall be filled by vote of the holders of the outstanding Preferred Stock as
hereinafter set forth. A special meeting of the stockholders of the
Corporation then entitled to vote shall be called by the Chairman of the
Board of Directors or the President or the Secretary of the Corporation, if
requested in writing by the holders of record of not less than 10% of the
Preferred Stock then outstanding. At such special meeting, or, if no such
special meeting shall have been called, then at the next annual meeting of
stockholders of the Corporation, the holders of the Preferred Stock shall
elect, voting as above provided, two directors of the Corporation to fill the
aforesaid vacancies created by the automatic increase in the number of
members of the Board of Directors. At any and all such meetings for such
election, the holders of a majority of the
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outstanding shares of the Preferred Stock of the Corporation shall be
necessary to constitute a quorum for such election, whether present in person
or by proxy, and such two directors shall be elected by the vote of at least
a plurality of shares held by such stockholders present or represented at the
meeting. Any director elected by holders of the Preferred Stock pursuant to
this Section may be removed at any annual or special meeting, by vote of a
majority of the stockholders voting as a class who elected such director,
with or without cause. In case any vacancy shall occur among the directors
elected by the holders of the Preferred Stock pursuant to this Section, such
vacancy may be filled by the remaining director so elected, or his successor
then in office, and the director so elected to fill such vacancy shall serve
until the next meeting of stockholders for the election of directors.
(c) The right of the holders of the Preferred Stock, voting
separately as a class, to elect two members of the Board of Directors of the
Corporation as aforesaid shall continue until, and only until, such time as
all arrears in dividends (whether or not declared) on the Preferred Stock
shall have been paid or declared and set apart for payment, at which time
such right shall terminate, except as herein or by law expressly provided,
subject to revesting in the event of each and every subsequent default of the
character above-mentioned. Upon any termination of the right of the holders
of the Preferred Stock as a class to vote for directors as herein provided,
the term of office of all directors then in office elected by the holders of
the Preferred Stock pursuant to this Section shall terminate immediately.
Whenever the term of office of the directors elected by the holders of the
Preferred Stock pursuant to this Section shall terminate and the special
voting powers vested in the holders of the Preferred Stock pursuant to this
Section shall have expired, the maximum number of members of the Board of
Directors of the Corporation shall be such number as may be provided for in
the By-Laws of the Corporation irrespective of any increase made pursuant to
the provisions of this Section.
(d) The consent of the holders of at least two-thirds of the number
of shares of Preferred Stock at the time outstanding, given in person or by
proxy, either in writing or at a meeting of stockholders at which the holders
of the Preferred Stock shall vote separately as a class without regard to
series, the holders
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of the shares of this Series being entitled to cast one vote per share
thereon, shall be necessary for effecting or validating:
(1) any change in the Certificate of Incorporation or
certificate supplement thereto or By-Laws of the Corporation which
would materially and adversely alter or change the preferences,
privileges, rights or powers given to the holders of the Preferred
Stock, provided, that if one or more but not all series of Preferred
Stock at the time outstanding are so affected, only the consent of
the holders of at least two-thirds of each series so affected, voting
separately as a class, shall be required; or
(2) the issuance of any shares of any other class of stock
of the Corporation ranking prior to the Preferred Stock.
The term "ranking prior to the Preferred Stock" shall mean and
include all shares of stock of the Corporation in respect of which the rights
of the holders thereof as to the payment of dividends or as to distributions
in the event of a voluntary or an involuntary liquidation, dissolution or
winding up of the Corporation, are given preference over the rights of the
holders of the Preferred Stock.
(7) Liquidation Rights.
(a) Upon the dissolution, liquidation or winding up of the
Corporation, whether voluntary or involuntary, the holders of the shares of
this Series shall be entitled to receive out of the assets of the Corporation
available for distribution to stockholders, before any payment or
distribution shall be made on the Common Stock or any other class of stock
ranking junior to the Preferred Stock, upon liquidation, the amount of $50
per share, plus a sum equal to all dividends (whether or not earned or
declared) on such shares accrued and unpaid thereon to the date of final
distribution.
(b) Neither the sale, lease or exchange (for cash, shares of stock,
securities or other consideration) of all or substantially all the property
and assets of the Corporation nor the merger or consolidation of the
Corporation into or with any other corporation or the merger or consolidation
of any other corporation into or with the Corporation, shall be deemed to be
a
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dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes of this Section (7).
(c) After the payment to the holders of the shares of this Series of
the full preferential amounts provided for in this Section (7), the holders
of this Series as such shall have no right or claim to any of the remaining
assets of the Corporation.
(d) In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any dissolution,
liquidation or winding up of the Corporation, whether voluntary or
involuntary, shall be insufficient to pay in full all amounts to which such
holders are entitled pursuant to paragraph (a) of this Section (7), no such
distribution shall be made on account of any shares of any other class or
series of Preferred Stock ranking on a parity with the shares of this Series
upon such dissolution, liquidation or winding up unless proportionate
distributive amounts shall be paid on account of the shares of this Series,
ratably, in proportion to the full distributable amounts for which holders of
all such parity shares are respectively entitled upon such dissolution,
liquidation or winding up.
8. Ranking. For purposes of this resolution, any stock of any class or
classes of the Corporation shall be deemed to rank:
(a) Prior to the shares of this Series, either as to dividends or
upon liquidation, if the holders of such class or classes shall be entitled
to the receipt of dividends or of amounts distributable upon dissolution,
liquidation or winding up of the Corporation, as the case may be, in
preference or priority to the holders of shares of this Series;
(b) On a parity with shares of this Series, either as to dividends
or upon liquidation, whether or not the dividend rates, dividend payment
dates or redemption or liquidation prices per share or sinking fund
provisions, if any, be different from those of this Series, if the holders of
such stock shall be entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation,
as the case may be, in proportion to their respective dividend rates or
liquidation prices, without preference or priority, one over the other, as
between the holders of such stock and the holders of shares of this Series;
and
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(c) Junior to shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of shares
of this Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation,
as the case may be, in preference or priority to the holders of shares of
such class or classes.
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CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
of
ADJUSTABLE RATE CUMULATIVE PREFERRED STOCK, SERIES 2
of
BANKAMERICA CORPORATION
BankAmerica Corporation, a corporation organized and existing under the laws
of the State of Delaware (herein referred to as the "Corporation"), in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, does hereby CERTIFY:
A. The Certificate of Incorporation, as amended, of the Corporation
fixes the total number of shares of all classes of capital stock which the
Corporation shall have the authority to issue as seven hundred seventy million
(770,000,000) shares, of which seventy million (70,000,000) shares shall be
shares of Preferred Stock, without par value.
B. The Certificate of Incorporation, as amended, of the Corporation,
expressly grants to the Board of Directors of the Corporation authority to
provide for the issuance of the Preferred Stock in one or more series, to fix
the number of shares in each such series and to fix the designations and the
powers, preferences and relative, participating, optional or other special
rights, and the qualifications, limitations or restrictions thereof, of each
such series.
C. Pursuant to the authority conferred upon the Board of Directors by
the Certificate of Incorporation, as amended, of the Corporation and Delaware
law, the Board of Directors, by actions duly taken on January 27, 1994, adopted
the following resolution authorizing the issuance of three million (3,000,000)
shares of Adjustable Rate Cumulative Preferred Stock, Series 2, without par
value:
RESOLVED that an issue of a series of the preferred stock, without par value,
of the Corporation (such preferred stock being herein referred to as "Preferred
Stock," which term shall include any additional shares of preferred stock of
the same class heretofore or hereafter authorized to be issued by the
Corporation), consisting of three million (3,000,000) shares is hereby provided
for, and the voting power, designation, preference and
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relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, are fixed hereby as follows:
1. Designation. The designation of the series of Preferred Stock
created by this resolution shall be "Adjustable Rate Cumulative Preferred
Stock, Series 2," without par value (hereinafter called this "Series"), and the
number of shares constituting this Series is 3,000,000. Shares of this Series
shall have a stated value of $100 per share. The number of authorized shares
of this Series may be reduced (but not below the number of shares then
outstanding) or increased by further resolution duly adopted by the Board of
Directors of the Corporation and by the filing of a certificate pursuant to the
provisions of the General Corporation Law of the State of Delaware stating that
such increase or reduction has been so authorized.
2. Dividend Rate.
(a) For each Quarterly Dividend Period (hereinafter individually referred
to as a "Quarterly Dividend Period" or a "Dividend Period," and collectively
referred to as "Dividend Periods"), which Quarterly Dividend Periods shall
commence on January 1, April 1, July 1 and October 1 in each year and shall end
on and include the day next preceding the first day of the next Quarterly
Dividend Period, dividend rates on the shares of this Series shall be at a rate
per annum of the stated value thereof equal to the Applicable Rate in respect
of such Quarterly Dividend Period.
(b) Except as provided below in this paragraph, the "Applicable Rate" for
any Quarterly Dividend Period shall be (1) 1.10% greater than (2) the highest
of the Treasury Bill Rate, the Ten Year Constant Maturity Rate and the Twenty
Year Constant Maturity Rate (each as hereinafter defined) for such Dividend
Period. In the event that the Corporation determines in good faith that for
any reason:
(i) any one of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Twenty Year Constant Maturity Rate cannot be determined
for any Quarterly Dividend Period, then the Applicable Rate for such Dividend
Period shall be 1.10% greater than the higher of whichever two of such Rates
can be so determined;
(ii) only one of the Treasury Bill Rate, the Ten Year Constant
Maturity Rate and the Twenty Year Constant Maturity Rate can be determined
for any Quarterly Dividend Period, then the Applicable Rate for such Dividend
Period shall be 1.10% greater than whichever such Rate can be so determined;
or
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(iii) none of the Treasury Bill Rate, the Ten Year Constant Maturity
Rate and the Twenty Year Constant Maturity Rate can be determined for any
Quarterly Dividend Period, then the Applicable Rate in effect for the
preceding Dividend Period shall be continued for such Dividend Period.
Anything herein to the contrary notwithstanding, the Applicable Rate for any
Quarterly Dividend Period shall in no event be less than 9.0% per annum or
greater than 15.75% per annum.
(c) Except as provided below in this paragraph, the "Treasury Bill Rate"
for each Quarterly Dividend Period shall be the arithmetic average of the two
most recent weekly per annum secondary market discount rates (or the one weekly
per annum secondary market discount rate, if only one such rate shall be
published during the relevant Calendar Period as provided below) for
three-month U.S. Treasury bills, as published weekly by the Federal Reserve
Board during the Calendar Period immediately prior to the last ten calendar
days of December, March, June or September, as the case may be, prior to the
Quarterly Dividend Period for which the dividend rate on this Series is being
determined. In the event that the Federal Reserve Board does not publish such
a weekly per annum secondary market discount rate during such Calendar Period,
then the Treasury Bill Rate for such Dividend Period shall be the arithmetic
average of the two most recent weekly per annum secondary market discount rates
(or the one weekly per annum secondary market discount rate, if only one such
rate shall be published during the relevant Calendar Period as provided below)
for three-month U.S. Treasury bills, as published weekly during such Calendar
Period by any Federal Reserve Bank or by any U.S. Government department or
agency selected by the Corporation. In the event that a per annum secondary
market discount rate for three-month U.S. Treasury bills shall not be published
by the Federal Reserve Board or by any Federal Reserve Bank or by any U.S.
Government department or agency during such Calendar Period, then the Treasury
Bill Rate for such Dividend Period shall be the arithmetic average of the two
most recent weekly per annum secondary market discount rates (or the one weekly
per annum secondary market discount rate, if only one such rate shall be
published during the relevant Calendar Period as provided below) for all of the
U.S. Treasury bills then having maturities of not less than 80 nor more than
100 days, as published during such Calendar Period by the Federal Reserve Board
or, if the Federal Reserve Board shall not publish such rates, by any Federal
Reserve Bank or by any U.S. Government department or agency selected by the
Corporation. In the event that the Corporation determines in good faith that
for any reason no such U.S. Treasury bill rates are published as provided above
during such Calendar Period, then the Treasury Bill Rate for such Dividend
Period shall be the arithmetic average of the
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per annum secondary market discount rates based upon the closing bids during
such Calendar Period for each of the issues of marketable non- interest bearing
U.S. Treasury securities with a maturity of not less than 80 nor more than 100
days from the date of each such quotation, as chosen and quoted daily for each
business day in New York City (or less frequently if daily quotations shall not
be generally available) to the Corporation by at least three recognized dealers
in U.S. Government securities selected by the Corporation. In the event that
the Corporation determines in good faith that for any reason the Corporation
cannot determine the Treasury Bill Rate for any Quarterly Dividend Period as
provided above in this paragraph, the Treasury Bill Rate for such Dividend
Period shall be the arithmetic average of the per annum secondary market
discount rates based upon the closing bids during such Calendar Period for each
of the issues of marketable interest-bearing U.S. Treasury securities with a
maturity of not less than 80 nor more than 100 days, as chosen and quoted daily
for each business day in New York City (or less frequently if daily quotations
shall not be generally available) to the Corporation by at least three
recognized dealers in U.S. Government securities selected by the Corporation.
(d) Except as provided below in this paragraph, the "Ten Year Constant
Maturity Rate" for each Quarterly Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Ten Year Average Yields (or the
one weekly per annum Ten Year Average Yield, if only one such Yield shall be
published during the relevant Calendar Period as provided below), as published
weekly by the Federal Reserve Board during the Calendar Period immediately
prior to the last ten calendar days of December, March, June or September, as
the case may be, prior to the Quarterly Dividend Period for which the dividend
rate on this Series is being determined. In the event that the Federal Reserve
Board does not publish such a weekly per annum Ten Year Average Yield during
such Calendar Period, then the Ten Year Constant Maturity Rate for such
Dividend Period shall be the arithmetic average of the two most recent weekly
per annum Ten Year Average Yields (or the one weekly per annum Ten Year Average
Yield, if only one such Yield shall be published during the relevant Calendar
Period as provided below), as published weekly during such Calendar Period by
any Federal Reserve Bank or by any U.S. Government department or agency
selected by the Corporation. In the event that a per annum Ten Year Average
Yield should not be published by the Federal Reserve Board or by any Federal
Reserve Bank or by any U.S. Government department or agency during such
Calendar Period, then the Ten Year Constant Maturity Rate for such Dividend
Period shall be the arithmetic average of the two most recent weekly per annum
average yields to maturity (or the one weekly per annum average yield to
maturity, if only one such yield shall be published during the relevant
Calendar Period as provided below) for all of the actively traded marketable
U.S. Treasury fixed
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interest rate securities (other than Special Securities) then having maturities
of not less than eight nor more than twelve years, as published during such
Calendar Period by the Federal Reserve Board or, if the Federal Reserve Board
shall not publish such yields, by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the event that
the Corporation determines in good faith that for any reason the Corporation
cannot determine the Ten Year Constant Maturity Rate for any Quarterly Dividend
Period as provided above in this paragraph, then the Ten Year Constant Maturity
Rate for such Dividend Period shall be the arithmetic average of the per annum
average yields to maturity based upon the closing bids during such Calendar
Period for each of the issues of actively traded marketable U.S. Treasury fixed
interest rate securities (other than Special Securities) with a final maturity
date not less than eight nor more than twelve years from the date of each such
quotation, as chosen and quoted daily for each business day in New York City
(or less frequently if daily quotations shall not be generally available) to
the Corporation by at least three recognized dealers in U.S. Government
securities selected by the Corporation.
(e) Except as provided below in this paragraph, the "Twenty Year Constant
Maturity Rate" for each Quarterly Dividend Period shall be the arithmetic
average of the two most recent weekly per annum Twenty Year Average Yields (or
the one weekly per annum Twenty Year Average Yield, if only one such Yield
shall be published during the relevant Calendar Period as provided below), as
published weekly by the Federal Reserve Board during the Calendar Period
immediately prior to the last ten calendar days of December, March, June or
September, as the case may be, prior to the Quarterly Dividend Period for which
the dividend rate on this Series is being determined. In the event that the
Federal Reserve Board does not publish such a weekly per annum Twenty Year
Average Yield during such Calendar Period, then the Twenty Year Constant
Maturity Rate for such Dividend Period shall be the arithmetic average of the
two most recent weekly per annum Twenty Year Average Yields (or the one weekly
per annum Twenty Year Average Yield, if only one such Yield shall be published
during the relevant Calendar Period as provided below), as published weekly
during such Calendar Period by any Federal Reserve Bank or by any U.S.
Government department or agency selected by the Corporation. In the event that
a per annum Twenty Year Average Yield shall not be published by the Federal
Reserve Board or by any Federal Reserve Bank or by any U.S. Government
department or agency during such Calendar Period, then the Twenty Year Constant
Maturity Rate for such Dividend Period shall be the arithmetic average of the
two most recent weekly per annum average yields to maturity (or the one weekly
per annum average yield to maturity, if only one such yield shall be published
during the relevant Calendar Period as provided
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below) for all of the actively traded marketable U.S. Treasury fixed interest
rate securities (other than Special Securities) then having maturities of not
less than eighteen nor more than twenty-two years, as published during such
Calendar Period by the Federal Reserve Board or, if the Federal Reserve Board
shall not publish such yields, by any Federal Reserve Bank or any U.S.
Government department or agency selected by the Corporation. In the event that
the Corporation determines in good faith that for any reason the Corporation
cannot determine the Twenty Year Constant Maturity Rate for any Quarterly
Dividend Period as provided above in this paragraph, then the Twenty Year
Constant Maturity Rate for such Dividend Period shall be the arithmetic average
of the per annum average yields to maturity based upon the closing bids during
such Calendar Period for each of the issues of actively traded marketable U.S.
Treasury fixed interest rate securities (other than Special Securities) with a
final maturity date not less than eighteen nor more than twenty-two years from
the date of each such quotation, as chosen and quoted daily for each business
day in New York City (or less frequently if daily quotations shall not be
generally available) to the Corporation by at least three recognized dealers in
U.S. Government securities selected by the Corporation.
(f) The Treasury Bill Rate, the Ten Year Constant Maturity Rate and the
Twenty Year Constant Maturity Rate shall each be rounded to the nearest five
hundredths of a percentage point.
(g) The Applicable Rate with respect to each Quarterly Dividend Period
will be calculated as promptly as practicable by the Corporation according to
the appropriate method described herein. The Corporation will cause each
Applicable Rate to be published in a newspaper of general circulation in New
York City prior to the commencement of the new Quarterly Dividend Period to
which it applies and will cause notice of such Applicable Rate to be enclosed
with the dividend payment checks next mailed to the holders of shares of this
Series.
(h) For purposes of this Section 2, the term:
(1) "Calendar Period" shall mean 14 calendar days;
(2) "Special Securities" shall mean securities which can, at the
option of the holder, be surrendered at face value in payment of any Federal
estate tax or which provide tax benefits to the holder and are priced to
reflect such tax benefits or which were originally issued at a deep or
substantial discount;
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(3) "Ten Year Average Yield" shall mean the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of ten years); and
(4) "Twenty Year Average Yield" shall mean the average yield to
maturity for actively traded marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of twenty years).
3. Dividend Provisions.
(a) No full dividends shall be declared or paid or set apart for payment
on shares of any class or any series ranking, as to dividends, on a parity with
or junior to this Series for any period unless full cumulative dividends have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on this Series
for all dividend payment periods terminating on or prior to the last day of the
dividend payment period in which such full dividends are to be paid. When
dividends are not paid in full, as aforesaid, upon the shares of this Series
and any other class or series ranking on a parity as to dividends with this
Series, all dividends declared upon shares of this Series and any other class
or series ranking on a parity as to dividends with this Series shall be
declared pro rata so that the amount of dividends declared per share on this
Series and such other class or series ranking on a parity with this Series
shall in all cases bear to each other the same ratio that accrued dividends per
share on the shares of this Series and such other class or series ranking on a
parity with this Series bear to each other. Holders of shares of this Series
shall not be entitled to any dividends, whether payable in cash, property or
stock, in excess of full cumulative dividends, as herein provided, on this
Series. No interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments on this Series which may be in
arrears.
(b) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior to
this Series as to dividends and upon liquidation and other than as provided in
paragraph (a) of this Section 3) shall be declared or paid or set aside for
payment or other distribution declared or made upon the Common Stock or upon
any other stock ranking junior to or on a parity with this Series as to
dividends or upon liquidation, nor shall any Common Stock nor any other stock
of the Corporation ranking junior to or on a parity with this Series as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid
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to or made available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into or exchange for stock
of the Corporation ranking junior to this Series as to dividends and upon
liquidation) unless, in each case, the full cumulative dividends on all
outstanding shares of this Series shall have been paid for all past dividend
payment periods, or are concurrently, declared, paid or a sum sufficient for
the payment thereof set apart for payment.
(c) Dividends payable on shares of this Series for each full Quarterly
Dividend Period shall be computed by dividing the Applicable Rate by four and
multiplying the result by the stated value. Dividends payable on shares of
this Series for any period less than a full Quarterly Dividend Period shall be
computed on the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed in the period for which a dividend is payable.
(d) Dividends shall be cumulative from the date of original issue of such
shares and shall be payable when and as declared by the Board of Directors or
by a committee of said Board duly authorized by said Board to declare such
dividends, on December 31, March 31, June 30 and September 30 of each year.
Each such dividend shall be paid to the holders of record of shares of this
Series as they appear on the stock register of the Corporation on such record
date, not exceeding 40 days preceding the payment date thereof, as shall be
fixed by the Board of Directors of the Corporation or by a committee of said
Board of Directors duly authorized to fix such date. Dividends on account of
arrears for any past Dividend Periods may be declared and paid at any time,
without reference to any regular dividend payment date, to holders of record on
such date, not exceeding 45 days preceding the payment date thereof, as may be
fixed by the Board of Directors of the Corporation or by a committee of said
Board of Directors duly authorized to fix such date.
4. Redemption.
(a) The shares of this Series shall, with the prior consent of the Board
of Governors of the Federal Reserve System, if required, be redeemable as a
whole or in part, at any time or from time to time, at the Corporation's
option, at a redemption price of (1) $108.00 per share in the case of any
redemption occurring on or before August 15, 1999 and (2) $100.00 per share in
the case of any redemption occurring after August 15, 1999, plus an amount
equal to accrued and unpaid dividends thereon to the date fixed for redemption
(computed on the basis of a 360-day year of twelve 30-day months and the
actual number of days elapsed in the period).
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(b) In the event that fewer than all the outstanding shares of this
Series are to be redeemed, the number of shares to be redeemed shall be
determined by the Board of Directors and the shares to be redeemed shall be
determined by lot or pro rata as may be determined by the Board of Directors or
by any other method as may be determined to be equitable by the Board of
Directors in its sole discretion.
(c) In the event the Corporation shall redeem shares of this Series,
notice of such redemption shall be given by first class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the redemption date, to
each holder of record of the shares to be redeemed, at such holder's address as
the same appears on the stock register of the Corporation. Each such notice
shall state: (1) the redemption date; (2) the number of shares of this Series
to be redeemed and, if fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (3) the
redemption price; (4) the place or places where certificates for such shares
are to be surrendered for payment of the redemption price; and (5) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date.
(d) Notice having been mailed as aforesaid, from and after the redemption
date (unless default shall be made by the Corporation in providing money for
the payment of the redemption price) dividends on the shares of this Series so
called for redemption shall cease to accrue, and said shares shall no longer be
deemed to be outstanding, and all rights of the holders thereof as stockholders
of the Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said notice
of the certificates for any shares so redeemed (properly endorsed or assigned
for transfer, if the Board of Directors of the Corporation shall so require and
the notice shall so state), such shares shall be redeemed by the Corporation at
the redemption price aforesaid. In case fewer than all the shares represented
by any such certificate are redeemed, a new certificate representing the
unredeemed shares shall be issued without cost to the holder thereof.
(e) Any shares of this Series which shall at any time have been redeemed
shall, after such redemption, have the status of authorized but unissued shares
of Preferred Stock, without designation as to series until such shares are once
more designated as part of a particular series by the Board of Directors of the
Corporation or any duly authorized committee of the Board of Directors of the
Corporation.
(f) Notwithstanding the foregoing provisions of this Section 4, if any
dividends on this Series are in arrears, no shares of this Series shall
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be redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any
shares of this Series; provided, however, that the foregoing shall not prevent
the purchase or acquisition of shares of this Series pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding shares of
this Series.
5. Voting. Except as expressly provided hereinafter in this Section 5
or as otherwise from time to time required by law, the shares of this Series
shall have no voting power.
(a) Whenever, at any time or times, dividends payable on any share or
shares of this Series shall be in arrears in an amount equal to at least six
full quarterly dividends (whether or not declared and whether or not
consecutive), the holders of record of the outstanding Preferred Stock of all
series shall have the exclusive right, voting separately as a single class, to
elect two directors of the Corporation at a special meeting of stockholders of
the Corporation or at the Corporation's next annual meeting of stockholders,
and at each subsequent annual meeting of stockholders, as provided below. At
elections for such directors, the holders of shares of this Series shall be
entitled to cast one vote for each share held.
(b) Upon the vesting of such right of the holders of the Preferred Stock,
the maximum authorized number of members of the Board of Directors shall
automatically be increased by two and the two vacancies so created shall be
filled by vote of the holders of the outstanding Preferred Stock as hereinafter
set forth. A special meeting of the stockholders of the Corporation then
entitled to vote shall be called by the Chairman or the President or the
Secretary of the Corporation, if requested in writing by the holders of record
of not less than 10% of the Preferred Stock then outstanding. At such special
meeting, or, if no such special meeting shall have been called, then at the
next annual meeting of stockholders of the Corporation, the holders of the
shares of the Preferred Stock shall elect, voting as above provided, two
directors of the Corporation to fill the aforesaid vacancies created by the
automatic increase in the number of members of the Board of Directors. At any
and all such meetings for such election, the holders of a majority of the
outstanding shares of the Preferred Stock shall be necessary to constitute a
quorum for such election, whether present in person or by proxy, and such two
directors shall be elected by the vote of at least a plurality of shares held
by such stockholders present or represented at the meeting. Any director
elected by holders of shares of the Preferred Stock pursuant to this Section
may be removed at any annual or special meeting, by vote of a majority of the
stockholders voting as a class who elected such director, with or without
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cause. In case any vacancy shall occur among the directors elected by the
holders of the Preferred Stock pursuant to this Section, such vacancy may be
filled by the remaining director so elected, or his successor then in office,
and the director so elected to fill such vacancy shall serve until the next
meeting of stockholders for the election of directors.
(c) The right of the holders of the Preferred Stock, voting separately as
a class, to elect two members of the Board of Directors of the Corporation as
aforesaid shall continue until, and only until, such time as all arrears in
dividends (whether or not declared) on the Preferred Stock shall have been paid
or declared and set apart for payment, at which time such right shall
terminate, except as herein or by law expressly provided, subject to revesting
in the event of each and every subsequent default of the character
above-mentioned. Upon any termination of the right of the holders of the
shares of the Preferred Stock as a class to vote for directors as herein
provided, the term of office of all directors then in office elected by the
holders of Preferred Stock pursuant to this Section shall terminate
immediately. Whenever the term of office of the directors elected by the
holders of the Preferred Stock pursuant to this Section shall terminate and the
special voting powers vested in the holders of the Preferred Stock pursuant to
this Section shall have expired, the maximum number of members of the Board of
Directors of the Corporation shall be such number as may be provided for in the
By-laws of the Corporation irrespective of any increase made pursuant to the
provisions of this Section.
(d) The consent of the holders of at least two-thirds of the number of
shares of Preferred Stock at the time outstanding, given in person or by proxy,
either in writing or at a meeting of stockholders at which the holders of the
Preferred Stock shall vote separately as a class, the holders of the Preferred
Stock being entitled to cast one vote per share thereon, shall be necessary for
effecting or validating:
(i) any change in the Certificate of Incorporation, as amended, or
certificate supplemental thereto or By-laws of the Corporation which would
materially and adversely alter or change the preferences, privileges, rights
or powers given to the holders of the Preferred Stock, provided that if one
or more but not all series of Preferred Stock at the time outstanding are so
affected, only the consent of the holders of at least two-thirds of each
series so affected, voting separately as a class, shall be required; or
(ii) the issuance of any shares of any other class of stock of the
Corporation ranking prior to the Preferred Stock.
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The term "ranking prior to the Preferred Stock" shall mean and include all
shares of stock of the Corporation in respect of which the rights of the
holders thereof as to the payment of dividends or as to distributions in the
event of a voluntary or an involuntary liquidation, dissolution or winding up
of the Corporation, are given preference over the rights of the holders of the
Preferred Stock.
6. Liquidation Rights.
(a) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of the shares of this Series shall be entitled to receive out of
the assets of the Corporation, before any payment or distribution shall be made
on the Common Stock, or on any other class or series of stock ranking junior to
this Series, upon liquidation, the amount of $100.00 per share, plus a sum
equal to all dividends (whether or not earned or declared) on such shares
accrued and unpaid thereon to the date of final distribution.
(b) Neither the sale, lease or exchange (for cash, shares of stock,
securities or other consideration) of all or substantially all the property and
assets of the Corporation nor the merger or consolidation of the Corporation
into or with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purposes of this
Section 6.
(c) After the payment to the holders of the shares of this Series of the
full preferential amounts provided for in this Section 6, the holders of this
Series as such shall have no right or claim to any of the remaining assets of
the Corporation.
(d) In the event the assets of the Corporation available for distribution
to the holders of shares of this Series upon any dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such holders are entitled
pursuant to paragraph (a) of this Section 6, no such distribution shall be made
on account of any shares of any other class or series of capital stock ranking
on a parity with the shares of this Series upon such dissolution, liquidation
or winding up unless proportionate distributive amounts shall be paid on
account of the shares of this Series, ratably, in proportion to the full
distributable amounts for which holders of all such parity shares are
respectively entitled upon such dissolution, liquidation or winding up.
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(e) Upon the dissolution, liquidation or winding up of the Corporation,
the holders of shares of this Series then outstanding shall be entitled to be
paid out of the assets of the Corporation available for distribution to its
stockholders all amounts to which such holders are entitled pursuant to
paragraph (a) of this Section 6 before any payment shall be made to the holders
of any class of capital stock of the Corporation ranking junior upon
liquidation to this Series.
7. Ranking. The Corporation's Adjustable Rate Preferred Stock, Series
1, shall rank, both as to dividends and upon liquidation, on a parity with the
shares of this Series, and any stock of any class or classes of the Corporation
shall be deemed to rank:
(a) Prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be, in preference or priority
to the holders of shares of this Series;
(b) On a parity with shares of this Series, either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking fund provisions, if any,
be different from those of this Series, if the holders of such stock shall be
entitled to the receipt of dividends or of amounts distributable upon
dissolution, liquidation or winding up of the Corporation, as the case may be,
in proportion to their respective dividend rates or liquidation prices, without
preference or priority, one over the other, as between the holders of such
stock and the holders of shares of this Series; and
(c) Junior to shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of shares of
this Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation,
as the case may be, in preference or priority to the holders of shares of such
class or classes.
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CERTIFICATION
I, Cheryl A. Sorokin, Secretary of BANKAMERICA CORPORATION, a
corporation organized and existing under and by virtue of the laws of the State
of Delaware and having its principal place of business in the City and County
of San Francisco in the State of California, certify that the foregoing pages
constitute a correct copy of the Certificate of Incorporation of BankAmerica
Corporation, as amended on or about August 1, 1994.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of this
Corporation on this 1st day of August, 1994.
/s/ Cheryl A. Sorokin
----------------------------
Secretary
BANKAMERICA CORPORATION
<PAGE> 1
Exhibit 4
FORM OF
DEPOSIT AGREEMENT
dated as of August 31, 1994,
among
BANKAMERICA CORPORATION,
a Delaware corporation,
CHEMICAL TRUST COMPANY OF CALIFORNIA,
a California trust company,
and the holders
from time to time of the Depositary Shares
described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of Adjustable Rate Cumulative
Preferred Stock, Series 2, without par value, of BANKAMERICA CORPORATION with
the Depositary (as hereinafter defined) for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of Receipts (as hereinafter
defined) evidencing Depositary Shares (as hereinafter defined) in respect of
the Stock (as hereinafter defined) so deposited;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate" shall mean the certificate of designations filed with
the Secretary of State of Delaware establishing the Stock as a series of
preferred stock of the Company.
"Company" shall mean BankAmerica Corporation, a Delaware corporation,
and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean Chemical Trust Company of California, or any
successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares of the Company each
representing a one-fourth interest in a share of Stock and evidenced by a
Receipt.
<PAGE> 2
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.5.
"Depositary's Office" shall mean the principal office of the
Depositary in the City and County of San Francisco which at the date of this
Deposit Agreement is located at 50 California Street, 10th Floor, San
Francisco, California, 94111 at which office at any particular time its
depositary receipt business shall be administered.
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form.
"record holder" as applied with respect to a Depositary Share shall
mean the person in whose name a Receipt evidencing such Depositary Share is
registered on the books of the Depositary maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfers of Depositary Shares as herein
provided.
"Stock" shall mean shares of the Company's Adjustable Rate Cumulative
Preferred Stock, Series 2, without par value.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1 Form and Transfer of Receipts. Definitive Receipts shall
be engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in compliance with
Section 2.2, shall execute and deliver temporary Receipts which are printed,
lithographed, typewritten, mimeographed or otherwise substantially of the tenor
of the definitive Receipts in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
persons executing such Receipts may determine, as evidenced by their execution
of such Receipts. If temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared without unreasonable
delay. After the preparation of definitive Receipts, the temporary Receipts
shall be exchangeable for definitive Receipts upon surrender of the temporary
Receipts at an office described in the third paragraph of Section 2.2, without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts
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<PAGE> 3
representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made at the
Company's expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits under
this Deposit Agreement, and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, that such signature
may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by manual
signature of a duly authorized officer of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed manually by a duly
authorized officer of the Depositary or, if a Registrar for the Receipts (other
than the Depositary) shall have been appointed, by manual or facsimile
signature of a duly authorized officer of the Depositary and countersigned
manually by a duly authorized officer of such Registrar. Receipts executed as
provided in this Section may be issued notwithstanding that any authorized
signatory of the Depositary or Registrar, as the case may be, signing such
Receipts shall have ceased to be such an authorized signatory at the time of
issuance of such Receipts. The Depositary shall record on its books each
Receipt so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of
this Deposit Agreement as may be required by the Company or the Depositary or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to the Depositary Shares evidenced by a Receipt which is
properly endorsed, or accompanied by a properly executed instrument of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument; provided, however, that until transfer of a
Depositary Share shall be registered on the books of the Depositary as provided
in Section 2.4, the Depositary may, notwithstanding any notice to the contrary,
treat the record holder thereof at such time as the absolute owner thereof for
the purpose of determining the person entitled to distributions of dividends or
other
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<PAGE> 4
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.2 Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, the Company may from time to time deposit, or cause or permit to be
deposited, shares of Stock under this Deposit Agreement by delivery to the
Depositary of a certificate or certificates for the Stock to be deposited,
properly endorsed or accompanied, in each case, if required by the Depositary,
by a duly executed instrument of transfer or endorsement, in form reasonably
satisfactory to the Depositary, together with all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order of the Company directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the number of
Depositary Shares relating to such deposited Stock. Subject to the terms and
conditions of this Deposit Agreement, shares of Stock may also be deposited
hereunder in connection with the delivery of Receipts to represent
distributions under Section 4.2 and upon exercise of the rights to subscribe
referred to in Section 4.3.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together
with the other documents required as above specified, and upon recordation of
the Stock so deposited on the books of the Company in the name of the
Depositary or its nominee, the Depositary, subject to the terms and conditions
of this Deposit Agreement, shall execute and deliver, to or upon the order of
the person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section, a Receipt or Receipts for
the number of Depositary Shares relating to the Stock so deposited and
registered in such name or names and in such denomination as may be requested
by such person or persons or specified in such order. The Depositary shall
execute and deliver such Receipt or Receipts at the Depositary's Office or such
other offices, if any, as the Depositary may designate. Delivery at other
offices shall be at the risk and expense of the person requesting such
delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more
than 3,000,000 shares of Stock.
SECTION 2.3 Redemption of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the provisions of the Certificate, it
shall (unless otherwise agreed
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in writing with the Depositary) mail notice to the Depositary of such proposed
redemption, by first class mail, postage prepaid, not less than 40 nor more
than 70 days prior to the date fixed for redemption in accordance with Section
4(c) of the Certificate provided that the Company shall use its best efforts to
notify the Depositary of such proposed redemption at least 50 days prior to the
date fixed for redemption. On the date of such redemption, provided that the
Company shall then have paid in full to the Depositary the redemption price of
the Stock to be redeemed, plus any accrued and unpaid dividends thereon, the
Depositary shall redeem the Depositary Shares relating to such Stock. The
Depositary shall mail notice of such redemption and the proposed simultaneous
redemption of the number of Depositary Shares relating to the Stock to be
redeemed, by first-class mail, postage prepaid, not less than 30 and not more
than 60 days prior to the date fixed for redemption of such Stock and
Depositary Shares (the "Redemption Date"), to the record holders of the
Depositary Shares to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice to one or more such holders nor any defect in any notice to one or more
such holders shall affect the sufficiency of the proceedings for redemption as
to other holders. Each such notice shall state: (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of
such Depositary Shares held by such holder to be so redeemed; (iii) the
redemption price; (iv) the place or places where Receipts evidencing Depositary
Shares are to be surrendered for payment of the redemption price; and (v) that
dividends in respect of the Stock underlying the Depositary Shares to be
redeemed will cease to accumulate at the close of business on such Redemption
Date. In case less than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be so redeemed shall be selected by lot or
pro rata (subject to rounding to avoid fractions) as may be determined by the
Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the
Depositary Shares so called for redemption shall cease to accumulate, the
Depositary Shares being redeemed from such proceeds shall be deemed no longer
to be outstanding, all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price plus
accumulated but unpaid dividends and all money and other property, if any,
payable with respect to such Depositary Shares) shall, to the extent of such
Depositary Shares, cease and terminate and, upon surrender in accordance with
such notice of the Receipts evidencing any such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so require), such
Depositary Shares
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shall be redeemed by the Depositary at a redemption price per Depositary Share
equal to one-fourth of the redemption price per share paid in respect of the
shares of Stock plus all money and other property, if any, payable with respect
to such Depositary Shares, including all amounts payable by the Company in
respect of dividends which on the Redemption Date have accumulated on the
shares of Stock to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such
Receipt, without charge to such holder, upon its surrender to the Depositary,
together with the redemption payment, a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not called for redemption.
SECTION 2.4 Registration of Transfer of Receipts. Subject to the
terms and conditions of this Deposit Agreement, the Depositary shall register
on its books from time to time transfers of Depositary Shares upon any
surrender at the Depositary's Office or at such other office or offices as may
be designated by the Depositary for such purpose of the Receipt or Receipts
evidencing such Depositary Shares by the holder in person or by duly authorized
attorney, properly endorsed or accompanied by a properly executed instrument of
transfer. Thereupon the Depositary shall execute a new Receipt or Receipts
evidencing the same aggregate number of Depositary Shares as those evidenced by
the Receipt or Receipts surrendered and deliver such new Receipt or Receipts to
or upon the order of the person entitled thereto.
SECTION 2.5 Split-ups and Combinations of Receipts; Surrender of
Depositary Shares and Withdrawal of Stock. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other office or offices as may
be designated by the Depositary for the purpose of effecting a split-up or
combination of such Receipt or Receipts by the holder in person or by duly
authorized attorney, properly endorsed or accompanied by a properly executed
instrument of transfer, and subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts
in the denominations requested, evidencing the aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
Any holder of at least four Depositary Shares may withdraw the number
of whole shares of Stock underlying such Depositary Shares and all money and
other property, if any, relating thereto by surrendering Receipts evidencing
such Depositary Shares at the Depositary's Office or at such other offices as
the Depositary may designate for such withdrawals. Thereafter, without
unreasonable delay, the Depositary shall deliver to such holder, or to the
person or persons designated by such holder as
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hereinafter provided, the number of whole shares of Stock and all money and
other property, if any, underlying the Depositary Shares so surrendered for
withdrawal, but holders of such whole shares of Stock will not thereafter be
entitled to deposit such Stock hereunder or to receive Depositary Shares
therefor. If a Receipt delivered by a holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares relating to
other than a number of whole shares of Stock, the Depositary shall at the same
time, in addition to such number of whole shares of Stock and such money and
other property, if any, to be so withdrawn, deliver to such holder, or (subject
to Section 3.2) upon his order, a new Receipt evidencing such excess number of
Depositary Shares. Delivery of the Stock and money and other property being
withdrawn may be made by delivery of such certificates, documents of title and
other instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the record holder of the
Depositary Shares evidenced by the Receipts being surrendered for withdrawal of
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary, and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer.
Delivery of the Stock and money and other property, if any, underlying
the Depositary Shares surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Depositary Shares and for the account
of such holder, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.6 Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.7, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The delivery of Receipts against Stock may be suspended, the
registration of transfer of Depositary Shares may be refused and the
registration of transfer, split-up, combinations, surrender or exchange of
outstanding Depositary Shares may be
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suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable
by the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.7 Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
mutilation, destruction or loss or theft of such Receipt, of the authenticity
thereof and of his or her ownership thereof and (ii) if requested by the
Depositary, the furnishing of the Depositary with reasonable indemnification
satisfactory to it.
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled
so long as it shall deliver a certificate, signed by one of its duly authorized
officers, to the Company attesting as to such destruction.
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs, Certificates and Other Information. Any
holder of a Depositary Share may be required from time to time to file such
proof of residence, or other matters or other information, to execute such
certificates and to make such representations and warranties as the Depositary
or the Company may reasonably deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Depositary Share or the withdrawal of any Stock
underlying Depositary Shares or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.2 Payment of Taxes or Other Governmental Charges. Holders
of Depositary Shares shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.7. Registration of
transfer, split-up,
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combination, surrender or exchange of any Depositary Share or any withdrawal of
Stock and delivery of all money or other property, if any, underlying such
Depositary Share may be refused until any such payment due is made, and any
dividends or other distributions may be withheld or all or any part of the
Stock or other property underlying such Depositary Share and not theretofore
sold may be sold for the account of the holder thereof (after attempting by
reasonable means to notify such holder prior to such sale), and such dividends
or other distributions or the proceeds of any such sale may be applied to any
payment of such charges or expenses, the holder of such Depositary Share
remaining liable for any deficiency.
SECTION 3.3 Warranty as to Stock. The Company hereby represents and
warrants that the Stock, when issued, will be duly authorized, validly issued,
fully paid and nonassessable and free and clear of any liens, claims or
encumbrances. Such representation and warranty shall survive the deposit of
the Stock and the issuance of the Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1 Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to Sections 3.1 and 3.2, promptly distribute to the
record holders of Depositary Shares on the record date fixed pursuant to
Section 4.4 such amounts of such dividend or distribution as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares held
by such holders; provided, however, that in case the Company or the Depositary
shall be required to withhold and shall withhold from any cash dividend or
other cash distribution in respect of the Stock an amount on account of taxes,
the amount made available for distribution or distributed in respect of
Depositary Shares shall be reduced accordingly pursuant to Section 3.2 above.
The Depositary shall distribute or make available for distribution, as the case
may be, 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
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to record holders of Depositary Shares then
outstanding.
SECTION 4.2 Distributions Other than Cash. Whenever the Depositary
shall receive any distribution other than cash on the Stock, the Depositary
shall, subject to Sections 3.1 and 3.2, distribute to the record holders of
Depositary Shares on the record date fixed pursuant to Section 4.4 such amounts
of the securities or property received by it as are, as nearly as
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practicable, in proportion to the respective numbers of Depositary Shares held
by such holders on such record date, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution. If in the
opinion of the Depositary such distribution cannot be made proportionately
among such record holders on such record date, or if for any other reason
(including any requirement that the Company or the Depositary withhold an
amount on account of taxes) the Depositary deems, after consultation with the
Company, such distribution not to be feasible, the Depositary may, with the
approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject to Sections 3.1 and
3.2, be distributed or made available for distribution, as the case may be, by
the Depositary to record holders of Depositary Shares as provided by Section
4.1 in the case of a distribution received in cash. The Company shall not make
any distribution of such securities unless the Company shall have provided an
opinion of counsel stating that such securities have been registered under the
Securities Act of 1933 or do not need to be registered.
SECTION 4.3 Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Depositary Shares in such manner as the Company may
determine, either by the issue to such record holders of warrants representing
such rights, preferences or privileges or by such other method as may be
approved by the Depositary in its discretion with the approval of the Company;
provided, however, that (i) if at the time of issue or offer of any such
rights, preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to the holders of Depositary Shares
by the issue of warrants or otherwise, or (ii) if and to the extent so
instructed by holders of Depositary Shares who do not desire to exercise such
rights, preferences or privileges, then the Depositary, in its discretion (with
the approval of the Company, in any case where the Depositary has determined
that it is not feasible to make such rights, preferences or privileges
available), may, if applicable laws or the terms of such rights, preferences or
privileges permit such transfer, sell such rights, preferences or privileges at
public or private sale, at such place or places and upon such terms as it may
deem proper. The net proceeds of any such sale shall, subject to Sections 3.1
and 3.2, be distributed by the
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Depositary to the record holders of Depositary Shares entitled thereto as
provided by Section 4.1 in the case of a distribution received in cash. The
Company shall not make any distribution of such rights, preferences or
privileges, unless the Company shall have provided an opinion of counsel
stating that such rights, preferences or privileges have been registered under
the Securities Act of 1933 or do not need to be registered.
If registration under the Securities Act of 1933 of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Depositary Shares to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company agrees with the
Depositary that it will file promptly a registration statement pursuant to such
Act with respect to such rights, preferences or privileges and securities and
use its best efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges. In no event shall the
Depositary make available to the holders of Depositary Shares any right,
preference or privilege to subscribe for or to purchase any securities unless
and until such a registration statement shall have become effective, or unless
the offering and sale of such securities to such holders are exempt from
registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to the
holders of Depositary Shares, the Company agrees with the Depositary that the
Company will use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.4 Notice of Dividends, etc.; Fixing of Record Date for
Holders of Depositary Shares. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or if rights, preferences or privileges shall at any time be offered,
with respect to the Stock, or whenever the Depositary shall receive notice of
any meeting at which holders of Stock are entitled to vote or of which holders
of Stock are entitled to notice, the Depositary shall in each such instance fix
a record date (which shall be the same date as the record date fixed by the
Company with respect to the Stock) for the determination of the holders of
Depositary Shares who shall be entitled to receive a distribution in respect of
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or to give instructions for the exercise of
voting rights at any such meeting, or who shall be entitled to receive notice
of such meeting. It shall be the sole responsibility of
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the Company to notify any exchange or regulatory agency of the fixing of such
record date.
SECTION 4.5 Voting Rights. Upon receipt of notice of any meeting at
which holders of the Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Depositary Shares a
notice, prepared by the Company and acceptable to the Depositary, which shall
contain (i) such information as is contained in such notice of meeting and (ii)
a statement informing holders of Depositary Shares that they may instruct the
Depositary as to the exercise of the voting rights pertaining to the amount of
Stock underlying their respective Depositary Shares and a brief statement as to
the manner in which such instructions may be given. Upon the written request
of the holders of Depositary Shares on the record date established in
accordance with Section 4.4, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted, in accordance with the instructions
set forth in such requests, the maximum number of whole shares of Stock
underlying the Depositary Shares as to which any particular voting instructions
are received. The Company hereby agrees to take all action which may be deemed
necessary by the Depositary in order to enable the Depositary to vote such
Stock or cause such Stock to be voted. In the absence of specific instructions
from the record holder of a Depositary Share, the Depositary will abstain from
voting (but, at its discretion, not from appearing at any meeting with respect
to such Stock unless directed to the contrary by the record holders of all the
Depositary Shares) to the extent of the Stock underlying such Depositary Share.
SECTION 4.6 Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or
liquidation value, split-up, combination or any other reclassification of the
Stock, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party, the Depositary
may in its discretion, with the approval of, and shall upon the instructions
of, the Company which the Company hereby agrees to give, and (in either case)
in such manner as the Depositary may deem equitable, (i) make such adjustments
in (a) the fraction of an interest in one share of Stock underlying one
Depositary Share and other money and property received or receivable and (b)
the ratio of the redemption price per Depositary Share to the redemption price
of a share of Stock, in each case as may be necessary fully to reflect the
effects of such change in par or liquidation value, split-up, combination or
other reclassification of the Stock, or of such recapitalization,
reorganization, merger, amalgamation, consolidation or sale and (ii) treat any
securities which shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited securities under this
Agreement and the Receipts then outstanding shall thereafter represent the
securities so received in exchange for or upon conversion of or
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in respect of such Stock. In any such case the Depositary may in its
discretion, with the approval of the Company, execute and deliver, without
charge to the holders, additional Receipts, or may call for the surrender of
all outstanding Receipts to be exchanged, without charge to the holders, for
new Receipts specifically describing such new deposited securities.
SECTION 4.7 Inspection of Reports. The Depositary shall make
available for inspection by holders of Depositary Shares at the Depositary's
Office, during normal business hours and at such other places as it may from
time to time deem advisable, any reports and communications received from the
Company which are received by the Depositary as the holder of the Stock.
SECTION 4.8 List of Holders. Promptly upon request from time to time
by the Company, the Depositary shall at the expense of the Company furnish to
it a list, as of a recent date, of the names, addresses and holdings of
Depositary Shares of all persons in whose names Depositary Shares are
registered on the books of the Depositary or the Registrar, as the case may be.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
Depositary shall maintain at the Depositary's Office, or at any Registrar's
Office, at which the Depositary shall have complete access to all books and
records maintained on the Company's behalf, facilities for the execution and
delivery, surrender, split-up, combination, redemption and exchange of Receipts
and the registration and registration of transfer of Depositary Shares, and for
any other purpose required by any securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed and at the offices of the
Depositary's Agents, if any, facilities for the delivery, surrender, split-up,
combination, redemption and exchange of Receipts and the registration of
transfer of Depositary Shares, all in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Depositary Shares, which books at
all reasonable times shall be open for inspection by the record holders of
Depositary Shares; provided, that any such holder requesting to exercise such
right shall certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an owner of
Depositary Shares.
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The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Stock underlying such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
Stock are listed on one or more other stock exchanges, the Depositary will, at
the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such
Receipts, such Depositary Shares or such Stock as may be required by law or
applicable stock exchange regulation.
SECTION 5.2 Prevention of or Delay in Performance by the Depositary,
the Depository's Agents, any Registrar or the Company. Neither the Depositary
nor any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Depositary Share if by reason of any provision
of any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, any Depositary's Agent or any Registrar, by reason of any
provision, present or future, of the Company's Certificate of Incorporation
(including the Certificate) or by reason of any act of God or war or other
circumstance beyond the control of the relevant party, the Depositary, any
Depositary's Agent, any Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing which the terms of this
Deposit Agreement provide shall be done or performed; nor shall the Depositary,
any Depositary's Agent, any Registrar or the Company incur any liability to any
holder of a Depositary Share (i) by reason of any nonperformance or delay,
caused as aforesaid, in the performance of any act or thing which the terms of
this Deposit Agreement provide shall or may be done or performed, or (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement except, in case of any such exercise or failure to
exercise discretion not caused as aforesaid, if caused by the negligence or
willful misconduct of the party charged with such exercise or failure to
exercise.
SECTION 5.3 Obligations of the Depositary, the Depositary's Agents,
any Registrar and the Company. Neither the Depositary nor any Depositary's
Agent nor any Registrar nor the Company assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of Depositary
Shares other than for its negligence or willful misconduct.
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Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Stock, the Depositary
Shares or the Receipts which in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or
information from any person presenting Stock for deposit, any holder of a
Depositary Share or any other person believed by it in good faith to be
competent to give such information. The Depositary, any Depositary's Agent,
any Registrar and the Company may each rely and shall each be protected in
acting upon any written notice, request, direction or other document reasonably
believed by it to be genuine and to have been signed or presented by the proper
party or parties. Whenever in the administration of this Deposit Agreement the
Depositary, any Depositary's Agent or any Registrar shall deem it desirable
that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, any of them may (unless other evidence be herein
specifically prescribed), in the absence of bad faith on their part, request
and rely upon on a certificate of an officer of the Company.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or effect
of any such vote made, as long as any such action or non-action is in good
faith. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no implied covenants or obligations shall
be read into this Deposit Agreement against the Depositary or any Registrar.
The Depositary, the Depositary's Agents, any Registrar and the Company may own
and deal in any class of securities of the Company and its affiliates and in
Depositary Shares. The Depositary may also act as transfer agent or registrar
of any of the securities of the Company and its affiliates and may engage in
any other business with or for the Company and its affiliates.
SECTION 5.4 Resignation and Removal of Title Depository; Appointment
of Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal
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to take effect upon the appointment of a successor Depositary and its
acceptance of such appointment as hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed within 60
days after delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor, and shall deliver to such successor a list of the record
holders of all outstanding Depositary Shares. Any successor Depositary shall
promptly mail notice of its appointment to the record holders of Depositary
Shares.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
SECTION 5.5 Corporate Notices and Reports. The Company agrees that
it will transmit to the record holders of Depositary Shares, in each case at
the address furnished to it pursuant to Section 4.8, all notices and reports
(including without limitation financial statements) required by law, the rules
of any securities exchange upon which the Stock, the Depositary Shares or the
Receipts are listed or by the Company's Certificate of Incorporation (including
the Certificate) to be furnished by the Company to holders of the Stock,
Depositary Shares or Receipts. Such transmission will be at the Company's
expense.
SECTION 5.6 (a) Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses
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of defending itself) which may arise out of (i) acts performed or omitted in
connection with this Deposit Agreement and the Depositary Shares (a) by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of negligence, bad
faith or intentional misconduct on the respective parts of any such person or
persons, or (b) by the Company or any of its agents, or (ii) the offer, sale or
registration of the Depositary Shares or the Stock pursuant to the provisions
hereof.
(b) Indemnification by the Depositary. The Depositary shall
indemnify the Company against, and hold it harmless from, any loss, liability
or expense (including all legal costs and expenses relating thereto, including
reasonable attorneys' fees) arising from demands, actions, suits or proceedings
(civil, criminal, administrative or investigative) that may arise out of the
acts performed or omitted by the Depositary or Depositary's Agents due to
negligence, bad faith or intentional misconduct.
(c) Indemnification - General. The indemnification provided for in
this Section for the Company, the Depositary, any Depositary's Agent and any
Registrar shall extend to their respective officers, directors, stockholders,
employees and agents, and shall survive the termination of this Agreement and,
as to the Depositary, any Depositary's Agent or any Registrar, the appointment
of a successor thereto in any function.
SECTION 5.7 Charges and Expenses. The Company shall pay all transfer
and other taxes and governmental charges arising solely from the existence of
the depositary arrangements. The Company shall pay all charges and reasonable
expenses of the Depositary in connection with the initial deposit of the Stock
and the initial issuance of the Receipts, any redemption of the Stock at the
option of the Company and any withdrawals of Stock by holders of Depositary
Shares. All other transfer and other taxes and governmental charges shall be
at the expense of holders of Depositary Shares. If, at the request of a holder
of a Depositary Share the Depositary incurs charges or expenses for which it is
not otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary, any Depositary's
Agent hereunder and any Registrar (including, in each case, fees and expenses
of counsel) incident to the performance of their respective obligations
hereunder will be paid upon consultation and agreement between the Depositary
and the Company as to the amount and nature of such charges and expenses. The
Depositary shall present its statement for charges and expenses to the Company
monthly or at such other intervals as the Company and the Depositary may agree.
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ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment. The form of the Receipts and any provisions
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary or Registrar, which shall go into
effect not sooner than three months after notice thereof to the holders of the
Depositary Shares) which shall materially and adversely alter the rights of the
existing holders of Depositary Shares shall be effective unless such amendment
shall have been approved by the holders of at least a majority of the
Depositary Shares then outstanding. Every holder of an outstanding Depositary
Share at the time any such amendment becomes effective shall be deemed, by
continuing to hold such Depositary Share, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby.
Notwithstanding the foregoing, no such amendment may impair the right
of any holder of Depositary Shares or Receipts to receive any moneys or other
property to which such holder may be entitled under the terms of such Receipts
or this Deposit Agreement at the times and in the amount and manner provided
for herein.
SECTION 6.2 Termination. This Deposit Agreement may be terminated by
the Company or the Depositary only after (i) all outstanding Depositary Shares
shall have been redeemed pursuant to Section 2.3 and all accumulated and unpaid
dividends on the Stock underlying the Depositary Shares, together with all
other moneys and property, if any, to which the holders of the Depositary
Shares are entitled under the Receipts and this Depositary Agreement or (ii)
there shall have been made a final distribution in respect of the Stock in
connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Depositary
Shares pursuant to Section 4.1 or 4.2, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.6 and 5.7.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts. This Deposit Agreement may be executed in
any number of counterparts, and by each of the
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parties hereto on separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed an original, but all such counterparts
taken together shall constitute one and the same instrument.
SECTION 7.2 Exclusive Benefit of Parties. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.3 Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein
shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram or telex
confirmed by letter, addressed to the Company at 555 California Street, 6th
Floor, San Francisco, CA 94104, to the attention of the Assistant Secretary, or
at any other address of which the Company shall have notified the Depositary in
writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, 50 California
Street, 10th Floor, San Francisco, California 94111, Attention: Michael
Levinson, or at any other address of which the Depositary shall have notified
the Company in writing.
Any and all notices to be given to any record holder of a Depositary
Share hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or by telegram
or telex confirmed by letter, addressed to such record holder at the address of
such record holder as it appears on the books of the Depositary, or if such
holder shall have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telex message received by it
from the other or from any holder of a Depositary
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Share, notwithstanding that such telegram or telex message shall not
subsequently be confirmed by letter or as aforesaid.
SECTION 7.5 Depositary's Agents. The Depositary may from time to
time, with the prior approval of the Company, appoint Depositary's Agents to
act in any respect for the Depositary for the purposes of this Deposit
Agreement and may at any time appoint additional Depositary's Agents and vary
or terminate the appointment of such Depositary's Agents.
SECTION 7.6 Holders of Receipts Are Parties. The holders of
Depositary Shares from time to time shall be parties to this Deposit Agreement
and shall be bound by all of the terms and conditions hereof and of the
Receipts evidencing such Depositary Shares by acceptance of delivery thereof.
SECTION 7.7 Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA.
SECTION 7.8 Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office
and the respective offices of the Depositary's Agents, if any, by any holder of
a Depositary Share.
SECTION 7.9 Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or to have any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Deposit Agreement as of the day and year first above set forth, and all
holders of Depositary Shares shall become parties hereto by and upon acceptance
by them of delivery of Receipts evidencing such Depositary Shares and issued in
accordance with the terms hereof.
BANKAMERICA CORPORATION
By _______________________________
Shaun M. Maguire
Vice President and
Assistant Treasurer
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CHEMICAL TRUST COMPANY OF CALIFORNIA
By _______________________________
Michael Levinson
Assistant Vice President
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