<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 30, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
---------------
FORM S-3
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REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BANKAMERICA CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-1681731
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION
NO.)
BANK OF AMERICA CENTER CHERYL SOROKIN, SECRETARY
555 CALIFORNIA STREET BANK OF AMERICA CENTER
SAN FRANCISCO, CALIFORNIA 94104 555 CALIFORNIA STREET
(415) 622-3530 SAN FRANCISCO, CALIFORNIA 94104
(ADDRESS AND TELEPHONE NUMBER OF (415) 622-3530
PRINCIPAL EXECUTIVE OFFICES) (NAME, ADDRESS AND TELEPHONE NUMBER
OF AGENT FOR SERVICE)
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COPIES TO:
JEFFREY R. LAPIC PETER LILLEVAND
CAROLYN CHEW HAMILTON DANA M. KETCHAM
BANK OF AMERICA N.T. & S.A. ORRICK, HERRINGTON & SUTCLIFFE
LEGAL DEPARTMENT, P.O. BOX 37000 400 SANSOME STREET
SAN FRANCISCO, CALIFORNIA 94137 SAN FRANCISCO, CALIFORNIA 94111
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT BEING OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES BEING REGISTERED(1) REGISTERED PER UNIT OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Debt Securities, Debt Warrants, Preferred
Stock, Depositary Shares, Preferred Stock
Warrants, Common Stock, par value $1.5625 $4,000,000,000
per share (2), Common Stock Warrants and (4)
Currency Warrants........................ (3) (3) (5) $1,379,320
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Capital Securities........................ (6) (5) (5) None
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</TABLE>
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(1) This Registration Statement also covers contracts which may be issued by
the Registrant under which the counterparty may be required to purchase
Debt Securities, Preferred Stock or Depositary Shares. Such contracts
would be issued with the Debt Securities, Preferred Stock, Depositary
Shares and/or Securities Warrants. In addition, any other securities
registered hereunder may be sold separately or as units with other
securities registered hereunder.
(2) Associated with the Common Stock are Preferred Share Purchase Rights that
will not be exercisable or evidenced separately from the Common Stock
prior to the occurrence of certain events. The Common Stock registered
hereunder may be issued directly or upon exercise of Common Stock Warrants
registered hereunder or upon conversion of or in exchange for Debt
Securities, Preferred Stock or Depositary Shares registered hereunder.
(3) Not applicable pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933.
(4) Or the equivalent thereof in one or more foreign currencies or composite
currencies, including European Currency Units.
(5) No separate consideration will be received (i) for Common Stock, Preferred
Stock or Depositary Shares that are issued upon conversion of Debt
Securities, Preferred Stock or Depositary Shares or (ii) for Capital
Securities that are issued in exchange for or upon conversion of the Debt
Securities or upon conversion of Preferred Stock or Depositary Shares.
(6) Such amount of Capital Securities (as described on pages 17-18 herein),
which may consist of Common Stock, Perpetual Preferred Stock (as defined
on page 18 herein) or other securities as may be issued in exchange for,
or upon conversion of, the Debt Securities or upon conversion of Preferred
Stock issued under this Registration Statement.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
PROSPECTUS
BANKAMERICA CORPORATION
DEBT SECURITIES AND DEBT WARRANTS
PREFERRED SHARES AND PREFERRED SHARE WARRANTS
COMMON STOCK AND COMMON STOCK WARRANTS
CURRENCY WARRANTS
BankAmerica Corporation (the "Corporation") may from time to time offer in
one or more series its unsecured debt securities, which may be either senior
(the "Senior Securities") or subordinated (the "Subordinated Securities," the
Senior Securities and the Subordinated Securities being referred to
collectively as the "Debt Securities"), warrants to purchase the Debt
Securities ("Debt Warrants"), shares of preferred stock (the "Preferred
Shares"), interests in which may be represented by depositary shares
("Depositary Shares"), warrants to purchase the Preferred Shares or Depositary
Shares ("Preferred Share Warrants"), shares of common stock (the "Common
Stock"), warrants to purchase Common Stock ("Common Stock Warrants", the Debt
Warrants, Preferred Share Warrants and Common Stock Warrants being referred to
collectively as the "Securities Warrants") and warrants entitling the holder to
receive the cash value of the right to purchase ("Currency Call Warrants") or
to sell ("Currency Put Warrants", the Currency Call Warrants and the Currency
Put Warrants being referred to collectively as the "Currency Warrants") foreign
currencies or composite currencies with an aggregate initial public offering
price (including the exercise price of any Securities Warrants) of up to
$4,000,000,000 or the equivalent thereof in one or more foreign currencies or
composite currencies, including European Currency Units ("ECU") on terms to be
determined at the time of sale. The Debt Securities, Preferred Shares,
Depositary Shares, Common Stock, Securities Warrants and Currency Warrants
(collectively, the "Offered Securities") may be offered, separately or
together, in separate series in amounts, at prices and on terms to be set forth
in a supplement to this Prospectus (a "Prospectus Supplement").
The Senior Securities will rank equally with all other unsubordinated and
unsecured indebtedness of the Corporation. The Subordinated Securities will be
subordinated to all existing and future Senior Debt of the Corporation, as
defined. See "Description of Debt Securities."
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered are set forth in the Prospectus Supplement.
The Prospectus Supplement will also contain information, where applicable,
about certain United States federal income tax considerations relating to, and
any listing on a securities exchange of, the Offered Securities covered by the
Prospectus Supplement.
The Offered Securities may be offered directly, through agents (which may
include Bank of America National Trust and Savings Association ("Bank of
America"), Bank of America International Limited and other affiliates of the
Corporation) designated from time to time or to or through underwriters or
dealers. If any agents or underwriters are involved in the sale of any of the
Offered Securities, their names, and any applicable fee, commission, purchase
price or discount arrangements with them will be set forth, or will be
calculable from the information set forth, in the Prospectus Supplement. The
Corporation may also issue contracts under which the counterparty may be
required to purchase Debt Securities, Preferred Stock, Depositary Shares or
Common Stock. Such contracts would be issued with the Debt Securities,
Preferred Stock, Depositary Shares, Common Stock and/or Securities Warrants in
amounts, at prices and on terms to be set forth in a Prospectus Supplement. See
"Plan of Distribution."
THE OFFERED SECURITIES ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER
OBLIGATIONS OF ANY BANK OR NONBANK SUBSIDIARY OF THE CORPORATION AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, BANK INSURANCE FUND OR
ANY OTHER GOVERNMENT AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is , 1994.
<PAGE>
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Act"). In accordance with the
Act, the Corporation files proxy statements, reports and other information with
the Securities and Exchange Commission (the "Commission"). This filed material
can be inspected and copied at the Commission's office at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549 and the Commission's Regional Offices in
New York (Seven World Trade Center, 13th Floor, New York, New York 10048) and
Chicago (Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511) and copies of such materials can be obtained from
the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. In addition, such material can be
inspected at the offices of the New York, Chicago and Pacific Stock Exchanges.
This Prospectus does not contain all information set forth in the Registration
Statement and exhibits thereto filed with the Commission under the Securities
Act of 1933, as amended.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation incorporates herein by reference (a) the Corporation's annual
report on Form 10-K for the year ended December 31, 1993, (b) the Corporation's
quarterly report on Form 10-Q for the quarter ended March 31, 1994, (c) the
Corporation's reports on Form 8-K dated January 19, January 27, March 11, March
21, March 29, April 20 and May 12, 1994 and (d) the description of the Common
Stock; Preferred Share Purchase Rights; Cumulative Adjustable Preferred Stock,
Series A; Cumulative Adjustable Preferred Stock, Series B; 9 5/8% Cumulative
Preferred Stock, Series F; 6 1/2% Cumulative Convertible Preferred Stock,
Series G; 9% Cumulative Preferred Stock, Series H; Depositary Shares Each
Representing a One-Twentieth Interest in a Share of 11% Preferred Stock, Series
I; Depositary Shares Each Representing a One-Twentieth Interest in a Share of
11% Preferred Stock, Series J; 8 3/8% Cumulative Preferred Stock, Series K;
Depositary Shares Each Representing a One-Twentieth Interest in a Share of
8.16% Cumulative Preferred Stock, Series L; Depositary Shares Each Representing
a One-Twentieth Interest in a Share of 7 7/8% Cumulative Preferred Stock,
Series M; and Depositary Shares Each Representing a One-Twentieth Interest in a
Share of 8 1/2% Cumulative Preferred Stock, Series N, set forth in the
Registration Statements on Form 8-A dated May 25, 1976 (as amended by Forms 8
dated June 14, 1976, August 18, 1976 and September 10, 1976); April 13, 1988
(as amended by Form 8 dated August 20, 1991); October 28, 1982; February 16,
1983; April 3, 1991; May 23, 1991; December 20, 1991; April 15, 1992; April 15,
1992; February 12, 1992; July 13, 1992; September 25, 1992; and December 14,
1992, respectively.
All reports and definitive proxy or information statements filed by the
Corporation pursuant to Section 13(a), 13(c), 14 and 15(d) of the Act
subsequent to the date of this Prospectus and prior to the termination of the
offering of the Offered Securities to which this Prospectus relates (except
those portions of such reports or statements described in paragraphs (k) and
(l) of Item 402 of Regulation S-K promulgated by the Commission) shall be
deemed to be incorporated by reference into this Prospectus from the date of
filing of such documents. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement herein (or in any other subsequently
filed document which also is or is deemed incorporated by reference herein)
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed to constitute a part hereof, except as so
modified or superseded. A copy of the documents incorporated by reference
(excluding exhibits unless such exhibits are specifically incorporated by
reference herein) will be furnished, without charge, upon written or oral
request to BankAmerica Corporation, Corporate Secretary's Office, P.O. Box
37000, San Francisco, California 94137, telephone (415) 622-3530.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement. The delivery of this Prospectus
together with a Prospectus Supplement relating to particular Offered Securities
in any jurisdiction shall not constitute an offer in that jurisdiction of any
of the other Offered Securities covered by this Prospectus.
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$", "dollars",
"U.S. dollars" or "U.S.$").
2
<PAGE>
BANKAMERICA CORPORATION
The Corporation is a bank holding company registered under the Bank Holding
Company Act of 1956, as amended (the "BHC Act"), and was incorporated in the
State of Delaware in 1968. The Corporation's principal executive offices are
located at 555 California Street, San Francisco, California 94104 (telephone
(415) 622-3530).
Bank of America, a national banking association, became a subsidiary of the
Corporation in 1969. Bank of America began business in San Francisco,
California, as Bank of Italy in 1904 and adopted its present name in 1930. The
capital stock of Bank of America is the principal asset of the Corporation.
On April 22, 1992, Security Pacific Corporation ("SPC") was merged with and
into the Corporation. SPC's principal subsidiary, Security Pacific National
Bank, was also merged with and into Bank of America on that date.
The Corporation also owns all of the capital stock of Seafirst Corporation
("Seafirst"), a registered bank holding company, the principal asset of which
is the capital stock of Seattle-First National Bank ("SFNB"). SFNB is a
national banking association headquartered in the State of Washington. The
Corporation acquired Seafirst in 1983.
In addition to the merger with SPC, the Corporation has expanded its presence
in the western United States through several acquisitions beginning in 1989. As
of March 31, 1994, the Corporation's depository subsidiaries operated retail
branches in Alaska, Arizona, Hawaii, Idaho, Nevada, New Mexico, Oregon and
Texas, in addition to California and Washington.
The Corporation, through its various subsidiaries, provides a diversified
range of financial services to its customers. The Corporation, primarily
through Bank of America and its other domestic banking subsidiaries, provides
consumer banking services (including residential real estate and other consumer
loans, deposit and investment services and credit card products and services)
and other retail banking services.
The Corporation, through its banking and other subsidiaries, provides
wholesale banking and financial products and services throughout the United
States and in overseas markets to business customers, including corporations,
middle market companies, governments and other institutions. These products and
services encompass corporate lending, business finance, leasing, cash
management services, trade finance and investment banking services, including
interest rate risk and foreign exchange management products, capital markets
products and advisory and venture capital services.
Because the Corporation is a holding company, the rights of its creditors,
including the holders of the Debt Securities, to participate in the assets of
any subsidiary upon the latter's liquidation or reorganization will be subject
to the claims of the subsidiary's creditors, which will take priority except to
the extent that the Corporation may itself be a creditor with recognized claims
against the subsidiary. There are also various legal limitations on the extent
to which Bank of America, SFNB and certain other bank subsidiaries of the
Corporation may pay dividends, extend credit or otherwise supply funds to the
Corporation or various of its affiliates.
Under the National Bank Act, the Corporation's national banking subsidiaries
are subject to prohibitions on the payment of dividends in certain
circumstances and to restrictions on the amount that each can pay without the
prior approval of the Office of the Comptroller of the Currency. Without the
Comptroller's approval, dividends for a given year cannot exceed each bank's
net profits (as defined by national banking laws) for that year and retained
earnings from the preceding two years. In addition, dividends may not be paid
in excess of each bank's undivided profits after deducting statutory bad debt
in excess of their allowance for loan losses. Based upon these regulations,
Bank of America could have declared dividends for 1993 of $3,125 million, while
SFNB could have declared dividends to Seafirst, of $437 million. At December
31, 1993, the unutilized dividends allowed under these regulations for Bank of
America and SFNB were $2,325 million and $159 million, respectively. Under
these regulations, the Corporation's other national banking subsidiaries could
not have declared dividends during 1993.
3
<PAGE>
In addition, state-chartered banking subsidiaries are subject to dividend
limitations imposed by applicable state law. These state-chartered banking
subsidiaries could have declared dividends to their respective parent companies
without state approval of $83 million for 1993. At December 31, 1993, this
entire amount was unutilized.
The Corporation's subsidiary, Bank of America, FSB, is subject to regulatory
restrictions by the Office of Thrift Supervision on its payment of dividends.
Under these restrictions, Bank of America, FSB could have declared dividends to
the Corporation without regulatory approval of $40 million for 1993. At
December 31, 1993, this entire amount was unutilized.
The depository subsidiaries are also subject to certain restrictions of the
Federal Reserve Act on loans each subsidiary may extend to their respective
parent companies. Among other things, the aggregate of such loans may not
exceed 10% of the sum of such subsidiary's capital stock and surplus, defined
by the Comptroller of the Currency to include undivided profits and reserves
for contingencies, subject to certain adjustments. Such loans must be secured
by collateral with a value between 100% and 130% of the loan, depending on the
type of collateral. Under these restrictions, and assuming the parent provided
the collateral required, Bank of America, SFNB, and other depository
subsidiaries could have loaned to their respective parent companies a maximum
of $1,142 million, $144 million, and $317 million, respectively, at December
31, 1993.
The net assets of depository subsidiaries restricted from flowing to the
Corporation by regulatory limitations were $14,051 million at December 31, 1993.
Total net assets of depository subsidiaries were $17,944 million at December 31,
1993.
The Financial Institutions Reform, Recovery and Enforcement Act of 1989
contains a "cross-guarantee" provision which could result in any insured
depository institution owned by the Corporation (i.e., any bank subsidiary)
being assessed for losses incurred by the Federal Deposit Insurance Corporation
("FDIC") in connection with assistance provided to, or the failure of, any
other depository institution owned by the Corporation. Under Federal Reserve
Board policy, the Corporation is expected to act as a source of financial
strength and to commit resources to support each subsidiary bank. As a result
of such policy and the legislation described below, the Corporation may be
required to commit resources to its subsidiary banks in circumstances where it
might not do so absent such policy.
The Federal Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA")
provides, among other things, that if a bank does not meet any one of its
capital requirements set by its regulators, the bank must submit a capital
restoration plan for improving its capital. A holding company of a bank must
guarantee that the bank will meet its capital restoration plan, subject to
certain limitations. If such a guarantee were deemed to be a commitment to
maintain capital under the federal Bankruptcy Code, a claim under such
guarantee in a bankruptcy proceeding involving the holding company would be
entitled to a priority over third party creditors of the holding company. In
addition, FDICIA prohibits a bank from making a capital distribution to its
holding company or otherwise if it fails to meet any capital requirements.
Furthermore, under certain circumstances, a holding company of a bank that
fails to meet certain of its capital requirements may be prohibited from making
any capital distributions to its shareholders or otherwise. At March 31, 1994,
the capital ratios of each of the Corporation's banking subsidiaries exceeded
the "well capitalized" threshold prescribed in the rules of the subsidiary's
principal federal regulator. The categories of capital so prescribed are
determined by the regulators solely for the purposes of meeting their
responsibilities under federal law, and the category in which each subsidiary
falls may not necessarily constitute an accurate representation of its overall
financial condition or prospects.
4
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for the Corporation including its
consolidated subsidiaries is computed by dividing earnings by fixed charges.
The ratio of earnings to combined fixed charges and preferred stock dividends
is computed by dividing earnings by the sum of fixed charges and preferred
stock dividend requirements. Earnings consist primarily of income (loss) before
income taxes adjusted for fixed charges. Fixed charges consist primarily of
interest expense on short- and long-term borrowings and one-third (the portion
deemed representative of the interest factor) of net rents under long-term
leases.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
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1994(A) 1993(A) 1993(A) 1992(A) 1991 1990 1989
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<S> <C> <C> <C> <C> <C> <C> <C>
RATIO OF EARNINGS TO FIXED
CHARGES
Excluding interest on depos-
its.......................... 3.51 3.63 3.55 3.18 3.25 2.39 2.29
Including interest on depos-
its.......................... 1.84 1.76 1.79 1.53 1.34 1.22 1.23
RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED
STOCK DIVIDENDS
Excluding interest on depos-
its.......................... 2.70 2.74 2.69 2.55 2.89 2.25 2.15
Including interest on depos-
its.......................... 1.67 1.61 1.63 1.45 1.32 1.21 1.22
</TABLE>
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(a) This financial information reflects the effects of the SPC merger
subsequent to the merger's consummation on April 22, 1992.
USE OF PROCEEDS
The net proceeds of the Offered Securities will be used for general corporate
purposes, which may include without limitation funding investments in, or
extensions of credit to, the Corporation's subsidiaries, repayment of maturing
obligations, redemption of outstanding indebtedness or other securities and
financing possible future acquisitions. Pending such use, the Corporation may
temporarily invest the net proceeds or may use them to reduce short-term
indebtedness. A portion of the net proceeds of the Currency Warrants may be
used for the payment of costs and expenses which may be incurred by the
Corporation in hedging its currency risk with respect to the Currency Warrants.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Debt Securities so offered will be
described in the Prospectus Supplement relating to such Debt Securities.
The Senior Securities are to be issued under an Indenture dated as of
November 1, 1991 (the "Senior Indenture"), between the Corporation and First
Trust of California, National Association, as successor trustee (the "Senior
Trustee"). The Subordinated Securities are to be issued under an Indenture
dated as of November 1, 1991, as amended by a First Supplemental Indenture
dated as of September 8, 1992 (as so amended, the "Subordinated Indenture"),
between the Corporation and Chemical Trust Company of California, as trustee
(the "Subordinated Trustee", and together with the Senior Trustee, the
"Trustees"). The Senior Indenture and the Subordinated Indenture (collectively,
the "Indentures") are exhibits to the Registration Statement. The following
summaries of certain provisions of the Indentures do not purport to be complete
and are qualified in their entirety by reference to the
5
<PAGE>
provisions of the Indentures. Numerical references in parentheses below are to
sections of the Indentures. Wherever particular sections or defined terms of
the Indentures are referred to, it is intended that such sections or defined
terms shall be incorporated herein by reference. Unless otherwise indicated,
capitalized terms shall have the meanings ascribed to them in the Indentures.
GENERAL
The amount of Debt Securities offered by this Prospectus will be limited to
the amount described on the cover of this Prospectus. Each Indenture provides
that Debt Securities in an unlimited amount may be issued thereunder from time
to time in one or more series. (Section 301)
The Senior Securities will be unsecured and will rank pari passu with other
unsecured Senior Debt of the Corporation. The Subordinated Securities will be
unsecured and will rank pari passu with other Subordinated Debt of the
Corporation and, together with such other Subordinated Debt, will be
subordinate and junior in right of payment to the prior payment in full of the
Senior Debt of the Corporation as described below under "Subordination."
Reference is hereby made to the Prospectus Supplement relating to the
particular series of Debt Securities for the terms of such Debt Securities,
including, where applicable: (i) the designation and any limit on the aggregate
principal amount of such Debt Securities; (ii) the price (expressed as a
percentage of the aggregate principal amount thereof) at which such Debt
Securities will be issued; (iii) the date or dates on which such Debt
Securities will mature or method by which such dates can be determined; (iv)
the currency or currencies in which such Debt Securities are being sold and are
denominated and the circumstances, if any, under which any Debt Securities may
be payable in a currency other than the currency in which such Debt Securities
are denominated, and if so, the exchange rate, the exchange rate agent and, if
the Holder of any such Debt Securities may elect the currency in which payments
thereon are to be made, the manner of such election; (v) the denominations in
which any Debt Securities which are Registered Securities will be issuable, if
other than denominations of $1,000 and any integral multiple thereof, and the
denomination or denominations in which any Debt Securities which are Bearer
Securities will be issuable, if other than the denomination of $5,000; (vi) the
rate or rates (which may be fixed or variable) at which such Debt Securities
will bear interest, which rate may be zero in the case of certain Debt
Securities issued at an issue price representing a discount from the principal
amount payable at maturity; (vii) the date from which interest on such Debt
Securities will accrue, the dates on which such interest will be payable or
method by which such dates can be determined, the date on which payment of such
interest will commence and the circumstances, if any, in which the Corporation
may defer interest payments; (viii) the dates on which, and the price or prices
at which, such Debt Securities will, pursuant to any mandatory sinking fund
provision, or may, pursuant to any optional redemption or required repayment
provisions, be redeemed or repaid and the other terms and provisions of any
such optional redemption or required repayment; (ix) in the case of the
Subordinated Securities, any terms by which such securities may be convertible
into Common Stock (see "Description of Common Stock"), Preferred Shares (see
"Description of Preferred Shares"), Depositary Shares (see "Description of
Depositary Shares"), or any other Capital Securities (see "Description of
Capital Securities") of the Corporation and, in case of Subordinated Securities
convertible into Preferred Shares or Depositary Shares, the terms of such
Preferred Shares or Depositary Shares; (x) in the case of the Subordinated
Securities, any terms by which the principal will be exchangeable for Capital
Securities and any terms creating a fund (the "Securities Fund") pursuant to
which the proceeds of sales of Capital Securities may be designated on the
books of the Corporation for the payment of any of the principal of such
Subordinated Securities; (xi) whether such Debt Securities are to be issuable
as Bearer Securities and/or Registered Securities and, if issuable as Bearer
Securities, the terms upon which any Bearer Securities may be exchanged for
Registered Securities; (xii) whether such Debt Securities are to be issued in
the form of one or more temporary or permanent Global Securities and, if so,
the identity of the depositary for such Global Security or
6
<PAGE>
Securities; (xiii) if a temporary global Debt Security is to be issued with
respect to such series, the extent to which, and the manner in which, any
interest thereon payable on an interest payment date prior to the issuance of a
permanent Global Security or definitive Bearer Securities will be credited to
the accounts of the persons entitled thereto on such interest payment date;
(xiv) if a temporary Global Security is to be issued with respect to such
series, the terms upon which interests in such temporary Global Security may be
exchanged for interests in a permanent Global Security or for definitive Debt
Securities of the series and the terms upon which interests in a permanent
Global Security, if any, may be exchanged for definitive Debt Securities of the
series; (xv) any additional restrictive covenants included for the benefit of
Holders of such Debt Securities; (xvi) any additional Events of Default
provided with respect to such Debt Securities; (xvii) information with respect
to book-entry procedures, if any; (xviii) whether the Debt Securities will be
repayable at the option of the Holder in the event of a change in control of
the Corporation; (xix) any other material terms of the Debt Securities not
inconsistent with the provisions of the applicable Indenture; and (xx) the
material terms of any securities being offered together with or separately from
the Debt Securities. Such Prospectus Supplement will also describe any special
provisions for the payment of additional amounts with respect to the Debt
Securities and certain United States federal income tax consequences and other
special considerations applicable to such series of Debt Securities. If a Debt
Security is denominated in a foreign currency, such Debt Security may not trade
on a U.S. national securities exchange unless and until the Commission has
approved appropriate rule changes pursuant to the Act to accommodate the
trading of such Debt Security.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Unless otherwise indicated in the Prospectus
Supplement, Bearer Securities other than Bearer Securities in temporary or
permanent global form will have interest coupons attached. (Section 201) Each
Indenture also provides that Bearer Securities or Registered Securities of a
series may be issuable in permanent global form. (Section 203) See "Permanent
Global Securities."
Registered Securities of any series will be exchangeable for other Registered
Securities of the same series of authorized denominations and of a like
aggregate principal amount, tenor and terms. In addition, if Debt Securities of
any series are issuable as both Registered Securities and Bearer Securities, at
the option of the Holder upon request confirmed in writing, and subject to the
terms of the applicable Indenture, Bearer Securities (with all unmatured
coupons, except as provided below, and all matured coupons in default) of such
series will be exchangeable into Registered Securities of the same series of
any authorized denominations and of a like aggregate principal amount, tenor
and terms. Bearer Securities surrendered in exchange for Registered Securities
between the close of business on a Regular Record Date or a Special Record Date
and the relevant date for payment of interest shall be surrendered without the
coupon relating to such date for payment of interest, and interest will not be
payable in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the terms of the applicable Indenture. Bearer Securities
will not be issued in exchange for Registered Securities. (Section 305) Each
Bearer Security, other than a temporary global Bearer Security, and each
interest coupon will bear the following legend: "Any United States Person who
holds this obligation will be subject to limitations under the United States
federal income tax laws including the limitations provided in Sections 165(j)
and 1287(a) of the Internal Revenue Code."
Debt Securities may be presented for exchange as provided above, and
Registered Securities may be presented for registration of transfer (duly
endorsed or accompanied by a satisfactory written instrument of transfer), at
the office of the Security Registrar or at the office of any transfer agent
designated by the Corporation for such purpose with respect to such series of
Debt Securities, without service charge and upon payment of any taxes and other
governmental charges. (Section 305) If the
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applicable Prospectus Supplement refers to any transfer agent (in addition to
the Security Registrar) initially designated by the Corporation with respect to
any series of Debt Securities, the Corporation may at any time rescind the
designation of any such transfer agent or approve a change in the location
through which any such transfer agent (or Security Registrar) acts, except
that, if Debt Securities of a series are issuable solely as Registered
Securities, the Corporation will be required to maintain a transfer agent in
each Place of Payment for such series and, if Debt Securities of a series are
issuable as Bearer Securities, the Corporation will be required to maintain (in
addition to the Security Registrar) a transfer agent in a Place of Payment for
such series located outside the United States. The Corporation may at any time
designate additional transfer agents with respect to any series of Debt
Securities. (Section 1002)
The Corporation shall not be required (i) to issue, register the transfer of
or exchange Debt Securities of any particular series to be redeemed or
exchanged for Capital Securities for a period of 15 days preceding the first
publication of the relevant notice of redemption or, if Registered Securities
are outstanding and there is no publication, the mailing of the relevant notice
of redemption, (ii) to register the transfer of or exchange any Registered
Security so selected for redemption or exchange in whole or in part, except the
unredeemed or unexchanged portion of any Registered Security being redeemed or
exchanged in part, or (iii) to exchange any Bearer Security so selected for
redemption or exchange except that such a Bearer Security may be exchanged for
a Registered Security of like tenor and terms of that series, provided that
such Registered Security shall be surrendered for redemption or exchange.
(Section 305) Additional information regarding restrictions on the issuance,
exchange and transfer of, and special United States federal income tax
considerations relating to, Bearer Securities will be set forth in the
applicable Prospectus Supplement.
TEMPORARY GLOBAL SECURITIES
If so specified in the applicable Prospectus Supplement, all or any portion
of the Debt Securities of a series which are issuable as Bearer Securities will
initially be represented by one or more temporary Global Securities, without
interest coupons, to be deposited with a common depositary in London for Morgan
Guaranty Trust Company of New York, Brussels Office, as operator of the
Euroclear System ("Euroclear") and Cedel S.A. ("Cedel") for credit to
designated accounts. On and after the date determined as provided in any such
temporary Global Security and described in the applicable Prospectus
Supplement, but within a reasonable time, each such temporary Global Security
will be exchangeable for definitive Bearer Securities, definitive Registered
Securities or all or a portion of a permanent global Bearer Security, or any
combination thereof, as specified in such Prospectus Supplement. No definitive
Bearer Security or permanent global Bearer Security delivered in exchange for a
portion of a temporary Global Security shall be mailed or otherwise delivered
to any location in the United States in connection with such exchange.
Additional information regarding restrictions on and special United States
federal income tax consequences relating to temporary Global Securities will be
set forth in the Prospectus Supplement relating thereto.
PERMANENT GLOBAL SECURITIES
If any Debt Securities of a series are issuable in permanent global form, the
applicable Prospectus Supplement will describe the circumstances, if any, under
which beneficial owners of interests in any such permanent Global Security may
exchange such interests for Debt Securities of such series and of like tenor
and principal amount of any authorized form and denomination. Principal of and
any premium and interest on a permanent Global Security will be payable in the
manner described in the Prospectus Supplement relating thereto.
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PAYMENTS AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payments
of principal of and premium, if any, and interest, if any, on Bearer Securities
will be payable in the currency designated in the Prospectus Supplement,
subject to any applicable laws and regulations, at such paying agencies outside
the United States as the Corporation may appoint from time to time. Unless
otherwise provided in the Prospectus Supplement, such payments may be made, at
the option of the Holder, by a check in the designated currency or by transfer
to an account in the designated currency maintained by the payee with a bank
located outside the United States. Unless otherwise indicated in the applicable
Prospectus Supplement, payment of interest on Bearer Securities on any Interest
Payment Date will be made only against surrender of the coupon relating to such
Interest Payment Date to a paying agent outside the United States. (Section
1001) No payment with respect to any Bearer Security will be made at any office
or paying agency maintained by the Corporation in the United States nor will
any such payment be made by transfer to an account, or by mail to an address,
in the United States. Notwithstanding the foregoing, payments of principal of
and premium, if any, and interest, if any, on Bearer Securities denominated and
payable in U.S. dollars will be made in U.S. dollars at an office or agency of,
and designated by, the Corporation located in the United States, if payment of
the full amount thereof in U.S. dollars at all paying agencies outside the
United States is illegal or effectively precluded by exchange controls or other
similar restrictions, and the Trustee receives an opinion of counsel that such
payment within the United States is legal. (Section 1002) As used in this
Prospectus, "United States" means the United States of America (including the
States and the District of Columbia) and its possessions including Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Marianas Islands.
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of and premium, if any, and interest, if any, on a Registered
Security will be payable in the currency designated in the Prospectus
Supplement, and interest will be payable at the office of such paying agent or
paying agents as the Corporation may appoint from time to time, except that at
the option of the Corporation payment of any interest may be made by a check in
such currency mailed to the Holder at such Holder's registered address or by
wire transfer to an account in such currency designated by such Holder in
writing not less than ten days prior to the date of such payment. Unless
otherwise indicated in the applicable Prospectus Supplement, payment of any
instalment of interest on a Registered Security will be made to the Person in
whose name such Registered Security is registered at the close of business on
the Regular Record Date for such payments. (Section 307) Unless otherwise
indicated in the applicable Prospectus Supplement, principal payable at
maturity will be paid to the registered holder upon surrender of the Registered
Security at the office of a duly appointed paying agent.
The paying agents outside the United States initially appointed by the
Corporation for a series of Debt Securities will be named in the applicable
Prospectus Supplement. The Corporation may terminate the appointment of any of
the paying agents from time to time, except that the Corporation will maintain
at least one paying agent outside the United States so long as any Bearer
Securities are outstanding where Bearer Securities may be presented for payment
and may be surrendered for exchange, provided that so long as any series of
Debt Securities is listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Corporation will maintain a paying agent in London or Luxembourg
or any other required city located outside the United States, as the case may
be, for such series of Debt Securities. (Section 1002)
All moneys paid by the Corporation to a paying agent for the payment of
principal of or premium, if any, or interest, if any, on any Debt Security that
remains unclaimed at the end of two years after such principal, premium or
interest shall have become due and payable will, at request of the Corporation,
be repaid to the Corporation, and the Holder of such Debt Security or any
coupon appertaining thereto will thereafter look only to the Corporation for
payment thereof. (Section 1003)
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COVENANTS CONTAINED IN INDENTURES
The Senior Indenture provides that the Corporation (a) will not sell,
transfer, or otherwise dispose of any shares of Voting Stock of Bank of America
or permit Bank of America to issue, sell, or otherwise dispose of any shares of
its Voting Stock unless Bank of America remains a Controlled Subsidiary, and
(b) will not permit Bank of America to (i) merge or consolidate unless the
surviving corporation is a Controlled Subsidiary or (ii) convey or transfer its
properties and assets substantially as an entirety to any person, except to a
Controlled Subsidiary. (Section 1005 of the Senior Indenture) "Controlled
Subsidiary" means any corporation more than 80% of the outstanding shares of
"Voting Stock" (except for directors' qualifying shares) of which is at the
time owned directly by the Corporation. With the consent of the Holders of at
least a majority in principal amount of the outstanding Senior Securities of
each series issued under the Senior Indenture, such definition in the Senior
Indenture may be modified so as to reduce the required percentage of ownership
from 80% to a majority. (Section 902 of the Senior Indenture) The term "Voting
Stock" of Bank of America refers to stock of any class or classes, however
designated, having ordinary voting power for the election of a majority of the
Board of Directors of Bank of America, other than stock having such power only
by reason of the happening of a contingency. (Section 101 of the Senior
Indenture)
The Senior Indenture also prohibits the Corporation from creating, assuming,
incurring or suffering to exist, as security for indebtedness for borrowed
money, any mortgage, pledge, encumbrance or lien or charge of any kind upon the
Voting Stock of Bank of America (other than directors' qualifying shares)
without effectively providing that the Senior Securities shall be secured
equally and ratably with (or prior to) such indebtedness; provided, however,
that the Corporation may create, assume, incur or suffer to exist any such
mortgage, pledge, encumbrance or lien or charge without regard to the foregoing
provisions so long as after giving effect thereto, the Corporation will own at
least 80% of the Voting Stock of Bank of America then issued and outstanding,
free and clear of any such mortgage, pledge, encumbrance or lien or charge.
(Section 1004 of the Senior Indenture)
The Subordinated Indenture does not contain any of the foregoing covenants.
The Corporation is not restricted by the Indentures from incurring, assuming
or becoming liable for any type of debt or other obligations, from creating
liens on its property (other than, in the case of the Senior Indenture, the
Voting Stock of Bank of America as described above) for any purposes or from
paying dividends or making distributions on its capital stock or purchasing or
redeeming its capital stock. The Indentures do not require the maintenance of
any financial ratios or specified levels of net worth or liquidity. In
addition, the Indentures do not contain any provision which would require the
Corporation to repurchase or redeem or otherwise modify the terms of any of its
Debt Securities upon a change in control or other events involving the
Corporation which may adversely affect the creditworthiness of the Debt
Securities.
MODIFICATION AND WAIVER
Except as to the definition of Controlled Subsidiary in the Senior Indenture
and certain other modifications and amendments not adverse to Holders of Debt
Securities, modifications and amendments of and waivers of compliance with
certain restrictive provisions under each Indenture may be made only with the
consent of the Holders of not less than 66 2/3% in principal amount of the
Outstanding Debt Securities of each series thereunder affected by such
modification, amendment or waiver; provided that no such modification or
amendment may, without the consent of the Holder of each Outstanding Debt
Security or coupon affected thereby: (i) change the Stated Maturity of the
principal or any instalment of principal or any instalment of interest, if any;
(ii) reduce the amount of principal or interest, if any, thereon, or any
premium payable upon redemption or repayment thereof or in the case of an
Original Issue Discount Security the amount of principal payable upon
acceleration of the Maturity thereof; (iii) change the place of payment or the
currency in which principal or interest, if
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any, is payable; (iv) impair the right to institute suit for the enforcement of
any payment of the principal, premium, if any, and interest, if any, or
adversely affect the right of repayment, if any, at the option of the Holder;
(v) reduce the percentage in principal amount of Outstanding Debt Securities of
any series, the consent of whose Holders is required for modification or
amendment of the applicable Indenture or for waiver of compliance with certain
provisions of the applicable Indenture or for waiver of certain defaults; (vi)
reduce the requirements contained in the applicable Indenture for quorum or
voting; (vii) in the case of Subordinated Securities exchangeable for Capital
Securities, impair any right to the delivery of Capital Securities in exchange
for such Subordinated Securities or the right to institute suit for the
enforcement of any such delivery or, in the case of Subordinated Securities
convertible into Common Stock, impair any right to convert such Subordinated
Securities; or (viii) modify any of the above provisions. (Section 902)
Each Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series issued thereunder if Debt Securities of that series
are issuable in whole or in part as Bearer Securities. (Section 1401 of the
Senior Indenture, Section 1601 of the Subordinated Indenture) A meeting may be
called at any time by the Trustee for such Debt Securities, or upon the request
of the Corporation or the Holders of at least 10% in principal amount of the
Outstanding Debt Securities of such series, in any such case upon notice given
in accordance with the Indenture with respect thereto. (Section 1402 of the
Senior Indenture, Section 1602 of the Subordinated Indenture) Except as limited
by the proviso in the preceding paragraph, any resolution presented at a
meeting or adjourned meeting at which a quorum is present may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series; provided, however, that, any
resolution with respect to any consent or waiver which may be given by the
Holders of not less than 66 2/3% in principal amount of the Outstanding Debt
Securities of a series issued under an Indenture may be adopted at a meeting or
an adjourned meeting at which a quorum is present only by the affirmative vote
of the Holders of not less than 66 2/3% in principal amount of such Outstanding
Debt Securities of that series; and provided further, that, any resolution with
respect to any demand, consent, waiver or other action which may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Debt Securities of a series
issued under an Indenture may be adopted at a meeting or adjourned meeting at
which a quorum is present by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Debt Securities of
that series. (Section 1404 of the Senior Indenture, Section 1604 of the
Subordinated Indenture)
Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with the applicable Indenture
with respect thereto will be binding on all Holders of Debt Securities of that
series and the related coupons issued under that Indenture. The quorum at any
meeting of Holders of a series of Debt Securities called to adopt a resolution,
and at any reconvened meeting, will be persons holding or representing a
majority in principal amount of the Outstanding Debt Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which may be given by the Holders of not less
than 66 2/3% in principal amount of the Outstanding Debt Securities of a
series, the Persons holding or representing 66 2/3% in principal amount of the
Outstanding Debt Securities of such series issued under that Indenture will
constitute a quorum. (Section 1404 of the Senior Indenture, Section 1604 of the
Subordinated Indenture)
EVENTS OF DEFAULT
Unless otherwise provided in the applicable Prospectus Supplement, any series
of Senior Securities issued under the Senior Indenture will provide that the
following shall constitute Events of Default with respect to such series: (i)
default in payment of principal of or premium, if any, on any Senior Security
of such series when due; (ii) default for 30 days in payment of interest, if
any, on any Senior Security of such series or related coupon, if any, when due;
(iii) default in the deposit of any sinking
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fund payment on any Senior Security of such series when due; (iv) default in
the performance of any other covenant in such Indenture, continued for 90 days
after written notice thereof by the Trustee thereunder or the Holders of at
least 25% in principal amount of the Outstanding Senior Securities of such
series issued under that Indenture; (v) default for 60 days after notice in
respect of any indebtedness for borrowed money of the Corporation in excess of
$25,000,000, which default constitutes a failure to pay at maturity or as a
result of which such indebtedness shall be declared due and payable prior to
maturity; and (vi) certain events of bankruptcy, insolvency or reorganization
of the Corporation or Bank of America. (Section 501 of the Senior Indenture)
Unless otherwise provided in the applicable Prospectus Supplement, any series
of Subordinated Securities issued under the Subordinated Indenture will provide
that the only Event of Default will be certain events of bankruptcy of the
Corporation. (Section 501 of the Subordinated Indenture) Unless specifically
stated in the applicable Prospectus Supplement for a particular series of
Subordinated Securities, there is no right of acceleration of the payment of
principal of the Subordinated Securities upon a default in the payment of
principal, premium, if any, or interest, if any, or in the performance of any
covenant or agreement in the Subordinated Securities or Subordinated Indenture.
In the event of a default in the payment of principal, premium, if any, or
interest, if any, or the performance of any covenant (including, if applicable,
any covenant to deliver any Capital Securities required to be delivered or any
covenant to sell Capital Securities in a Secondary Offering) or agreement in
the Subordinated Securities or Subordinated Indenture, the Trustee, subject to
certain limitations and conditions, may institute judicial proceedings to
enforce payment of such principal, premium, if any, or interest, if any, or to
obtain the performance of such covenant or agreement or any other proper
remedy, including, in the case of the failure to deliver Capital Securities, a
proceeding to collect money equal to the principal amount of any Subordinated
Securities for which Capital Securities were to be exchanged. (Section 503 of
the Subordinated Indenture)
The Corporation is required to file with each Trustee annually an Officers'
Certificate as to the existence of any default in the performance and
observance of any of the terms, provisions and conditions of the applicable
Indenture. (Section 1007 of the Senior Indenture, Section 1004 of the
Subordinated Indenture) Each Indenture provides that if an Event of Default
specified therein shall occur and be continuing with respect to any series of
Debt Securities, either the Trustee thereunder or the Holders of not less than
25% in principal amount of the Outstanding Debt Securities of such series may
declare the principal of all the Debt Securities of such series (or in the case
of Original Issue Discount Series, such portion of the principal amount thereof
as may be specified in the terms thereof) and all accrued but unpaid interest
thereon to be due and payable. (Section 502) In certain cases, the Holders of a
majority in principal amount of the Outstanding Debt Securities of any series
may, on behalf of the Holders of all Debt Securities of any such series and any
related coupons, waive any past default or Event of Default except a default
(i) in payment of the principal of or premium, if any, or interest, if any, on
any of the Debt Securities of such series or (ii) in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of such series or
coupon affected. (Section 513)
Each Indenture contains a provision entitling the Trustee thereunder, subject
to the duty of such Trustee during default to act with the required standard of
care, to be indemnified by the Holders of the Debt Securities of any series
thereunder or any related coupons before proceeding to exercise any right or
power under such Indenture with respect to such series at the request of such
Holders. (Section 603) Each Indenture provides that no Holder of any Debt
Securities of any series thereunder or any related coupons may institute any
proceeding, judicial or otherwise, to enforce such Indenture except in the case
of failure of the Trustee thereunder, for 60 days, to act after it is given
notice of default, a request to enforce such Indenture by the Holders of not
less than 25% in principal amount of the Outstanding Debt Securities of such
series and an offer of reasonable indemnity. (Section 507) This provision will
not prevent any Holder of Debt Securities or any related coupons from enforcing
payment of the principal thereof and premium, if any, and interest, if any,
thereon at the respective due dates thereof. (Section 508) The Holders of a
majority in principal amount of the Outstanding Debt Securities
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of any series issued under an Indenture may direct the time, method and place
of conducting any proceedings for any remedy available to the Trustee for such
Debt Securities or exercising any trust or power conferred on it with respect
to the Debt Securities of such series. However, such Trustee may refuse to
follow any direction that conflicts with law or the Indenture under which it
serves or which it determines in good faith would be unjustly prejudicial to
Holders not joining therein. (Section 512)
Each Indenture provides that the Trustee thereunder will, within 90 days
after the occurrence of a default with respect to any series of Debt Securities
thereunder known to it, give to the Holders of Debt Securities of such series
notice of such default if not cured or waived, but, except in the case of a
default in the payment of principal of or premium, if any, or interest, if any,
on any Debt Securities of such series or any related coupons or in the payment
of any sinking fund instalment with respect to Debt Securities of such series
or in the exchange of Capital Securities for Debt Securities of such series,
the Trustee for such Debt Securities shall be protected in withholding such
notice if it determines in good faith that the withholding of such notice is in
the interest of the Holders of such Debt Securities. (Section 602)
DEFEASANCE
The Corporation may terminate certain of its obligations under each Indenture
with respect to the Debt Securities of any series thereunder, including its
obligations to comply with the covenants described under the heading "Covenants
Contained in Indentures" above, with respect to such Debt Securities, on the
terms and subject to the conditions contained in such Indentures, by depositing
in trust with the Trustee money and/or, to the extent such Debt Securities are
denominated and payable in U.S. dollars only, Eligible Instruments which,
through the payment of principal and interest in accordance with their terms,
will provide money in an amount sufficient to pay the principal and premium, if
any, and interest, if any, on such Debt Securities, and any mandatory sinking
fund, repayment or analogous payments thereon, on the scheduled due dates
therefor. Such deposit and termination is conditioned upon the Corporation's
delivery of an opinion of counsel that the Holders of such Debt Securities will
have no federal income tax consequences as a result of such deposit and
termination. Such termination will not relieve the Corporation of its
obligation to pay when due the principal of or interest on such Debt Securities
if such Debt Securities of such series are not paid from the money or Eligible
Instruments held by the Trustee for the payment thereof. (Section 401) The
applicable Prospectus Supplement may further describe the provisions, if any,
permitting or restricting such defeasance with respect to the Debt Securities
of a particular series.
SUBORDINATION
The Subordinated Securities shall be subordinate and junior in right of
payment, to the extent set forth in the Subordinated Indenture, to all Senior
Debt (as defined below) of the Corporation. In the event that the Corporation
shall default in the payment of any principal, premium, if any, or interest, if
any, on any Senior Debt when the same becomes due and payable, whether at
Maturity or at a date fixed for prepayment or by declaration of acceleration or
otherwise, then, unless and until such default shall have been cured or waived
or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made for principal, premium, if any, or interest, if any, on the Subordinated
Securities, or in respect of any redemption, repayment, retirement, purchase or
other acquisition of any of the Subordinated Securities. (Section 1801 of the
Subordinated Indenture) "Senior Debt" means any obligation of the Corporation
to its creditors, whether now outstanding or subsequently incurred, other than
(i) any obligation as to which, in the instrument creating or evidencing the
obligation or pursuant to which the obligation is outstanding, it is provided
that such obligation is not Senior Debt and (ii) the Subordinated Securities.
(Section 101 of the Subordinated Indenture) As of March 31, 1994, the
Corporation (the Parent) had approximately $10.4 billion of Senior Debt
outstanding.
In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Corporation, its creditors or its
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property, (ii) any proceeding for the liquidation, dissolution or other winding
up of the Corporation, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings, (iii) any assignment by the Corporation
for the benefit of creditors or (iv) any other marshalling of the assets of the
Corporation, all Senior Debt (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall
be made on account of the principal of or premium, if any, or interest, if any,
on the Subordinated Securities. In such event, any payment or distribution on
account of the principal of or premium, if any, or interest, if any, on the
Subordinated Securities, whether in cash, securities or other property (other
than securities of the Corporation or any other corporation provided for by a
plan of reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in the subordination provisions with respect to
the Subordinated Securities, to the payment of all Senior Debt at the time
outstanding, and to any securities issued in respect thereof under any such
plan of reorganization or readjustment), which would otherwise (but for the
subordination provisions) be payable or deliverable in respect of the
Subordinated Securities shall be paid or delivered directly to the holders of
Senior Debt in accordance with the priorities then existing among such holders
until all Senior Debt (including any interest thereon accruing after the
commencement of any such proceedings) shall have been paid in full. (Section
1801 of the Subordinated Indenture)
In the event of any such proceeding, after payment in full of all sums owing
with respect to Senior Debt, the Holders of Subordinated Securities, together
with the holders of any obligations of the Corporation ranking on a parity with
the Subordinated Securities, shall be entitled to be paid from the remaining
assets of the Corporation the amounts at the time due and owing on account of
unpaid principal of and premium, if any, and interest, if any, on the
Subordinated Securities and such other obligations before any payment or other
distribution, whether in cash, property or otherwise, shall be made on account
of any capital stock or obligations of the Corporation ranking junior to the
Subordinated Securities and such other obligations. If any payment or
distribution on account of the principal of or interest on the Subordinated
Securities of any character or any security, whether in cash, securities or
other property (other than securities of the Corporation or any other
corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in the
subordination provisions with respect to the Subordinated Securities, to the
payment of all Senior Debt at the time outstanding and to any securities issued
in respect thereof under any such plan of reorganization or readjustment) shall
be received by any Holder of any Subordinated Securities in contravention of
any of the terms hereof and before all the Senior Debt shall have been paid in
full, such payment or distribution or security shall be received in trust for
the benefit of, and shall be paid over or delivered and transferred to, the
holders of the Senior Debt at the time outstanding in accordance with the
priorities then existing among such holders for application to the payment of
all Senior Debt remaining unpaid to the extent necessary to pay all such Senior
Debt in full. (Section 1801 of the Subordinated Indenture) By reason of such
subordination, in the event of the insolvency of the Corporation, holders of
Senior Debt may receive more, ratably, and holders of the Subordinated
Securities having a claim pursuant to such securities may receive less,
ratably, than the other creditors of the Corporation. Such subordination will
not prevent the occurrence of any Event of Default in respect of the
Subordinated Securities.
The Subordinated Indenture may be modified or amended as provided under
"Modification and Waiver" above, provided that no such modification or
amendment may, without the consent of the holders of all Senior Debt
outstanding, modify any of the provisions of the Subordinated Indenture
relating to the subordination of the Subordinated Securities and any related
coupons in a manner adverse to such holders. (Section 902 of the Subordinated
Indenture)
CONVERSION OF SUBORDINATED CONVERTIBLE SECURITIES
The Holders of Subordinated Securities of a specified series that are
convertible into Common Stock, Preferred Shares or Depositary Shares of the
Corporation ("Subordinated Convertible
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Securities") will be entitled at certain times specified in the applicable
Prospectus Supplement, subject to prior redemption, repayment or repurchase, to
convert any Subordinated Convertible Securities of such series (in
denominations set forth in the applicable Prospectus Supplement) into Common
Stock, Preferred Shares or Depositary Shares, as the case may be, at the
conversion price set forth in the applicable Prospectus Supplement, subject to
adjustment as described below and in the applicable Prospectus Supplement.
Except as described below, no adjustment will be made on conversion of any
Subordinated Convertible Securities for interest accrued thereon or for
dividends on any Common Stock, Preferred Shares or Depositary Shares issued.
(Section 1903 of the Subordinated Indenture) If any Subordinated Convertible
Securities not called for redemption are converted between a Regular Record
Date for the payment of interest and the next succeeding Interest Payment Date,
such Subordinated Convertible Securities must be accompanied by funds equal to
the interest payable on such succeeding Interest Payment Date on the principal
amount so converted. (Section 1903 of the Subordinated Indenture) The
Corporation is not required to issue fractional shares of Common Stock upon
conversion of Subordinated Convertible Securities that are convertible into
Common Stock and, in lieu thereof, will pay a cash adjustment based upon the
Closing Price (as defined in the Subordinated Indenture) of the Common Stock on
the last business day prior to the date of conversion. (Section 1904 of the
Subordinated Indenture) In the case of Subordinated Convertible Securities
called for redemption, conversion rights will expire at the close of business
on the redemption date. (Section 1902 of the Subordinated Indenture)
Unless otherwise indicated in the applicable Prospectus Supplement, the
conversion price for Subordinated Convertible Securities that are convertible
into Common Stock is subject to adjustment under formulas set forth in the
Subordinated Indenture in certain events, including: the issuance of the
Corporation's capital stock as a dividend or distribution on the Common Stock;
subdivisions and combinations of the Common Stock; the issuance to all holders
of Common Stock of certain rights or warrants entitling them to subscribe for
or purchase Common Stock within 45 days after the date fixed for the
determination of the stockholders entitled to receive such rights or warrants,
at less than the current market price (as defined in the Subordinated
Indenture); and the distribution to all holders of Common Stock of evidences of
indebtedness or assets of the Corporation (excluding certain cash dividends and
distributions described in the next paragraph) or rights or warrants (excluding
those referred to above). (Section 1906 of the Subordinated Indenture) In the
event that the Corporation shall distribute any rights or warrants to acquire
capital stock ("Capital Stock Rights") pursuant to which separate certificates
representing such Capital Stock Rights will be distributed subsequent to the
initial distribution of such Capital Stock Rights (whether or not such
distribution shall have occurred prior to the date of the issuance of a series
of Subordinated Convertible Securities), such subsequent distribution shall be
deemed to be the distribution of such Capital Stock Rights; provided that the
Corporation may, in lieu of making any adjustment in the conversion price upon
a distribution of separate certificates representing such Capital Stock Rights,
make proper provision so that each Holder of such a Subordinated Convertible
Security who converts such Subordinated Convertible Security (or any portion
thereof) (a) before the record date for such distribution of separate
certificates shall be entitled to receive upon such conversion shares of Common
Stock issued with Capital Stock Rights and (b) after such record date and prior
to the expiration, redemption or termination of such Capital Stock Rights shall
be entitled to receive upon such conversion, in addition to the shares of
Common Stock issuable upon such conversion, the same number of such Capital
Stock Rights as would a holder of the number of shares of Common Stock that
such Subordinated Convertible Security so converted would have entitled the
holder thereof to acquire in accordance with the terms and provisions
applicable to the Capital Stock Rights if such Subordinated Convertible
Security were converted immediately prior to the record date for such
distribution. Common Stock owned by or held for the account of the Corporation
or any majority owned subsidiary shall not be deemed outstanding for the
purpose of any adjustment.
No adjustment in the conversion price of Subordinated Convertible Securities
that are convertible into Common Stock will be made for regular quarterly or
other periodic or recurring cash dividends or
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distributions or for cash dividends or distributions to the extent paid from
retained earnings. No adjustment in the conversion price of Subordinated
Convertible Securities that are convertible into Common Stock will be required
unless such adjustment would require a change of at least 1% in the conversion
price then in effect, provided, that any such adjustment not so made will be
carried forward and taken into account in any subsequent adjustment; and
provided further that any such adjustment not so made shall be made no later
than three years after the occurrence of the event requiring such adjustment to
be made or carried forward. Notwithstanding any of the foregoing, neither the
issuance of Common Stock under the Corporation's Shareholder Investment Plan or
any successor plans providing for the purchase of shares of Common Stock by the
Corporation's stockholders or employees at a price not less than 90% of the
"average market price" during the "pricing period," as such terms, or
equivalent terms, are defined in, and as calculated pursuant to, such plans
from time to time, nor the granting or exercise of any rights thereunder, shall
require an adjustment to the conversion price of Subordinated Convertible
Securities that are convertible into Common Stock. The Corporation reserves the
right to make such reductions in the conversion price in addition to those
required in the foregoing provisions as the Corporation in its discretion shall
determine to be advisable in order that certain stock-related distributions
hereafter made by the Corporation to its stockholders shall not be taxable.
(Section 1906 of the Subordinated Indenture) Except as stated above, the
conversion price will not be adjusted for the issuance of Common Stock or any
securities convertible into or exchangeable for Common Stock, or securities
carrying the right to purchase any of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Corporation or (iii) a sale or conveyance
to another corporation of the property and assets of the Corporation as an
entirety or substantially as an entirety, in each case as a result of which
holders of Common Stock shall be entitled to receive stock, securities, other
property or assets (including cash) with respect to or in exchange for such
Common Stock, the Holders of the Subordinated Convertible Securities then
outstanding that are convertible into Common Stock will be entitled thereafter
to convert such Subordinated Convertible Securities into the kind and amount of
shares of stock and other securities or property which they would have received
upon such reclassification, change, consolidation, merger, sale or conveyance
had such Subordinated Convertible Securities been converted into Common Stock
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance. (Section 1907 of the Subordinated Indenture)
In the event of a taxable distribution to holders of Common Stock (or other
transaction) which results in any adjustment of the conversion price of
Subordinated Convertible Securities that are convertible into Common Stock, the
Holders of such Subordinated Convertible Securities may, in certain
circumstances, be deemed to have received a distribution subject to United
States income tax as a dividend; in certain other circumstances, the absence of
such an adjustment may result in a taxable dividend to the holders of Common
Stock or such Subordinated Convertible Securities.
INFORMATION CONCERNING THE TRUSTEES
The Senior Trustee serves as successor trustee under two indentures for
Senior Debt pursuant to which certain debentures and notes of the Corporation
are outstanding. Bank of America also maintains a deposit account and conducts
other banking transactions with First Bank Systems, Inc., an affiliate of the
Senior Trustee.
The Subordinated Trustee serves as trustee under three indentures for
subordinated debt pursuant to which certain debentures and notes of the
Corporation are outstanding, as transfer agent and registrar for the
Corporation's outstanding common and preferred stock, as depositary for certain
of the Corporation's preferred stock issues and as Rights Agent under the
Corporation's Rights Agreement, described in "Description of Common Stock--
Rights Agreement," below. Chemical Bank,
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an affiliate of the Subordinated Trustee, also serves as trustee under two
indentures for subordinated debt of the Corporation. In addition, Bank of
America and certain of its affiliates maintain deposit accounts and/or conduct
other banking transactions with Chemical Bank.
The Trustees may, from time to time, make loans to the Corporation and
perform other services for the Corporation in the normal course of business.
Under the provisions of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), upon the occurrence of a default under an indenture, if a
trustee has a conflicting interest (as defined in the Trust Indenture Act) the
trustee must, within 90 days, either eliminate such conflicting interest or
resign. Under the provisions of the Trust Indenture Act, an indenture trustee
shall be deemed to have a conflicting interest if the trustee is a creditor of
the obligor. If the trustee fails either to eliminate the conflicting interest
or to resign within 10 days after the expiration of such 90-day period, the
trustee is required to notify debt holders to this effect and any debt holder
who has been a bona fide holder for at least six months may petition a court to
remove the trustee and to appoint a successor trustee.
DESCRIPTION OF CAPITAL SECURITIES
The following description of Capital Securities is included in this
Prospectus because a Prospectus Supplement may provide that Capital Securities
will be issuable in exchange for a series of mandatory convertible Subordinated
Securities or upon conversion of a series of mandatory convertible Preferred
Shares. Whenever Capital Securities are exchangeable for Subordinated
Securities, the Corporation will be obligated to deliver Capital Securities
with a Market Value (as defined below) equal to the principal amount of such
Subordinated Securities. In addition, the Corporation will unconditionally
undertake to sell the Capital Securities in a sale (the "Secondary Offering")
on behalf of any Holders who elect to receive cash for the Capital Securities.
The Corporation will bear all expenses of the Secondary Offering, including
underwriting discounts and commissions. However, there is no assurance that
there will be a market for the Capital Securities when issued or at any time
thereafter. If the Corporation fails to deliver any Capital Securities when
required to be delivered, the Trustee may institute judicial proceedings for
(i) specific performance, (ii) money equal to the principal amount of the
Subordinated Securities for which Capital Securities were to be exchanged or
(iii) any other proper remedy. (Section 503 of the Subordinated Indenture) If
the Corporation fails to effect the Secondary Offering, it will deliver to the
Holders Capital Securities, and not cash, upon exchange of the Subordinated
Securities. In such event, the Corporation will have no specifically
enforceable obligation to effect the Secondary Offering, but will not be
relieved of any liability for money damages it would have for breach of its
obligation to effect a Secondary Offering of sufficient amounts of Capital
Securities. The "Market Value" of any Capital Securities means their sale price
in the Secondary Offering. If the Corporation does not effect the Secondary
Offering, the Market Value of such Capital Securities shall be their fair value
when exchanged as determined by three independent nationally recognized
investment banking firms selected by the Corporation.
Whenever Preferred Shares are mandatorily convertible into Capital
Securities, the Corporation will be obligated to deliver Capital Securities in
an amount either based upon a conversion price or with a required conversion
value. The conversion value will be determined by then market prices, by an
auction or bidding procedure or by such other method as set forth in the
applicable Prospectus Supplement.
The staff of the Commission has advised that Rules 13e-4 and 14e-1 of the
Commission's rules and regulations under the Act relating to tender offers by
issuers, as currently in effect and interpreted, would be applicable to the
exchange of Capital Securities for Subordinated Securities of any series and
the Secondary Offering. If, at the time of the exchange of Capital Securities
for Subordinated Securities of any series and the Secondary Offering, Rule 13e-
4 or Rule 14e-1 (or any successor rule or rules) applies to such transactions,
the Corporation will comply with such rule (or any successor rule or rules) and
will afford holders of such Subordinated Securities all rights and will make
all filings required by
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such rule (or successor rule or rules). Rule 13e-4 and Rule 14e-1 may also be
deemed to apply to mandatorily convertible Preferred Shares.
The Capital Securities may consist of Common Stock, Perpetual Preferred Stock
(as defined below) or other capital securities of the Corporation acceptable to
its primary federal regulator. All Capital Securities which will be
exchangeable for Subordinated Securities or issuable upon conversion of
Preferred Shares will, upon issuance, be duly authorized, validly issued and,
if applicable, fully paid and nonassessable. The Common Stock of the
Corporation is described below under "Description of Common Stock."
The Corporation may select any preferred stock or depositary shares
representing preferred stock ("Perpetual Preferred Stock") that is not
mandatorily, or at the option of the holder, redeemable or repayable, otherwise
than in shares of Common Stock or Perpetual Preferred Stock of another class or
series or with the proceeds of the sale of Common Stock or Perpetual Preferred
Stock, as Capital Securities to be exchanged for Subordinated Securities or
issued upon conversion of Preferred Shares. Any shares of Perpetual Preferred
Stock to be so issued will have such designations, preferences, dividend and
other rights, qualifications, limitations and restrictions as may be determined
by the Corporation and approved by the Board of Directors. A general
description of the preferred stock of the Corporation is set forth below under
"Description of Preferred Shares--Outstanding Preferred Stock."
The Corporation may also select any other securities to be exchanged for
Subordinated Securities or issued upon conversion of Preferred Shares which
qualify at the time of exchange or conversion as Capital Securities as
determined by the Corporation's primary federal regulator. Such other Capital
Securities will have such terms as may be determined by the Corporation.
DESCRIPTION OF PREFERRED SHARES
The following description of the terms of the Preferred Shares sets forth
certain general terms and provisions of the Preferred Shares to which any
Prospectus Supplement may relate. Particular terms of the Preferred Shares
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Preferred Shares so offered will be
described in the Prospectus Supplement relating to such Preferred Shares. The
description of certain provisions of the Preferred Shares set forth below and
in the Prospectus Supplement does not purport to be complete and is subject to
and qualified in its entirety by reference to the Certificate of Designations
relating to the particular series of Preferred Shares, which will be filed with
the Commission at or prior to the time of the sale of such Preferred Shares.
GENERAL
Under the Corporation's Certificate of Incorporation, the Board of Directors
of the Corporation is authorized without further stockholder action to adopt
resolutions providing for the issuance of up to 70,000,000 shares of preferred
stock, without par value, in one or more series, with such voting powers, full
or limited, and with such designations, preferences and relative,
participating, optional or other special rights and qualifications, limitations
or restrictions, as may be determined by the Board of Directors. As of the date
of this Prospectus, the Corporation has eleven series of preferred stock
outstanding, which are described below under "--Outstanding Preferred Stock."
The Preferred Shares shall have the dividend, liquidation, redemption and
voting rights and, if applicable, conversion rights set forth below unless
otherwise provided in the Prospectus Supplement relating to a particular series
of Preferred Shares. Reference is made to the Prospectus Supplement relating to
the particular series of Preferred Shares offered thereby for specific terms,
including, where
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applicable: (i) the title and stated value of such Preferred Shares; (ii) the
price at which such Preferred Shares will be issued; (iii) the dividend rates
and dates on which dividends shall be payable, as well as the dates from which
dividends shall commence to cumulate; (iv) any dates on which such Preferred
Shares will be subject to redemption and the redemption prices; (v) any
mandatory redemption or sinking fund provisions; (vi) any rights on the part of
the holder to convert such Preferred Shares into shares of Common Stock; (vii)
any provisions for the mandatory conversion of such Preferred Shares into
Capital Securities; (viii) any additional dividend, liquidation, redemption,
sinking fund, voting and other rights, preferences, privileges, limitations and
restrictions; (ix) whether interests in the Preferred Shares will be
represented by Depositary Shares; and (x) the material terms of any securities
being offered together with or separately from such Preferred Shares.
The Preferred Shares will be fully paid and nonassessable, and for each share
issued, a sum equal to the stated value will be credited to the Corporation's
preferred stock account. The Preferred Shares will rank on a parity in all
respects with the outstanding preferred stock of the Corporation. See "--
Outstanding Preferred Stock," below.
DIVIDENDS
Holders of Preferred Shares will be entitled to receive quarterly cash
dividends, when and as declared by the Board of Directors of the Corporation,
out of funds of the Corporation legally available for payment, at such rates
and on such dates as will be set forth in the applicable Prospectus Supplement.
Each dividend will be payable to holders of record as they appear on the stock
books of the Corporation on the record date fixed by the Board of Directors of
the Corporation. Dividends will be cumulative from and after the date set forth
in the applicable Prospectus Supplement. If, for any dividend period or
periods, full cumulative dividends on any shares of preferred stock have not
been paid or declared and set apart for payment or the Corporation is in
default or in arrears with respect to any sinking fund or other arrangement for
the purchase or redemption of any shares of preferred stock, the Corporation
may not declare any dividends on, or make any payment on account of the
purchase, redemption or other retirement of, its Common Stock or any other
stock of the Corporation ranking as to dividends or distribution of assets
junior to the preferred stock. If dividends on Preferred Shares are in arrears,
and there shall be outstanding shares of any other series of preferred stock
ranking on a parity as to dividends with the Preferred Shares, the Corporation,
in making any dividend payment on account of such arrears, is required to make
payments ratably upon all outstanding Preferred Shares and shares of such other
series of preferred stock in proportion to the respective amounts of dividends
in arrears on such Preferred Shares and shares of such other series of
preferred stock. See "BankAmerica Corporation" for a description of certain
legal restrictions placed on Bank of America, SFNB and the Corporation's other
depository subsidiaries regarding providing funds to the Corporation.
LIQUIDATION RIGHTS
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of Preferred Shares will be entitled
to receive out of assets of the Corporation available for distribution to
stockholders, before any distribution of assets is made to holders of Common
Stock, liquidating distributions in the amount of the liquidation price per
share (as set forth in the applicable Prospectus Supplement) plus all accrued
and unpaid dividends. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the amounts payable with respect
to the Preferred Shares and any other shares of stock of the Corporation
ranking as to any such distribution on a parity with the Preferred Shares are
not paid in full, the holders of the Preferred Shares and of
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such other shares will share ratably in any such distribution of assets of the
Corporation in proportion to the full respective preferential amounts to which
they are entitled. After payment of the full amount of the liquidating
distribution to which they are entitled, the holders of Preferred Shares will
not be entitled to any further participation in any distribution of assets by
the Corporation. A consolidation or merger of the Corporation with or into any
other corporation or corporations or a sale of all or substantially all of the
assets of the Corporation shall not be deemed to be a liquidation, dissolution
or winding up of the Corporation.
REDEMPTION
The Preferred Shares will be redeemable in whole or in part, at the option of
the Corporation, at the times and at the redemption prices set forth in the
applicable Prospectus Supplement.
The Corporation may not purchase or redeem any of the outstanding shares of
any series of Preferred Shares unless full cumulative dividends have been paid
or declared and set apart for payment upon all outstanding shares of any series
of preferred stock for all past dividend periods, and unless all matured
obligations of the Corporation with respect to all sinking funds, retirement
funds or purchase funds for all series of preferred stock then outstanding have
been met.
In addition, under current regulations, in order to qualify as Tier I
capital, a series of Preferred Shares may not be redeemed at the Corporation's
option without the prior approval of the Federal Reserve Board. The Corporation
expects that, ordinarily, the Federal Reserve would permit such a redemption if
the shares are redeemed with the proceeds of, or replaced by, a like amount of
a similar or higher quality capital instrument and if the Corporation's capital
position is considered fully adequate by the Federal Reserve.
VOTING RIGHTS
Except as indicated below or in the applicable Prospectus Supplement, or
except as expressly required by applicable law, the holders of the Preferred
Shares will not be entitled to vote.
If the equivalent of six quarterly dividends payable on any series of the
Preferred Shares or any other series of preferred stock are in default (whether
or not declared or consecutive), the holders of all outstanding series of
preferred stock, voting as a single class without regard to series, will be
entitled to elect two directors until all dividends in default have been paid
or declared and set apart for payment.
The affirmative vote of the holders of at least two-thirds of the outstanding
shares of the Preferred Shares and any other series of preferred stock, voting
as a single class without regard to series, will be required (i) for any
amendment of the Corporation's Certificate of Incorporation (or any certificate
supplemental thereto providing for the capital stock of the Corporation) or By-
laws that will materially and adversely change the preferences, privileges,
rights or powers of the preferred stock, but, in any case in which one or more,
but not all, series of preferred stock would be so affected as to their
preferences, privileges, rights or powers, only the consent of holders of at
least two-thirds of the shares of each series that would be so affected, voting
separately as a class, shall be required or (ii) to issue any class of stock
that shall have preference as to payment of dividends or distribution of assets
over any outstanding series of preferred stock.
All stockholder action must be taken at a meeting. Stockholder action by
written consent is not permitted.
The Corporation's Certificate of Incorporation may be amended to increase the
number of authorized shares of the preferred stock without the vote of the
holders of outstanding Preferred Shares.
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CONVERSION RIGHTS
The Prospectus Supplement for any series of Preferred Shares will state
whether shares in that series are convertible into Common Stock. See
"Description of Common Stock," below. Unless otherwise provided in the
applicable Prospectus Supplement, if a series of Preferred Shares is
convertible into shares of Common Stock ("Convertible Preferred Shares"),
holders of such Convertible Preferred Shares will have the right, at their
option and at any time, to convert any of such Convertible Preferred Shares,
initially at the conversion rate set forth in the Prospectus Supplement
relating to such Convertible Preferred Shares, provided that if such series of
Convertible Preferred Shares is called for redemption, the conversion rights
pertaining thereto will terminate at the close of business on the date fixed
for redemption. No fractional share or scrip representing a fractional share
will be issued upon conversion of the Convertible Preferred Shares, but if such
conversion results in a fraction, an equivalent amount will be paid in cash by
the Corporation, based on the Closing Price, as defined in the Certificate of
Designations for such series of Convertible Preferred Shares, of the
Corporation's Common Stock on the business day immediately preceding the day on
which the Convertible Preferred Shares are converted. No payment or adjustment
shall be made upon conversion of the Convertible Preferred Shares in respect of
dividends accrued and unpaid to the date of conversion or in respect of any
dividends on the Common Stock issued upon such conversion.
Unless otherwise indicated in the applicable Prospectus Supplement, the
conversion rate is subject to adjustment in certain events, including: (i) the
issuance of the Corporation's capital stock as a dividend or distribution on
the Common Stock; (ii) subdivisions and combinations of the Common Stock; (iii)
the issuance to all holders of Common Stock of certain rights or warrants
entitling them to subscribe for or purchase Common Stock within 45 days after
the date fixed for the determination of the stockholders entitled to receive
such rights or warrants, at less than the current market price (as defined in
the Certificate of Designations for such series of Convertible Preferred
Shares); and (iv) the distribution to all holders of Common Stock of evidences
of indebtedness or assets of the Corporation (excluding certain cash dividends
and distributions described below) or rights or warrants (excluding those
referred to above). In the event that the Corporation shall distribute any
rights or warrants to acquire capital stock pursuant to clause (iv) above (the
"Capital Stock Rights"), pursuant to which separate certificates representing
such Capital Stock Rights will be distributed subsequent to the initial
distribution of such Capital Stock Rights (whether or not such distribution
shall have occurred prior to the date of the issuance of a series of
Convertible Preferred Shares), such subsequent distribution shall be deemed to
be the distribution of such Capital Stock Rights; provided that the Corporation
may, in lieu of making any adjustment in the conversion rate upon a
distribution of separate certificates representing such Capital Stock Rights,
make proper provision so that each holder of such a Convertible Preferred Share
who converts such Convertible Preferred Share (or any portion thereof) (a)
before the record date for such distribution of separate certificates shall be
entitled to receive upon such conversion shares of Common Stock issued with
Capital Stock Rights and (b) after such record date and prior to the
expiration, redemption or termination of such Capital Stock Rights shall be
entitled to receive upon such conversion, in addition to the shares of Common
Stock issuable upon such conversion, the same number of such Capital Stock
Rights as would a holder of the number of shares of Common Stock that such
Convertible Preferred Share so converted would have entitled the holder thereof
to acquire in accordance with the terms and provisions applicable to the
Capital Stock Rights if such Convertible Preferred Share were converted
immediately prior to the record date for such distribution. Common Stock owned
by or held for the account of the Corporation or any majority owned subsidiary
shall not be deemed outstanding for the purpose of any adjustment.
No adjustment in the conversion rate will be made for regular quarterly or
other periodic or recurring cash dividends or distributions or for cash
dividends or distributions to the extent paid from retained earnings. No
adjustment in the conversion rate will be required unless such adjustment would
require a change of at least 1% in the conversion rate then in effect; provided
that any such adjustment not so made will be carried forward and taken into
account in any subsequent adjustment; and provided further
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that any such adjustment not so made shall be made no later than three years
after the occurrence of the event requiring such adjustment to be made or
carried forward. Notwithstanding any of the foregoing, neither the issuance of
Common Stock under the Corporation's Shareholder Investment Plan or any
successor plans providing for the purchase of shares of Common Stock by the
Corporation's stockholders or employees at a price not less than 90% of the
"average market price" during the "pricing period," as such terms, or
equivalent terms, are defined in, and as calculated pursuant to, such plans
from time to time, nor the granting or exercise of any rights thereunder, shall
require an adjustment to the conversion rate. The Corporation reserves the
right to make such increases in the conversion rate in addition to those
described in the foregoing provisions as the Corporation in its discretion
shall determine to be advisable in order that certain stock-related
distributions hereafter made by the Corporation to its stockholders shall not
be taxable. Except as stated above, the conversion rate will not be adjusted
for the issuance of Common Stock or any securities convertible into or
exchangeable for Common Stock, or securities carrying the right to purchase any
of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Corporation or (iii) a sale or conveyance
to another corporation of the property and assets of the Corporation as an
entirety or substantially as an entirety, in each case as a result of which
holders of the Corporation's Common Stock shall be entitled to receive stock,
securities, other property or assets (including cash) with respect to or in
exchange for such Common Stock, the holders of the Convertible Preferred Shares
then outstanding will be entitled thereafter to convert such Convertible
Preferred Shares into the kind and amount of shares of stock and other
securities or property which they would have received upon such
reclassification, change, consolidation, merger, sale or conveyance had such
Convertible Preferred Shares been converted into Common Stock immediately prior
to such reclassification, change, consolidation, merger, sale or conveyance.
If at any such time the Corporation makes a distribution of property to its
shareholders that would be taxable to such shareholders as a dividend for
federal income tax purposes (for example, distributions of evidences of
indebtedness or assets of the Corporation, but generally not stock dividends or
rights to subscribe to capital stock) and, pursuant to the antidilution
provisions described above, the conversion rate of the Convertible Preferred
Stock is increased, such increase may be deemed to be the receipt of taxable
income by Holders of the Convertible Preferred Stock.
OUTSTANDING PREFERRED STOCK
The Preferred Shares will rank on a parity in all respects with the
outstanding preferred stock (the "Preferred Stock") of the Corporation. The
Common Stock of the Corporation, including the Common Stock that may be issued
upon conversion of the Preferred Shares or in exchange for or upon conversion
of Subordinated Debt Securities, will be subject to any prior rights of the
Preferred Stock then outstanding. Therefore, the rights of the outstanding
Preferred Stock, described below, and any other preferred stock that may be
subsequently issued, may limit the rights of the holders of the Preferred
Shares, Perpetual Preferred Stock and Common Stock of the Corporation. As of
May 31, 1994, the Corporation had outstanding 5,178,000 shares of Cumulative
Adjustable Preferred Stock, Series A (the "Series A Preferred"), 3,546,100
shares of Cumulative Adjustable Preferred Stock, Series B (the "Series B
Preferred"), 7,250,000 shares of 9 5/8% Cumulative Preferred Stock, Series F
(the "Series F Preferred"), 4,998,357 shares of 6 1/2% Cumulative Convertible
Preferred Stock, Series G (the "Series G Preferred"), 11,250,000 shares of 9%
Cumulative Preferred Stock, Series H (the "Series H Preferred "), 200,000
shares of 11% Preferred Stock, Series I (the "Series I Preferred"), 400,000
shares of 11% Preferred Stock, Series J (the "Series J Preferred"), 14,600,000
shares of 8 3/8% Cumulative Preferred Stock, Series K (the "Series K
Preferred"), 800,000 shares of 8.16% Cumulative Preferred Stock, Series L (the
"Series L Preferred"), 700,000 shares of 7 7/8% Cumulative Preferred Stock,
Series M (the "Series M Preferred") and 475,000 shares of 8 1/2% Cumulative
Preferred Stock, Series N (the "Series N Preferred").
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Except as required by law and described below, the holders of Preferred Stock
are not entitled to vote. If the equivalent of six quarterly dividends payable
on any series of the Preferred Stock are in default (whether or not declared or
consecutive), the holders of all outstanding series of Preferred Stock, voting
as a single class without regard to series, will be entitled to elect two
directors until all dividends in default have been paid or declared and set
apart for payment.
The affirmative vote of the holders of at least two-thirds of the outstanding
shares of the Preferred Stock, voting as a single class without regard to
series, will be required (i) for any amendment of Certificate of Incorporation
(or any certificate supplemental thereto providing for the capital stock of the
Corporation) or By-laws that will materially and adversely change the
preferences, privileges, rights or powers of the Preferred Stock, but in any
case in which one or more, but not all, series of Preferred Stock would be so
affected as to their preferences, privileges, rights or powers, only the
consent of holders of at least two-thirds of the shares of each series that
would be so affected, voting separately as a class, shall be required or (ii)
to issue any class of stock that shall have preference as to dividends or
distribution of assets over any outstanding series of Preferred Stock. In
addition, the vote or consent of holders of at least two-thirds of all
outstanding shares of Series I Preferred and Series J Preferred, each voting
separate as a class, is required to authorize any amendment to the
Corporation's Certificate of Incorporation or to any certificates supplemental
thereto that would adversely affect the powers, preferences, privileges or
rights of the Series I Preferred or Series J Preferred, respectively; provided,
however, that any increase or decrease in the amount of authorized preferred
stock or the creation and issuance of other series of preferred stock, or any
increase or decrease in the amount of authorized shares or issued shares of the
Series I Preferred, Series J Preferred or of any other series of Preferred
Stock, in each case ranking on a parity with or junior to such series of the
Series I Preferred and Series J Preferred with respect to the payment of
dividends and the distribution of assets upon liquidation, dissolution or
winding up, will not be deemed to materially and adversely affect the powers,
preferences, privileges or rights of the Series I Preferred and Series J
Preferred.
Furthermore, the vote or consent of the holders of at least two-thirds of all
of the shares of the Series I Preferred and Series J Preferred and all other
series of preferred stock ranking on a parity with shares of the Series I
Preferred and Series J Preferred, either as to dividends or upon liquidation,
and which are granted in the Certificate of Incorporation (including any
Certificate of Designations) the right to vote together with Series I Preferred
and Series J Preferred as a single class on the matters set forth in this
paragraph, is necessary for authorizing or issuance of any shares of any class
of stock of the Corporation ranking prior to the shares of the Series I
Preferred and Series J Preferred as to dividends or upon liquidation, or the
reclassification of any authorized stock of the Corporation into any such prior
shares, or the creation, authorization or issuance of any obligation or
security convertible into or evidencing the right to purchase any such prior
shares.
In the event of voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, the holders of Preferred Stock are entitled to receive
out of the assets of the Corporation available for distribution to
stockholders, before any distribution of assets is made to holders of Common
Stock, an amount equal to the stated value per share, plus accrued and unpaid
dividends. The Preferred Stock is not convertible into shares of other capital
stock, except for the Series G Preferred. The Preferred Stock does not have
preemptive rights and is not subject to any sinking fund or other obligation of
the Corporation to repurchase or retire the Preferred Stock.
Series A Preferred. The Series A Preferred has a stated value of $50.00 per
share. The Series A Preferred provides for cumulative dividends payable
quarterly at adjustable rates based on the discount rates and average yields of
certain United States government securities. The Series A Preferred is subject
to redemption, in whole or in part, at the option of the Corporation, at $50.00
per share plus accrued and unpaid dividends.
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Series B Preferred. The Series B Preferred has a stated value of $100.00 per
share. The Series B Preferred provides for cumulative dividends payable
quarterly at adjustable rates based on the discount rates and average yields of
certain United States government securities. The Series B Preferred is subject
to redemption, in whole or in part, at the option of the Corporation, at
$100.00 per share, plus accrued and unpaid dividends.
Series F Preferred. The Series F Preferred has a stated value of $25.00 per
share. The Series F Preferred provides for cumulative dividends payable
quarterly at the rate of 9 5/8% per annum calculated as a percentage of the
stated value. The Series F Preferred is subject to redemption, in whole or in
part, at the option the Corporation on or after April 15, 1996, at $25.00 per
share, plus accrued and unpaid dividends.
Series G Preferred. The Series G Preferred has a stated value of $50.00 per
share. The Series G Preferred provides for cumulative dividends payable
quarterly at the rate of 6 1/2% per annum calculated as a percentage of the
stated value. The Series G Preferred is subject to redemption, in whole or in
part, at the option of the Corporation at $51.95 per share during the twelve
months beginning May 31, 1995, at decreasing prices thereafter through May 30,
2001, and at $50.00 per share thereafter, in each case plus accrued and unpaid
dividends. The Series G Preferred is convertible, at any time, unless
previously redeemed, into common Stock at a conversion rate of 1.09649 shares
of Common Stock for each share of Series G Preferred (equivalent to a
conversion price of $45.60 per share of Common Stock). The conversion rate is
protected by customary antidilution provisions.
Series H Preferred. The Series H Preferred has a stated value of $25.00 per
share. The Series H Preferred provides for cumulative dividends payable
quarterly at the rate of 9% per annum calculated as a percentage of the stated
value. The Series H Preferred is subject to redemption, in whole or in part, at
the option of the Corporation on or after January 15, 1997, at $25.00 per
share, plus accrued and unpaid dividends.
Series I Preferred. The Series I Preferred has a stated value of $500.00 per
share. The Series I Preferred provides for cumulative dividends payable
quarterly at a rate of 11% per annum calculated as a percentage of the stated
value. The Series I Preferred is subject to redemption, in whole or in part, at
the option of the Corporation at $527.50 per share during the twelve months
beginning September 30, 1995, at decreasing prices thereafter through September
29, 2000, and at $500.00 per share thereafter, in each case plus accrued and
unpaid dividends.
Series J Preferred. The Series J Preferred has a stated value of $500.00 per
share. The Series J Preferred provides for cumulative dividends payable
quarterly at a rate of 11% per annum calculated as a percentage of the stated
value. The Series J Preferred is subject to redemption, in whole or in part, at
the option of the Corporation at $527.50 per share during the twelve months
beginning March 31, 1996, at decreasing prices thereafter through March 30,
2001, and at $500.00 per share thereafter, in each case plus accrued and unpaid
dividends.
Series K Preferred. The Series K Preferred has a stated value of $25.00 per
share. The Series K Preferred provides for cumulative dividends payable
quarterly at a rate of 8 3/8% per annum calculated as a percentage of the
stated value. The Series K Preferred is subject to redemption, in whole or in
part, at the option of the Corporation on or after February 15, 1997, at $25.00
per share, plus accrued and unpaid dividends.
Series L Preferred. The Series L Preferred has a stated value of $500.00 per
share. The Series L Preferred provides for cumulative dividends payable
quarterly at a rate of 8.16% per annum calculated as a percentage of the stated
value. The Series L Preferred is subject to redemption, in whole or in part, at
the option of the Corporation on or after July 13, 1997, at $500.00 per share,
plus accrued and unpaid dividends.
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Series M Preferred. The Series M Preferred has a stated value of $500.00 per
share. The Series M Preferred provides for cumulative dividends payable
quarterly at a rate of 7 7/8% per annum calculated as a percentage of the
stated value. The Series M Preferred is subject to redemption, in whole or in
part, at the option of the Corporation on or after September 30, 1997, at
$500.00 per share, plus accrued and unpaid dividends.
Series N Preferred. The Series N Preferred has a stated value of $500.00 per
share. The Series N Preferred provides for cumulative dividends payable
quarterly at a rate of 8 1/2% per annum calculated as a percentage of the
stated value. The Series N Preferred is subject to redemption, in whole or in
part, at the option of the Corporation on or after December 15, 1997, at
$500.00 per share, plus accrued and unpaid dividends.
DESCRIPTION OF DEPOSITARY SHARES
The following description of the terms of the Depositary Shares sets forth
certain general terms and provisions of the Depositary Shares to which any
Prospectus Supplement may relate. Particular terms of the Depositary Shares
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Depositary Shares so offered will be
described in the Prospectus Supplement relating to such Depositary Shares. The
description of certain provisions of the Depositary Shares set forth below and
in the Prospectus Supplement does not purport to be complete and is subject to
and qualified in its entirety by reference to the forms of Deposit Agreement
and Depositary Receipts relating to each series of Preferred Shares, which have
been filed with the Commission.
GENERAL
The Corporation may, at its option, elect to offer fractional interests in
Preferred Shares, rather than full shares. In the event such option is
exercised, the Corporation will provide for the issuance by a Depositary to the
public of Depositary Receipts evidencing Depositary Shares, each of which will
represent a fractional interest (to be set forth in the Prospectus Supplement
relating to a particular series of the Preferred Shares) in a share of a
particular series of the Preferred Shares as described below.
The shares of any series of the Preferred Shares underlying the Depositary
Shares will be deposited under a separate Deposit Agreement (the "Deposit
Agreement") between the Corporation and a bank or trust company selected by the
Corporation having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000 (the "Depositary"). The
Prospectus Supplement relating to a series of Depositary Shares will set forth
the name and address of the Depositary. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fractional interest in a Preferred Share underlying such
Depositary Share, to all the rights and preferences of the Preferred Share
underlying such Depositary Share (including dividend, voting, redemption,
conversion and liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary Receipts
will be distributed to those persons purchasing the fractional shares of the
related series of Preferred Shares in accordance with the terms of the offering
described in the related Prospectus Supplement.
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of the Corporation, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will
be exchangeable for definitive Depositary Receipts at the Corporation's
expense.
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Upon surrender of the Depositary Receipts at the principal office of the
Depositary (unless the related Depositary Shares have previously been called
for redemption), the holder of the Depositary Shares evidenced thereby will be
entitled to delivery at such office, to or upon such holder's order, of the
number of whole Preferred Shares and any money or other property represented by
such Depositary Shares. Partial Preferred Shares will not be issued. If the
Depositary Receipts delivered by the holder evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the number of
whole Preferred Shares to be withdrawn, the Depositary will deliver to such
holder at the same time a new Depositary Receipt evidencing such excess number
of Depositary Shares. Holders of Preferred Shares thus withdrawn will not
thereafter be entitled to deposit such shares under the Deposit Agreement or to
receive Depositary Shares therefor. The Corporation does not expect that there
will be any public trading market for such Preferred Shares except as
represented by the Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash distributions
received in respect of the underlying Preferred Shares to the record holders of
Depositary Shares relating to such Preferred Shares in proportion to the
numbers of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction
of one cent, and any balance not so distributed shall be added to and treated
as part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Corporation, sell such property and distribute the net proceeds from such
sale to such holders.
The Deposit Agreement will also contain provisions relating to the manner in
which any subscription or similar rights offered by the Corporation to holders
of the Preferred Shares shall be made available to holders of Depositary
Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Shares underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Shares held by the Depositary. The Depositary
shall mail notice of redemption not less than 30 and not more than 80 days
prior to the date fixed for redemption to the record holders of the Depositary
Shares to be so redeemed at their respective addresses appearing in the
Depositary's books. The redemption price per Depositary Share will be equal to
the applicable fraction of the redemption price per share payable with respect
to such series of the Preferred Shares. Whenever the Corporation redeems
Preferred Shares held by the Depositary, the Depositary will redeem as of the
same redemption date the number of Depositary Shares relating to Preferred
Shares so redeemed. If less than all the Depositary Shares are to be redeemed,
the Depositary Shares to be redeemed will be selected by lot or pro rata as may
be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares so called for redemption will cease, except
the right to receive the moneys payable upon such redemption and any money or
other property to which the holders of such Depositary Shares were entitled
upon such redemption upon surrender to the Depositary of the Depositary
Receipts evidencing such Depositary Shares.
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CONVERSION
With respect to a series of the Preferred Shares underlying the Depositary
Shares that is convertible into Common Stock, a holder of Depositary Receipts
may participate in the conversion in the manner specified in the pertinent
Certificate of Designations for holders of the underlying Preferred Shares. If
the Depositary Shares represented by a Depositary Receipt are to be converted
in part only, a new Depositary Receipt or Depositary Receipts will be issued by
the Depositary for the Depositary Shares not to be converted. No fractional
shares of Common Stock will be issued upon conversion, and if such conversion
would result in a fractional share being issued, an amount will be paid in cash
by the Corporation equal to the value of the fractional interest based upon the
closing price of the Common Stock on the last business day prior to the date of
conversion.
VOTING THE PREFERRED SHARES
Upon receipt of notice of any meeting at which the holders of the Preferred
Shares are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Shares
relating to such Preferred Shares. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Shares) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the number of Preferred Shares
underlying such holder's Depositary Shares. The Depositary will endeavor,
insofar as practicable, to vote the number of Preferred Shares underlying such
Depositary Shares in accordance with such instructions, and the Corporation
will agree to take all action which may be deemed necessary by the Depositary
in order to enable the Depositary to do so. The Depositary will abstain from
voting Preferred Shares to the extent it does not receive specific instructions
from the holders of Depositary Shares relating to such Preferred Shares. The
Depositary's liability with respect to voting Preferred Shares is limited.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Corporation and the Depositary. However, any amendment which
materially and adversely alters the rights of the existing holders of
Depositary Shares will not be effective unless such amendment has been approved
by the record holders of at least a majority of the Depositary Shares then
outstanding. A Deposit Agreement may be terminated by the Corporation or the
Depositary only if (i) all outstanding Depositary Shares relating thereto have
been redeemed or, if applicable, converted into Common Stock or (ii) there has
been a final distribution in respect of the Preferred Shares of the relevant
series in connection with any liquidation, dissolution or winding up of the
Corporation and such distribution has been distributed to the holders of the
related Depositary Shares.
CHARGES OF DEPOSITARY
The Corporation will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary agreements. The
Corporation will pay charges of the Depositary in connection with the initial
deposit of the Preferred Shares and any redemption of the Preferred Shares.
Holders of Depositary Shares will pay other transfer and other taxes and
governmental charges and such other charges as are expressly provided in the
Deposit Agreement to be for their accounts.
MISCELLANEOUS
The Depositary will forward to the holders of Depositary Shares all reports
and communications from the Corporation which are delivered to the Depositary
and which the Corporation is required to furnish to the holders of the
Preferred Shares.
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Neither the Depositary nor the Corporation will be liable if it is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Corporation and
the Depositary under the Deposit Agreement will be limited to performance
without negligence or intentional misconduct of their duties thereunder and
they will not be obligated to prosecute or defend any legal proceeding in
respect of any Depositary Shares or Preferred Shares unless satisfactory
indemnity is furnished. They may rely upon written advice of counsel or
accountants, or information provided by persons presenting Preferred Shares for
deposit, holders of Depositary Shares or other persons believed to be competent
and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Corporation notice
of its election to do so, and the Corporation may at any time remove the
Depositary, any such resignation or removal to take effect upon the appointment
of a successor Depositary and its acceptance of such appointment. Such
successor Depositary must be appointed within 60 days after delivery of the
notice of resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000.
TAXATION
Owners of Depositary Shares will be treated for federal income tax purposes
as if they were owners of the Preferred Shares represented by such Depositary
Shares and, accordingly, will be entitled to take into account for federal
income tax purposes income and deductions to which they would be entitled if
they were holders of such Preferred Stock. In addition, (i) no gain or loss
will be recognized for federal income tax purposes upon the withdrawal of
Preferred Shares in exchange for Depositary Shares as provided in the Deposit
Agreement, (ii) the tax basis of each Preferred Share to an exchanging owner of
Depositary Shares will, upon such exchange, be the same as the aggregate tax
basis of the Depositary Shares exchanged therefor and (iii) the holding period
for the Preferred Shares in the hands of an exchanging owner of Depositary
Shares who held such Depositary Shares as a capital asset at the time of the
exchange thereof for Preferred Shares will include the period during which such
person owned such Depositary Shares.
DESCRIPTION OF COMMON STOCK
GENERAL
The Corporation has 700,000,000 authorized shares of Common Stock, $1.5625
par value, of which 346,683,727 shares (excluding treasury shares) were
outstanding at May 31, 1994. The following is a brief summary of certain rights
and provisions of the Common Stock.
Subject to any prior rights of the preferred stock of the Corporation then
outstanding, holders of the Corporation's Common Stock are entitled to receive
such dividends as are declared by the Board of Directors out of funds legally
available therefor. (See the description of the outstanding Preferred Stock set
forth in "Description of Preferred Shares--Outstanding Preferred Stock,"
above.) The indentures under which certain of the Corporation's debt securities
are outstanding prohibit the Corporation, under certain circumstances, from
paying dividends in shares of stock of Bank of America.
In addition, the Federal Reserve Board has adopted a policy statement that it
is its view that, as a matter of prudent banking, a bank holding company should
not pay cash dividends on common stock unless its net income available to
common stockholders over the past year has been sufficient to fully fund the
dividends and the prospective rate of earnings retention appears consistent
with the company's capital needs, asset quality and overall financial
condition.
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Subject to the rights, if any, of the holders of shares of preferred stock,
all voting rights are vested in the holders of shares of Common Stock, each
share being entitled to one vote. Stockholder action (including the election of
directors) may not be taken without a meeting. Stockholder action by written
consent is not permitted.
Holders of the shares of Common Stock have non-cumulative voting rights,
which means that the holders of a majority of the shares voting for the
election of directors can elect 100% of the directors if they choose to do so,
and, in such event, the holders of the remaining less than 50% of the shares
voting for the election of directors will not be able to elect any person or
persons to the Board of Directors.
Subject to the rights of the holders of the preferred stock, in the event of
liquidation of the Corporation the holders of the Common Stock are entitled to
share equally and ratably in any assets remaining after the payment of all
debts and liabilities.
Holders of Common Stock do not have preemptive or other subscription or
conversion rights.
The Common Stock does not have any sinking fund, conversion or redemption
provisions applicable thereto and is not liable to further call or assessment
by the Corporation. There is no restriction under the Corporation's Certificate
of Incorporation or By-Laws on the Corporation's repurchase or redemption of
shares of Common Stock with funds legally available therefor.
RIGHTS AGREEMENT
Each share of the Corporation's Common Stock, including those that may be
issued hereunder, is accompanied by one preferred share purchase right (a
"Right"). Each Right entitles the registered holder to purchase one one-
hundredth of a share of the Corporation's Cumulative Participating Preferred
Stock, Series E, without par value ("Series E Preferred Shares"), at a price of
$50.00 (subject to adjustment). The description and terms of the Rights are set
forth in a Rights Agreement (the "Rights Agreement") between the Corporation
and Chemical Trust Company of California, as Rights Agent (the "Rights Agent"),
as amended by Amendment No. 1 ("Amendment No. 1") to the Rights Agreement dated
as of August 11, 1991.
Certificates for Common Stock of the Corporation contain a notation
incorporating the Rights Agreement by reference.
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") has acquired beneficial ownership of 20% or more of the outstanding
Common Stock of the Corporation or (ii) 10 business days (or such later date as
may be determined by action of the Board of Directors prior to such time as any
person becomes an Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a person or
group of 20% or more of such outstanding Common Stock of the Corporation (the
earlier of such dates being called the "Distribution Date"), the Rights will be
evidenced, with respect to any Common Stock of the Corporation, by the
certificate representing such Common Stock. In addition, the Rights Agreement
provides that, until the Distribution Date, the Rights will be transferred with
and only with shares of Common Stock.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on April 22, 1998 (the "Final Expiration Date") unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed by the
Corporation.
Series E Preferred Shares purchasable upon exercise of the Rights will be
redeemable by the Corporation at a formula price. Each Series E Preferred Share
will be entitled to a minimum preferential
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quarterly dividend payment of $1.00 per share, but will be entitled to an
aggregate dividend of 100 times the dividend declared per share of Common Stock
of the Corporation. In the event of liquidation, the holders of the Series E
Preferred Shares will be entitled to a minimum preferential liquidation payment
of $100.00 per share, plus accrued and unpaid dividends, but will be entitled
to an aggregate payment of 100 times the payment made per share of Common Stock
of the Corporation. Each Series E Preferred Share will have 100 votes, voting
together with shares of Common Stock of the Corporation. Finally, in the event
of any merger, consolidation or other transaction in which shares of Common
Stock of the Corporation are exchanged, each Series E Preferred Share will be
entitled to receive 100 times the amount received per share of Common Stock of
the Corporation. These rights are protected by customary antidilution
provisions.
Because of the nature of the Series E Preferred Shares' dividend, liquidation
and voting rights, the value of the one one-hundredth interest in a Series E
Preferred Share purchasable upon exercise of each Right should approximate the
value of one share of Common Stock.
In the event that the Corporation is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning
power are sold, proper provision will be made so that each holder of a Right
will thereafter have the right to receive, upon the exercise thereof at the
then current exercise price of the Right, that number of shares of Common Stock
of the acquiring company which at the time of such transaction will have a
market value of two times the exercise price of the Right. In the event that
any person or group of affiliated or associated persons acquires beneficial
ownership of 20% or more of the outstanding shares of Common Stock of the
Corporation (unless such person increased its beneficial ownership from less
than 20% to 80% or more of the outstanding shares of Common Stock of the
Corporation by a purchase pursuant to a tender offer for all of the shares of
Common Stock for cash), proper provisions shall be made so that each holder of
a Right, other than Rights beneficially owned by such person or group of
affiliated or associated persons (which will thereafter be void), will
thereafter have the right to receive upon exercise that number of shares of
Common Stock of the Corporation having a market value of two times the exercise
price of the Right.
At any time prior to the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 20% or more of the outstanding
shares of Common Stock of the Corporation, the Board of Directors of the
Corporation may redeem the Rights in whole, but not in part, at a price of
$.001 per Right (rounded upward for each holder to the nearest $.01). In
addition, the Rights may be subject to automatic redemption in certain
circumstances upon approval of the majority of the holders of Common Stock of
the Corporation entitled to vote on the matter at a special meeting to be held
in connection with certain acquisition offers.
Copies of the Rights Agreement and Amendment No. 1 have been filed with the
Commission as an exhibit to a Registration Statement on Form 8-A dated April
13, 1988, and as an exhibit to the amendment to such Registration Statement
filed on Form 8 dated August 20, 1991, respectively.
The foregoing description of the Corporation's Common Stock and the Rights
does not purport to be a complete description of the terms of the Corporation's
Common Stock and the Rights and is qualified in its entirety by reference to
the terms of such Common Stock and Rights, which are incorporated herein by
reference and are set forth in full in Article Fourth of the Corporation's
Certificate of Incorporation and the Rights Agreement, respectively, which have
been filed with the Commission.
DESCRIPTION OF SECURITIES WARRANTS
The Corporation may issue Securities Warrants for the purchase of Debt
Securities, Preferred Shares, Depositary Shares or Common Stock. Securities
Warrants may be issued independently or together with Debt Securities,
Preferred Shares, Depositary Shares or Common Stock offered by any
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Prospectus Supplement and may be attached to or separate from such Debt
Securities, Preferred Shares, Depositary Shares or Common Stock. Each series of
Securities Warrants will be issued under a separate warrant agreement (a
"Securities Warrant Agreement") to be entered into between the Corporation and
a bank or trust company, as Securities Warrant Agent, all as set forth in the
Prospectus Supplement relating to the particular issue of offered Securities
Warrants. The Securities Warrant Agent will act solely as an agent of the
Corporation in connection with the Securities Warrant Certificates and will not
assume any obligation or relationship of agency or trust for or with any
holders of Securities Warrant Certificates or beneficial owners of Securities
Warrants. Copies of the forms of Securities Warrant Agreements, including the
forms of Securities Warrant Certificates representing the Securities Warrants,
are filed as exhibits to the Registration Statement to which this Prospectus
pertains. The following summaries of certain provisions of the forms of
Securities Warrant Agreements and Securities Warrant Certificates do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the Securities Warrant Agreements and
the Securities Warrant Certificates.
GENERAL
If Securities Warrants are offered, the applicable Prospectus Supplement will
describe the terms of such Securities Warrants, including, in the case of
Securities Warrants for the purchase of Debt Securities, the following where
applicable: (i) the offering price; (ii) the currencies in which such
Securities Warrants are being offered; (iii) the designation, aggregate
principal amount, currencies, denominations and terms of the series of Debt
Securities purchasable upon exercise of such Securities Warrants; (iv) the
material terms of any securities being offered together with or separately from
the Securities Warrants; (v) the principal amount of the series of Debt
Securities purchasable upon exercise of each such Securities Warrant and the
price at which and currencies in which such principal amount of Debt Securities
of such series may be purchased upon such exercise; (vi) the date on which the
right to exercise such Securities Warrants shall commence and the date (the
"Expiration Date") on which such right shall expire; (vii) whether the
Securities Warrants will be issued in registered or bearer form; (viii) United
States federal income tax consequences; and (ix) any other material terms of
such Securities Warrants.
In the case of Securities Warrants for the purchase of Preferred Shares,
Depositary Shares or Common Stock, the applicable Prospectus Supplement will
describe the terms of such Securities Warrants, including the following where
applicable: (i) the offering price; (ii) the aggregate number of shares
purchasable upon exercise of such Securities Warrants and, in the case of
Securities Warrants for Preferred Shares or Depositary Shares, the designation,
aggregate number and terms of the series of Preferred Shares purchasable upon
exercise of such Securities Warrants or underlying the Depositary Shares
purchasable upon exercise of such Securities Warrants; (iii) the material terms
of any securities being offered together with or separately from the Securities
Warrants; (iv) the number of Preferred Shares, Depositary Shares or shares of
Common Stock purchasable upon exercise of each such Securities Warrant and the
price at which such number of Preferred Shares, Depositary Shares or shares of
Common Stock may be purchased upon such exercise; (v) the date on which the
right to exercise such Securities Warrants shall commence and the Expiration
Date; (vi) United States federal income tax consequences; and (vii) any other
material terms of such Securities Warrants. Securities Warrants for the purchase
of Preferred Shares, Depositary Shares or Common Stock will be offered and
exercisable for U.S. dollars only and will be in registered form only.
31
<PAGE>
Securities Warrant Certificates may be exchanged for new Securities Warrant
Certificates of different denominations, may (if in registered form) be
presented for registration of transfer, and may be exercised at the corporate
trust office of the Securities Warrant Agent or any other office indicated in
the applicable Prospectus Supplement. Prior to the exercise of any Securities
Warrant to purchase Debt Securities, holders of such Securities Warrants will
not have any of the rights of Holders of the Debt Securities purchasable upon
such exercise, including the right to receive payments of principal of,
premium, if any, or interest, if any, on the Debt Securities purchasable upon
such exercise or to enforce covenants in the applicable Indenture. Prior to the
exercise of any Securities Warrants to purchase Preferred Shares, Depositary
Shares or Common Stock, holders of such Securities Warrants will not have any
rights of holders of the Preferred Shares, Depositary Shares or Common Stock
purchasable upon such exercise, including the right to receive payments of
dividends, if any, on the Preferred Shares, Depositary Shares or Common Stock
purchasable upon such exercise or to exercise any applicable right to vote.
EXERCISE OF SECURITIES WARRANTS
Each Securities Warrant will entitle the holder thereof to purchase such
principal amount of Debt Securities or number of Preferred Shares, Depositary
Shares or shares of Common Stock, as the case may be, at such exercise price as
shall in each case be set forth in, or calculable from, the Prospectus
Supplement relating to the offered Securities Warrants. After the close of
business on the Expiration Date (or such later date to which such Expiration
Date may be extended by the Corporation), unexercised Securities Warrants will
become void.
Securities Warrants may be exercised by delivering to the Securities Warrant
Agent payment as provided in the applicable Prospectus Supplement of the amount
required to purchase the Debt Securities, Preferred Shares, Depositary Shares
or Common Stock, as the case may be, purchasable upon such exercise together
with certain information set forth on the reverse side of the Securities
Warrant Certificate. Securities Warrants will be deemed to have been exercised
upon receipt of payment of the exercise price, subject to the receipt, within
five business days, of the Securities Warrant Certificate evidencing such
Securities Warrants. Upon receipt of such payment and the Securities Warrant
Certificate properly completed and duly executed at the corporate trust office
of the Securities Warrant Agent or any other office indicated in the applicable
Prospectus Supplement, the Corporation will, as soon as practicable, issue and
deliver the Debt Securities, Preferred Shares, Depositary Shares or Common
Stock, as the case may be, purchasable upon such exercise. If fewer than all of
the Securities Warrants represented by such Securities Warrant Certificate are
exercised, a new Securities Warrant Certificate will be issued for the
remaining amount of Securities Warrants.
AMENDMENTS AND SUPPLEMENTS TO SECURITIES WARRANT AGREEMENTS
The Securities Warrant Agreements may be amended or supplemented without the
consent of the holders of the Securities Warrants issued thereunder to effect
changes that are not inconsistent with the provisions of the Securities
Warrants and that do not adversely affect the interests of the holders of the
Securities Warrants.
COMMON STOCK WARRANT ADJUSTMENTS
Unless otherwise indicated in the applicable Prospectus Supplement, the
exercise price of, and the number of shares of Common Stock covered by, a
Common Stock Warrant are subject to adjustment in certain events, including:
(i) the issuance of Common Stock as a dividend or distribution on the Common
Stock; (ii) subdivisions and combinations of the Common Stock; (iii) the
issuance to all holders of Common Stock of certain rights or warrants entitling
them to subscribe for or purchase Common Stock within 45 days after the date
fixed for the determination of the stockholders entitled to receive such rights
or warrants, at less than the current market price (as defined in the Warrant
32
<PAGE>
Agreement for such series of Common Stock Warrants); and (iv) the distribution
to all holders of Common Stock of evidences of indebtedness or assets of the
Corporation (excluding certain cash dividends and distributions described
below) or rights or warrants (excluding those referred to above). In the event
that the Corporation shall distribute any rights or warrants to acquire capital
stock pursuant to clause (iv) above (the "Capital Stock Rights"), pursuant to
which separate certificates representing such Capital Stock Rights will be
distributed subsequent to the initial distribution of such Capital Stock Rights
(whether or not such distribution shall have occurred prior to the date of the
issuance of a series of Common Stock Warrants), such subsequent distribution
shall be deemed to be the distribution of such Capital Stock Rights; provided
that the Corporation may, in lieu of making any adjustment in the exercise
price of, and the number of shares of Common Stock covered by, a Common Stock
Warrant upon a distribution of separate certificates representing such Capital
Stock Rights, make proper provision so that each holder of such a Common Stock
Warrant who exercises such Common Stock Warrant (or any portion thereof) (a)
before the record date for such distribution of separate certificates shall be
entitled to receive upon such exercise shares of Common Stock issued with
Capital Stock Rights and (b) after such record date and prior to the
expiration, redemption or termination of such Capital Stock Rights shall be
entitled to receive upon such exercise, in addition to the shares of Common
Stock issuable upon such exercise, the same number of such Capital Stock Rights
as would a holder of the number of shares of Common Stock that such Common
Stock Warrant so exercised would have entitled the holder thereof to acquire in
accordance with the terms and provisions applicable to the Capital Stock Rights
if such Common Stock Warrant was exercised immediately prior to the record date
for such distribution. Common Stock owned by or held for the account of the
Corporation or any majority owned subsidiary shall not be deemed outstanding
for the purpose of any adjustment.
No adjustment in the exercise price of, and the number of shares of Common
Stock covered by, a Common Stock Warrant will be made for regular quarterly or
other periodic or recurring cash dividends or distributions or for cash
dividends or distributions to the extent paid from retained earnings. No
adjustment will be required unless such adjustment would require a change of at
least 1% in the exercise price then in effect; provided that any such
adjustment not so made will be carried forward and taken into account in any
subsequent adjustment; and provided further that any such adjustment not so
made shall be made no later than three years after the occurrence of the event
requiring such adjustment to be made or carried forward. Notwithstanding any of
the foregoing, neither the issuance of Common Stock under the Corporation's
Shareholder Investment Plan or any successor plans providing for the purchase
of shares of Common Stock by the Corporation's stockholders or employees at a
price not less than 90% of the "average market price" during the "pricing
period," as such terms, or equivalent terms, are defined in, and as calculated
pursuant to, such plans from time to time, nor the granting or exercise of any
rights thereunder, shall require an adjustment to the exercise price of, and
the number of shares of Common Stock covered by, a Common Stock Warrant. Except
as stated above, the exercise price of, and the number of shares of Common
Stock covered by, a Common Stock Warrant will not be adjusted for the issuance
of Common Stock or any securities convertible into or exchangeable for Common
Stock, or securities carrying the right to purchase any of the foregoing.
In the case of (i) a reclassification or change of the Common Stock, (ii) a
consolidation or merger involving the Corporation or (iii) a sale or conveyance
to another corporation of the property and assets of the Corporation as an
entirety or substantially as an entirety, in each case as a result of which
holders of the Corporation's Common Stock shall be entitled to receive stock,
securities, other property or assets (including cash) with respect to or in
exchange for such Common Stock, the holders of the Common Stock Warrants then
outstanding will be entitled thereafter to convert such Common Stock Warrants
into the kind and amount of shares of stock and other securities or property
which they would have received upon such reclassification, change,
consolidation, merger, sale or conveyance had such Common Stock Warrants been
exercised immediately prior to such reclassification, change, consolidation,
merger, sale or conveyance.
33
<PAGE>
RISK FACTORS RELATING TO THE CURRENCY WARRANTS
THE CURRENCY WARRANTS INVOLVE A HIGH DEGREE OF RISK, INCLUDING FOREIGN
EXCHANGE RISKS AND THE RISK OF EXPIRING WORTHLESS. PURCHASERS SHOULD BE
PREPARED TO SUSTAIN A LOSS OF SOME OR ALL OF THE PURCHASE PRICE OF THEIR
CURRENCY WARRANTS. PROSPECTIVE PURCHASERS OF THE CURRENCY WARRANTS SHOULD BE
EXPERIENCED WITH RESPECT TO OPTIONS AND OPTION TRANSACTIONS AND SHOULD REACH AN
INVESTMENT DECISION ONLY AFTER CAREFUL CONSIDERATION WITH THEIR ADVISERS OF THE
SUITABILITY OF THE CURRENCY WARRANTS IN LIGHT OF THEIR PARTICULAR FINANCIAL
CIRCUMSTANCES, THE INFORMATION SET FORTH UNDER "DESCRIPTION OF CURRENCY
WARRANTS" HEREIN AND THE RISK FACTORS AND INFORMATION REGARDING THE CURRENCY
WARRANTS AND THE DESIGNATED CURRENCY SET FORTH IN THE PROSPECTUS SUPPLEMENT
RELATING TO SUCH CURRENCY WARRANTS.
DESCRIPTION OF CURRENCY WARRANTS
The following description of the terms of the Currency Warrants sets forth
certain general terms and provisions of the Currency Warrants to which any
Prospectus Supplement may relate. The particular terms of the Currency Warrants
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions do not apply to the Currency Warrants so offered will be
described in the Prospectus Supplement relating to such Currency Warrants.
Each issue of Currency Warrants will be issued under a warrant agreement
(each, a "Currency Warrant Agreement") to be entered into between the
Corporation and a bank or trust company, as warrant agent (the "Currency
Warrant Agent"), all as described in the Prospectus Supplement relating to such
Currency Warrants. The Currency Warrant Agent will act solely as the agent of
the Corporation under the applicable Currency Warrant Agreement and will not
assume any obligation or relationship of agency or trust for or with any
holders of such Currency Warrants. A copy of the form of Currency Warrant
Agreement, including the form of warrant certificate, is filed as an exhibit to
the Registration Statement. The following summary of certain provisions of the
Currency Warrants and the form of Currency Warrant Agreement do not purport to
be complete and are subject to, and are qualified in their entirety by
reference to, all the provisions of the Currency Warrants and the Currency
Warrant Agreement.
GENERAL
The Corporation may issue Currency Warrants either in the form of Currency
Put Warrants entitling the holders thereof to receive from the Corporation the
cash settlement value in U.S. dollars of the right to sell a specified amount
of a specified foreign currency or composite currency (the "Designated
Currency") for a specified amount of U.S. dollars, or in the form of Currency
Call Warrants entitling the holders thereof to receive from the Corporation the
cash settlement value in U.S. dollars of the right to purchase a specified
amount of a Designated Currency for a specified amount of U.S. dollars.
Unless otherwise provided in the applicable Prospectus Supplement, the Cash
Settlement Value of an exercised Currency Warrant will be an amount stated in
U.S. dollars which, in the case of a Currency Put Warrant, is the greater of
(i) zero and (ii) the amount computed by subtracting from a nominal amount of
U.S. dollars specified in the Prospectus Supplement (the "U.S. Dollar
Constant") an amount equal to the U.S. Dollar Constant times a fraction, the
numerator of which is the spot exchange rate on the exercise date and the
denominator of which is the strike price set forth in the applicable Prospectus
Supplement and, in the case of a Currency Call Warrant, is the greater of (i)
zero and (ii) the amount computed by subtracting the U.S. Dollar Constant from
an amount equal to the U.S. Dollar Constant times a fraction, the numerator of
which is the spot exchange rate on the exercise date and the denominator of
which is the strike price. If the Cash Settlement Value is zero at the time of
expiration of an unexercised Currency Warrant, the Currency Warrant will expire
worthless.
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<PAGE>
Reference is hereby made to the Prospectus Supplement relating to the
particular issue of Currency Warrants offered thereby for the terms of such
Currency Warrants, including, where applicable: (i) whether such Currency
Warrants shall be Currency Put Warrants, Currency Call Warrants, or both; (ii)
the aggregate amount of such Currency Warrants; (iii) the offering price of
such Currency Warrants; (iv) the Designated Currency, which currency may be a
foreign currency or a composite currency, including ECU, and information
regarding such currency or composite currency; (v) the date on which the right
to exercise such Currency Warrants commences and the date on which such right
expires; (vi) the manner in which such Currency Warrants may be exercised;
(vii) the circumstances which will cause the Currency Warrants to be deemed
automatically exercised; (viii) the minimum number, if any, of such Currency
Warrants exercisable at any one time and any other restrictions on exercise;
(ix) the method of determining the amount payable in connection with the
exercise of such Currency Warrants, including the strike price or range of
strike prices of such Currency Warrants, the method of determining the spot
exchange rate and the U.S. Dollar Constant for such Currency Warrants; (x) the
national securities exchange on which such Currency Warrants will be listed;
(xi) whether such Currency Warrants will be represented by certificates or
issued in book-entry form; (xii) the place or places at which payment of the
cash settlement value of such Currency Warrants is to be made by the
Corporation, if applicable; (xiii) information with respect to book-entry
procedures, if any; (xiv) the plan of distribution of the Currency Warrants;
and (xv) any other material terms of such Currency Warrants.
Prospective purchasers of Currency Warrants should be aware of special United
States federal income tax considerations applicable to instruments such as the
Currency Warrants. The Prospectus Supplement relating to each issue of Currency
Warrants will describe certain of such tax considerations.
BOOK-ENTRY PROCEDURES AND SETTLEMENT
Except as may otherwise be provided in the applicable Prospectus Supplement,
the Currency Warrants will be issued in the form of global Currency Warrant
Certificates, registered in the name of a depositary or its nominee. Holders
will not be entitled to receive definitive certificates representing Currency
Warrants. A holder's ownership of a Currency Warrant will be recorded on or
through the records of the brokerage firm or other entity that maintains such
holder's account. In turn, the total number of Currency Warrants held by an
individual brokerage firm for its clients will be maintained on the records of
the depositary in the name of such brokerage firm or its agent. Transfer of
ownership of any Currency Warrant will be affected only through the selling
holder's brokerage firm.
EXERCISE OF CURRENCY WARRANTS
Each Currency Warrant will entitle the holder to the cash settlement value of
such Currency Warrant on the applicable Exercise Date, in each case as such
terms will be defined in the applicable Prospectus Supplement. If not exercised
prior to 3:00 P.M., New York City time, on the fifth New York Business Day
preceding the Expiration Date, Currency Warrants will be deemed automatically
exercised as of the Expiration Date.
LISTING
Each issue of Currency Warrants will be listed on a national securities
exchange, subject only to official notice of issuance, as a condition of sale
of any such Currency Warrants. In this regard, it should be noted that if the
Corporation issues Currency Warrants on a foreign currency that does not
currently underlie a standardized option traded on a national securities
exchange, before such Currency Warrants could be traded on a national
securities exchange, such exchange would have to receive Commission approval.
There can be no assurance that such approval will be granted. In the event that
the Currency Warrants are delisted from, or permanently suspended from trading
on, such exchange, the Expiration Date for such Currency Warrants will be the
date such delisting or trading suspension becomes effective
35
<PAGE>
and Currency Warrants not previously exercised will be deemed automatically
exercised on such Expiration Date. The applicable Currency Warrant Agreement
will contain a covenant of the Corporation not to seek delisting of the
Currency Warrants, or suspension of their trading, on such exchange unless the
Corporation has, at the same time, arranged for listing on another national
securities exchange.
PLAN OF DISTRIBUTION
The Corporation may offer and sell the Offered Securities in any of three
ways: (i) through agents (including Bank of America, Bank of America
International Limited or other affiliates of the Corporation); (ii) through
underwriters or dealers (including certain affiliates of the Corporation); or
(iii) directly to one or more purchasers. The Prospectus Supplement with
respect to any of the Offered Securities will set forth the terms of the
offering of such Offered Securities, including the name or names of any
underwriters or agents, the purchase price of such Offered Securities, the
proceeds to the Corporation from such sale, any underwriting discounts or
agency fees and other items constituting underwriters' or agents' compensation,
the initial public offering price, any discounts or concessions allowed or
reallowed or paid to dealers, and any securities exchanges on which such
Offered Securities may be listed.
The distribution of the Offered Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed,
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Currency Warrants,
including additional Currency Warrants of a previous issue, may be sold on any
national securities exchange on which the Currency Warrants are listed.
The Corporation may also issue contracts under which the counterparty may be
required to purchase Debt Securities, Preferred Shares, Depositary Shares or
Common Stock. Such contracts would be issued with Debt Securities, Preferred
Shares, Depositary Shares, Common Stock and/or Securities Warrants in amounts,
at prices and on terms to be set forth in a Prospectus Supplement.
If so indicated in the Prospectus Supplement relating to any Offered
Securities, the Corporation will authorize underwriters, dealers and agents to
solicit offers by certain specified institutions to purchase such Offered
Securities from the Corporation at the public offering price set forth in such
Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. Such contracts will be
subject only to those conditions set forth in such Prospectus Supplement, and
such Prospectus Supplement will set forth the commission payable for
solicitation of such contracts.
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Corporation, to indemnification by the Corporation against
certain civil liabilities, including liabilities under the Securities Act of
1933, as amended, or to contributions with respect to payments which the
underwriters or agents may be required to make in respect thereof. Underwriters
and agents, and affiliates thereof, may be customers of, engage in transactions
with, or perform services for the Corporation and its affiliates in the
ordinary course of business.
Each underwriter, dealer and agent participating in the distribution of any
Debt Securities that are issuable as Bearer Securities will agree that, in
connection with the original issuance of such Bearer Securities, it will not
offer, sell or deliver, directly or indirectly, Bearer Securities to a United
States person or to any person within the United States, except to the extent
permitted under United States Treasury Regulations.
All Offered Securities, other than the Common Stock, will be new issues of
securities with no established trading market. Any underwriters to whom Offered
Securities are sold by the Corporation for public offering and sale may make a
market in such Offered Securities, but such underwriters will not be obligated
to do so and may discontinue any market making at any time without notice. No
assurance can be given as to the liquidity of the trading market for any
Offered Securities.
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<PAGE>
LEGAL MATTERS
The validity of the Offered Securities offered hereby will be passed upon for
the Corporation by Michael J. Halloran, Executive Vice President and General
Counsel of the Corporation and Group Executive Vice President and General
Counsel of Bank of America. As of May 31, 1994, Mr. Halloran had a direct or
indirect interest in 2,056 shares of Common Stock of the Corporation and had
options to purchase an additional 52,832 shares of which 21,166 options will be
exercisable as of July 30, 1994.
Certain tax matters will be passed upon for the Corporation by Raymond W.
McKee, an Assistant Treasurer of the Corporation and Senior Vice President and
General Tax Counsel of Bank of America. As of May 31, 1994, Mr. McKee had
options to purchase 18,444 shares of Common Stock of the Corporation, of which
6,558 options will be exercisable as of July 30, 1994.
Certain matters will be passed upon for any underwriters or agents by Orrick,
Herrington & Sutcliffe, San Francisco, California.
EXPERTS
The consolidated financial statements of the Corporation and subsidiaries,
incorporated by reference in the Corporation's Annual Report on Form 10-K for
the year ended December 31, 1993 have been audited by Ernst & Young,
independent auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Continental Bank Corporation and
subsidiaries as of and for the year ended December 31, 1993, appearing in
Continental Bank Corporation's Annual Report on Form 10-K for the year ended
December 31, 1993, which financial statements were incorporated by reference as
an exhibit to the Corporation's Current Report on Form 8-K dated March 21,
1994, have been incorporated herein in reliance upon the report of Price
Waterhouse, independent auditors, incorporated by reference herein and upon the
authority of said firm as experts in accounting and auditing.
37
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration fee............................................. $1,379,320
Printing..................................................... 435,000*
Trustees' fees............................................... 36,000*
Accounting fees.............................................. 300,000*
Rating agencies' fees........................................ 700,000*
Legal fees................................................... 200,000*
Blue sky and legal investment fees and expenses.............. 50,000*
Listing fees................................................. 150,000*
Miscellaneous................................................ 149,680*
----------
Total.................................................... $3,400,000*
==========
</TABLE>
--------
*Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law,
the Certificate of Incorporation of the Corporation provides that 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. The
Certificate of Incorporation further provides that, 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.
As authorized by Section 145 of the Delaware General Corporation Law, the By-
laws of the Corporation provide for indemnification of directors and officers
in certain cases. A director or officer of the Corporation (i) must be
indemnified by the Corporation for all expenses of litigation or other legal
proceedings when he or she is successful on the merits or otherwise in such
litigation or proceedings, (ii) must be indemnified by the Corporation for the
expenses, judgments, fines and amounts paid in settlement of litigation or
proceedings (other than a derivative action), when if he or she is not
successful, if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interest of the
Corporation (and, in the case of a criminal proceeding, had no reasonable cause
to believe his or her conduct was not lawful) and (iii) must be indemnified by
the Corporation for expenses of a derivative action, even if he or she is not
successful, if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation, provided that no indemnification may be made in the case of a
derivative action if the person is judged liable to the Corporation, unless a
court determines that, despite such adjudication but in view of the
circumstances, such person is entitled to indemnification of such expenses.
The By-laws of the Corporation further provide that the Corporation may
purchase insurance on behalf of its directors and officers, whether or not it
would have the power to indemnify them against such liability.
There is directors' and officers' liability insurance presently outstanding
which insures directors and officers of the Corporation and certain of its
subsidiaries, including Bank of America. The policies cover
II-1
<PAGE>
loss for which the Corporation or any of such subsidiaries shall be required or
permitted by law to indemnify directors and officers and which result from
claims made against such directors or officers based upon the commission of
wrongful acts in the performance of their duties. The policies also cover
losses which the directors or officers must pay as the result of claims brought
against them based upon the commission of wrongful acts in the performance of
their duties and for which they are not indemnified by the Corporation or any
of such subsidiaries. The losses covered by the policies are subject to certain
exclusions and do not include fines or penalties imposed by law or other
matters uninsurable under the law. The policies contain certain provisions
regarding deductibles.
Reference is made to Section 7 of the Underwriting Agreement Standard
Provisions for Senior Debt Securities, Subordinated Debt Securities, Preferred
Stock, Depositary Preferred Stock, Common Stock, Warrants to Purchase Debt
Securities, Warrants to Purchase Common Stock, Warrants to Purchase Preferred
Stock and Currency Warrants and Section 7 of the Distribution Agreement
included herein as an exhibit to the Registration Statement for provisions
regarding indemnification of the Corporation and its directors, officers and
controlling persons against certain liabilities.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
1.1 Form of Underwriting Agreement.
1.2 Form of Underwriting Agreement for Depositary Shares.
1.3 Form of Underwriting Agreement Standard Provisions for Senior Debt
Securities, Subordinated Debt Securities, Preferred Stock, Deposi-
tary Preferred Stock, Common Stock, Warrants to Purchase Debt Se-
curities, Warrants to Purchase Common Stock, Warrants to Purchase
Preferred Stock and Currency Warrants.
1.4 Form of Distribution Agreement.
4.1 Indenture between BankAmerica Corporation and First Trust of Cali-
fornia, National Association, as successor Trustee (incorporated
by reference to Exhibit 4.1 to Registration Statement on Form S-3
(Reg. No. 33-43862) dated January 17, 1992).
4.2 Indenture between BankAmerica Corporation and Chemical Trust Com-
pany of California, as Trustee (incorporated by reference to Ex-
hibit 4.2 to Registration Statement on Form S-3 (Reg. No. 33-
43862) dated January 17, 1992).
4.3 First Supplemental Indenture between BankAmerica Corporation and
Chemical Trust Company of California, as Trustee, dated as of Sep-
tember 8, 1992 (incorporated by reference to Exhibit 4.1 to Cur-
rent Report on Form 8-K dated September 11, 1992, File No. 1-
7377).
4.4 Form of Registered Medium-Term Note (incorporated by reference to
Exhibit 4.3(a) to Amendment No. 1 to Registration Statement on
Form S-3 (Reg. No. 33-51064) dated October 23, 1992).
4.5 Form of Note (incorporated by reference to Exhibit 4.8(a) to
Amendment No. 1 to Registration Statement on Form S-3 (Reg. No.
33-51064) dated October 23, 1992).
4.6 Certificate of Incorporation of BAC, as amended (incorporated by
reference to Exhibit 3(i) to BAC's report on Form 10-K for the
year ended December 31, 1992).
4.7 By-laws of BAC, as amended (incorporated by reference to Exhibit
3.b. to BAC's Registration Statement on Form S-4 (Reg. No. 33-
51333) filed December 8, 1993).
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
4.8 Rights Agreement dated as of April 11, 1988 between BankAmerica
Corporation and Chemical Trust Company of California, and Amend-
ment No. 1 which includes the form of Right Certificate (incorpo-
rated by reference to Exhibit 4 to Current Reports on Form 8-K
dated April 11, 1988 and August 12, 1991, File No. 1-7377).
4.9 Form of Preferred Stock Certificate (incorporated by reference to
Exhibit 4.11 to Registration Statement on Form S-3 (Reg. No. 33-
51064) dated August 20, 1992).
4.10 Form of Certificate of Designations relating to Preferred Shares
(incorporated by reference to Exhibit 4.2 to Registration State-
ment on Form S-3 (Reg. No. 33-51064) dated August 20, 1992).
4.11 Form of Depositary Receipt (incorporated by reference to Exhibit
4.8 to Registration Statement on Form S-3 (Reg. No. 33-51064)
dated August 20, 1992).
4.12 Form of Deposit Agreement (incorporated by reference to Exhibit
4.14 to Amendment No. 1 to Registration Statement on Form S-3
(Reg. No. 33-51064) dated October 23, 1992).
4.13 Form of Debt Warrant Agreement (including form of Debt Warrant
certificate) (incorporated by reference to Exhibit 4.15 to Regis-
tration Statement on Form S-3 (Reg. No. 33-43862) dated January
17, 1992).
4.14 Form of Preferred Stock Warrant Agreement (including form of Pre-
ferred Stock Warrant certificate) (incorporated by reference to
Exhibit 4.16 to Registration Statement on Form S-3 (File No. 33-
51064) dated August 20, 1992).
4.15 Form of Common Stock Warrant Agreement (including form of Common
Stock Warrant certificate) (incorporated by reference to Exhibit
4.17 to Registration Statement on Form S-3 (File No. 33-51064)
dated August 20, 1992).
4.16 Forms of Common Stock Certificate with Rights legend (incorporated
by reference to Exhibit 4.18 to Registration Statement on Form S-3
(File No. 33-51064) dated August 20, 1992).
4.17 Form of Currency Warrant Agreement (including form of Currency
Warrant certificate) (incorporated by reference to Exhibit 4.21 to
Registration Statement on Form S-3 (Reg. No. 33-43862) dated Janu-
ary 17, 1992).
4.18 BankAmerica Corporation and certain of its consolidated subsidiar-
ies have outstanding certain long-term debt. None of such debt ex-
ceeds 10% of the total assets of BankAmerica Corporation and its
consolidated subsidiaries; therefore, copies of the constituent
instruments defining the rights of the holders of such debt are
not included as exhibits to this Registration Statement.
BankAmerica Corporation agrees to furnish copies of such instru-
ments to the Commission upon request.
5 Opinion of Michael J. Halloran, Executive Vice President and Gen-
eral Counsel of the Corporation, as to the legality of the Offered
Securities registered hereunder.*
12 Computations of ratio of earnings to fixed charges and ratio of
earnings to combined fixed charges and preferred stock dividends.
23.1 Consent of Ernst & Young.
23.2 Consent of Price Waterhouse.
23.3 Consent of Michael J. Halloran is contained in his opinion filed
as Exhibit 5 to this Registration Statement.*
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
24 Powers of attorney.
25.1 Form T-1 Statement of Eligibility and Qualification under the
Trustee Indenture Act of 1939 of First Trust of California,
National Association, Trustee.
25.2 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Chemical Trust Company of Califor-
nia, Trustee.
</TABLE>
--------
*To be filed by amendment.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii)
to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-
effective amendments thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
Registration Statement; provided, however, that the undertakings in clauses
(i) and (ii) shall not apply if the information required to be included in
a post-effective amendment by those clauses is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference to
this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted against the
registrant by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act of 1933 and will
be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY AND COUNTY OF SAN FRANCISCO, STATE OF CALIFORNIA, ON
THE 30TH DAY OF JUNE, 1994.
BankAmerica Corporation
/s/ RAYMOND R. PETERS
By___________________________________
(Raymond R. Peters,
Executive Vice President and
Treasurer)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND
AS OF THE DATE INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
RICHARD M. ROSENBERG* Chairman of the Board and Chief Executive
------------------------------------------- Officer (Principal Executive Officer) and
Richard M. Rosenberg Director
LEWIS W. COLEMAN* Vice Chairman of the Board and Chief
------------------------------------------- Financial Officer (Principal Financial
Lewis W. Coleman Officer) and Director
/s/ PAUL R. OGORZELEC Executive Vice President (Principal
------------------------------------------- Accounting Officer)
Paul R. Ogorzelec
Directors:
Joseph F. Alibrandi* Philip M. Hawley*
Peter B. Bedford* Frank L. Hope, Jr.*
Andrew F. Brimmer* Lawrence O. Kitchen*
Richard A. Clarke* Ignacio E. Lozano, Jr.*
Timm F. Crull* Cornell C. Maier*
C. R. Dahl* Walter E. Massey*
Kathleen Feldstein* Ruben F. Mettler*
Donald E. Guinn* A. Michael Spence*
Jacques S. Yeager*
</TABLE>
/s/ CAROLYN CHEW HAMILTON
*By__________________________________
Carolyn Chew Hamilton,
Attorney-in-Fact
Dated: June 30, 1994
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
------- --------------------
<C> <S>
1.1 Form of Underwriting Agreement.
1.2 Form of Underwriting Agreement for Depositary Shares.
1.3 Form of Underwriting Agreement Standard Provisions for Senior Debt Se-
curities, Subordinated Debt Securities, Preferred Stock, Depositary
Preferred Stock, Common Stock, Warrants to Purchase Debt Securities,
Warrants to Purchase Common Stock, Warrants to Purchase Preferred Stock
and Currency Warrants.
1.4 Form of Distribution Agreement.
4.1 Indenture between BankAmerica Corporation and First Trust of Califor-
nia, National Association, as successor Trustee (incorporated by ref-
erence to Exhibit 4.1 to Registration Statement on Form S-3 (Reg. No.
33-43862) dated January 17, 1992).
4.2 Indenture between BankAmerica Corporation and Chemical Trust Company
of California, as Trustee (incorporated by reference to Exhibit 4.2 to
Registration Statement on Form S-3 (Reg. No. 33-43862) dated January
17, 1992).
4.3 First Supplemental Indenture between BankAmerica Corporation and Chem-
ical Trust Company of California, as Trustee, dated as of September 8,
1992 (incorporated by reference to Exhibit 4.1 to Current Report on
Form 8-K dated September 11, 1992, File No. 1-7377).
4.4 Form of Registered Medium-Term Note (incorporated by reference to Ex-
hibit 4.3(a) to Amendment No. 1 to Registration Statement on Form S-3
(Reg. No. 33-51064) dated October 23, 1992).
4.5 Form of Note (incorporated by reference to Exhibit 4.8(a) to Amendment
No. 1 to Registration Statement on Form S-3 (Reg. No. 33-51064) dated
October 23, 1992).
4.6 Certificate of Incorporation of BAC, as amended (incorporated by ref-
erence to Exhibit 3(i) to BAC's report on Form 10-K for the year ended
December 31, 1992).
4.7 By-laws of BAC, as amended (incorporated by reference to Exhibit 3.b.
to BAC's Registration Statement on Form S-4 (Reg. No. 33-51333) filed
December 8, 1993).
4.8 Rights Agreement dated as of April 11, 1988 between BankAmerica Corpo-
ration and Chemical Trust Company of California, and Amendment No. 1
which includes the form of Right Certificate (incorporated by
reference to Exhibit 4 to Current Reports on Form 8-K dated April 11,
1988 and August 12, 1991, File No. 1-7377).
4.9 Form of Preferred Stock Certificate (incorporated by reference to Ex-
hibit 4.11 to Registration Statement on Form S-3 (Reg. No. 33-51064)
dated August 20, 1992).
4.10 Form of Certificate of Designations relating to Preferred Shares (in-
corporated by reference to Exhibit 4.2 to Registration Statement on
Form S-3 (Reg. No. 33-51064) dated August 20, 1992).
4.11 Form of Depositary Receipt (incorporated by reference to Exhibit 4.8
to Registration Statement on Form S-3 (Reg. No. 33-51064) dated August
20, 1992).
4.12 Form of Deposit Agreement (incorporated by reference to Exhibit 4.14
to Amendment No. 1 to Registration Statement on Form S-3 (Reg. No. 33-
51064) dated October 23, 1992).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
------- --------------------
<C> <S>
4.13 Form of Debt Warrant Agreement (including form of Debt Warrant certif-
icate) (incorporated by reference to Exhibit 4.15 to Registration
Statement on Form S-3 (Reg. No. 33-43862) dated January 17, 1992).
4.14 Form of Preferred Stock Warrant Agreement (including form of Preferred
Stock Warrant certificate) (incorporated by reference to Exhibit 4.16
to Registration Statement on Form S-3 (File No. 33-51064) dated August
20, 1992).
4.15 Form of Common Stock Warrant Agreement (including form of Common Stock
Warrant certificate) (incorporated by reference to Exhibit 4.17 to
Registration Statement on Form S-3 (File No. 33-51064) dated August
20, 1992).
4.16 Forms of Common Stock Certificate with Rights legend (incorporated by
reference to Exhibit 4.18 to Registration Statement on Form S-3 (File
No. 33-51064) dated August 20, 1992).
4.17 Form of Currency Warrant Agreement (including form of Currency Warrant
certificate) (incorporated by reference to Exhibit 4.21 to Registration
Statement on Form S-3 (Reg. No. 33-43862) dated January 17, 1992).
4.18 BankAmerica Corporation and certain of its consolidated subsidiaries
have outstanding certain long-term debt. None of such debt exceeds 10%
of the total assets of BankAmerica Corporation and its consolidated
subsidiaries; therefore, copies of the constituent instruments defining
the rights of the holders of such debt are not included as exhibits to
this Registration Statement. BankAmerica Corporation agrees to furnish
copies of such instruments to the Commission upon request.
5 Opinion of Michael J. Halloran, Executive Vice President and General
Counsel of the Corporation, as to the legality of the Offered
Securities registered hereunder.*
12 Computations of ratio of earnings to fixed charges and ratio of earn-
ings to combined fixed charges and preferred stock dividends.
23.1 Consent of Ernst & Young.
23.2 Consent of Price Waterhouse.
23.3 Consent of Michael J. Halloran is contained in his opinion filed as
Exhibit 5 to this Registration Statement.*
24 Powers of attorney.
25.1 Form T-1 Statement of Eligibility and Qualification under the Trustee
Indenture Act of 1939 of First Trust of California, National
Association, Trustee.
25.2 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Chemical Trust Company of California, Trust-
ee.
</TABLE>
--------
*To be filed by amendment.
2
<PAGE>
EXHIBIT 1.1
-----------
UNDERWRITING AGREEMENT
___________, 199__
BankAmerica Corporation
Bank of America Center
555 California Street
San Francisco, California 94104
Ladies and Gentlemen:
We understand that BankAmerica Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell $__________ aggregate principal amount of
[Insert Title of Debt Securities (the "Offered Debt Securities")] [___ shares of
Preferred Stock, Series __ (the "Offered Preferred Stock")][____ shares of
Common Stock, par value $1.5625 per share (the "Offered Common Stock")] [___
warrants to purchase [Insert Title of Securities] (the "Offered Warrants")] [___
[Insert Title of Currency Warrants] (the "Offered Currency Warrants")] [to be
sold in units (the "Offered Units") each consisting of the amount of [Offered
Debt Securities] [Offered Preferred Stock] [Offered Common Stock] [Offered
Warrants] [Offered Currency Warrants] set forth in Schedule I hereto] (the
"Offered Securities") covered by Registration Statement No. 33-__________, as
amended. The specific terms of the Offered Securities are set forth in Schedule
I hereto. Subject to the terms and conditions set forth herein and incorporated
by reference herein, the Company hereby agrees to sell and the underwriter or
underwriters named on Schedule II hereto (such underwriter or underwriters being
herein called the "Underwriters") agree to purchase, severally and not jointly,
the amounts of such Offered Securities set forth opposite such Underwriter's
name on Schedule II hereto at a purchase price equal to [________% of their
principal amount plus accrued interest, if any, from __________, 199__ to the
date of payment and delivery and accrued amortization of original issue
discount, if any, from __________, 199__ to the date of payment and delivery]
[__________].
The Underwriters will pay for the Offered Securities at the office of
__________, __________, __________, __________, at __:00 __.m. (__________ time)
on __________, 199__ (the "Closing Date") or at such other time on the same or
such other date, not later than __________, 199__ as shall be mutually agreed
upon, upon confirmation of delivery to the Underwriters in The City of New York,
or such other place as shall be mutually agreed upon, of certificates for the
Offered Securities in such names and
<PAGE>
denominations as the Underwriters request. Payment shall be made in the
following funds:__________________________________________________________
The Company agrees to have the Offered Securities available for
inspection, checking and packaging by the Underwriters in __________, not later
than __:00 __.M. (__________ time) on the business day next preceding the
Closing Date.
[The Company agrees that it will not offer, sell or contract to sell or
otherwise dispose of, directly or indirectly, or announce the offering of any of
the Company's [debt securities] [preferred stock] [debt securities warrants]
[preferred stock warrants] [common stock warrants] [currency warrants]
[securities convertible into or exchangeable for the Company's common stock]
[securities ranking on a parity with the Offered Securities] [with substantially
similar terms to the Offered Securities] [common stock] until [______________]].
[The Representatives, as defined below, have received at the time this
Agreement is executed a letter from Ernst & Young, independent public
accountants (or other independent accountants acceptable to the
Representatives), dated the date of this Agreement, as described in Section 5(e)
of the Underwriting Agreement Standard Provisions (June 1994), incorporated in
this Agreement.]
[Upon request of the Company, ___________________ will promptly advise
the Company as to whether, to its knowledge, the offering of the Offered
Securities as contemplated by this Agreement has been completed.]
[__________________________ will promptly advise the Company as to when, based
on information provided to it by the Underwriters, the offering of the Offered
Securities as contemplated by this Agreement has been completed.]
[If any one or more Underwriters shall fail to purchase and pay for any
of the Offered Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
nondefaulting Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the amount of Offered Securities set forth
opposite their names in Schedule II hereto bear to the aggregate amount of
Offered Securities set forth opposite the names of all the nondefaulting
Underwriters) the Offered Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of Offered Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Offered Securities set forth in Schedule II hereto, the nondefaulting
Underwriters shall have the right to purchase all,
2
<PAGE>
but shall not be under any obligation to purchase any, of the Offered
Securities, and if such nondefaulting Underwriters do not purchase all the
Offered Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this paragraph, the Closing Date shall be postponed
for such period, not exceeding seven days, as the nondefaulting Underwriters
shall determine in order that the required changes in the Registration Statement
and the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this paragraph shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.]
All the provisions contained in the document entitled BankAmerica
Corporation Underwriting Agreement Standard Provisions (June 1994), a copy of
which we have previously received, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Agreement to the same extent
as if such provisions had been set forth in full herein. For purposes of the
Standard Provisions, the term Representatives shall mean ______________________.
Notices shall be sent to the Underwriters at the following address:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
This Agreement will be governed by and construed in accordance with the
laws of the State of ______________________________.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
3
<PAGE>
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below and returning the signed
copy to us.
Very truly yours,
(Signed on behalf of the
Underwriters)*
By:___________________________
Title:
Accepted:
BANKAMERICA CORPORATION
By:________________________________
Title:
Dated: ___________________, 199__
* To be executed by all the Underwriters listed on Schedule II hereto or by
one or more of such Underwriters on behalf of itself (themselves) and the
other Underwriters listed on Schedule II.
4
<PAGE>
Schedule I
Underwriting Agreement dated ________ __, 19__
Debt Securities
Title:
Principal amount and currency:
Purchase price (include accrued interest and
amortization, if any):
Sinking fund provisions:
Redemption provisions:
Conversion price:
Interest Rate:
Date of Maturity:
Other provisions:
Preferred Stock
Title:
Number:
Purchase price (include accrued dividends, if any):
Liquidation value:
Dividend:
Conversion rate:
Sinking fund provisions:
Redemption Provisions:
Other provisions:
Warrants
Title:
<PAGE>
Number:
Securities issuable upon exercise
of one Warrant:
Warrant exercise price
and currency:
Purchase Price and Currency:
Date after which Warrants
are exercisable:
Expiration Date:
Warrant Agent:
Other Provisions:
Currency Warrants
Title:
Number:
Designated currency:
Purchase price and currency:
Date after which Currency Warrants are
exercisable:
Expiration date:
Currency Warrant agent:
Other provisions:
Units
Title and principal amount of Debt Securities or title and number of shares
of Preferred Stock and title and number of Warrants, and Currency Warrants
included in one Unit:
Purchase price and currency:
Detachable date:
Other provisions:
<PAGE>
Schedule II
Name Principal Amount or Number
---- --------------------------
-----------------
Total $
=================
<PAGE>
EXHIBIT 1.2
-----------
[FORM OF]
UNDERWRITING AGREEMENT
(for Depositary Shares)
__________ __, 199__
BankAmerica Corporation
Bank of America Center
555 California Street
San Francisco, California 94104
Ladies and Gentlemen:
We understand that BankAmerica Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell _______ shares of its __% __________
Preferred Stock, Series __, $___ stated value per share (the "Offered Depositary
Preferred Stock"), covered by Registration Statement No. ________, as amended.
The specific terms of the Offered Depositary Preferred Stock are set forth on
Schedule I hereto. The Offered Depositary Preferred Stock is to be deposited
with ____________________________________, a __________ trust company, as
Depositary (the "Depositary"), under a Deposit Agreement (the "Deposit
Agreement") to be dated as of the Closing Date (as defined below) among the
Company, the Depositary and the holders from time to time of depositary receipts
("Depositary Receipts") issued thereunder, against delivery of such Depositary
Receipts to the Underwriters under the terms and conditions set forth in this
Underwriting Agreement. The Depositary Receipts issued upon deposit of the
Offered Depositary Preferred Stock will evidence an aggregate of __________
Depositary Shares each representing a _____________ interest in a share of the
Offered Depositary Preferred Stock (the "Offered Depositary Shares"). The
Offered Depositary Shares are also covered by the Registration Statement. The
Offered Depositary Preferred Stock and the Offered Depositary Shares are herein
called, collectively, the "Offered Securities."
Subject to the terms and conditions set forth herein and incorporated by
reference herein, the Company hereby agrees to sell to the Underwriters listed
on Schedule II hereto (the "Underwriters"), and the Underwriters, severally and
not jointly, hereby agree to purchase the respective number of shares of the
Offered Depositary Preferred Stock represented by the respective number of
Offered Depositary Shares set forth opposite such Underwriter's name on Schedule
II hereto at a purchase price per share of $___.___ [with respect to _____,___,
shares and $_____.___ with respect to the remaining shares] (equivalent to
$______.___ [and
<PAGE>
$___.________, respectively,] per share of Offered Depositary Shares), plus
accrued dividends, if any, from date of original issue.
The Underwriters will pay for the Offered Depositary Shares at the office
of the Company, 555 California Street, San Francisco, California, at ____ A.M.
(California time) on ____ __, 19__, or at such other time on the same or such
other date, not later than _____ __, 19__, as shall be mutually agreed upon (the
"Closing Date"), upon (i) confirmation of delivery to the Underwriters in The
City of New York of Depositary Receipts evidencing the Offered Depositary Shares
and (ii) confirmation that the certificates for the Offered Depositary Preferred
Stock shall be registered in the name of the Depositary and the certificates for
the Depositary Receipts evidencing the Offered Depositary Shares shall be
registered in such names and in such denominations as the Underwriters request.
The Company agrees to have the certificates for the Offered Depositary
Preferred Stock and the Depositary Receipts evidencing the Offered Depositary
Shares available for inspection, checking and packaging by the Underwriters in
___________________ not later than _____ __.M. (_____________ time) on the
business day next preceding the Closing Date. Payment shall be made in the
following funds: ________________________________________________.
[The Company agrees that it will not offer, sell or contract to sell or
otherwise dispose of, directly or indirectly, or announce the offering of any of
the Company's [debt securities] [debt warrants] [preferred stock] [preferred
stock warrants] [common stock warrants] [currency warrants] [securities
convertible into or exchangeable for the Company's common stock] [securities
ranking on a parity with the Offered Securities] [with substantially similar
terms to the Offered Securities] [common stock] until [______________________]].
[The Representatives, as defined below, have received at the time this
Agreement is executed a letter from Ernst & Young, independent public
accountants (or other independent accountants acceptable to the
Representatives), dated the date of this Agreement, as described in Section 5(e)
of the Underwriting Agreement Standard Provisions (June 1994), incorporated in
this Agreement.]
[Upon request of the Company, ___________________ will promptly advise the
Company as to whether, to its knowledge, the offering of the Offered Securities
as contemplated by this Agreement has been completed.] [_______________________
will promptly advise the Company as to when, based on information provided to it
by the Underwriters, the offering of the Offered Securities as contemplated by
this Agreement has been completed.]
2
<PAGE>
[If any one or more Underwriters shall fail to purchase and pay for any of
the Offered Depositary Shares agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
nondefaulting Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the amount of Offered Depositary Shares set
forth opposite their names in Schedule II hereto bear to the aggregate amount of
Offered Depositary Shares set forth opposite the names of all the nondefaulting
Underwriters) the Offered Depositary Shares which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of Offered Depositary Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Offered Depositary Shares set forth in Schedule II
hereto, the nondefaulting Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Offered Depositary
Shares, and if such nondefaulting Underwriters do not purchase all the Offered
Depositary Shares, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this paragraph, the Closing Date shall be postponed
for such period, not exceeding seven days, as the nondefaulting Underwriters
shall determine in order that the required changes in the Registration
Statement and the Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this paragraph shall relieve any defaulting
Underwriter of its liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.]
All the provisions contained in the document entitled BankAmerica
Corporation Underwriting Agreement Standard Provisions (June 1994), a copy of
which we have previously received, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Agreement to the same extent
as if such provisions had been set forth in full herein. For purposes of the
Standard Provisions, the term Representatives shall mean ______________________
____________________________________________________________.
Notices shall be sent to the Underwriters at the following address:
________________________________________________________________________________
_____________________________________________________________________.
This Agreement will be governed by and construed in accordance with the
laws of the State of __________.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
3
<PAGE>
Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below and returning the signed copy to
us.
Very truly yours,
(Signed on behalf of the
Underwriters)*
By:___________________________
Title:
Accepted:
BANKAMERICA CORPORATION
By:________________________________
Title:
Dated: ________________, 199__
* To be executed by all the Underwriters listed on Schedule II hereto or by
one or more of such Underwriters on behalf of itself (themselves) and the
other Underwriters listed on Schedule II.
4
<PAGE>
SCHEDULE I
To
Underwriting Agreement Dated , 19
------------------------------------------
Offered Depositary Shares
Title: Depositary Shares, Each Representing a _____________
Interest in a Share of __% __________ Preferred
Stock, Series (Stated Value $___ Per Share)
Number of Offered
Depositary Shares: __________
Purchase Price: $______._____ per share of Offered Depositary Shares
[with respect to _______ shares and $_______._____
per share with respect to ______ shares], plus
accrued dividends, if any, from date of original
issue
Dividend: __% per annum, cumulative from the date of issue and
payable quarterly on _______________________________
_____________________________________________________
Initial Price to Public: $_____, plus accrued dividends, if any, from date of
original issue
Redemption Provisions: Not redeemable prior to ____ __, ____. On or after
____ __, ____ at any time or from time to time,
redeemable in whole or in part at option of the
Company at $__ per share of Offered Depositary
Shares, plus accrued and unpaid dividends to date of
redemption
Conversion Rate:
Sinking Fund Provisions:
Other Provisions:
5
<PAGE>
SCHEDULE II
To
Underwriting Agreement Dated , 19
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Number of Shares of
Name of Underwriter Offered Depositary Shares
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Total
==========
6
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EXHIBIT 1.3
June 1994
BANKAMERICA CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS FOR SENIOR DEBT SECURITIES,
SUBORDINATED DEBT SECURITIES, PREFERRED STOCK,
DEPOSITARY PREFERRED STOCK, COMMON STOCK,
WARRANTS TO PURCHASE DEBT SECURITIES,
WARRANTS TO PURCHASE COMMON STOCK,
WARRANTS TO PURCHASE PREFERRED STOCK
AND CURRENCY WARRANTS
(June 1994)
<PAGE>
From time to time, BankAmerica Corporation (the "Company") may enter into
underwriting agreements that provide for the sale of designated securities to
the several underwriters named therein. The standard provisions set forth
herein may be incorporated by reference in any such underwriting agreement (an
"Underwriting Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein sometimes referred to as "this
Agreement" or "the Underwriting Agreement." Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined.
1. Securities; Prospectus; Representations and Warranties. (a) The
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Company proposes to issue and sell from time to time its senior debt securities
(the "Senior Securities") and subordinated debt securities (the "Subordinated
Securities"; the Senior Securities and the Subordinated Securities being herein
collectively referred to as the "Debt Securities"). The Senior Securities are
to be issued under an Indenture dated as of November 1, 1991, as amended or
supplemented (the "Senior Indenture") between the Company and First Trust of
California, National Association, as successor trustee (the "Senior Trustee",
and together with the Subordinated Trustee, the "Trustees"). The Subordinated
Securities are to be issued under an Indenture dated as of November 1, 1991, as
amended or supplemented, (the "Subordinated Indenture"), between the Company and
Chemical Trust Company of California, as trustee (the "Subordinated Trustee").
The Senior Indenture and the Subordinated Indenture are collectively referred to
herein as the "Indentures". The Debt Securities may have varying designations,
maturities, rates and times of payment of interest, if any, selling prices,
redemption terms, if any, exchange terms, if any, conversion terms, if any, and
other specific terms.
The Company also proposes to issue and sell from time to time preferred
stock (the "Preferred Stock"). The Preferred Stock will be issuable in series
with varying conversion rights, if any, dividend provisions, redemption terms
and other specific terms.
The Company also proposes to issue and sell from time to time its
depositary preferred stock (the "Depositary Preferred Stock"). The Depositary
Preferred Stock will be issuable in series with varying conversion rights, if
any, dividend provisions, redemption terms and other specific terms, and is to
be deposited with a Depositary under a Deposit Agreement, to be entered into
between the Company, the Depositary and the holders from time to time of
depositary receipts (the "Depositary Receipts") issued thereunder, against
delivery of Depositary Receipts evidencing depositary shares (the "Depositary
Shares"), each of which will represent a fractional interest in the Depositary
Preferred Stock.
<PAGE>
The Company also proposes to issue and sell from time to time its common
stock, par value $1.5625 (the "Common Stock"). The common stock may have
varying selling prices or methods for determining selling prices.
The Company also proposes to issue and sell from time to time warrants to
purchase Debt Securities (the "Debt Securities Warrants"), Common Stock (the
"Common Stock Warrants") or Preferred Stock (the "Preferred Stock Warrants"; the
Debt Securities Warrants, the Common Stock Warrants and the Preferred Stock
Warrants being herein collectively referred to as the "Warrants"). The Warrants
are to be issued pursuant to a warrant agreement (the "Warrant Agreement") to be
entered into between the Company and a warrant agent. The Warrants may have
varying designations, terms for exercising, selling prices and other specific
terms.
The Company also proposes to issue and sell from time to time warrants
entitling the holder to receive the cash value of the right to purchase or to
sell foreign currencies or composite currencies (the "Currency Warrants"). The
Currency Warrants are to be issued pursuant to a warrant agreement (the
"Currency Warrant Agreement") to be entered into between the Company and a
warrant agent. The Currency Warrants may have varying designations, terms for
exercising, selling prices and other specific terms.
The Debt Securities, Preferred Stock, Depositary Preferred Stock,
Depositary Shares, Common Stock, Warrants and Currency Warrants may be sold
either separately or as units (the "Units").
As used herein, "Offered Debt Securities," "Offered Preferred Stock,"
"Offered Depositary Preferred Stock," "Offered Depositary Shares," "Offered
Common Stock," "Offered Debt Securities Warrants," "Offered Common Stock
Warrants," "Offered Preferred Stock Warrants," "Offered Warrants," "Offered
Currency Warrants" and "Offered Units" shall mean the specific Debt Securities,
Preferred Stock, Depositary Preferred Stock, Depositary Shares, Common Stock,
Debt Securities Warrants, Common Stock Warrants, Preferred Stock Warrants,
Warrants, Currency Warrants and Units, respectively described in the
Underwriting Agreement. The Offered Debt Securities, Offered Preferred Stock,
Offered Depositary Preferred Stock, Offered Depositary Shares, Offered Common
Stock, Offered Debt Securities Warrants, Offered Common Stock Warrants, Offered
Preferred Stock Warrants, Offered Warrants, Offered Currency Warrants and
Offered Units described in the Underwriting Agreement shall collectively be
referred to as the "Offered Securities."
(b) The Company has filed with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act of 1933, as amended (the "1933
Act") a registration statement
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(File No. 33-_____) including a prospectus relating to the Debt Securities, the
Preferred Stock, the Depositary Preferred Stock, the Depositary Shares, the
Common Stock, the Debt Securities Warrants, the Common Stock Warrants, the
Preferred Stock Warrants and the Currency Warrants and such registration
statement has become effective. The term "Registration Statement" means the
registration statement as amended to the date of this Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Preliminary Prospectus" means the Basic Prospectus together with a
preliminary prospectus supplement specifically relating to the Offered
Securities. The Company will file with, or mail for filing to, the Commission a
prospectus supplement specifically relating to the Offered Securities pursuant
to Rule 424 under the 1933 Act (the "Prospectus Supplement"), together, if
required, with the Basic Prospectus (collectively, the "Prospectus"). As used
herein, the terms "Registration Statement", "Basic Prospectus", "Prospectus" and
"Preliminary Prospectus" shall include in each case the material, if any,
incorporated by reference therein and the terms "amend", "amendment" and
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Securities Exchange Act of 1934, as amended (the "1934
Act") after the effective date of the Registration Statement, or the date of any
Preliminary Prospectus or the Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(c) The Company represents and warrants to each Underwriter that (i) each
document, if any, filed or to be filed pursuant to the 1934 Act and incorporated
by reference in the Prospectus complied or will comply when so filed in all
material respects with the 1934 Act and the rules and regulations thereunder,
(ii) each part of the Registration Statement (including the documents
incorporated by reference therein), when such part became effective or was
filed, as the case may be, complied in all material respects with the 1933 Act,
the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the respective
rules and regulations thereunder and did not contain any untrue statements of
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) the Registration
Statement at the date of the Prospectus Supplement and at the Closing Date will
meet the requirements set forth in Rule 415(a)(1)(x) under the 1933 Act and will
comply in all other material respects with said rule, (iv) each Preliminary
Prospectus, if any, filed pursuant to Rule 424 under the 1933 Act will comply
when so filed in all material respects with the 1933 Act, and the rules and
regulations thereunder, (v) the Registration Statement, the Prospectus and the
applicable Indenture comply and, as amended or supplemented, will comply in all
material respects with the 1933 Act and the Trust Indenture Act and the
respective rules and regulations thereunder, (vi) at
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the date of the Prospectus Supplement, at the date of any further amendment to
the Registration Statement or supplement to the Prospectus and at the Closing
Date, the Registration Statement and the Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except that these representations and warranties do not apply to (a) that part
of the Registration Statement which shall constitute the Statements of
Eligibility and Qualification (Forms T-1) under the Trust Indenture Act of the
Trustees or (b) statements in or omissions from any such documents based upon
information furnished to the Company in writing by or in any document prepared
by any Underwriter, any Warrant Agent or by the Trustees expressly for use
therein, (vii) the Company has furnished to the Representatives such
information, financial and other, regarding the Company as is expected to be
included in the Prospectus Supplement, and (viii) the Company has complied and
will comply with the provisions of that certain Florida act relating to the
disclosure of doing business with Cuba, codified as Section 517.075 of the
Florida statutes, and the rules and regulations thereunder or is exempt
therefrom.
(d) The Company represents and warrants to each Underwriter that there has
been no material adverse change in the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries considered
as one enterprise, whether or not arising from transactions in the ordinary
course of business, since the date of the most recent financial statements
included or incorporated in the Prospectus, as amended or supplemented as of the
Closing Date, except as set forth or contemplated in such Prospectus.
2. Offering of Offered Securities. The Company is advised by the
------------------------------
Representatives that the Underwriters propose to offer the Offered Securities in
the manner set forth in the Prospectus.
3. Delivery and Payment. Payment for the Offered Securities shall be made
--------------------
by Federal Funds, credit advice or official bank check or checks payable to the
order of the Company in such funds and at the time and place set forth in this
Agreement, upon [delivery of the Offered Securities] [confirmation of delivery
of the Offered Depositary Preferred Stock to the Depositary against delivery of
Depositary Receipts evidencing the Offered Depositary Shares] to the
Representatives for the respective accounts of the several Underwriters,
registered in such names and in such denominations as the Representatives shall
request in writing not less than two full business days prior to the date of
delivery. The time and date of such payment and delivery of the Offered
Securities are herein referred to as the Closing Date.
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<PAGE>
4. Agreements. The Company agrees with the Underwriters that:
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(a) The Company will cause the Prospectus Supplement and, if required, the
Basic Prospectus to be filed pursuant to Rule 424 under the 1933 Act and, prior
to the termination of the offering of the Offered Securities, will promptly
advise the Representatives (i) when any amendment to the Registration Statement
shall have become effective or any further supplement to the Prospectus shall
have been filed, (ii) of any request by the Commission for any amendment of the
Registration Statement or further supplement to the Prospectus or for any
additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Offered Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. Prior to the
termination of the offering of the Offered Securities and prior to the
expiration or exercise of Offered Warrants, if any, the Company will not file
any amendment to the Registration Statement or any further supplement to the
Prospectus unless the Company has furnished the Representatives a copy for
review prior to filing and will not file any such proposed amendment or
supplement to which the Representatives reasonably object. The Company will use
its best efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered Securities is
required to be delivered under the 1933 Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the 1933 Act or the 1934 Act or the respective rules
thereunder, the Company promptly will prepare and file with the Commission,
subject to paragraph (a) of this Section 4, an amendment or supplement which
will correct such statement or omission or an amendment which will effect such
compliance.
(c) The Company will make generally available to its security holders and
to the Representatives as soon as practicable, but not later than 45 days after
the end of the 12-month period beginning at the end of the fiscal quarter of the
Company during which the filing of the Prospectus pursuant to Rule 424 under the
1933 Act first occurs (except not later than 90 days if such filing date is in
the Company's last fiscal quarter), an earnings statement of the Company and its
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<PAGE>
consolidated subsidiaries which will satisfy the provisions of Section 11(a) of
the 1933 Act and Rule 158 under the 1933 Act.
(d) The Company will furnish to counsel for the Underwriters, without
charge, a signed copy of the Registration Statement (including exhibits thereto
and materials incorporated by reference therein) and to each Representative a
copy of the Registration Statement (including exhibits thereto and materials
incorporated by reference therein) and, so long as delivery of a prospectus by
an Underwriter or dealer in connection with the sale of the Offered Securities
may be required by the 1933 Act, as many copies of each Preliminary Prospectus
and the Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request.
(e) The Company will pay all expenses incident to the performance of its
obligations under this Agreement, the expenses of printing all documents
relating to the offering of the Offered Securities and any fees charged for
rating the Offered Securities.
(f) The Company will arrange for the qualification of the Offered
Securities and the Common Stock, Preferred Stock or Depositary Shares which may
be issuable pursuant to the Offered Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of the Offered
Securities and will arrange for the determination of the eligibility of the
Offered Securities for purchase by certain institutional investors under the
laws of such jurisdictions as the Representatives may designate.
(g) The Company will arrange for the listing of the Offered Currency
Warrants, the Offered Preferred Stock, the Offered Depositary Shares or the
Offered Common Stock upon notice of issuance on the New York Stock Exchange or
such other national securities exchange as may be designated in the Underwriting
Agreement.
(h) The Company will arrange for the listing of any Common Stock issuable
upon conversion or exercise of Offered Securities to be listed on all national
securities exchanges on which the Company's outstanding Common Stock is then
listed.
5. Conditions to the Obligations of the Underwriters. The obligations of
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the Underwriters to purchase the Offered Securities shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof and the Closing Date, to the accuracy of
the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
6
<PAGE>
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Representatives shall have received on the Closing Date the opinion
of the General Counsel of the Company, counsel for the Company (or other counsel
for the Company acceptable to the Representatives), dated the Closing Date, to
the effect set forth in Exhibit A hereto.
(c) The Representatives shall have received on the Closing Date the opinion
of Orrick, Herrington & Sutcliffe, counsel for the Underwriters (or other
counsel for the Underwriters acceptable to the Representatives), dated the
Closing Date, with respect to the issuance and sale of the Offered Securities,
the Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they request for the purposes of enabling them to
pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the Chairman of the Board, the Chief Executive
Officer, President, a Vice Chairman of the Board, a Vice Chairman or the Chief
Financial Officer of the Company and the Treasurer or an Assistant Treasurer of
the Company (or, in either such case, another officer or officers acceptable to
the Representatives), dated the Closing Date, to the effect that the signatories
of such certificate have carefully examined the Registration Statement, the
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse change,
nor any presently known and existing development that the Company
expects to result in a material adverse change, in the financial
condition, earnings, business or properties of the Company and its
subsidiaries considered as one enterprise, whether or not arising from
transactions in
7
<PAGE>
the ordinary course of business, except as set forth in or
contemplated in the Prospectus.
(e) The Representatives shall have received on the Closing Date a letter
from Ernst & Young, independent public accountants (or other independent public
accountants acceptable to the Representatives), dated the Closing Date, in form
and substance satisfactory to the Representatives containing statements and
information of the type ordinarily included in accountants "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained or incorporated by reference in the Registration Statement
and the Prospectus.
(f) There shall not have been any change or decrease specified in the
letter referred to in paragraph (e) of this Section 5 or, subsequent to the date
of the Underwriting Agreement, there shall not have been any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which, in any case
referred to in this paragraph (f), is, in the judgment of the Representatives,
so material and adverse as to make it impractical or inadvisable to proceed with
the delivery or offering of the Offered Securities as contemplated by the
Prospectus.
[(g) The Representatives shall have received on the Closing Date an
opinion dated the Closing Date, satisfactory to the Representatives and counsel
for the Representatives, of counsel for the Depositary, to the effect that the
Deposit Agreement has been duly authorized, executed and delivered by the
Depositary and is a valid and binding agreement of the Depositary, enforceable
in accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles.]
(h) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be cancelled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to
8
<PAGE>
the Company in writing or by telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the Offered
---------------------------------------
Securities provided for in this Agreement is not consummated because any
condition to the obligations of the Underwriters set forth in Section 5 hereof
is not satisfied or because of any refusal, inability or failure on the part of
the Company to perform any agreement in this Agreement or comply with any
provision in this Agreement other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been reasonably incurred by them in connection with the
proposed purchase and sale of the Offered Securities and shall have no further
obligations to the Underwriters with respect thereto. In no event shall the
Company be liable to the Underwriters for loss of anticipated profits from the
transactions contemplated by this Agreement.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
--------------------------------
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the 1933 Act or the 1934 Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the 1933 Act, the 1934 Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be liable
-------- -------
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for use in connection
with the preparation thereof, or the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of any of the Trustees, and (ii) such
indemnity with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Offered Securities which are
9
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the subject thereof, if such person did not receive a copy of the Prospectus (or
the Prospectus as amended or supplemented), excluding documents incorporated
therein by reference, at or prior to the confirmation of the sale of such
Offered Securities to such person in any case where such delivery is required by
the 1933 Act and the untrue statement or omission of a material fact contained
in such Preliminary Prospectus was corrected in the Prospectus (or the
Prospectus as amended or supplemented). This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the 1933 Act or the 1934 Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel satisfactory to such indemnified party; provided,
--------
however, if the defendants in any such action include both the indemnified party
-------
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred
10
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by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a), representing the indemnified
parties who are parties to such action), (ii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is due
in accordance with its terms but is for any reason held by a court to be
unavailable on grounds of policy or otherwise, the Company and the Underwriters
shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending the same) to which the Company and one or more of the
Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the aggregate
underwriting discount appearing on the cover page of the Prospectus Supplement
bears to the aggregate public offering price appearing thereon and the Company
is responsible for the balance; provided, however, that (y) in no case shall any
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Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Offered Securities) be responsible for any
amount in excess of the underwriting discount applicable to the Offered
Securities purchased by such Underwriter hereunder and (z) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 7, each person
who controls an Underwriter within the meaning of the 1933 Act shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the 1933 Act or the 1934 Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clause (y) of this paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom
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<PAGE>
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d). This notice requirement shall be deemed satisfied by the delivery
of the notice contemplated by the first sentence of subparagraph (c) of this
Section 7.
8. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Offered Securities, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or materially limited, (ii) a commercial banking moratorium shall have
been declared by either Federal or New York or California State authorities, or
(iii) there shall have occurred any outbreak or material escalation of
hostilities or other calamity or crisis, the effect of which on the United
States or international markets is such as to make it, in the reasonable
judgment of the Representatives, impracticable to market the Offered Securities
or enforce contracts for the sale of the Offered Securities.
9. Representations and Indemnities to Survive. The respective agreements,
------------------------------------------
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Offered Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
10. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed to the address furnished to the Company in writing for
the purpose of communications hereunder; or, if sent to the Company, will be
mailed, delivered or telegraphed to it at Bank of America Center, 555 California
Street, San Francisco, California 94104, attention of the Secretary.
11. Successors. This Agreement will inure to the benefit of and be
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binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder. No purchaser of
Offered Securities or Depositary Receipts from any Underwriter shall be deemed a
successor because of such purchase.
12
<PAGE>
EXHIBIT A
---------
FORM OF OPINION OF
COUNSEL TO THE COMPANY
----------------------
The opinion of counsel for the Company, to be delivered pursuant to
Section 5(b) of the Underwriting Agreement, shall be to the effect that:
(i) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and corporate authority to own its properties and conduct its
business as described in the Prospectus and is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended;
(ii) Bank of America National Trust and Savings Association (the "Bank")
holds a valid Certificate of Authority from the Comptroller of the Currency of
the United States of America to do business as a national banking association
under the laws of the United States and has full corporate power and authority
to own its properties and conduct its business as described in the Prospectus;
and all the outstanding shares of capital stock of the Bank have been duly and
validly authorized and issued, are fully paid and (except as provided in 12
U.S.C. (S) 55) nonassessable, and are directly owned by the Company free and
clear of liens and encumbrances;
(iii) [If the Offered Securities include or are exercisable or
exchangeable for or convertible into equity securities of the Company insert --
the Company's authorized and outstanding capital stock was as set forth in the
Prospectus as of the dates set forth therein;] the Offered Securities conform to
the description thereof contained in the Prospectus;
[If the Offered Securities include Offered Debt Securities insert --
(iv) the Indenture has been duly authorized, executed and delivered, has
been duly qualified under the Trust Indenture Act and constitutes a valid and
binding instrument of the Company enforceable against the Company in accordance
with its terms (subject, (1) to further action by the Company's Board of
Directors to authorize the issuance of Capital Securities to be exchanged for
Subordinated Debt Securities or sold to be designated for inclusion in a
securities fund, as provided in the Indenture and (2) to the qualifications to
be set forth in the opinion);
(v) the Offered Debt Securities have been duly authorized by the Company,
executed in accordance with the
A-1
<PAGE>
provisions of the Indenture, and authenticated by the Trustee or its agent in
accordance with the provisions of the Indenture and, when delivered to and paid
for by the Underwriters pursuant to the Underwriting Agreement, will constitute
valid and binding obligations enforceable against the Company in accordance with
their terms and will be entitled to the benefits of the Indenture (subject to
the qualifications to be set forth in the opinion);]
[If the Offered Debt Securities include Offered Debt Securities which are
to be exchangeable for Capital Securities insert --
(vi) the Offered Debt Securities are exchangeable for Capital Securities,
as defined in the Indenture, of the Company in accordance with the terms of the
Offered Securities and the Indenture (subject to the qualifications to be set
forth in the opinion);]
[If the Offered Securities include Offered Preferred Stock insert --
(vii) the Offered Preferred Stock has been duly authorized for issuance
and sale, and, when issued and delivered to and paid for by the Underwriters
pursuant to the Underwriting Agreement will be validly issued, fully paid and
nonassessable; the certificates for the Offered Preferred Stock are in valid and
sufficient form;
(viii) the Offered Preferred Stock ranks on a parity with all issued and
outstanding shares of Preferred Stock as to dividends and as to distributions of
assets except as set forth in the Prospectus;]
[If the Offered Securities include Offered Depositary Preferred Stock
insert --
(ix) the Offered Depositary Preferred Stock has been duly authorized for
issuance and sale, and, when issued and delivered to the Depositary against
delivery of the Depositary Receipts evidencing the Offered Depositary Shares to
the Underwriters and payment by the Underwriters pursuant to the Underwriting
Agreement will be validly issued, fully paid and nonassessable; the certificates
for the Offered Depositary Preferred Stock are in valid and sufficient form;
(x) the Offered Depositary Preferred Stock ranks on a parity with all
issued and outstanding shares of Preferred Stock as to dividends and as to
distributions of assets except as set forth in the Prospectus;
(xi) assuming due authorization, execution and delivery of the Deposit
Agreement by the Depositary, the Deposit Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company enforceable
A-2
<PAGE>
in accordance with its terms (subject to the qualifications to be set forth in
the opinion); and the Depositary Receipts when executed and delivered pursuant
to the Deposit Agreement upon deposit of the Offered Depositary Preferred Stock
thereunder, will be validly issued and will entitle the holders thereof to the
rights specified in the Depositary Receipts and in the Deposit Agreement;]
[If the Offered Securities include Offered Common Stock insert --
(xii) the Offered Common Stock has been duly authorized and will be, when
duly countersigned by the Company's Transfer Agent and Registrar and upon
issuance and delivery against payment therefor in accordance with the terms of
the Underwriting Agreement, validly issued, fully paid and nonassessable.]
[If the Offered Securities are convertible into Common Stock or Capital
Securities insert --
(xiii) the Offered Securities are convertible in accordance with their
terms [and the Indenture] and the __________ issuable upon conversion thereof
have been duly and validly authorized and reserved for issuance upon such
conversion, and when issued upon such conversion in accordance with the terms of
the Offered Securities will be duly authorized, validly issued, fully paid and
nonassessable;]
[If the Offered Securities include Offered Warrants insert --
(xiv) the Offered Warrants have been duly authorized and duly executed
by the proper officers of the Company and authenticated by the warrant agent
under the Warrant Agreement and constitute legal, valid and binding obligations
of the Company; [the Debt Securities initially issuable upon exercise thereof
have been duly authorized, and when executed and authenticated in accordance
with the Warrant Agreement and the Indenture upon exercise of the Warrants in
accordance with the terms of the Warrant Agreement and at the price therein
provided for, will be valid and binding obligations enforceable against the
Company in accordance with their terms and will be entitled to the benefits of
the Indenture (subject to the qualifications to be set forth in the opinion);]
[the Preferred Stock initially issuable upon exercise thereof has been duly and
validly authorized and reserved for issuance upon such exercise and such shares,
when issued upon such exercise in accordance with the terms of the Warrant
Agreement and at the price therein provided for, will be duly authorized,
validly issued, fully paid and nonassessable;] [the Common Stock initially
issuable upon exercise thereof has been duly and validly authorized and reserved
for issuance upon such exercise and such shares, when issued upon such exercise
in accordance with the terms of the Warrant Agreement and at the
A-3
<PAGE>
price therein provided for, will be duly authorized, validly issued, fully paid
and nonassessable;]
(xv) assuming due authorization, execution and delivery of the Warrant
Agreement by the Warrant Agent, the Warrant Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding instrument of
the Company enforceable in accordance with its terms (subject to the
qualifications to be set forth in the opinion);]
[If the Offered Securities include Offered Currency Warrants insert --
(xvi) the Offered Currency Warrants have been duly authorized and duly
executed by the proper officers of the Company and countersigned by the warrant
agent under the Currency Warrant Agreement and constitute legal, valid and
binding obligations of the Company;
(xvii) the Currency Warrant Agreement has been duly authorized,
executed and delivered and constitutes a valid and binding instrument
enforceable against the Company in accordance with its terms (subject to the
qualifications to be set forth in the opinion);]
(xviii) to the best knowledge of such counsel, (a) there is no pending
or threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and (b) there is
no franchise, contract or other document which is known to such counsel of a
character required to be described in the Registration Statement or Prospectus,
or to be filed as an exhibit, which is not described or filed as required;
(xix) (a) the Registration Statement has become effective under the 1933
Act; (b) to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened; and (c) the Registration
Statement, the Prospectus and each amendment thereof or supplement thereto and
each document incorporated by reference therein (other than the Statements of
Eligibility and Qualification (Forms T-1) under the Trust Indenture Act of the
Trustees and the financial statements, schedules and other financial and
statistical information contained or incorporated therein, or that should have
been so contained or incorporated, as to which such counsel need express no
opinion), as of their respective effective or issue dates, complied as to form
in all material respects with the applicable requirements of the 1933 Act and
the 1934 Act and the respective rules thereunder (in passing on the form of such
Registration Statement, counsel may assume the correctness and completeness of
the statements made therein);
A-4
<PAGE>
(xx) the Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(xxi) no consent, approval, authorization or order of any court or
governmental agency or body is required of the Company for the consummation of
the transactions contemplated in the Underwriting Agreement [or the Warrant
Agreement] [or the Deposit Agreement], except such as have been obtained under
the 1933 Act, 1939 Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the Offered
Securities by the Underwriters and the following other approvals, which have
been obtained: ____________________;
(xxii) neither the issue and sale of the Offered Securities, nor the
consummation of any other of the transactions contemplated in the Underwriting
Agreement [or the Warrant Agreement] [or the Deposit Agreement] nor the
fulfillment of the terms thereof will conflict with, result in a breach of, or
constitute a default under the certificate of incorporation or by-laws of the
Company or, to the best knowledge of such counsel, any indenture or other
agreement or instrument to which the Company or the Bank is a party or bound, or
any order or regulation of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company or the Bank
which in the case of any indenture, agreement, instrument or order, would have a
material adverse effect on the holders of the Offered Securities or the
financial condition, earnings, business or properties of the Company and its
subsidiaries, taken as one enterprise; and
(xxiii) there are no holders of securities of the Company having rights
to the registration of such securities under the Registration Statement.
In addition, such opinion shall also cover, if applicable to a particular
issue of Offered Securities, matters relating to Delayed Delivery Contracts,
listing on the New York Stock Exchange or other securities exchange, the
nonapplicability of the California usury law and such other matters as the
Representatives may reasonably require.
In addition, such counsel shall state that nothing has come to the
attention of such counsel to cause such counsel to believe that the Registration
Statement, or any amendment thereof, at the time it became effective contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the date of this Agreement and as of
the Closing Date contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which
A-5
<PAGE>
they were made, not misleading (it being understood that such counsel need not
make any comment with respect to the accuracy, completeness or fairness of the
financial statements, schedules and other financial and statistical information
contained or incorporated therein, or that should have been so contained or
incorporated, or with respect to the Statements of Eligibility and Qualification
of the trustees named in the Registration Statement on their Forms T-1).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
California or the United States, to the extent such counsel shall deem proper
and specify in such opinion, upon the opinion of other counsel of good standing
whom such counsel believes to be reliable and who are satisfactory to counsel
for the Underwriters; and (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company and public
officials.
A-6
<PAGE>
EXHIBIT 1.4
BANKAMERICA CORPORATION
Medium-Term Notes, Series __
Distribution Agreement (Domestic)
[DATE]
--------------------
--------------------
--------------------
--------------------
Ladies and Gentlemen:
BankAmerica Corporation, a Delaware corporation (the "Company"), confirms
its agreement with you with respect to the issue and sale by the Company of up
to $______________ aggregate principal amount of its Medium-Term Notes, Series
__ (the "Securities"), to be issued, in the case of senior Securities, pursuant
to an Indenture dated as of ________________, between the Company and
_______________________________, as trustee, or, in the case of subordinated
Securities, pursuant to an Indenture dated as of _________________________,
between the Company and __________________________________, as trustee
(collectively, the "Indentures"). ______________________________ and
________________________ are hereinafter referred to collectively as the
"Trustees".
Subject to the terms and conditions stated herein, the Company hereby (i)
appoints you as agent of the Company for the purpose of soliciting purchases of
the Securities from the Company by others and (ii) agrees that whenever the
Company determines to sell Securities directly to you as principal for resale to
others it will enter into a Terms Agreement (as defined below) relating to such
sale in accordance with the provisions of Section 2(b) hereof; provided,
--------
however, that the Company reserves the right to appoint additional agents for
-------
the purpose of soliciting offers to purchase the Securities, provided that they
are appointed pursuant to agreements with terms substantially similar to the
terms of this Agreement (except with respect to commissions and payment of
expenses); and provided, further, that the Company reserves the right to sell
-------- -------
and may accept offers to purchase the Securities directly on its own behalf or
through or to underwriters.
<PAGE>
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 relating to the Securities
and the offering thereof from time to time in accordance with Rule 415 of the
Securities Act of 1933, as amended (the "1933 Act"). Such registration
statement has been declared effective by the Commission, and the Indentures have
been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Such registration statement and the prospectus relating to the
Securities filed pursuant to Rule 424 under the 1933 Act, including all
documents incorporated therein by reference, as from time to time amended or
supplemented, are referred to herein as the "Registration Statement" and the
"Prospectus", respectively. The Securities will be issuable in registered form.
This Agreement relates only to the sale of, and the obligations hereunder of you
shall be applicable only with respect to, Securities issuable in registered
form.
SECTION 1. Representations and Warranties.
------------------------------
(a) The Company represents and warrants to you as of the date hereof, as of
the Commencement Time (as defined in Section 2(d)) and each Settlement Date (as
defined in Section 2(b)) hereinafter referred to, and as of the times referred
to in Sections 6(a) and 6(b) hereof (in each case the "Representation Date"), as
follows:
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective, complied, and as of the applicable
Representation Date will comply, in all material respects with the
requirements of the 1933 Act, and the rules and regulations thereunder (the
"Regulations") and the 1939 Act. The Registration Statement, at the time
it became effective did not, and as of the applicable Representation Date
will not, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, at the time the
Registration Statement became effective did not, and as of the applicable
Representation Date will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the representations and
-------- -------
warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by you
expressly for use in the Registration Statement or Prospectus or to that
part of the Registration Statement which shall constitute the Statements of
Eligibility and Qualification under the 1939 Act (Forms T-1) of the
Trustees.
2
<PAGE>
(ii) The documents incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act") and the rules
and regulations thereunder (the "1934 Regulations"), and, when read
together and with the other information in the Prospectus, at the time the
Registration Statement became, and any amendments thereto become,
effective, did not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were or are made, not misleading.
(iii) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own its properties and conduct
its business as described in the Prospectus, as amended or supplemented as
of the applicable Representation Date, and is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended;
(iv) Bank of America National Trust and Savings Association (the
"Bank") holds a valid Certificate of Authority from the Comptroller of the
Currency of the United States of America to do business as a national
banking association under the laws of the United States and has full
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, as amended or supplemented as of
the applicable Representation Date, and all the outstanding shares of
capital stock of the Bank have been duly and validly authorized and issued,
are fully paid and (except as provided in 12 U.S.C. (S) 55) nonassessable,
and are directly owned by the Company free and clear of liens and
encumbrances except as disclosed in writing to you;
(v) there is no pending or, to the Company's knowledge, threatened
action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the Registration
Statement, as amended as of the applicable Representation Date, which is
not adequately disclosed in the Prospectus, as amended or supplemented as
of the applicable Representation Date, and there is no franchise, contract
or other document of a character required to be described in the
Registration Statement, as amended as of the applicable Representation
Date, or the Prospectus, as amended or supplemented as of the applicable
Representation Date, or to be filed as an exhibit, which is not described
or filed as required;
3
<PAGE>
(vi) this Agreement and any applicable Terms Agreement have been duly
authorized, executed and delivered by the Company;
(vii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement, except such as have been
obtained under the 1933 Act and the 1939 Act and such as may be required
under the blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities;
(viii) neither the issue and sale of any Securities, nor the
consummation of any other of the transactions contemplated by this
Agreement nor the fulfillment of the terms hereof will conflict with,
result in a breach of, or constitute a default under the certificate of
incorporation or by-laws of the Company or the terms of any indenture or
other agreement or instrument to which the Company or the Bank is a party
or bound which default might have a material adverse impact on the holders
of the Securities or the financial position, earnings, business or
properties of the Company and its subsidiaries, taken as one enterprise, or
any order or regulation of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Company or the Bank; and
(ix) the Company has complied and will comply with the provisions of
that certain Florida act relating to the disclosure of doing business with
Cuba, codified as Section 517.075 of the Florida statutes, and the rules
and regulations thereunder or is exempt therefrom.
(b) At the time of delivery of any Securities to any purchaser or his agent
whose offer to purchase such Securities was delivered to the Company and on any
Settlement Date:
(i) the Securities being delivered pursuant to this Agreement on such
date conform to the description thereof contained in the Prospectus as
supplemented or amended, as of such time;
(ii) the applicable Indenture has been duly authorized, executed and
delivered, has been duly qualified under the 1939 Act and constitutes a
valid and binding instrument enforceable against the Company in accordance
with its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally and the application of usual equitable
principles when equitable remedies are sought);
(iii) the Securities being delivered pursuant to this Agreement on
such date have been duly authorized, issued,
4
<PAGE>
executed and authenticated in accordance with the provisions of the
applicable Indenture and, when delivered to and paid for by the purchasers
thereof, will constitute valid and binding obligations enforceable against
the Company in accordance with their terms and will be entitled to the
benefits of such Indenture (subject as aforesaid); and
(iv) there has been no material adverse change, nor any presently known
and existing development that the Company expects to result in a material
adverse change, in the financial condition, earnings, business or
properties of the Company and its subsidiaries considered as one
enterprise, whether or not arising from transactions in the ordinary course
of business, since the date of the most recent financial statements
included or incorporated in the Prospectus, as amended or supplemented as
of such time, except as set forth in or contemplated in such Prospectus.
(c) Any certificate signed by any officer of the Company and delivered to
you or to your counsel in connection with an offering of Securities shall be
deemed a representation and warranty by the Company to you as to the matters
covered thereby.
SECTION 2. Solicitations as Agent; Purchases as Principal.
------------------------------------ ---------
(a) Solicitations as Agent. On the basis of the representations and
----------------------
warranties herein contained, but subject to the terms and conditions herein set
forth, you agree, as agent of the Company to use your reasonable best efforts to
solicit offers to purchase the Securities upon the terms and conditions set
forth in the Prospectus. You are hereinafter sometimes referred to, in your
capacity as agent, as the "Agent."
The Company reserves the right, in its sole discretion, to suspend your
solicitation as Agent of purchases of Securities from the Company commencing at
any time for any period of time or permanently. Upon receipt of instructions
from the Company, you will forthwith suspend solicitation of purchases from the
Company until such time as the Company has advised you that such solicitation
may be resumed.
The Company agrees to pay you a commission equal to the percentage of the
principal amount of Securities sold by the Company as a result of a solicitation
made by you as agreed to by the parties hereto. The Agent may reallow any
portion of the commission payable pursuant hereto to dealers or purchasers in
connection with the offer and sale of any Securities.
As Agent, you are authorized to solicit orders for the Securities only in
minimum principal amounts of $100,000 or any amount in excess thereof which is
an integral multiple of $1,000. Except as set forth below, you shall
communicate to the Company,
5
<PAGE>
orally or in writing, each offer or indication of interest received by you as
Agent to purchase Securities. The Company shall have the sole right to accept
offers to purchase the Securities and may reject any such offer in whole or in
part. You shall have the right, in your discretion reasonably exercised, to
reject any offer received by you to purchase the Securities, in whole or in
part, and any such rejection shall not be deemed a breach of your agreement
contained herein. Unless otherwise requested by the Company, you do not have to
communicate to the Company offers or indications of interest rejected in the
reasonable exercise of your discretion.
(b) Purchases as Principal. Each sale of Securities to you as principal
----------------------
shall be made in accordance with the terms of this Agreement and a separate
agreement which will provide for the sale of such Securities to, and the
purchase thereof by, you for reoffering. Each such separate agreement (which
may be a written agreement or an oral agreement confirmed in writing, and which
may be by facsimile transmission) shall contain all of the information, as
applicable, specified in Exhibit A hereto. Such agreement is herein referred to
as a "Terms Agreement." A written confirmation of an oral Terms Agreement need
not be executed. Your commitment to purchase Securities pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Securities to be purchased by you pursuant thereto, the
price to be paid to the Company for such Securities, and the time and place of
delivery of any payment for such Securities (the "Settlement Date"). Such Terms
Agreement shall also specify any requirements for officers' certificates,
opinions of counsel and letters from Ernst & Young pursuant to Section 5 hereof.
You may utilize a dealer group and reallow commissions in connection with the
resale of Securities purchased as principal.
(c) Procedures. Administrative procedures respecting the sale of
----------
Securities and the specific terms of the offering of such Securities shall be
agreed upon from time to time by you and the Company (the "Procedures"). You
and the Company agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in the
Procedures.
(d) Delivery. The documents required to be delivered by Section 5 hereof
--------
shall be delivered at the office of Orrick, Herrington & Sutcliffe, Old Federal
Reserve Bank Building, 400 Sansome Street, San Francisco, California 94111, on
the date hereof, or at such other time as you and the Company may agree upon in
writing (the "Commencement Time").
SECTION 3. Covenants of the Company. The Company covenants with you as
------------------------
follows:
6
<PAGE>
(a) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities any event shall
occur or condition exist as a result of which it is necessary, in the
reasonable opinion of your counsel or counsel for the Company, to amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the reasonable opinion of either
such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the
1933 Act or the Regulations, immediate notice shall be given, and confirmed
in writing, to you to cease the solicitation of offers to purchase the
Securities in your capacity as Agent and to cease sales of any Securities
you may then own as principal, and the Company will promptly prepare and
file with the Commission such amendment or supplement, as may be necessary
to correct such untrue statement or omission or to make the Registration
Statement comply with such requirements. The Company will also promptly
cause each such amendment or supplement to be filed with each securities
exchange, if any, on which any of the Securities are listed.
(b) On or as soon as practicable after the date on which there shall be
released to the general public interim financial statement information
related to the Company with respect to each of the first three quarters of
any fiscal year or preliminary financial statement information with respect
to any fiscal year, the Company shall furnish such information to you,
confirmed in writing, and shall cause the Prospectus to be amended or
supplemented (including by incorporation by reference) to include financial
information with respect to the results of operations of the Company for
the period between the end of the preceding fiscal year and the end of such
quarter or for such fiscal year, as the case may be, and corresponding
information for the comparable period of the preceding fiscal year, as well
as such other information and explanations as shall be necessary for an
understanding of such amounts or as shall be required by the 1933 Act or
the Regulations; provided, however, that if on the date of such release you
-------- -------
shall have suspended solicitation of purchases of the Securities in your
capacity as Agent pursuant to a request from the Company, and shall not
then hold any Securities as principal, the Company shall not be obligated
so to amend or supplement the Prospectus or so to furnish such information
until such time as the Company shall determine that solicitation of
purchases of the Securities should be resumed or shall subsequently enter
into a new Terms Agreement with you.
7
<PAGE>
(c) For so long as the Prospectus is required by the 1933 Act to be
delivered in connection with the sale of the Securities the Company will
(i) comply, in a timely manner, with all requirements under the 1934 Act
relating to the filing with the Commission of the Company's reports
pursuant to Section 13(a) of the 1934 Act and (ii) undertake to obtain the
written consent of the Company's independent accountants as to
incorporation by reference in the Registration Statement of the audited
financial statements reported on by them and contained in the Company's
annual reports on Form 10-K under the 1934 Act.
(d) The Company will make generally available to its security holders
as soon as practicable, but not later than 45 days after the close of the
period covered thereby (except not later than 90 days if such period covers
the Company's fiscal year), earnings statements (in form complying with the
provisions of Rule 158 under the 1933 Act) covering a twelve month period
beginning not later than the first day of the Company's fiscal quarter next
following the period beginning not later than the effective date of the
Registration Statement (as defined in Rule 158) with respect to each sale
of Securities.
(e) For so long as the Prospectus is required by the 1933 Act to be
delivered in connection with the sale of the Securities the Company will
give you notice of its intention to file any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or to file or
amend any document that is or is to be incorporated by reference in the
Registration Statement or Prospectus and will furnish you with copies of
any such amendment or supplement proposed to be filed a reasonable time in
advance of filing.
(f) For so long as the Prospectus is required by the 1933 Act to be
delivered in connection with the sale of the Securities the Company will
notify you immediately (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any document
to be filed pursuant to the 1934 Act which will be incorporated by
reference in the Prospectus, provided, however, that if you are not
-------- -------
participating in the distribution of any Notes related to such supplement
the Company will not so notify you unless you request otherwise, (iii) of
the receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus, (iv) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (v) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. The
8
<PAGE>
Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(g) The Company will deliver to you as many signed and conformed copies
of the registration statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated by reference in the Prospectus) as you
may reasonably request. The Company will furnish to you as many copies of
the Prospectus (as amended or supplemented) as you shall reasonably request
so long as you are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Securities.
(h) For so long as any Notes remain outstanding, the Company will
furnish to you, at the earliest time the Company makes the same available
to others, copies of its annual reports and other financial reports
furnished or made available to the public generally.
(i) The Company will endeavor, in connection with you, to qualify the
Securities for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as you may
designate, and will maintain such qualifications in effect for as long as
may be required for the distribution of the Securities; provided, however,
-------- -------
that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company will file such
statements and reports as may be required by the laws of each jurisdiction
in which the Securities have been qualified as above provided. The Company
will notify you immediately of the suspension of any such qualification or
the initiation or threatening of any proceeding for such purpose, and in
the event of any order suspending any such qualification will make every
reasonable effort to obtain the lifting thereof at the earliest possible
moment.
(j) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file promptly all documents required
to be filed with the Commission pursuant to the 1934 Act.
(k) If required by the applicable Terms Agreement, between the date of
any such Terms Agreement and the Settlement Date with respect to such Terms
Agreement, the Company will not, without your prior consent, issue or
announce the proposed issuance of any of its debt securities with
substantially similar terms to the Securities being purchased pursuant to
the Terms Agreement (other than the Securities that are to be sold pursuant
to such Terms
9
<PAGE>
Agreement and commercial paper in the ordinary course of business).
SECTION 4. Payment of Expenses. The Company will pay the following
-------------------
expenses incident to the performance of its obligations under this Agreement:
(i) the cost of the preparation and filing of the Registration Statement and all
amendments thereto, (ii) the cost of the preparation, issuance and delivery of
the Securities, (iii) the fees and disbursements of the Company's accountants,
and of the Trustees and each of their respective counsel, (iv) the cost of the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(i), including filing fees and the reasonable fees and
disbursements of your counsel in connection therewith and in connection with the
preparation of any Blue Sky Survey and any Legal Investment Survey, (v) the cost
of the printing and delivery to you in quantities as hereinabove stated of
copies of the Registration Statement and all amendments thereto, and of the
Prospectus and any amendments or supplements thereto, (vi) the cost of the
printing and delivery to you of copies of the Indentures, any Blue Sky Survey
and any Legal Investment Survey, and (vii) the cost of any fees charged by
rating agencies for the rating of the Securities.
The Company shall also reimburse you for the reasonable fees and
disbursements of counsel (including the reasonable fees and expenses of special
counsel in any state in the event it should become necessary to obtain opinions
of such counsel as to usury or other matters of local law in order to obtain or
maintain the qualifications referred to in Section 3(i) hereof) for you and any
advertising (except tombstone advertisements) and other out-of-pocket expenses
incurred with the approval of the Company. Any such out-of-pocket expenses
shall be payable upon the receipt by the Company from you of an itemized
statement. You shall pay all other expenses incident to the performance of your
obligations under this Agreement.
SECTION 5. Conditions of Obligations. Your obligations to solicit offers
-------------------------
to purchase the Securities as agent of the Company and your obligations to
purchase Securities pursuant to any Terms Agreement will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed and to the following additional conditions
precedent:
(a) At the Commencement Time and at each Settlement Date with respect to
any applicable Terms Agreement, if called for by such Terms Agreement, you shall
have received:
10
<PAGE>
(1) the opinion, dated as of such time, of the General Counsel of
the Bank, counsel to the Company, in form and substance satisfactory
to you and your counsel, to the effect set forth in Exhibit B; and
(2) the opinion or opinions of Orrick, Herrington & Sutcliffe,
counsel to you, to be dated as of such time, with respect to the
issuance and sale of the Securities, the Indentures, the Registration
Statement, the Prospectus and other related matters as you may
reasonably require.
(b) At the Commencement Time and at each Settlement Date with respect to
any Terms Agreement, if called for in any Terms Agreement, you shall have
received a certificate of the Chairman of the Board, the Chief Executive
Officer, the President, a Vice Chairman of the Board, a Vice Chairman or the
Chief Financial Officer of the Company and by the Treasurer or an Assistant
Treasurer of the Company, dated as of the Commencement Time or such Settlement
Date, to the effect that:
(1) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the date of such certificate and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied as a condition to your obligations under this
Agreement;
(2) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or, to the Company's knowledge, threatened; and
(3) since the date of the most recent financial statements
included or incorporated in the Prospectus, as amended or supplemented
as of the date of such certificate, there has been no material adverse
change, nor any presently known and existing development that the
Company expects to result in a material adverse change, in the
financial condition, earnings, business or properties of the Company
and its subsidiaries considered as one enterprise, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in such Prospectus.
(c) At the date hereof, at Commencement Time and at each Settlement Date
with respect to any Terms Agreement, if called for by such Terms Agreement, you
shall have received from Ernst & Young, a letter, dated as of the Commencement
Time or such Settlement Date, in form and substance satisfactory to you,
confirming that they are independent accountants within the meaning of the 1933
Act and the 1934 Act and the Regulations and
11
<PAGE>
the 1934 Regulations, that the response to Item 10 of the Registration Statement
is correct insofar as it relates to them and containing statements and
information of the type ordinarily included in accountants "comfort letters" to
agents with respect to the financial statements and certain financial
information contained or incorporated by reference in the Registration Statement
and the Prospectus.
(d) At the date hereof, at Commencement Time, at each Settlement Date with
respect to any applicable Terms Agreement and on each date when the Registration
Statement or Prospectus is amended or supplemented, your counsel shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company in connection with the issuance and sale of
the Securities as herein contemplated shall be satisfactory in form and
substance to you and your counsel.
(e) Your obligations to purchase Securities pursuant to any Terms Agreement
will be subject to the condition that there shall not have come to your
attention any facts that would cause you to believe that the Prospectus, at the
time it was required to be delivered to a purchaser of the Securities, contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at such time, not misleading.
If any condition specified in this Section shall not have been fulfilled,
this Agreement and any Terms Agreement may be terminated by you by notice to the
Company at any time at or prior to the Commencement Time or applicable
Settlement Date, and such termination shall be without liability of any party to
any other party, except that the covenants set forth in Section 3(d) hereof, the
provisions of Section 4 hereof, the indemnity and contribution agreements set
forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 14
hereof shall remain in effect .
SECTION 6. Additional Covenants. The Company covenants and agrees that:
--------------------
(a) each acceptance by it of an offer for the purchase of
Securities, and each sale of Securities to you pursuant to a Terms
Agreement, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this
Agreement and in any certificate theretofore delivered to you pursuant
hereto are true and correct at the time of such acceptance or sale, as
the case may be, and an
12
<PAGE>
undertaking that such representations and warranties will be true and
correct at the time of delivery to the purchaser or his agent, or you,
of the Securities relating to such acceptance or sale, as the case may
be, as though made at and as of each such time (and it is understood
that such representations and warranties shall relate to the
Registration Statement and the Prospectus as amended and supplemented
to each such time);
(b) each time that the Registration Statement or the Prospectus
shall be amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest rates of the
Securities or a change in the principal amount of Securities remaining
to be sold or similar changes) or, if so indicated in the applicable
Terms Agreement, the Company sells Securities to you pursuant to a
Terms Agreement, the Company shall furnish or cause to be furnished to
you forthwith a certificate in form satisfactory to you to the effect
that the statements contained in the certificate referred to in
Section 5(b) hereof which were last furnished to you are true and
correct at the time of such amendment or supplement or filing or sale,
as the case may be, as though made at and as of such time (except that
such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time)
or, in lieu of such certificate, a certificate of the same tenor as
the certificates referred to in said Section 5(b), modified as
necessary to relate to the Registration Statement and the Prospectus
as amended and supplemented to the time of delivery of such
certificates; provided, however, that in the case of quarterly
-------- -------
financial data included in a press release which is incorporated by
reference in the Registration Statement by the filing of a Form 8-K,
no such certificate need be furnished unless the Company sells one or
more Securities through the Agent prior to the time a certificate is
otherwise required to be furnished, in which event the certificate
shall be furnished at least two business days prior to the anticipated
closing date with respect to the Security sold through the Agent;
(c) each time that the Registration Statement or the Prospectus
shall be amended or supplemented to include additional financial
information or to disclose a material development (other than
quarterly financial data included in a press release which is
incorporated by reference in the Registration Statement by the filing
of a Form 8-K; provided that if the Agent shall reasonably request
this exception shall not apply) or, if so indicated in the applicable
Terms Agreement, the
13
<PAGE>
Company sells Securities to you pursuant to a Terms Agreement, the
Company shall furnish or cause to be furnished forthwith to you and
your counsel a written opinion of the General Counsel of the Company,
counsel to the Company or the Bank, or other counsel satisfactory to
you, dated the date of delivery of such opinion, in form satisfactory
to you, of the same tenor as the opinion referred to in Section 5(a)
hereof but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time
of delivery of such opinion or, in lieu of such opinion, counsel last
furnishing such opinion to you shall furnish you with a letter to the
effect that you may rely on such last opinion to the same extent as
though it were dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing
reliance); and
(d) each time that the Registration Statement or the Prospectus
shall be amended or supplemented to include additional financial
information or, if so indicated in the applicable Terms Agreement, the
Company sells Securities to you pursuant to a Terms Agreement, the
Company shall cause Ernst & Young forthwith to furnish you a letter,
dated the date of filing of such amendment or supplement with the
Commission, or the date of such sale, as the case may be, in form
satisfactory to you, of the same tenor as the portions of the letter
referred to in Section 5(c) hereof but modified to relate to the
Registration Statement and Prospectus, as amended and supplemented to
the date of such letter, and with such changes as may be necessary to
reflect changes in the financial statements and other information
derived from the accounting records of the Company; provided, however,
-------- -------
that if the Registration Statement or the Prospectus is amended or
supplemented solely to include financial information as of and for a
fiscal quarter, Ernst & Young may limit the scope of such letter to
the unaudited financial statements included in such amendment or
supplement unless any other information included therein of an
accounting, financial or statistical nature is of such a nature that,
in your reasonable judgment, such letter should cover such other
information, provided, further, that in the case of quarterly
-------- -------
financial data included in a press release which is incorporated by
reference in the Registration Statement by the filing of a Form 8-K,
no such letter need be furnished unless the Company sells one or more
Securities through the Agent prior to the time a letter is otherwise
required to be furnished, in which event
14
<PAGE>
the letter shall be furnished at least two business days prior to the
anticipated closing date with respect to the Security sold through the
Agent; provided, further, that in the case of quarterly or yearly
-------- -------
financial data which is incorporated by reference in the Registration
Statement by the filing of a Form 10-Q or Form 10-K, as the case may
be, such letter need not be delivered until the earlier of the third
business day after such filing or the closing of any sale of
Securities through the Agent.
SECTION 7. Indemnification. (a) The Company agrees to indemnify and hold
---------------
harmless you and each person who controls you within the meaning of either the
1933 Act or the 1934 Act against any and all losses, claims, damages or
liabilities, joint or several, to which you, they or any of you or them may
become subject under the 1933 Act, the 1934 Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed or in any
amendment thereof, or in any preliminary prospectus, any preliminary
supplemental prospectus, or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that (i) the
-------- -------
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of you specifically for use therein or the
Statements of Eligibility and Qualification (Forms T-1) under the 1939 Act of
the Trustees, and (ii) such indemnity with respect to any preliminary
prospectus, the Prospectus or any preliminary supplemental prospectus, shall not
inure to the benefit of you (or any person controlling you), if the Company
shall have delivered sufficient quantities of the Prospectus, as amended or
supplemented, to you within a reasonable time prior to the earlier of the
delivery of the written confirmation of the sale of such Securities or the
delivery of such Securities to the person asserting such loss, claim, damage,
liability or action for which indemnification is sought, and the Prospectus as
so amended or supplemented (excluding documents incorporated by reference) was
not sent or given to such person at or prior to the earlier of the delivery of
the written confirmation of the sale of such Securities or the delivery of such
Securities to such person in any case where such sending or giving of a
15
<PAGE>
prospectus is required by the 1933 Act and the untrue statement or omission of a
material fact contained in any preliminary prospectus, the Prospectus or any
preliminary supplemental prospectus, was corrected in the Prospectus, as so
amended or supplemented, provided to you. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) You agree to indemnify and hold harmless the Company, each person, if
any, who controls the Company within the meaning of either the 1933 Act or the
1934 Act, each director of the Company and each officer of the Company who signs
the Registration Statement or any amendment thereto to the same extent as the
foregoing indemnity from the Company to you, but only insofar as such losses,
claims, damages or liabilities arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which was made
therein in reliance upon and in conformity with written information supplied to
the Company by or on behalf of you specifically for use in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which you may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section. In case any such action is brought against any indemnified party,
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
--------
however, that if the defendants in any such action include both the indemnified
-------
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate
16
<PAGE>
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by you in the case of paragraph (a) of this Section,
representing the indemnified parties under such paragraph (a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
SECTION 8. Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnification provided for in
Section 7 is due in accordance with its terms but is for any reason held by a
court to be unavailable on grounds of policy or otherwise, the Company and you
shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) to which the Company and you may be subject in
such proportion so that you are responsible for that portion represented by the
percentage that (y) the sum of aggregate commissions received by you hereunder
and the aggregate amount of discounts received by you under all Terms Agreements
bears to (z) the aggregate principal amount of the Securities sold hereunder and
under any such Terms Agreements, and the Company is responsible for the balance;
provided, that no person guilty of fraudulent misrepresentation (within the
--------
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation for purposes
of this Section, each person who controls you within the meaning of the 1933 Act
shall have the same rights to contribution as you and each person who controls
the Company within the meaning of either the 1933 Act or the 1934 Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties under this Section, notify such party or parties from whom contribution
may be sought, but the omission to notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this Section.
This notice requirement shall be deemed satisfied by the delivery of the notice
contemplated by the first sentence of subparagraph (c) of Section 7 hereof.
17
<PAGE>
SECTION 9. Status of the Agent. In soliciting purchases of the Securities
-------------------
from the Company as Agent, you are acting solely as agent for the Company and
not as principal and you will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities from
the Company has been solicited by you and accepted by the Company but you shall
not have any liability to the Company in the event any such purchase is not
consummated for any reason.
SECTION 10. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
--------
Agreement or any Terms Agreement, or contained in certificates of officers of
the Company submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of you or any
controlling person, or by or on behalf of the Company, and shall survive each
delivery of and payment for any of the Securities.
SECTION 11. Termination. This Agreement may be terminated for any reason,
-----------
at any time by either party hereto upon the giving of written notice of such
termination to the other party hereto. You may also terminate any Terms
Agreement immediately upon notice to the Company, at any time prior to the
Settlement Date relating thereto (i) if there has occurred any outbreak or
material escalation of hostilities or other calamity or crisis the effect of
which on the United States or international markets is such as to make it, in
your reasonable judgment, impracticable to market the Securities or enforce
contracts for the sale of the Securities, (ii) if trading in securities
generally on the New York Stock Exchange shall have been suspended or materially
limited, or (iii) if a commercial banking moratorium shall have been declared by
either Federal, California or New York authorities. In the event of any
termination, neither party will have any liability to the other party hereto,
except that (i) the Agent shall be entitled to any commissions earned in
accordance with the third paragraph of Section 2(a) hereof, (ii) if at the time
of termination (a) you shall own any of the Securities with the intention of
reselling them or (b) an offer to purchase any of the Securities has been
accepted by the Company but the time of delivery to the purchaser or his agent
of the Securities relating thereto has not occurred, the covenants set forth in
Sections 3 and 6 hereof shall remain in effect until such Securities are so
resold or delivered, as the case may be, and (iii) the covenant set forth in
Section 3(d) hereof, the provisions of Section 4 hereof, the indemnity and
contribution agreements set forth in Sections 7 and 8 hereof, and the provisions
of Sections 10 and 14 hereof shall remain in effect.
SECTION 12. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard
18
<PAGE>
form of telecommunication. Notices to you shall be directed to _______________
____________________________________________ ____________________, attention of
____________________; notices to the Company shall be directed to it at Bank of
America Center, 555 California Street, San Francisco, California 94104,
attention of the Secretary.
SECTION 13. Parties. This Agreement and any Terms Agreement shall inure
-------
to the benefit of and be binding upon you and the Company and their or your
respective successors. Nothing expressed or mentioned in this Agreement or any
Terms Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors referred to in Sections 7 and
8 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any Terms Agreement or
any provision herein or therein contained. This Agreement and any Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities shall be deemed to be a successor by
reason merely of such purchase.
SECTION 14. Governing Law. This Agreement and the rights and obligations
-------------
of the parties created hereby shall be governed by the laws of the State of
California.
19
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and the Company in accordance with its terms.
Very truly yours,
BANKAMERICA CORPORATION
By:______________________________
Title:___________________________
CONFIRMED AND ACCEPTED,
as of the date first
above written:
______________________________
By:______________________________
Title:___________________________
20
<PAGE>
EXHIBIT A
BANKAMERICA CORPORATION
Terms Agreement
---------------
[Date]
BankAmerica Corporation
Attention:
Re: Distribution Agreement dated
-------------------------------------------------
The undersigned agrees to purchase the following principal amount and
currency of Securities:
Principal amount and currency:
Interest Rate:
Date of Maturity:
Purchase Price: __%
Settlement Date and Time:
Place of Delivery:
[[The certificate referred to in Section 5(b) of the Distribution
Agreement] [the opinion referred to in Section 5(a) of the Distribution
Agreement] [the accountants' letter referred to in Section 5(c) of the
Distribution Agreement] will be required.]
[The provision of Section 3(k) will apply]
[Upon request of the Company, ______________________ will promptly
advise the Company as to whether, to its knowledge, the offering of the
Securities as contemplated by this Agreement has been completed.]
[_____________________ will promptly advise the Company as to when the offering
of the Securities as contemplated by this Agreement has been completed.]
______________________________
By:_______________________________
Title:____________________________
A-1
<PAGE>
Accepted:
BANKAMERICA CORPORATION
By:______________________________
Title:___________________________
A-2
<PAGE>
EXHIBIT B
FORM OF OPINION OF
COUNSEL TO THE COMPANY
----------------------
The opinion of counsel for the Company, to be delivered pursuant to
this Agreement, shall be to the effect set forth below. Unless otherwise
provided, all references to the "Registration Statement" shall be to the
Registration Statement as amended as of the date of such opinion and all
references to the "Prospectus" shall be to the Prospectus, as amended or
supplemented as of the date of such opinion.
(i) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and corporate authority to own its properties and conduct its
business as described in the Prospectus and is duly registered as a bank holding
company under the Bank Holding Company Act of l956, as amended;
(ii) Bank of America National Trust and Savings Association (the "Bank")
holds a valid Certificate of Authority from the Comptroller of the Currency of
the United States of America to do business as a national banking association
under the laws of the United States and has full corporate power and authority
to own its properties and conduct its business as described in the Prospectus;
and all the outstanding shares of capital stock of the Bank have been duly and
validly authorized and issued, are fully paid and (except as provided in 12
U.S.C. (S) 55) nonassessable, and are directly owned by the Company free and
clear of liens and encumbrances;
(iii) the Securities conform to the description thereof contained in
the Prospectus;
(iv) the Indentures have been duly authorized, executed and delivered,
have been duly qualified under the 1939 Act and constitute valid and binding
instruments of the Company enforceable against the Company in accordance with
their terms (subject to the qualifications to be set forth in the opinion);
(v) the Securities have been duly authorized by the Company and, when
executed and authenticated in accordance with the provisions of the applicable
Indenture and delivered to and paid for by the purchasers thereof, will
constitute valid and binding obligations enforceable against the Company in
accordance with their terms and will be entitled to the benefits of the
applicable Indenture (subject to the qualifications to be set forth in the
opinion);
B-1
<PAGE>
(vi) to the best knowledge of such counsel, (a) there is no pending or
threatened action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and (b) there is
no franchise, contract or other document which is known to such counsel of a
character required to be described in the Registration Statement or Prospectus,
or to be filed as an exhibit, which is not described or filed as required;
(vii) (a) the Registration Statement and any amendments thereto have
become effective under the 1933 Act; (b) to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been instituted or threatened;
and (c) the Registration Statement, the Prospectus, each amendment thereof or
supplement thereto and each document incorporated by reference therein (other
than the Statements of Eligibility and Qualification (Forms T-1) under the 1939
Act of the Trustees and the financial statements, schedules and other financial
and statistical information contained or incorporated therein, or that should
have been so contained or incorporated, as to which such counsel need express no
opinion), as of their respective effective or issue dates, complied as to form
in all material respects with the applicable requirements of the 1933 Act and
the Regulations and the 1934 Regulations (in passing on the form of such
Registration Statement, counsel may assume the correctness and completeness of
the statements made therein);
(viii) this Agreement has been duly authorized, executed and delivered
by the Company;
(ix) no consent, approval, authorization or order of any court or
governmental agency or body is required of the Company for the consummation of
the transactions contemplated in this Agreement, except such as have been
obtained under the 1933 Act and the 1939 Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities and the following other approvals, which have
been obtained: ____________________; and
(x) neither the issue and sale of the Securities, nor the consummation
of any other of the transactions contemplated in this Agreement nor the
fulfillment of the terms thereof will conflict with, result in a breach of, or
constitute a default under the certificate of incorporation or by-laws of the
Company or, to the best knowledge of such counsel, any indenture, agreement or
instrument to which the Company or the Bank is a party or bound, or any order or
regulation of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or the Bank, which in
the case of any indenture, agreement, instrument, or order, would have a
material adverse effect on the holders of the
B-2
<PAGE>
Securities or the financial condition, earnings, business or properties of the
Company and its subsidiaries, taken as one enterprise.
In addition, such opinion shall also cover, if applicable to a
particular issue of Securities, matters relating to listing on the New York
Stock Exchange, the nonapplicability of the California usury law, tax matters
and such other matters as the agent may reasonably require.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
California or the United States, to the extent such counsel shall deem proper
and specify in such opinion, upon the opinion of other counsel of good standing
whom such counsel believes to be reliable and who are satisfactory to counsel
for the Underwriters; and (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company and public
officials.
In addition, counsel for the Company shall also state that:
nothing has come to the attention of such counsel to cause such counsel
to believe that the Registration Statement, or any amendment thereof, at the
time it became effective and, if later, at the time of the filing of the
Company's most recent Annual Report on Form 10-K contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading or
that the Prospectus, as of the date of this Agreement or any Terms Agreement and
as of the date of such opinion contained any untrue statement of a material fact
or omitted to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading (it
being understood that such counsel need not make any comment with respect to the
accuracy, completeness or fairness of the financial statements, schedules and
other financial and statistical information contained or incorporated therein,
or that should have been so contained or incorporated, or with respect to
Statements of Eligibility and Qualification of the trustees named in the
Registration Statement on their Forms T-1).
B-3
<PAGE>
EXHIBIT 12
----------
Page 1 of 3
-----------
BANKAMERICA CORPORATION
Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Three Months
Ended March 31 Year Ended December 31
----------------- -----------------------------------------------
(dollar amounts in millions) 1994 1993 1993 1992 1991 1990 1989
------- ------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
EXCLUDING INTEREST ON DEPOSITS
Fixed charges:
Interest expense (other
than interest on deposits) $ 322 $ 295 $1,215 $1,126 $ 743 $ 912 $ 932
Interest factor in rent expense 27 28 112 95 82 85 93
Other - - 2 1 1 1 1
------ ------ ------ ------ ------ ------ ------
$ 349 $ 323 $1,329 $1,222 $ 826 $ 998 $1,026
====== ====== ====== ====== ====== ====== ======
Earnings:
Income from operations $ 513 $ 484 $1,954 $1,492 $1,124 $1,115 $1,103
Applicable income taxes 375 365 1,474 1,190 749 284 245
Fixed charges 349 323 1,329 1,222 826 998 1,026
Other (13) (1) (39) (14) (15) (16) (25)
------ ------ ------ ------ ------ ------ ------
$1,224 $1,171 $4,718 $3,890 $2,684 $2,381 $2,349
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges,
excluding interest on deposits 3.51 3.63 3.55 3.18 3.25 2.39 2.29
INCLUDING INTEREST ON DEPOSITS
Fixed charges:
Interest expense $1,019 $1,082 $4,186 $4,895 $5,388 $6,097 $5,536
Interest factor in rent expense 27 28 112 95 82 85 93
Other - - 2 1 1 1 1
------ ------ ------ ------ ------ ------ ------
$1,046 $1,110 $4,300 $4,991 $5,471 $6,183 $5,630
====== ====== ====== ====== ====== ====== ======
Earnings:
Income from operations $ 513 $ 484 $1,954 $1,492 $1,124 $1,115 $1,103
Applicable income taxes 375 365 1,474 1,190 749 284 245
Fixed charges 1,046 1,110 4,300 4,991 5,471 6,183 5,630
Other (13) (1) (39) (14) (15) (16) (25)
------ ------ ------ ------ ------ ------ ------
$1,921 $1,958 $7,689 $7,659 $7,329 $7,566 $6,953
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges,
including interest on deposits 1.84 1.76 1.79 1.53 1.34 1.22 1.23
</TABLE>
<PAGE>
EXHIBIT 12
-----------
Page 2 of 3
-----------
BANKAMERICA CORPORATION
Ratio of Earnings to Fixed Charges and Preferred Dividends
<TABLE>
<CAPTION>
Three Months
Ended March 31 Year Ended December 31
-------------------- -----------------------------------------------
(dollar amounts in millions) 1994 1993 1993 1992 1991 1990 1989
-------------------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
EXCLUDING INTEREST ON DEPOSITS
Fixed charges and preferred dividends:
Interest expense (other
than interest on deposits) $ 322 $ 295 1,215 $1,126 $ 743 $ 912 $ 932
Interest factor in rent expense 27 28 112 95 82 85 93
Preferred dividend requirements/a/ 104 105 423 304 102 58 66
Other - - 2 1 1 1 1
------ ------ ------ ------ ------ ------ ------
$ 453 $ 428 $1,752 $1,526 $ 928 $1,056 $1,092
====== ====== ====== ====== ====== ====== ======
Earnings:
Income from operations $ 513 $ 484 $1,954 $1,492 $1,124 $1,115 $1,103
Applicable income taxes 375 365 1,474 1,190 749 284 245
Fixed charges, excluding preferred
dividend requirements 349 323 1,329 1,222 826 998 1,026
Other (13) (1) (39) (14) (15) (16) (25)
------ ------ ------ ------ ------ ------ ------
$1,224 $1,171 $4,718 $3,890 $2,684 $2,381 $2,349
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges
and preferred dividends, excluding
interest on deposits 2.70 2.74 2.69 2.55 2.89 2.25 2.15
INCLUDING INTEREST ON DEPOSITS
Fixed charges and preferred dividends:
Interest expense $1,019 $1,082 $4,186 $4,895 5,388 $6,097 $5,536
Interest factor in rent expense 27 28 112 95 82 85 93
Preferred dividend requirements/a/ 104 105 423 304 102 58 66
Other - - 2 1 1 1 1
------ ------ ------ ------ ------ ------ ------
$1,150 $1,215 $4,723 $5,295 $5,573 $6,241 $5,696
====== ====== ====== ====== ====== ====== ======
Earnings:
Income from operations $ 513 $ 484 $1,954 $1,492 $1,124 $1,115 $1,103
Applicable income taxes 375 365 1,474 1,190 749 284 245
Fixed charges, excluding preferred
dividend requirements 1,046 1,110 4,300 4,991 5,471 6,183 5,630
Other (13) (1) (39) (14) (15) (16) (25)
------ ------ ------ ------ ------ ------ ------
$1,921 $1,958 $7,689 $7,659 $7,329 $7,566 $6,953
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges,
and preferred dividends, including
interest on deposits 1.67 1.61 1.63 1.45 1.32 1.21 1.22
</TABLE>
SEE NOTE ON PAGE 3 OF THIS EXHIBIT
<PAGE>
EXHIBIT 12
----------
Page 3 of 3
-----------
BANKAMERICA CORPORATION
Note to Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends
/a/ Preferred dividend requirements represent pretax earnings necessary to cover
preferred dividends declared of $60 million for both the first quarters of
1994 and 1993 and $241 million, $169 million, $61 million, $46 million, and
$54 million for the years ended December 31, 1993, 1992, 1991, 1990, and
1989, respectively.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related Prospectus of BankAmerica
Corporation for the registration of Debt Securities, Debt Warrants, Preferred
Stock, Depositary Shares, Preferred Stock Warrants, Common Stock, Common Stock
Warrants and Currency Warrants and to the incorporation by reference therein of
our report dated January 18, 1994, except for Note 2, as to which the date is
January 27, 1994, with respect to the consolidated financial statements of
BankAmerica Corporation incorporated by reference in its Annual Report on Form
10-K for the year ended December 31, 1993, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG
San Francisco, California
June 27, 1994
<PAGE>
EXHIBIT 23.2
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 relating to Debt Securities and Debt Warrants, Preferred
Shares and Preferred Share Warrants, Common Stock and Common Stock Warrants, and
Currency Warrants of our report dated January 18, 1994, except as to Note 1,
which is as of January 28, 1994, relating to the consolidated financial
statements of Continental Bank Corporation, which is included in Continental
Bank Corporation's Annual Report on Form 10-K for the year ended December 31,
1993, and which is incorporated by reference in the Current Report on Form 8-K
dated March 21, 1994 of BankAmerica Corporation. We also consent to the
reference to our firm as experts in accounting and auditing in Item 5 of such
Form 8-K and in the section "Experts" of this Registration Statement on
Form S-3.
/s/ PRICE WATERHOUSE
PRICE WATERHOUSE
Chicago, Illinois
June 30, 1994
<PAGE>
Exhibit 24
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as the Chairman of the Board and Chief Executive
Officer of BankAmerica Corporation and file with the Securities and Exchange
Commission pursuant to the Securities Act of 1933 shelf registration statements
and any amendments covering public offerings of securities, including without
limitation, debt securities, including equity-related debt securities, common
stock, preferred stock or depositary shares representing fractional interests in
preferred stock, including preferred stock or depositary shares convertible into
common stock, warrants for the purchase of any such debt securities or preferred
stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 4, 1994
/s/ Richard M. Rosenberg
-----------------------------
Richard M. Rosenberg
[Principal Executive Officer-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Vice Chairman of the Board, the Chief
Financial Officer and the Treasurer of BankAmerica Corporation and file with the
Securities and Exchange Commission pursuant to the Securities Act of 1933 shelf
registration statements and any amendments covering public offerings of
securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 7, 1994
/s/ Lewis W. Coleman
-------------------------
Lewis W. Coleman
[Chief Financial Officer-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 7, 1994
/s/ Joseph F. Alibrandi
------------------------------
Joseph F. Alibrandi
[Director-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 7, 1994
/s/ Peter B. Bedford
------------------------------
Peter B. Bedford
[Director-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 6, 1994
/s/ Andrew F. Brimmer
----------------------------------------
Andrew F. Brimmer
[Director-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 8, 1994
/s/ Richard A. Clarke
------------------------------
Richard A. Clarke
[Director-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 7, 1994
/s/ Timm F. Crull
------------------------------
Timm F. Crull
[Director-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 7, 1994
/s/ C.R. Dahl
------------------------------
C.R. Dahl
[Director-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 7, 1994
/s/ Kathleen Feldstein
------------------------------
Kathleen Feldstein
[Director-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 4, 1994
/s/ Donald E. Guinn
------------------------------
Donald E. Guinn
[Director-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 7, 1994
/s/ Philip M. Hawley
------------------------------
Philip M. Hawley
[Director-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 7, 1994
/s/ Frank L. Hope, Jr.
------------------------------
Frank L. Hope, Jr.
[Director-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 5, 1994
/s/ Lawrence O. Kitchen
------------------------------
Lawrence O. Kitchen
[Director-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 7, 1994
/s/ Ignacio E. Lozano, Jr.
_____________________________
Ignacio E. Lozano, Jr.
[Director-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 7, 1994
/s/ Cornell C. Maier
------------------------------
Cornell C. Maier
[Director-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 7, 1994
/s/ Walter E. Massey
------------------------------
Walter E. Massey
[Director-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 7, 1994
/s/ Ruben F. Mettler
------------------------------
Ruben F. Mettler
[Director-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 7, 1994
/s/ A. Michael Spence
------------------------------
A. Michael Spence
[Director-Shelf Registrations]
<PAGE>
POWER OF ATTORNEY
-----------------
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 shelf registration statements and any amendments covering public offerings
of securities, including without limitation, debt securities, including equity-
related debt securities, common stock, preferred stock or depositary shares
representing fractional interests in preferred stock, including preferred stock
or depositary shares convertible into common stock, warrants for the purchase of
any such debt securities or preferred stock and/or currency warrants.
This power of attorney, unless earlier revoked or terminated, will
terminate on January 31, 1995.
Dated: February 3, 1994
/s/ Jacques S. Yeager
------------------------------
Jacques S. Yeager
[Director-Shelf Registrations]
<PAGE>
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 94-3160100
(State of Incorporation) (I.R.S. Employer Identification No.)
101 California Street, Suite 1150
San Francisco, California 94111
(Address of Principal Executive Offices) (Zip Code)
BANKAMERICA CORPORATION
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of Incorporation or organization)
94-1681731
(I.R.S. Employer Identification No.)
555 CALIFORNIA STREET
SAN FRANCISCO, CA. 94104
(Address of principal executive offices and zip code)
UNSECURED DEBT SECURITIES
(Title of the Indenture Securities)
<PAGE>
GENERAL
1. GENERAL INFORMATION. Furnish the following information as to the
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trustee.
(a) Name and address of each examining or supervising authority to which it
is subject.
Controller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS. If the obligor or any
------------------------------------------
underwriter for the obligor is an affiliate of the trustee, describe
each such affiliation.
None
See Note following Item 16
Items 3-15 are not applicable because to the best of the Trustee's
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knowledge the obligor is not in default under any Indenture for which
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the Trustee acts as Trustee.
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16. LIST OF EXHIBITS. List below all exhibits filed as a part of this
----------------
statement of eligibility and qualification.
Exhibit 1 - Articles of Association of First Trust of California,
National Association dated June 5, 1992. Incorporated herein by
reference to Exhibit 1 filed with Form T-1 statement, Registration
No. 33-50826
Exhibit 2 - Certificate of the Comptroller of Currency as to authority
of First Trust of California, National Association to commence the
business of banking. Incorporated herein by reference to Exhibit 2
filed with Form T-1 Statement, Registration No. 33-50826
Exhibit 3 - Authorization of the Comptroller of Currency granting First
Trust of California, National Association, the right to exercise
corporate trust powers. Incorporated herein by reference to Exhibit 3
filed with Form T-1 Statement, Registration No. 33-50826
<PAGE>
Exhibit 4 - By-Laws of First Trust of California, National Association,
dated June 15, 1992. Incorporated herein by reference to Exhibit 4
filed with Form T-1 Statement, Registration No. 33-50826
Exhibit 5 - Not Applicable
Exhibit 6 - Consent of First Trust of California, National
Association, required by Section 321(b) of the Act. Incorporated
herein by reference to Exhibit 6 filed with Form T-1 Statement,
Registration No. 33-50826
Exhibit 7 - Report of Condition of First Trust of California, National
Association, as of the close of business on March 31, 1994 published
pursuant to law or the requirements of its supervising or examining
authority attached.
<PAGE>
NOTE
The answers to this statement insofar as such answers relate to what
persons have been underwriters for any securities of the obligor within three
years prior to the date of filing this statement, or what persons are owners of
10% or more of the voting securities of the obligor, or affiliates, are based
upon information furnished to the trustee by the obligor. While the trustee has
no reason to doubt the accuracy of any such information, it cannot accept any
responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, First Trust of California, National Association, an Association
organized and existing under the laws of the United States, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned thereunto duly authorized, and its seal to be hereunto affixed and
attested, all in the City of San Francisco and State of California on the 30th
day of June 1994.
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION
/s/ LISA D. JONES
----------------------------------------------
Lisa D. Jones
Vice President
(SEAL)
/s/ L. L. LOPES
--------------------
L. L. Lopes
Assistant Secretary
<PAGE>
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned, FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, hereby
consents that reports of examination of the undersigned by Federal, State,
Territoral or District authorities may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
Dated June 30, 1994
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION
By /s/ LISA D. JONES
-------------------
Lisa D. Jones
Vice President
<PAGE>
[Exhibit 7]
REPORT OF CONDITION
Consolidating domestic subsidiaries of the
FIRST TRUST CALIFORNIA, N.A. OF SAN FRANCISCO
in the State of California,
at the close of business on March 31, 1994
Published in response to call made by Comptroller of the Currency,
under Title 12, United States Code, Section 161.
Charter No. 22508, Controller of the Currency, SAN FRANCISCO District.
[CAPTION]
<TABLE>
Dollar Amounts
in Thousands
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Non-Interest-bearing balances and currency and coin............ $ 77,484
Securities (from Schedule RC-B):
Available-for-sale securities ................................. 3,281
Premises and fixed assets (including capitalized leases)......... 251
Intangible assets................................................ 21,141
Other assets..................................................... 2,243
Total assets..................................................... 104,400
LIABILITIES
Other liabilities................................................ 3,051
Total liabilities................................................ 3,051
EQUITY CAPITAL
Common stock..................................................... 1,000
Surplus.......................................................... 100,000
Undivided profits and capital reserves........................... 349
Total equity capital............................................. 101,349
Total liabilities, limited-life preferred stock,
and equity capital............................................. 104,400
</TABLE>
We, the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
Matthew Wagner
Lisa M. Hammond
Constance L. Barton
I, Merlita D. Schollmeier, Vice President of the above-named bank do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
Merlita D. Schollmeier
Executed on April 22, 1994
<PAGE>
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
__________________________
CHEMICAL TRUST COMPANY OF CALIFORNIA
(Exact name of trustee as specified in its charter)
CALIFORNIA 94-2926573
(State of incorporation (I. R. S. employer
if not a national bank) Identification No.)
50 CALIFORNIA STREET
SAN FRANCISCO, CALIFORNIA 94111
(Address of principal executive offices) (Zip Code)
__________________________
BANKAMERICA CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 94-1681731
(State or other jurisdiction of (I. R. S. employer
incorporation or organization) identification No.)
BANK OF AMERICA CENTER
555 CALIFORNIA STREET
SAN FRANCISCO, CALIFORNIA 94104
(Address of principal executive offices) (Zip Code)
__________________________
Subordinated Debt Securities
(Title of the indenture securities)
1
<PAGE>
1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Superintendent of Banks of the State of California, 235
Montgomery Street, San Francisco, CA 94104-2980.
Board of Governors of the Federal Reserve System, Washington,
D.C. 20511.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS.
If the obligor or any underwriter for the obligor is an affiliate of the
trustee, describe each such affiliation.
This Form T-1 is being filed with a shelf registration statement for
which there are presently no underwriters, nor prospective
underwriters. Based upon information received from the obligor, the
trustee has had no affiliations with any underwriters for the obligor
within the last three years prior to the date hereof.
(Item 2 is at the date hereof based upon incomplete information but is
believed to be correct and may be considered to be complete unless
modified by an amendment to this Form T-1).
16. LIST OF EXHIBITS.
List below all exhibits filed as part of the Statement of Eligibility.
Exhibit 1. A copy of the Articles of Incorporation of the Trustee as
now in effect, including the Reinstated Articles of
Incorporation dated December 23, 1986 and the Certificate of
Amendment dated March 26, 1992 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 33-
55136, which is incorporated by reference
.
2
<PAGE>
Exhibit 2. A copy of the Certificate of Authority of the Trustee to
Commence Business (See Exhibit 2 to Form T-1 filed in
connection with Registration Statement No. 33-55136, which
is incorporated by reference)
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust
Powers (Contained in
Exhibit 2.)
Exhibit 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4
to form T-1 filed in connection with Registration Statement
No. 33-55136, which is incorporated by reference).
Exhibit 5. Not Applicable.
Exhibit 6. The consent of the Trustee required by Section 21(b) of the
Act (See Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 33-55136, which is incorporated
by reference).
Exhibit 7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
3
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trustee Indenture Act of 1939, the
Trustee, Chemical Trust Company of California, a corporation organized and
existing under the laws of the State of California, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of San Francisco, and
State of California, on the 23rd day of June, 1994.
CHEMICAL TRUST COMPANY OF CALIFORNIA
By: /s/ James Nagy
--------------
JAMES NAGY
Assistant Vice President
4
<PAGE>
Exhibit 7. REPORT OF CONDITION OF THE TRUSTEE.
5
<PAGE>
TRUST COMPANY
CONSOLIDATED REPORT OF CONDITION OF Chemical Trust Company of California
--------------------------------------------
(Legal Title)
LOCATED AT San Francisco San Francisco CA 94111
----------------------------------------------------------------------
(City) (County) (State) (Zip)
AS OF CLOSE OF BUSINESS ON March 31, 1994 BANK NO. 1476
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================================================================================
================================================================================
ASSETS DOLLAR AMOUNT IN THOUSANDS
1. Cash and due from banks 2,097
2. U.S. Treasury securities 7,943
3. Obligations of other U.S. Government agencies and corporations
4. Obligations of States and political subdivisions
5. Other securities (including $ corporate stock
-----------
(a) Loans
(b) Less: Reserve for possible loan losses
(c) Loans (Net)
7. Bank Premises, furniture and fixtures and other assets
representing bank premises (including $ -0- capital leases) 256
------
8. Real Estate owned other than bank premises
9. Investments in subsidiaries not consolidated
10. Other assets (complete schedule on reverse)(including $2,611
------
intangibles) 7,638
11. TOTAL ASSETS 17,934
======
LIABILITIES
12. Liabilities For borrowed money
13. Mortgage indebtedness (including $ capital leases)
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14. Other liabilities (complete on schedule on reverse
15. TOTAL LIABILITIES 2,971
16. Capital notes and debentures 2,971
======
SHAREHOLDERS EQUITY
17. Preferred stock--
(Number shares outstanding ) Amount $
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18. Common stock--
(Number shares authorized 100 ) Amount $
-----------
(Number shares outstanding 100 ) Amount $ 10
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19. Surplus Amount $ 9.990
20. TOTAL CONTRIBUTED CAPITAL 10,000
21. Retained earnings and other capital reserves 4,963
22. TOTAL SHAREHOLDERS EQUITY 14,963
23. TOTAL LIABILITIES AND CAPITAL ACCOUNTS 17,934
======
6
<PAGE>
MEMORANDA
1. Assets deposited with State Treasurer to qualify for exercise of
fiduciary powers (market value) 605
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The undersigned, Andrew Wilcox, Managing Director and
------------------------------------
(Name and Title)
Patrick D. Fleck, Vice President & CFO of the above named trust company, each
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(Name and Title)
declares, for himself alone and not for the other: I have a personal knowledge
of the matters contained in this report (including the reverse side hereof), and
I believe that each statement in said report is true. Each of the undersigned,
for himself alone and not for the other, certifies under penalty of perjury that
the foregoing is true and correct.
Executed on 4/26/94, at San Francisco, California
-------- --------------
(Date) (City)
s/ Andrew Wilcox s/ Patrick D. Fleck
---------------- -------------------
(Signature) (Signature)
SCHEDULE OF OTHER ASSETS
Cost of Business Acquisitions 2.611
Accounts Receivable 4.286
Accrued Interest 86
Deferred Taxes 318
Other 337
Total (same as Item 10) 7,638
SCHEDULE OF OTHER LIABILITIES
Accrued Income Taxes 1,144
Accrued Expenses & A/P 194
Accrued Inter company Exp/Pay 829
Accrued Pension & Benefits 784
Other 23
Total (same as Item 14) 2,971
7
