As Filed With The Securities and Exchange Commission on July 22, 1999
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
Bank of America Corporation
(Exact name of registrant as specified in its charter)
Delaware 56-0906609
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Bank of America Corporate Center, Charlotte, North Carolina 28255
(704) 386-5000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------
PAUL J. POLKING
Executive Vice President and General Counsel
Bank of America Corporation
Bank of America Corporate Center
Charlotte, North Carolina 28255
(704) 386-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
Copies to:
BOYD C. CAMPBELL, JR. JAMES R. TANENBAUM
Smith Helms Mulliss & Moore, L.L.P. Stroock & Stroock & Lavan LLP
201 North Tryon Street 180 Maiden Lane
Charlotte, North Carolina 28202 New York, New York 10038
Tel: (704) 343-2000 Tel: (212) 806-5400
Fax: (704) 334-8467 Fax: (212) 806-6006
---------------
Approximate date of commencement of the 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]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Title of each Proposed maximum Proposed maximum Amount of
class of securities Amount to offering price aggregate registration
to be registered be registered (1)(3) per unit (2) offering price (1)(2) fee
Debt Securities .................... N/A N/A N/A
Warrants ........................... (4) N/A N/A N/A
Units .............................. (5) N/A N/A N/A
Preferred Stock Depositary Shares N/A N/A N/A
Common Stock ....................... (6) N/A N/A N/A
Total .............................. $14,999,302,387 100% $14,999,302,387 $4,169,807
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- ---------
footnotes on following page
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- ---------
continued from preceding page
(1) In no event will the aggregate initial offering price of the Debt
Securities, Warrants, Units, Preferred Stock, Depositary Shares and Common
Stock issued under this registration statement exceed $14,999,302,387, or
the U.S. dollar equivalent thereof in one or more foreign currencies or
currency units. If any Debt Securities are issued at an original issue
discount, then additional Debt Securities may be issued so long as the
aggregate original principal amount of all such Debt Securities, together
with the original principal amount of all other securities registered and
offered hereunder, does not exceed such amount.
(2) Estimated in accordance with Rule 457 of the Securities Act solely for
purposes of computing the registration fee. The proposed maximum offering
price per unit will be determined from time to time by the Registrant in
connection with the issuance by the Registrant of the securities
registered hereunder.
(3) Includes an indeterminate amount of Debt Securities, an indeterminate
number of shares of Preferred Stock, Depositary Shares or Common Stock and
an indeterminate number of Warrants and Units as may be offered or sold in
connection with market making activities by affiliates of the Registrant.
(4) There are being registered hereby such indeterminate number of Warrants as
may be issued by the Registrant at indeterminate prices. Such Warrants may
be issued together with any Debt Securities or other Warrants. Warrants
may be exercised to purchase Debt Securities registered hereby or to
purchase or sell (i) securities of an entity unaffiliated with the
Registrant, a basket of such securities, an index or indices of such
securities or any combination of the above, (ii) currencies or currency
units or (iii) commodities.
(5) Any securities registered hereunder may be sold separately or as units with
other securities registered hereunder. There are being registered hereby
such indeterminate number of Units as may be issued by the Registrant at
indeterminate prices. Units may consist of one or more Warrants and Debt
Securities or any combination of the above.
(6) The aggregate amount of Common Stock registered hereunder is limited to
that which is permissible under Rule 415(a)(4) of the Securities Act.
---------------
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
CONTAINED IN THIS REGISTRATION STATEMENT AND SUPPLEMENTS TO SUCH PROSPECTUS
WILL ALSO BE USED IN CONNECTION WITH UP TO $697,613 AGGREGATE PRINCIPAL AMOUNT
OF DEBT SECURITIES, WARRANTS, UNITS, PREFERRED STOCK AND DEPOSITARY SHARES AND
COMMON STOCK, REGISTERED UNDER REGISTRATION STATEMENT NO. 333-13811. THIS
REGISTRATION STATEMENT CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 2 TO
REGISTRANT'S REGISTRATION STATEMENT ON FORM S-3 (NO. 333-13811) AND SUCH
POST-EFFECTIVE AMENDMENT SHALL HEREAFTER BECOME EFFECTIVE CONCURRENTLY WITH THE
EFFECTIVENESS OF THIS REGISTRATION STATEMENT AND IN ACCORDANCE WITH SECTION
8(c) OF THE SECURITIES ACT OF 1933. UPON THE EFFECTIVENESS OF SUCH
POST-EFFECTIVE AMENDMENT, THIS REGISTRATION STATEMENT AND REGISTRATION NO.
333-13811 WILL RELATE TO AN AGGREGATE OF $15,000,000,000 OF DEBT SECURITIES,
WARRANTS, UNITS, PREFERRED STOCK AND DEPOSITARY SHARES AND COMMON STOCK.
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, or until the Registration Statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
(A redherring appears on the left-hand side of this page, rotated 90 degrees.
Text follows.)
The information contained in this prospectus is not complete and may be
changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities and we are not soliciting an offer to
buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED , 1999
PROSPECTUS
(BANK OF AMERICA LOGO)
Bank of America Corporate Center
Charlotte, North Carolina 28255
(704) 386-5000
$15,000,000,000
Debt Securities, Warrants, Units, Preferred Stock,
Depositary Shares and Common Stock
We may offer and sell from time to time up to $15,000,000,000 (or the U.S.
dollar equivalent) of:
o debt securities
o warrants to purchase our debt securities or securities of other
unaffiliated issuers
o a combination of securities issued in the form of units
o preferred stock
o fractional interests in preferred stock represented by depositary shares
o common stock.
We may also issue common stock upon conversion, exchange or exercise of any of
the securities listed above.
When we sell a particular series of securities, we will prepare a prospectus
supplement describing the offering and terms of that series of securities. You
should read this prospectus and that prospectus supplement carefully. The
securities described in this prospectus may be denominated in U.S. dollars or a
foreign currency as described in the prospectus supplement.
- --------------------------------------------------------------------------------
Our debt securities are unsecured and are not savings accounts, deposits or
other obligations of a bank. The securities are not guaranteed by any bank and
are not insured by the Federal Deposit Insurance Corporation or any other
governmental agency.
Neither the Securities and Exchange Commission, any state securities commission
nor the Commissioner of Insurance of the State of North Carolina has approved
or disapproved the securities to be issued under this prospectus or determined
if this prospectus is accurate or adequate. Any representation to the contrary
is a criminal offense.
- --------------------------------------------------------------------------------
The date of this prospectus is , 1999.
TABLE OF CONTENTS
Page
-----
ABOUT THIS PROSPECTUS ............................................... 4
BANK OF AMERICA CORPORATION ......................................... 5
General ........................................................... 5
Business Segment Operations ....................................... 5
Acquisitions and Sales ............................................ 6
USE OF PROCEEDS ..................................................... 6
RATIOS OF EARNINGS TO FIXED CHARGES AND RATIOS OF EARNINGS TO
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS ....................... 7
REGULATORY MATTERS .................................................. 8
General ........................................................... 8
Interstate Banking ................................................ 8
Capital and Operational Requirements .............................. 8
Dividends ......................................................... 10
Source of Strength ................................................ 10
Changes in Regulations ............................................ 10
PLAN OF DISTRIBUTION ................................................ 10
DESCRIPTION OF DEBT SECURITIES ...................................... 12
General ........................................................... 12
Reopenings ........................................................ 14
Conversion ........................................................ 14
Exchange, Registration and Transfer ............................... 14
Payment and Paying Agents ......................................... 14
Subordination ..................................................... 15
Sale or Issuance of Capital Stock of Banks ........................ 15
Waiver of Covenants ............................................... 16
Modification of the Indentures .................................... 16
Meetings and Action by Securityholders ............................ 16
Defaults and Rights of Acceleration ............................... 16
Collection of Indebtedness ........................................ 17
Notices ........................................................... 17
Concerning the Trustees ........................................... 17
WARRANTS ............................................................ 18
Description of Debt Warrants ...................................... 18
Description of Universal Warrants ................................. 18
Modification ...................................................... 19
Enforceability of Rights of Warrantholders; Governing Law ......... 19
Unsecured Obligations ............................................. 19
DESCRIPTION OF UNITS ................................................ 20
DESCRIPTION OF PREFERRED STOCK ...................................... 20
General ........................................................... 20
The Preferred Stock ............................................... 20
ESOP Preferred Stock .............................................. 21
Series B Preferred Stock .......................................... 23
Series BB Preferred Stock ......................................... 23
2
Page
-----
DESCRIPTION OF DEPOSITARY SHARES ............................. 24
General .................................................... 24
Dividends and Other Distributions .......................... 25
Redemption of Depositary Shares ............................ 25
Voting the Preferred Stock ................................. 25
Amendment and Termination of the Deposit Agreement ......... 26
Changes of Depositary ...................................... 26
Miscellaneous .............................................. 26
Resignation and Removal of Depositary ...................... 26
DESCRIPTION OF COMMON STOCK .................................. 26
General .................................................... 26
Voting and Other Rights .................................... 27
Dividends .................................................. 27
REGISTRATION AND SETTLEMENT .................................. 27
The Depository Trust Company ............................... 27
Cedelbank and Euroclear .................................... 29
WHERE YOU CAN FIND MORE INFORMATION .......................... 32
FORWARD-LOOKING STATEMENTS ................................... 33
LEGAL OPINIONS ............................................... 33
EXPERTS ...................................................... 33
3
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC using a "shelf" registration or continuous offering process. We may from
time to time sell any combination of the securities described in this
prospectus in one or more offerings up to a total dollar amount of
$15,000,000,000 or the equivalent of this amount in foreign currencies or
foreign currency units.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities we will provide you with a
prospectus supplement containing specific information about the terms of the
securities being offered. The prospectus supplement which contains specific
information about the terms of the securities being offered will also include a
discussion of certain U.S. federal income tax consequences and any risk factors
or other special considerations applicable to those securities. The prospectus
supplement may also add, update or change information in this prospectus. If
there is any inconsistency between the information in the prospectus and the
prospectus supplement, you should rely on the information in the prospectus
supplement. You should read both this prospectus and any prospectus supplement
together with additional information described under the heading "Where You Can
Find More Information" beginning on page 32 of this prospectus.
You should rely only on the information provided in this prospectus and in
any prospectus supplement including the information incorporated by reference.
Neither we, nor any underwriters or agents, have authorized anyone to provide
you with different information. We are not offering the securities in any state
where the offer is not permitted. You should not assume that the information in
this prospectus, or any supplement to this prospectus, is accurate at any date
other than the date indicated on the cover page of these documents.
Unless otherwise indicated or unless the context requires otherwise, all
references in this prospectus to "we," "us," "our," or similar references mean
Bank of America Corporation.
4
BANK OF AMERICA CORPORATION
General
Bank of America Corporation is the successor issuer to NationsBank
Corporation ("NationsBank"). On September 25, 1998, NationsBank was
reincorporated from North Carolina to Delaware. On September 30, 1998,
BankAmerica Corporation, a Delaware corporation ("BA"), was merged with and
into NationsBank, with NationsBank as the surviving corporation in the merger.
Upon completion of the merger, NationsBank changed its name to "BankAmerica
Corporation." On April 28, 1999, we changed the name of our company to "Bank of
America Corporation."
We are a multi-bank holding company registered under the Bank Holding
Company Act of 1956. Our principal assets are the shares of stock of Bank of
America, N.A. and our other banking and nonbanking subsidiaries. Through those
subsidiaries, we provide a diverse range of banking and nonbanking financial
services and products throughout the United States and in selected
international markets.
We, and our subsidiaries, are subject to supervision by United States
federal and state banking and other regulatory authorities.
Business Segment Operations
We report the results of our operations through four business segments:
(1) Consumer Banking, (2) Commercial Banking, (3) Global Corporate and
Investment Banking and (4) Principal Investing and Asset Management.
Our Consumer Banking segment provides comprehensive retail banking
services to individuals and small businesses through multiple delivery
channels, including approximately 4,700 banking centers and 14,000 automated
teller machines. These banking centers and automated teller machines are
located principally throughout our franchise and serve approximately 30 million
households in 21 states and the District of Columbia. This segment also
provides specialized services such as the origination and servicing of
residential mortgage loans, issuance and servicing of credit cards, direct
banking via telephone and personal computer, student lending and certain
insurance services. The consumer finance component provides mortgage, home
equity and automobile loans to consumers, retail finance programs to dealers
and lease financing to purchasers of new and used cars.
Our Commercial Banking segment provides a wide range of commercial banking
services for businesses with annual revenues of up to $500 million. Services
provided include commercial lending, treasury and cash management services,
asset-backed lending and factoring. Also included in this segment are our
commercial finance operations which provide: equipment loans and leases, loans
for debt restructuring, mergers and working capital, real estate and healthcare
financing and inventory financing to manufacturers, distributors and dealers.
Our Global Corporate and Investment Banking segment provides a broad array
of financial and investment banking products such as capital-raising products,
trade finance, treasury management, investment banking, capital markets,
leasing and financial advisory services to domestic and international
corporations, financial institutions and government entities. Clients are
supported through offices in 37 countries in four distinct geographic regions:
United States and Canada; Asia; Europe, Middle East and Africa; and Latin
America. Products and services provided include loan origination, cash
management, foreign exchange, leasing, leveraged finance, project finance, real
estate, senior bank debt, structured finance and trade services. Our Global
Corporate and Investment Banking segment also provides commercial banking
services for businesses with annual revenues of $500 million or more. Through a
separate subsidiary, Banc of America Securities LLC, Global Corporate and
Investment Banking is a primary dealer of United States Government securities,
underwrites and makes markets in equity securities,
5
and underwrites and deals in high-grade and high-yield corporate debt
securities, commercial paper, mortgage-backed and asset-backed securities,
federal agencies securities and municipal securities. Debt and equity
securities research, loan syndications, mergers and acquisitions advisory
services and private placements are also provided through Banc of America
Securities LLC. Additionally, our Global Corporate and Investment Banking
segment is a market maker in derivative products, which include swap
agreements, option contracts, forward settlement contracts, financial futures
and other derivative products in certain interest rate, foreign exchange,
commodity and equity markets. In support of these activities, Global Corporate
and Investment Banking takes positions in securities to support client demands
and for its own account.
Our Principal Investing and Asset Management segment includes Asset
Management which provides asset management, banking and trust services for high
net worth clients both in the United States and internationally through the
Private Bank. In addition, this segment provides full service and discount
brokerage, investment advisory and investment management, as well as advisory
services for our affiliated family of mutual funds. The Principal Investing
area includes direct equity investments in businesses and investments in
general partnership funds.
Acquisitions and Sales
As part of our operations, we regularly evaluate the potential acquisition
of, and hold discussions with, various financial institutions and other
businesses that are eligible for bank holding company ownership or control. In
addition, we regularly analyze the values of, and submit bids for, the
acquisition of customer-based funds and other liabilities and assets of such
financial institutions and other businesses. We also regularly consider the
potential disposition of certain of our assets, branches, subsidiaries or lines
of business. As a general rule, we publicly announce any material acquisitions
or dispositions when a definitive agreement has been reached.
USE OF PROCEEDS
Unless we describe a different use in a prospectus supplement, we will use
net proceeds from the sale of the securities for general corporate purposes.
General corporate purposes include:
o our working capital needs;
o investments in, or extensions of credit to, our banking and nonbanking
subsidiaries;
o the possible acquisitions of other financial institutions or their assets
or liabilities;
o the possible acquisitions of or investments in other businesses; and
o the possible reduction of outstanding indebtedness or the repurchase of
our outstanding equity securities.
We will temporarily invest the net proceeds pending its use. We may, from
time to time, engage in additional capital financings as we determine
appropriate based on our needs and prevailing market conditions.
6
RATIOS OF EARNINGS TO FIXED CHARGES AND RATIOS OF EARNINGS TO FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
Our consolidated ratio of earnings to fixed charges and our ratio of
earnings to fixed charges and preferred stock dividend requirements for each of
the years in the five year period ended December 31, 1998 and for the three
months ended March 31, 1999 are as follows:
Year Ended
December 31, Three Months
---------------------------------------------------- Ended
1994 1995 1996 1997 1998 March 31, 1999
-------- -------- -------- -------- -------- ---------------
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits ......... 2.4 2.3 2.3 2.2 1.8 2.3
Including interest on deposits ......... 1.6 1.5 1.6 1.6 1.4 1.6
Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends:
Excluding interest on deposits ......... 2.2 2.1 2.2 2.2 1.8 2.3
Including interest on deposits ......... 1.6 1.5 1.5 1.5 1.4 1.6
o The consolidated ratio of earnings to fixed charges is calculated as
follows:
net income before taxes + fixed charges - equity in undistributed earnings or
losses of unconsolidated subsidiaries
-------------------------------------------------------------------
fixed charges
o The consolidated ratio of earnings to combined fixed charges and
preferred stock dividends is calculated as follows:
net income before taxes + fixed charges - equity in undistributed earnings or
losses of unconsolidated subsidiaries
-------------------------------------------------------------------
fixed charges + preferred stock dividend requirements
Fixed charges consist of:
o interest expense, which we calculate excluding interest on deposits in
one case and including that interest in the other,
o amortization of debt discount and appropriate issuance costs, and
o one-third (the amount deemed to represent an appropriate interest factor)
of net rent expense under lease commitments.
Preferred stock dividend requirements represent dividend requirements on
the outstanding preferred stock adjusted to reflect the pre-tax earnings that
would be required to cover such dividend requirements.
7
REGULATORY MATTERS
The following discussion describes elements of an extensive regulatory
framework applicable to bank holding companies and banks and specific
information about us and our subsidiaries. Federal regulation of banks and bank
holding companies is intended primarily for the protection of depositors and
the Bank Insurance Fund rather than stockholders or creditors.
General
As a bank holding company, we are subject to the supervision of the Board
of Governors of the Federal Reserve System. Our bank subsidiaries are subject
to supervision and examination by applicable federal agencies, principally the
Office of the Comptroller of the Currency. Because bank deposits are insured by
the Federal Deposit Insurance Corporation ("FDIC"), our bank subsidiaries are
also subject to that agency's regulations. In addition to the impact of
regulation, commercial banks are affected significantly by the actions of the
Federal Reserve Board as it attempts to control the money supply and credit
availability to influence the economy.
As a bank holding company, we are also subject to regulation under the
Bank Holding Company Act of 1956 (the "BHCA"), and to the BHCA's examination
and reporting requirements. Under the BHCA, bank holding companies generally
may not acquire direct or indirect ownership or control of more than five
percent of the voting shares or substantially all of the assets of any company,
including a bank, without the prior approval of the Federal Reserve Board. In
addition, bank holding companies are prohibited under the BHCA from engaging in
nonbanking activities other than those that the Federal Reserve Board has
determined are closely related to banking.
Interstate Banking
Pursuant to the Riegle-Neal Interstate Banking and Branching Efficiency
Act of 1994 (the "Interstate Banking and Branching Act"), a bank holding
company may acquire banks in states other than its home state without regard to
the permissibility of such acquisitions under state law, but is subject to any
state requirement that the banks have been organized and operating for a
minimum period of time, not to exceed five years, and the requirement that the
bank holding company, before or after the proposed acquisition, controls no
more than 10 percent of the total amount of deposits of insured depository
institutions in the United States and no more than 30 percent, or such lesser
or greater amount set by state law, of such deposits in that state.
The Interstate Banking and Branching Act also authorizes, subject to
certain restrictions, banks to merge across state lines and to create
interstate branches. The Interstate Banking and Branching Act also permits a
bank to open new branches in a state in which it does not already have banking
operations if the state enacts a law permitting such branching. To the extent
permitted under these laws, we plan to consolidate our banking subsidiaries,
other than our limited purpose credit card bank, into a single bank. As of July
23, 1999, we operate one interstate bank, Bank of America, N.A., headquartered
in Charlotte, North Carolina, with domestic offices primarily in Arizona,
Arkansas, California, Florida, Georgia, Idaho, Illinois, Iowa, Kansas,
Maryland, Missouri, Nevada, New Mexico, North Carolina, Oklahoma, Oregon, South
Carolina, Tennessee, Texas, Virginia, Washington and the District of Columbia.
We also operate separate banks in Arizona and California. In addition, we have
a federal savings bank headquartered in Portland, Oregon with branch offices in
several states. As previously described, we regularly evaluate merger and
acquisition opportunities and anticipate that we will continue that practice.
Capital and Operational Requirements
The Federal Reserve Board, the Comptroller and the FDIC have issued
substantially similar risk-based and leverage capital guidelines applicable to
United States banking organizations. In addition, these regulatory agencies may
from time to time require that a banking organization
8
maintain capital above the minimum levels, based on its financial condition or
actual or anticipated growth. The Federal Reserve Board risk-based guidelines
define a three-tier capital framework. Tier 1 capital consists of common and
qualifying preferred shareholders' equity, less certain intangibles and other
adjustments. Tier 2 capital consists of preferred stock not qualifying as Tier
1 capital, subordinated and other qualifying debt and the allowance for credit
losses up to 1.25 percent of risk weighted assets. Tier 3 capital includes
subordinated debt that is unsecured, fully paid, has an original maturity of at
least two years, is not redeemable before maturity without the prior approval
by the Federal Reserve and includes a lock-in clause precluding payment of
either interest or principal if the payment would cause the issuing bank's
risk-based capital ratio to fall or remain below the required minimum. The sum
of Tier 1 and Tier 2 capital less investments in unconsolidated subsidiaries
represents qualifying total capital, at least 50 percent of which must consist
of Tier 1 capital. Risk-based capital ratios are calculated by dividing Tier 1
and total capital by risk-weighted assets. Assets and off-balance sheet
exposures are assigned to one of four categories of risk-weights, based
primarily on relative credit risk. The minimum Tier 1 capital ratio is 4
percent and the minimum total capital ratio is 8 percent. Our Tier 1 and total
risk-based capital ratios under these guidelines at March 31, 1999 were 7.40
percent and 11.17 percent, respectively. At March 31, 1999, we did not have any
subordinated debt that qualified as Tier 3 capital.
The leverage ratio is determined by dividing Tier 1 capital by adjusted
quarterly average total assets. Although the stated minimum ratio is 3 percent,
most banking organizations are required to maintain ratios of at least 100 to
200 basis points above 3 percent. Our leverage ratio at March 31, 1999 was 6.47
percent. We believe that we meet the leverage ratio requirement.
The Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA"), among other things, identifies five capital categories for insured
depository institutions (well capitalized, adequately capitalized,
undercapitalized, significantly undercapitalized and critically
undercapitalized) and requires the respective Federal bank regulatory agencies
to implement systems for "prompt corrective action" for insured depository
institutions that do not meet minimum capital requirements within such
categories. This act imposes progressively more constraints on operations,
management and capital distributions, depending on the category in which an
institution is classified. Failure to meet the capital guidelines could also
subject a banking institution to capital raising requirements. In addition,
this act requires the various regulatory agencies to prescribe certain
non-capital standards for safety and soundness relating generally to operations
and management, asset quality and executive compensation and permits regulatory
action against a financial institution that does not meet such standards.
Banking regulatory agencies have adopted regulations that define the five
capital categories identified by this act, using the total risk-based capital,
Tier 1 risk-based capital and leverage capital ratios as the relevant capital
measures. Under those regulations, a "well capitalized" institution must have a
Tier 1 capital ratio of at least 6 percent, a total capital ratio of at least
10 percent and a leverage ratio of at least 5 percent and not be subject to a
capital directive order. Under these guidelines, our banks are considered well
capitalized.
Banking agencies have also adopted final regulations which mandate that
regulators take into consideration (a) concentrations of credit risk; (b)
interest rate risk (when the interest rate sensitivity of an institution's
assets does not match the sensitivity of its liabilities or its
off-balance-sheet position); (c) risks from non-traditional activities, as well
as an institution's ability to manage those risks; and (d) market risk in
connection with trading activity, when determining the adequacy of an
institution's capital. That evaluation will be made as a part of the
institution's regular safety and soundness examination.
9
Dividends
Our funds for cash dividends to stockholders are derived from a variety of
sources, including cash and temporary investments. The primary source of such
funds, however, is dividends received from our banks. Those subsidiaries are
subject to various regulatory policies and requirements relating to the payment
of dividends, including requirements to maintain capital above regulatory
minimums. The appropriate federal regulatory authority is authorized to
determine under certain circumstances relating to the financial condition of
the bank or bank holding company that the payment of dividends would be an
unsafe or unsound practice and to prohibit payment. The ability to pay
dividends also may be affected by the various minimum capital requirements and
the capital and non-capital standards established under FDICIA. Our rights, and
the rights of our stockholders and creditors, to participate in any
distribution of the assets or earnings of our banks is further subject to the
prior claims of creditors of those entities.
Source of Strength
According to Federal Reserve Board policy, a bank holding company is
expected to act as a source of financial strength to its subsidiary banks and
to commit resources to support its subsidiary banks. This support may be
required at times when we are not able to provide such support. Similarly, the
cross-guaranty provisions of the Federal Deposit Insurance Act provides that if
the FDIC suffers or anticipates a loss as a result of a default by one of our
banking or thrift subsidiaries or by providing assistance to a subsidiary in
danger of default, then the other bank or thrift subsidiaries may be assessed
for the FDIC's loss.
Changes in Regulations
Proposals to change the laws and regulations governing the banking
industry are frequently introduced in Congress, in the state legislatures and
before the various bank regulatory agencies. At the present time, Congress is
considering legislation that would increase the permissible scope of securities
and insurance activities in which a bank holding company or its affiliates may
engage. We cannot determine the likelihood and timing of any such proposals or
legislation and the impact they might have on us and our subsidiaries.
PLAN OF DISTRIBUTION
We may sell securities to or through underwriters or dealers, through
agents or directly to other purchasers. The underwriters, dealers or agents may
be Banc of America Securities LLC or any of our other affiliates. Each
prospectus supplement will state the terms of the securities to be offered,
including the names of any underwriters or agents, the public offering or
purchase price of the securities and the net proceeds we will receive from the
sale, any underwriting discounts and other items constituting underwriters'
compensation, any discounts and commissions allowed or paid to dealers, any
commissions allowed or paid to agents, and if the securities will be listed on
a securities exchange or exchanges, the identity of any exchange.
Securities may be purchased to be reoffered to the public through
underwriting syndicates led by one or more managing underwriters, or through
one or more underwriters acting alone. The underwriters may acquire the
securities for their own account and may resell the securities from time to
time in one or more transactions, including negotiated transactions, at a fixed
public offering price or varying prices determined at the time of sale. If an
underwriting syndicate is used, we will list the managing underwriter or
underwriters on the cover page of the prospectus supplement. Unless otherwise
stated in the prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to certain conditions and each of the
underwriters will be obligated to purchase all of its securities if any are
purchased. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
10
We may offer and sell securities through agents from time to time. We will
name any agent involved in the offer and sale of any securities and describe
any commissions payable by us to the agent in the prospectus supplement. Unless
otherwise indicated in the prospectus supplement, the agent will be acting on a
best efforts basis during the appointment period.
We may sell directly to, and solicit offers from, institutional investors
or others who may be deemed to be underwriters as defined in the Securities Act
of 1933 (the "Securities Act") for any resale of the securities. We will
describe the terms of any such sales in the prospectus supplement.
Securities may be sold in connection with a remarketing after their
purchase by one or more firms including our affiliates, acting as principal for
their accounts or as our agent.
We may authorize underwriters, dealers or agents to solicit offers by
certain institutions to purchase debt securities from us pursuant to delayed
delivery contracts providing for payment and delivery at a future date. The
type of security, the amount, the price and other significant terms of such
delayed delivery contracts will be described in the prospectus supplement.
Institutions that may be solicited include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, all as approved by us. The obligations of
any purchaser under any such contract will not be subject to any conditions
except that (1) the purchase of the debt securities will not at the time of
delivery be prohibited under the laws of the jurisdiction to which the
purchaser is subject, and (2) if the debt securities are also being sold to
underwriters acting as principals for their own account, the underwriters must
have purchased the debt securities not sold for delayed delivery. The
underwriters and other such persons will not have any responsibility for the
validity or performance of such contracts.
Any underwriter or agent participating in the distribution of the
securities may be considered to be an underwriter, as that term is defined in
the Securities Act, of the securities being offered and sold. Any discounts or
commissions received by them from us and any profit realized by them on the
sale or resale of the securities may be considered to be underwriting discounts
and commissions under the Securities Act.
To facilitate offering the securities, the underwriters may engage in
transactions that stabilize, maintain or otherwise affect the price of the
securities or any other securities the prices of which may be used to determine
payments on such securities. Specifically, the underwriters may overallot in
connection with the offering, creating a short position in the securities for
their own accounts. In addition, to cover overallotments or to stabilize the
price of the securities or of any other securities, the underwriters may bid
for, and purchase, the securities or any other securities in the open market.
Finally, in any offering of the securities through a syndicate of underwriters,
the underwriting syndicate may reclaim selling concessions allowed to an
underwriter or a dealer for distributing the securities in the offering if the
syndicate repurchases previously distributed securities in transactions to
cover syndicate short positions, in stabilization transactions or otherwise.
Any of these activities may stabilize or maintain the market price of the
securities above independent market levels. The underwriters are not required
to engage in these activities, and may end any of these activities at any time.
Since any series of securities offered and sold pursuant to this
prospectus may be a new issue with no established trading market, there may not
be a liquid trading market for the security.
Under agreements entered into with us, underwriters and agents may be
entitled to indemnification by us against certain civil liabilities, including
liabilities under the Securities Act, or to contribution for payments the
underwriters or agents may be required to make.
11
Banc of America Securities LLC is a broker-dealer and one of our
subsidiaries. Each initial offering and any remarketing of securities involving
Banc of America Securities LLC or any of our other affiliates will be conducted
in compliance with the requirements of Rule 2720 of the Conduct Rules of the
National Association of Securities Dealers, Inc. regarding the offer and sale
of securities of an affiliate. Following the initial distribution of
securities, our affiliates, including Banc of America Securities LLC, may buy
and sell the securities in secondary market transactions as part of their
business as a broker-dealer. Any sale will be at negotiated prices relating to
prevailing prices at the time of sale. This prospectus and related prospectus
supplements may be used by one or more of our affiliates in connection with
offers and sales related to secondary market transactions in the securities to
the extent permitted by applicable law. Any of our affiliates may act as
principal or agent in such transactions. Banc of America Securities LLC will
not execute a transaction in the securities in a discretionary account without
specific prior written approval of that customer.
DESCRIPTION OF DEBT SECURITIES
We will issue any senior debt securities under an Indenture dated as of
January 1, 1995 (the "Senior Indenture") between us and U.S. Bank Trust
National Association, as successor Trustee to BankAmerica National Trust
Company (the "Senior Trustee"). We will issue any subordinated debt securities
under an Indenture dated as of January 1, 1995 (the "Subordinated Indenture")
between us and The Bank of New York, Trustee (the "Subordinated Trustee"). We
refer to the Senior Indenture and the Subordinated Indenture collectively as
the "Indentures" and the Senior Trustee and Subordinated Trustee collectively
as the "Trustees."
The following summaries of certain significant provisions of the
Indentures are not complete and are qualified in their entirety by the
provisions of the applicable Indentures, which are exhibits to the Registration
Statement and are incorporated herein by reference. Whenever defined terms are
used, but not defined in this prospectus, the terms have the meanings given to
them in the Indentures.
General
The total amount of securities that may be offered and sold using this
prospectus is limited to the aggregate initial offering price of the securities
registered under the Registration Statement. Neither Indenture limits the
amount of debt securities that may be issued.
Debt securities are our direct unsecured obligations and are not
obligations of our subsidiaries. The senior debt securities of each series rank
equally with all of our other unsecured senior debt. The subordinated debt
securities of each series are subordinate and junior in right of payment to our
Senior Indebtedness.
We will issue the debt securities in fully registered form without
coupons. The debt securities may be denominated in U.S. dollars or in another
currency or currency unit. Any debt securities that are denominated in U.S.
dollars will be issued in denominations of $1,000 or a multiple thereof unless
otherwise provided in the prospectus supplement. If any of the debt securities
are denominated in a foreign currency or currency unit, or if principal or any
premium or interest on any of the debt securities is payable in any foreign
currency or currency unit, the authorized denominations, as well as any
investment considerations, restrictions, tax consequences, specific terms and
other information relating to such issue of debt securities and such foreign
currency or currency unit, will be stated in the prospectus supplement.
We may issue debt securities in one or more series with the same or
different maturities. We may issue debt securities which provide for an amount
less than the stated principal amount to be paid upon an acceleration of its
maturity (each an "Original Issue Discount Security"). Original Issue Discount
Securities may bear no interest or may bear interest at a rate which at the
12
time of issuance is below market rates and will be sold at a discount below
their stated principal amount. Certain debt securities may be deemed to be
issued with original issue discount for United States Federal income tax
purposes. If we issue debt securities with original issue discount, we will
discuss the Federal tax implications in the prospectus supplement.
Each prospectus supplement will describe the terms of any debt securities
we issue. The terms may include:
o the title and type of the debt securities;
o any limit on the aggregate principal amount of the debt securities;
o the person to whom interest is payable if other than the owner of the
debt securities;
o the date or dates on which the principal of the debt securities will be
payable;
o the interest rate or rates, which may be fixed or variable, and the
method used to calculate that interest;
o the interest payment dates, the regular record dates for the interest
payment date, and the date interest will begin to accrue;
o the place or places where payments may be made on the debt securities and
the place or places where the debt securities may be presented for
registration of transfer or exchange;
o any date or dates after which the debt securities may be redeemed or
purchased in whole or in part at our option or the option of the
noteholder pursuant to any sinking fund or other redemption provision and
the periods, prices, terms and conditions of such redemption or purchase;
o if other than the full principal amount, the portion of the principal
amount of the debt securities that will be payable upon declaration or
acceleration of the maturity;
o the currency of principal and any premium and interest payments on the
debt securities, if other than U.S. currency;
o any index used to determine the amount of principal, premium and interest
payments on the debt securities;
o if the debt securities will be issued in other than book-entry form;
o the identification or method of selecting any interest rate calculation
agents, exchange rate calculation agents or any other agents for the debt
securities;
o if either the defeasance (Section 14.02) or covenant defeasance (Section
14.03) sections of the Indentures are not applicable to the debt
securities; and
o any provision relating to the extension or renewal of the maturity date
of the debt securities.
Our ability to make payments of principal and any premium and interest on
the debt securities may be affected by the ability of our bank and nonbank
subsidiaries to pay dividends. Their ability, as well as our ability, to pay
dividends in the future is and could be influenced by bank regulatory
requirements and capital guidelines. See "Regulatory Matters."
Neither Indenture contains provisions protecting noteholders against a
decline in credit quality resulting from takeovers, recapitalizations, the
incurrence of additional indebtedness or our restructuring. If our credit
quality declines as a result of such an event, or otherwise, the ratings of any
debt securities then outstanding may be withdrawn or downgraded.
13
Reopenings
We have the ability to "reopen," or later increase, the principal amount
of a series of debt securities offered and sold by us without notice to the
noteholders by selling additional debt securities with the same terms.
Conversion
We may issue debt securities that are convertible, at either our or the
noteholder's option, into our preferred stock, depositary shares, common stock
or other debt securities. If this is the case, the prospectus supplement will
describe that conversion ability and its terms such as:
o the periods during which conversion may be elected;
o the conversion price payable and the number of shares or amount of
preferred stock, depositary shares, common stock or other debt securities
that may be purchased upon conversion, and any adjustment provisions; and
o the procedures for electing conversion.
Exchange, Registration and Transfer
Subject to the terms of the applicable Indenture, debt securities of any
series, other than debt securities issued in book-entry form, may be exchanged
at the option of the noteholder for other debt securities of the same series
and of an equal aggregate principal amount and type in any authorized
denominations.
Debt securities may be presented for registration of transfer at the
office of the security registrar or at the office of any transfer agent
designated and maintained by us. The prospectus supplement will include the
name of the transfer agent. The security registrar or transfer agent will make
the transfer or registration only if it is satisfied with the documents of
title and identity of the person making the request. There will not be a
service charge for any exchange or registration of transfer of debt securities,
but we may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with the exchange. At any
time we may change transfer agents or approve a change in the location through
which any transfer agent acts, except that we will be required to maintain a
transfer agent in each place of payment for the series. At any time, we may
designate additional transfer agents for any series of debt securities.
We will not be required to (1) issue, exchange or register the transfer of
any debt security of any series to be redeemed for a period of 15 days after
the selection of the debt securities to be redeemed; or (2) exchange or
register the transfer of any debt security that was selected, called or is
being called for redemption, except the unredeemed portion of any debt security
being redeemed in part.
For a discussion of restrictions on the exchange, registration and
transfer of Global Securities, see "Registration and Settlement."
Payment and Paying Agents
The principal and any premium and interest on debt securities will be paid
at the offices of the paying agents we may designate from time to time. In
addition, at our option, payment of any interest may be made by check mailed to
the address of the noteholder as recorded in the security register. Interest on
a debt security on any interest payment date generally will be paid to the
person in whose name the debt security is registered at the close of business
on the regular record date for that payment. For a discussion of payment of
principal, premium or interest on Global Securities, see "Registration and
Settlement."
14
We have initially designated the principal corporate trust offices of the
Trustees in the City of New York as the places where the debt securities may be
presented for payment. At any time we may change paying agents or the
designated payment office. Any other paying agents for the debt securities of
each series will be named in the prospectus supplement.
Subordination
The subordinated debt securities will be subordinated in right of payment
to all our Senior Indebtedness. The Subordinated Indenture defines "Senior
Indebtedness" as any indebtedness for money borrowed, including all of our
indebtedness for borrowed and purchased money, all of our obligations arising
from off-balance sheet guarantees and direct credit substitutes, and our
obligations associated with derivative products such as interest and foreign
exchange rate contracts and commodity contracts, that were outstanding on the
date we executed the Subordinated Indenture, or were created, incurred or
assumed after that date and all deferrals, renewals, extensions and refundings
of that indebtedness or obligations unless the instrument creating or
evidencing the indebtedness provides that the indebtedness is subordinate in
right of payment to any of our other indebtedness. Each prospectus supplement
for a series of subordinated debt securities will indicate the aggregate amount
of our Senior Indebtedness outstanding at that time and any limitation on the
issuance of additional Senior Indebtedness.
If there is a default or event of default on any Senior Indebtedness that
is not remedied and we and the Subordinated Trustee receive notice of this from
the holders of at least 10% in principal amount of any kind or category of any
Senior Indebtedness or if the Subordinated Trustee receives notice from us, we
will not be able to make any principal, premium or interest payments on the
subordinated debt securities or repurchase our subordinated debt securities.
If we repay any subordinated debt security before the required date or in
connection with a distribution of our assets to creditors pursuant to a
dissolution, winding up, liquidation or reorganization, any principal, premium
or interest will be paid to holders of Senior Indebtedness before any holders
of Subordinated Indebtedness are paid. In addition, if such amounts were
previously paid to the holders of Subordinated Debt or the Subordinated
Trustee, the holders of Senior Debt shall have first rights to such amounts
previously paid.
Until all Senior Indebtedness is paid in full, the holders of subordinated
debt securities will be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of our assets.
Sale or Issuance of Capital Stock of Banks
The Senior Indenture prohibits the issuance, sale or other disposition of
capital stock, or securities convertible into or options, warrants or rights to
acquire capital stock, of any Principal Subsidiary Bank (as defined below) or
of any subsidiary which owns shares of capital stock, or securities convertible
into or options, warrants or rights to acquire capital stock, of any Principal
Subsidiary Bank, with the following exceptions:
o sales of directors' qualifying shares;
o sales or other dispositions for fair market value, if, after giving
effect to the disposition and to conversion of any shares or securities
convertible into capital stock of a Principal Subsidiary Bank, we would
own at least 80% of each class of the capital stock of such Principal
Subsidiary Bank;
o sales or other dispositions made in compliance with an order of a court
or regulatory authority of competent jurisdiction;
o any sale by a Principal Subsidiary Bank of additional shares of its
capital stock, securities convertible into shares of its capital stock,
or options, warrants or rights to subscribe for
15
or purchase shares of its capital stock, to its shareholders at any price,
so long as before such sale we owned, directly or indirectly, securities
of the same class and immediately after the sale, we owned, directly or
indirectly, at least as great a percentage of each class of securities of
the Principal Subsidiary Bank as we owned before such sale of additional
securities; and
o any issuance of shares of capital stock, or securities convertible into
or options, warrants or rights to subscribe for or purchase shares of
capital stock, of a Principal Subsidiary Bank or any subsidiary which
owns shares of capital stock, or securities convertible into or options,
warrants or rights to acquire capital stock, of any Principal Subsidiary
Bank, to us or our wholly owned subsidiary.
A Principal Subsidiary Bank is defined in the Senior Indenture as any Bank
with total assets equal to more than 10% of our total consolidated assets. At
present, Bank of America, N.A. is our only Principal Subsidiary Bank.
Waiver of Covenants
The holders of a majority in principal amount of the debt securities of
all series affected that are outstanding under the Indenture may waive
compliance with certain covenants or conditions of the Indentures.
Modification of the Indentures
We and the applicable Trustee may modify the Indenture with the consent of
the holders of at least 66 2/3% of the aggregate principal amount of the debt
securities of all series at the time outstanding under that Indenture and
affected thereby, voting as one class. However, no modification will extend the
fixed maturity of, reduce the principal amount or redemption premium of, or
reduce the rate of or extend the time of payment of interest on, any debt
security without the consent of each noteholder. No modification will reduce
the percentage of debt securities which is required to consent to modification
without the consent of all holders of the debt securities outstanding.
In addition, we and the Trustee may execute supplemental indentures in
certain limited circumstances without the consent of any holders of outstanding
debt securities.
In determining whether the holders of the required principal amount of the
debt securities outstanding have given any request, demand, authorization,
direction, notice, consent or waiver thereunder, (a) the principal amount of an
Original Issue Discount Security that will be deemed to be outstanding will be
the amount of the principal thereof that would be due and payable at such time
upon an event of default, and (b) the principal amount of a debt security
denominated in a foreign currency or currency unit will be the U.S. dollar
equivalent on the date of original issuance of the debt security.
Meetings and Action by Securityholders
The Trustee may call a meeting in its discretion or upon request by us or
the holders of at least 10% in principal amount of the debt securities
outstanding of such series upon the giving of notice. If a meeting of
noteholders is duly held, any resolution raised or decision taken will be
binding on all holders of debt securities of that series.
Defaults and Rights of Acceleration
The Subordinated Indenture defines an event of default as our bankruptcy
under Federal bankruptcy laws. The Senior Indenture defines an event of default
as any one of the following events:
o our failure to pay principal or premium when due on any securities of a
series;
16
o our failure to pay interest on any securities of a series, within 30 days
after the interest becomes due;
o our breach of any of our other covenants contained in the senior debt
securities or the Senior Indenture, that is not cured within 90 days
after written notice to us by the Senior Trustee, or to us and the Senior
Trustee by the holders of at least 25% in principal amount of all senior
debt securities then outstanding under the Senior Indenture and affected
thereby; and
o certain events involving our bankruptcy, insolvency or liquidation.
If an event of default occurs and is continuing, either the Trustee or the
holders of 25% in principal amount of the outstanding debt securities of that
series may declare the principal amount or, if the debt securities are Original
Issue Discount Debt Securities, a specified portion of the principal amount of
all debt securities of that series to be due and payable immediately. The
holders of a majority in principal amount of the debt securities then
outstanding or of such series affected may annul the declaration of an event of
default and waive past defaults.
Payment of principal of the subordinated debt securities may not be
accelerated in the case of a default in the payment of principal or any premium
or interest or the performance of any of our other covenants.
Collection of Indebtedness
If we fail to pay principal or premium on the debt securities or if we are
over 30 days late on an interest payment on the debt securities, the
appropriate Trustee can demand that we pay to it, for the benefit of the
noteholders, the amount which is due and payable on the debt securities
including any interest incurred because of our failure to make that payment. If
we fail to pay the required amount on demand, the Trustee may take appropriate
action, including instituting judicial proceedings. Further, the noteholder may
also institute suit to enforce our obligation to make payment of principal,
premium or interest due on any debt security regardless of the actions taken by
the Trustee.
The holders of a majority in principal amount of the debt securities then
outstanding under an Indenture may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee under that
Indenture but the Trustee will be entitled to receive from the holders
reasonable indemnity against expenses and liabilities.
Periodically, we are required to file with the Trustees a certificate
stating that we are not in default with any of the terms of the Indentures.
Notices
We will provide noteholders any required notices by first-class mail to
the addresses of the holders as they appear in the security register.
Concerning the Trustees
We and our subsidiaries have from time to time maintained deposit accounts
and conducted other banking transactions with The Bank of New York and U.S.
Bank Trust National Association, and their affiliated entities in the ordinary
course of business. Each of the Trustees also serves as trustee for certain
series of our outstanding indebtedness under other indentures.
17
WARRANTS
Description of Debt Warrants
We may issue warrants to purchase debt securities ("Debt Warrants"). Debt
Warrants may be issued independently or together with any of our other
securities and may be attached to or separate from such securities. Debt
Warrants will be issued under warrant agreements with a warrant agent
designated in the prospectus supplement. The following summary of provisions of
the warrant agreement and form of Debt Warrant is not complete and is subject
to, and is qualified in its entirety by reference to, all the provisions of the
warrant agreement and the Debt Warrant. Any warrant agreement will be filed as
an exhibit to or incorporated by reference in the Registration Statement.
If Debt Warrants are offered, the prospectus supplement will describe the
terms of the Debt Warrants and the warrant agreement relating to the Debt
Warrants, including the following:
o the offering price;
o the designation, aggregate principal amount and terms of the debt
securities purchasable upon exercise of the Debt Warrants;
o the currency or currency unit in which the price for the Debt Warrants
may be payable;
o if applicable, the designation and terms of the securities with which the
Debt Warrants are issued and the number of Debt Warrants issued with each
such security;
o if applicable, the date on and after which the Debt Warrants and the
related securities will be separately transferable;
o the principal amount of debt securities purchasable upon exercise of a
Debt Warrant and the price at which, and currency or currency units based
on or relating to currencies in which, the principal amount of debt
securities may be purchased upon such exercise;
o the dates the right to exercise the Debt Warrants will commence and
expire and if the Debt Warrants are not continuously exercisable any
dates the Debt Warrants are not exercisable;
o if applicable, a discussion of certain Federal income tax consequences;
o whether the Debt Warrants or related securities will be listed on any
securities exchange;
o whether the Debt Warrants will be issued in global or definitive form;
and
o the warrant agent.
Description of Universal Warrants
We may issue warrants ("Universal Warrants") to buy or sell securities of
an entity unaffiliated with us, to buy a basket of such securities, to buy an
index or indices of securities or any combination of those securities, to buy
or sell currencies or currency units, or to buy and sell commodities
(collectively, the "Exercise Items").
Universal Warrants may be issued independently or together with other
securities offered by any prospectus supplement and may be attached to or
separate from the other securities. The Universal Warrants will be issued under
warrant agreements we will enter into with a warrant agent who will be
designated in the prospectus supplement. The following summary of certain
provisions of the form of Universal Warrant agreement and the Universal
Warrants is not complete and is subject to, and is qualified in its entirety by
reference to, all the provisions of the Universal Warrant agreement. Any
Universal Warrant agreement will be filed as an exhibit to or incorporated by
reference in the registration statement.
18
If Universal Warrants are offered, the prospectus supplement will describe
the terms of the Universal Warrants and the warrant agreement, including the
following:
o the offering price;
o the title and aggregate number of such Universal Warrants;
o the nature and amount of the Exercise Items that such Universal Warrants
represent the right to buy or sell;
o whether the Universal Warrants are put warrants or call warrants;
o the price at which the Exercise Item may be purchased or sold and the
procedures and conditions relating to exercise;
o whether the exercise price or the Universal Warrant may be paid in cash
or by exchange of the Exercise Item or both;
o the dates the right to exercise the Universal Warrants will commence and
expire;
o if applicable, a discussion of certain Federal income tax consequences;
o whether the Universal Warrants or related securities will be listed on
any securities exchange;
o whether the Universal Warrants will be issued in global or definitive
form;
o the warrant agent; and
o any other terms of the Universal Warrants.
Modification
We and the warrant agent may amend the terms of any warrant agreement and
the warrants without the consent of the holders for the purpose of curing any
ambiguity or correcting any inconsistent provision therein or in any other
manner we deem necessary or desirable and which will not adversely affect the
interests of the holders in any respect. In addition, we may amend the warrant
agreement and the terms of the warrants with the consent of the owners of a
majority of the outstanding unexercised warrants affected. However, any
modification to the warrants cannot change the exercise price, reduce the
amounts receivable upon exercise cancellation or expiration, shorten the time
period during which the warrants may be exercised or otherwise materially and
adversely affect the rights of the owners of the warrants or reduce the
percentage of outstanding warrants required to modify or amend the warrant
agreement or the terms of the warrants, without the consent of the affected
owners.
Enforceability of Rights of Warrantholders; Governing Law
The warrant agent will act solely as our agent and will not assume any
obligation or relationship of agency or trust with the holders of the Warrants.
Any record holder or beneficial owner of a warrant may, without anyone else's
consent, enforce by appropriate legal action, on its own behalf, its right to
exercise the warrant in the manner provided therein or in the warrant
agreement. A warrantholder will not be entitled to any of the rights of a
holder of the debt securities or other securities purchasable upon the exercise
of the warrant before exercising the warrant.
Unsecured Obligations
The warrants are our unsecured contractual obligations and will rank
equally with all of our other unsecured contractual obligations and our
unsecured and unsubordinated debt. Since most of our assets are owned by our
subsidiaries, our rights and the rights of our creditors, including
warrantholders, to participate in the distribution of assets of any subsidiary
upon that subsidiary's liquidation or recapitalization will be subject to the
prior claims of that subsidiary's creditors.
19
DESCRIPTION OF UNITS
Units will consist of one or more warrants and debt securities or any
combination thereof. If Units are offered, the prospectus supplement will
describe the terms of the Units, including the following:
o all terms of Units and of the warrants and debt securities, or any
combination thereof, comprising the Units, including whether and under
what circumstances the securities comprising the Units may or may not be
traded separately;
o a description of the terms of any agreement to be entered into between us
and a bank or trust company as unit agent governing the Units; and
o a description of the provisions for the payment, settlement, transfer or
exchange of the Units.
DESCRIPTION OF PREFERRED STOCK
General
We have 100,000,000 shares of preferred stock authorized and may issue
such preferred stock in one or more series, each with such preferences,
designations, limitations, conversion rights and other rights as we may
determine. We have designated:
(a) 3,000,000 shares of ESOP Convertible Preferred Stock, Series C (the
"ESOP Preferred Stock") of which 1,887,729 shares were issued and outstanding
at March 31, 1999;
(b) 35,045 shares of 7% Cumulative Redeemable Preferred Stock, Series B
(the "Series B Preferred Stock"), of which 8,771 shares were issued and
outstanding at March 31, 1999; and
(c) 20,000,000 shares of $2.50 Cumulative Convertible Preferred Stock
Series BB (the "Series BB Preferred Stock"), of which 5,539 shares were issued
and outstanding at March 31, 1999.
The Preferred Stock
General. Any preferred stock sold pursuant to this prospectus will have
the general dividend, voting and liquidation preference rights stated below
unless otherwise provided in the prospectus supplement. Reference is made to
the prospectus supplement for specific terms, including, where applicable:
o the title and stated value of the preferred stock;
o the aggregate number of shares of preferred stock offered;
o the price at which the preferred stock will be issued;
o the dividend rates or method of calculation, the dividend period and the
dates dividends will be payable;
o whether dividends will be cumulative or noncumulative, and if cumulative,
the date the dividends will begin to cumulate;
o the dates the preferred stock will be subject to redemption at our
option, and any redemption terms;
o any mandatory redemption or sinking fund provisions;
o any rights on the part of the stockholder or us to convert the preferred
stock into shares of another security; and
20
o any additional voting, liquidation, preemptive and other rights,
preferences, privileges, limitations and restrictions.
The description of certain provisions of the preferred stock stated below
and in the prospectus supplement is not complete and is qualified in its
entirety by reference to the description in our Amended and Restated
Certificate of Incorporation, which will describe the terms of the offered
preferred stock and be filed with the SEC at or before the time of sale of that
preferred stock.
In addition, we may elect to offer depositary shares evidenced by
depository receipts representing a fractional interest in a share of a
particular series of the preferred stock issued and deposited with a
Depositary.
The preferred stock ranks senior to our common stock as to the payment of
dividends and the distribution of our assets on liquidation, dissolution and
winding up. The dividend and liquidation preference rights of the preferred
stock relative to any existing or future series of our preferred stock will be
stated in the prospectus supplement.
The preferred stock, when issued, will be fully paid and nonassessable.
Dividends. The holders of the preferred stock will be entitled to receive
when, as and if declared by us, cash dividends at such rates as will be
specified in the prospectus supplement. All dividends will be paid out of our
funds that are legally available for such purpose. We will not pay dividends on
our other shares nor will we redeem or otherwise acquire for any other
consideration or pay into any sinking fund if dividends on any series of
preferred stock are in arrears.
Voting. The holders of preferred stock will not have voting rights, except
as required by applicable law or as specifically approved by us and described
in the prospectus supplement, with regard to matters submitted to a general
vote of our stockholders.
Liquidation Preference. In the event of our voluntary or involuntary
liquidation, dissolution or winding up, the holders of any series of preferred
stock will be entitled to receive, after distributions to holders of any series
or class of our capital stock, as may be stated in the prospectus supplement,
an amount equal to the appropriate stated or liquidation value of the shares of
the series plus an amount equal to accrued and unpaid dividends, if any,
through the date of the payment. If the assets and funds to be distributed
among the holders of such preferred stock will be insufficient to permit the
payment to such holders of the full amount due, then the holders of the
preferred stock will share ratably in any distribution of our assets in
proportion to the amounts which otherwise would be payable on the shares held
by them upon the distribution if all amounts payable on the shares were paid in
full.
The following summary of the ESOP Preferred Stock, Series B Preferred
Stock and Series BB Preferred Stock is qualified in its entirety by reference
to the description of these securities contained in our Amended and Restated
Certificate of Incorporation.
ESOP Preferred Stock
All shares of ESOP Preferred Stock are held by the trustee under the
NationsBank Corporation Retirement Savings Plan (the "ESOP"). The ESOP
Preferred Stock ranks senior to our common stock, but ranks junior to the
Series B Preferred Stock and Series BB Preferred Stock as to dividends and
distribution on liquidation. Shares of the ESOP Preferred Stock are convertible
into common stock at a conversion rate of 1.68 shares of common stock per share
of ESOP Preferred Stock, subject to certain customary anti-dilution
adjustments.
Preferential Rights. The ESOP Preferred Stock does not have preemptive or
preferential rights to purchase or subscribe for shares of our capital stock of
any class and is not subject to
21
any sinking fund obligations or other obligations to repurchase or retire the
series, except as discussed below.
Dividends. The ESOP Preferred Stock is entitled to an annual dividend,
subject to certain adjustments, of $3.30 per share, payable semiannually.
Unpaid dividends accumulate on the date they first became payable, without
interest. While any shares of ESOP Preferred Stock are outstanding, we may not
declare, pay or set apart for payment any dividend on any other series of stock
ranking equally with the ESOP Preferred Stock as to dividends unless declared
and paid, or set apart for payment like dividends on the ESOP Preferred Stock
for all dividend payment periods ending on or before the dividend payment date
for such parity stock, ratably in proportion to their respective amounts of
accumulated and unpaid dividends. We generally may not declare, pay or set
apart for payment any dividends, except for, among other things, dividends
payable solely in shares of stock ranking junior to the ESOP Preferred Stock as
to dividends or upon liquidation, or, make any other distribution on, or make
payment on account of the purchase, redemption or other retirement of, any
other class or series of our capital stock ranking junior to the ESOP Preferred
stock as to dividends or upon liquidation, until full cumulative dividends on
the ESOP Preferred Stock have been declared and paid or set apart for payment
when due.
Voting Rights. The holder of the ESOP Preferred Stock is entitled to vote
on all matters submitted to a vote of the holders of common stock and votes
together with the holders of common stock as one class. Except as otherwise
required by applicable law, the holder of the ESOP Preferred Stock has no
special voting rights. To the extent that the holder of the shares is entitled
to vote, each share is entitled to the number of votes equal to the number of
shares of common stock into which the shares of ESOP Preferred Stock could be
converted on the record date for determining the stockholders entitled to vote,
rounded to the nearest whole vote.
Distributions. In the event of our voluntary or involuntary dissolution,
liquidation or winding-up, the holder of the ESOP Preferred Stock will be
entitled to receive out of our assets available for distribution to
stockholders, subject to the rights of the holders of any Preferred Stock
ranking senior to or equally with the ESOP Preferred Stock as to distributions
upon liquidation, dissolution or winding-up but before any amount will be paid
or distributed among the holders of common stock or any other shares ranking
junior to the ESOP Preferred Stock as to such distributions, liquidating
distributions of $42.50 per share plus all accrued and unpaid dividends thereon
to the date fixed for distribution. If, upon our voluntary or involuntary
dissolution, liquidation or winding-up, the amounts payable on ESOP Preferred
Stock and any other stock ranking equally therewith as to any such distribution
are not paid in full, the holder of the ESOP Preferred Stock and the other
stock will share ratably in any distribution of assets in proportion to the
full respective preferential amounts to which they are entitled. After payment
of the full amount of the liquidating distribution to which it is entitled, the
holder of the ESOP Preferred Stock will not be entitled to any further
distribution of our assets. Any merger, consolidation or purchase or sale of
assets by us will not be deemed to be a dissolution, liquidation or winding-up
of our affairs.
Redemption. The ESOP Preferred Stock is redeemable, in whole or in part,
at our option, at any time. The redemption price for the shares of the ESOP
Preferred Stock, which may be paid in cash or shares of common stock, will be
$42.50 per share. The redemption price also must include all accrued and unpaid
dividends to the date of redemption. If the ESOP Preferred Stock is treated as
Tier 1 capital for bank regulatory purposes, the approval of the Federal
Reserve Board may be required to redeem the ESOP Preferred Stock.
In addition, we are required to redeem shares of the ESOP Preferred Stock
at the option of the holder of the shares to the extent necessary either to
provide for distributions required to be made under the ESOP or to make
payments of principal, interest or premium due and payable on any indebtedness
incurred by the holder of the shares for the benefit of the ESOP.
22
Series B Preferred Stock
Preferential Rights. We may, without the consent of holders of Series B
Preferred Stock, issue preferred stock with superior or equal rights or
preferences. The shares of the Series B Preferred Stock rank prior to the ESOP
Preferred Stock and the common stock.
Dividends. Holders of shares of Series B Preferred Stock are entitled to
receive, when and as declared by our Board cumulative cash dividends at an
annual dividend rate per share of 7% of the stated value thereof, out of any
funds legally available for such purpose. The dividend is payable quarterly.
Dividends on Series B Preferred Stock are cumulative, and we cannot declare or
pay cash dividends on any shares of common stock unless full cumulative
dividends on the Series B Preferred Stock have been paid or declared and funds
sufficient for the payment have been set apart.
Voting Rights. Each share of Series B Preferred Stock has equal voting
rights, share for share, with each share of our common stock.
Distributions. In the event of our dissolution, liquidation or winding up,
the holders of Series B Preferred Stock are entitled to receive, after payment
of the full liquidation preference on shares of any class of preferred stock
ranking superior to the Series B Preferred Stock, but before any distribution
on shares of our common stock, liquidating dividends of $100 per share plus
accumulated dividends.
Redemption. Shares of Series B Preferred Stock are redeemable, in whole or
in part, at the option of the holders thereof, at the redemption price of $100
per share plus accumulated dividends, provided that (i) full cumulative
dividends have been paid, or declared and funds sufficient for payment set
apart, upon any class or series of preferred stock ranking superior to Series B
Preferred Stock; and (ii) are not then in default or arrears on any sinking
fund or analogous fund or call for tenders obligation or agreement for the
purchase or any class or series of preferred stock ranking superior to the
Series B Preferred Stock.
Series BB Preferred Stock
Preferential Rights. The shares of Series BB Preferred Stock rank before
Series B Preferred Stock, ESOP Preferred Stock and common stock as to dividends
and upon liquidation.
Dividends. Holders of the Series BB Preferred Stock are entitled to
receive, when and as declared by our Board, cash dividends at the rate of $2.50
per annum per share, out of our assets legally available for payment. Dividends
are payable quarterly on January 1, April 1, July 1, and October 1 of each
year. Dividends on the Series BB Preferred Stock are cumulative from January 1,
1998.
Voting Rights. Holders of Series BB Preferred Stock have no voting rights
except as required by law and, if any quarterly dividend payable on the Series
BB Preferred Stock is in arrears, the holders of Series BB Preferred Stock will
be entitled to vote together with the holders of our common stock at our next
meeting of stockholders and at each subsequent meeting of stockholders unless
all dividends in arrears have been paid or declared and set apart for payment
before the date of such meeting. In those cases where holders of Series BB
Preferred Stock are entitled to vote, each holder will be entitled to cast the
number of votes equal to the number of whole shares of our common stock into
which his or her Series BB Preferred Stock is then convertible.
Conversion Rights. Subject to the terms and conditions stated below, the
holders of shares of Series BB Preferred Stock have the right, at their option,
to convert such shares at any time through September 16, 1999 into fully paid
and nonassessable shares of common stock at the rate of 6.17215 shares of our
common stock for each share of Series BB Preferred Stock surrendered for
conversion. The conversion rate is subject to adjustment from time to time.
23
Distributions. In the event of our voluntary or involuntary liquidation,
dissolution or winding up, the holders of Series BB Preferred Stock will be
entitled to receive out of our assets available for distribution to
stockholders an amount equal to $25 per share plus an amount equal to accrued
and unpaid dividends to and including the date of such distribution, and no
more, before any distribution will be made to the holders of any class of our
stock ranking junior to the Series BB Preferred Stock as to the distribution of
assets. Any merger, consolidation or purchase or sale of assets by us will not
be deemed a liquidation, dissolution or winding up of our affairs. Shares of
Series BB Preferred Stock are not subject to a sinking fund.
Redemption. On June 23, 1999, our board of directors voted to redeem the
Series BB Preferred Stock on October 1, 1999, at a redemption price of $25 per
share plus accrued and unpaid dividends to the redemption date.
DESCRIPTION OF DEPOSITARY SHARES
General
We may, at our option, offer fractional shares of preferred stock, rather
than full shares of such securities. If such option is exercised, we will issue
receipts for depositary shares to the public. Each receipt will represent a
fractional interest in a share of a particular series of the preferred stock,
as stated in a prospectus supplement.
The particular terms of the preferred stock offered and the extent, if
any, to which the general provisions may apply to the depositary shares will be
described in the prospectus supplement. The general descriptions below and in
any prospectus supplement are not complete and are subject to and qualified in
their entirety by reference to the deposit agreement and the depositary
receipts, the forms of which are incorporated by reference in the Registration
Statement and the definitive forms of which will be filed with the SEC at the
time of sale of the depositary shares.
The shares of any series of preferred stock represented by depositary
shares will be deposited under a deposit agreement between us and a bank or
trust company selected by us having its principal office in the United States
and having a combined capital and surplus of at least $5,000,000 (the
"Depositary"). Subject to the terms of the deposit agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fraction of
a share of preferred stock represented by such Depositary Share, to all the
rights and preferences of the preferred stock represented thereby, 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 will be distributed to
those persons purchasing the fractional shares of preferred stock in accordance
with the terms of the offering.
Pending the preparation of definitive engraved depositary receipts, the
Depositary may, upon our written order, issue temporary depositary receipts.
The temporary depositary receipts will be substantially identical to, and will
have all rights of, the definitive depositary receipts but will not be in
definitive form. Definitive depositary receipts will be prepared thereafter and
temporary depositary receipts will be exchanged for definitive depositary
receipts at our expense.
Upon the surrender of depositary receipts at the principal office of the
Depositary and upon payment by the holder of the charges provided in the
deposit agreement and subject to the terms thereof, a holder of depositary
shares is entitled to have the Depositary deliver to such holder the number of
full shares of the preferred stock underlying the depositary shares evidenced
by the surrendered depositary receipts. A holder of shares of preferred stock
thus withdrawn will not thereafter be entitled to receive depositary shares in
excess of the number of depositary
24
shares representing the number of full shares of preferred stock 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.
Dividends and Other Distributions
The Depositary will distribute all cash dividends or other cash
distributions received pursuant to the preferred stock to the record holders of
depositary shares relating to that preferred stock in proportion to the number
of depositary shares owned by the holders. However, the Depositary will
distribute only the amount that can be distributed without attributing to any
holder of depositary shares a fraction of one cent. Any balance that is not
distributed will be added to and treated as part of the next sum received by
the Depositary for distribution to record holders.
If there is a distribution other than in cash, the Depositary will
distribute property it receives to the record holders of depositary shares who
are entitled thereto, unless the Depositary determines that it is not feasible
to make such distribution, in which case the Depositary, with our approval, may
sell such property and distribute the net proceeds to such holders.
Redemption of Depositary Shares
If a series of preferred stock depositary shares is subject to redemption,
the depositary shares will be redeemed from the proceeds received by the
Depositary from the redemption, in whole or in part, of that series of
preferred stock held by the Depositary. The Depositary will mail notice of
redemption at least 30 and not more than 45 days before the date fixed for
redemption to the record holders of the depositary shares to be redeemed at
their 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 on such series of the preferred stock. Whenever we
redeem preferred stock held by the Depositary, the Depositary will redeem as of
the same redemption date the number of depositary shares representing the
preferred stock redeemed. If less than all the depositary shares are redeemed,
the depositary shares redeemed will be selected by lot or pro rata as
determined by the Depositary.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be deemed to be outstanding and all rights of the
holder of the depositary shares will cease, except the right to receive the
monies payable upon redemption and any money or other property the holders of
such depositary shares were entitled to receive upon such redemption upon
surrender to the Depositary of the depositary receipts evidencing the
depositary shares.
Voting the Preferred Stock
Any voting rights of holders of the depositary shares are directly
dependent on the voting rights of the underlying voting preferred stock. Upon
receipt of notice of any meeting at which the holders of the preferred stock
held by the Depositary are entitled to vote, the Depositary will mail the
information contained in the notice of meeting to the record holders of the
depositary shares relating to such preferred stock. Each record holder of
depositary shares on the record date, which will be the same date as the record
date for the preferred stock, will be entitled to instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of preferred stock
underlying such holder's depositary shares. The Depositary will endeavor,
insofar as practicable, to vote the amount of preferred stock underlying the
depositary shares in accordance with such instructions, and we will agree to
take all action which may be deemed necessary by the Depositary to enable the
Depositary to do so. The Depositary will abstain from voting preferred stock if
it does not receive specific instructions from the holders of depositary shares
relating to such preferred stock.
25
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 us 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 the amendment has been approved by the record holders
of at least a majority of the depositary shares then outstanding. Either we or
the Depositary may terminate a Deposit Agreement if all outstanding depositary
shares have been redeemed or if there has been a final distribution in respect
of the preferred stock in connection with our liquidation, dissolution or
winding up.
Changes of Depositary
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will pay charges
of the Depositary in connection with the initial deposit of the preferred stock
and any redemption of the preferred stock. 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 of our
reports and communications which are delivered to the Depositary and which we
are required to furnish to the holders of the preferred stock.
We, and the Depositary, will not be liable if we are prevented or delayed
by law or any circumstance beyond our control in performing our obligations
under the Deposit Agreement. All of our obligations under the Deposit Agreement
are limited to performance in good faith of our respective duties thereunder
and neither of us will be obligated to prosecute or defend any legal proceeding
in respect of any depositary shares or preferred stock unless provided with
satisfactory indemnity. We, and the Depositary, may rely upon written advice of
counsel or accountants, or information provided by persons presenting preferred
stock 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 us notice of its
election to do so, and we may at any time remove the Depositary, any
resignation or removal will take effect only upon the appointment of a
successor Depositary and the successor Depositary's acceptance of such
appointment. Any successor Depositary 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 $5,000,000.
DESCRIPTION OF COMMON STOCK
The following summary of our common stock is qualified in its entirety by
reference to the description of the common stock incorporated herein by
reference.
General
We are authorized to issue 5,000,000,000 shares of common stock, of which
approximately 1.7 billion shares were outstanding on March 31, 1999. The common
stock trades on the New York Stock Exchange and on the Pacific Exchange under
the symbol "BAC." The common stock is also listed on the London Stock Exchange,
and certain shares are listed on the Tokyo Stock Exchange. As of March 31,
1999, 308 million shares were reserved for issuance in connection with various
of our employee and director benefit plans and our Dividend Reinvestment and
Stock Purchase Plan and the conversion of our outstanding convertible
securities and for other
26
purposes. After taking into account the reserved shares, there were
approximately 2.9 billion authorized shares of common stock available for
issuance as of March 31, 1999.
Voting and Other Rights
Holders of common stock are entitled to one vote per share. In general, a
majority of votes cast on a matter is sufficient to take action upon routine
matters. However, (i) amendments to our Amended and Restated Certificate of
Incorporation must be approved by the affirmative vote of the holders of a
majority of the outstanding shares of each class entitled to vote thereon as a
class, and (ii) a merger or dissolution or the sale of all or substantially all
of our assets, must be approved by the affirmative vote of the holders of a
majority of the voting power of the outstanding voting shares. Directors are
elected by a plurality of the votes cast, and stockholders do not have the
right to cumulate their votes in the election of directors.
In the event of our liquidation, holders of common stock will be entitled
to receive pro rata any assets legally available for distribution to
stockholders, subject to any prior rights of any preferred stock then
outstanding.
Our common stock does not have any preemptive rights, redemption
privileges, sinking fund privileges or conversion rights. All the outstanding
shares of common stock are, and upon proper conversion of any preferred stock,
all of the shares of our common stock into which such shares are converted will
be, validly issued, fully paid and nonassessable.
ChaseMellon Shareholder Services, L.L.C. is the transfer agent and
registrar for our common stock.
Dividends
The holders of our common stock are entitled to receive dividends or
distributions as our Board may declare out of funds legally available for such
payments. Our payment of dividends is subject to the restrictions of Delaware
law applicable to the declaration of dividends by a corporation. A corporation
generally may not authorize and pay dividends if, after giving effect thereto,
it would be unable to meet its debts as they become due in the usual course of
business or if the corporation's total assets would be less than the sum of its
total liabilities plus the amount that would be needed, if it were to be
dissolved at the time of distribution, to satisfy claims upon dissolution of
stockholders who have preferential rights superior to the rights of the holders
of its common stock. In addition, the payment of dividends to stockholders is
subject to any prior rights of outstanding preferred stock. Stock dividends, if
any are declared, may be paid from our authorized but unissued shares.
REGISTRATION AND SETTLEMENT
The Depository Trust Company
Unless otherwise specified in a prospectus supplement, the debt securities
we offer will be issued only in book-entry form represented by global
securities in registered form (a "Global Security"). The Global Security will
be held through DTC, as depositary, and registered in the name of Cede & Co.,
as nominee of DTC. Accordingly, Cede & Co. will be the holder of record of the
securities.
Beneficial interests in the Global Security will be shown on, and
transfers will be effected through, records maintained by DTC. Transfers of
ownership interests in the securities will be accomplished by making entries in
DTC participants' books acting on behalf of beneficial owners. Beneficial
owners of these securities will not receive certificates representing their
ownership interest, unless the use of the book-entry system is discontinued.
27
So long as DTC or its nominee is the registered owner of a Global
Security, DTC or its nominee, as the case may be, will be the sole holder of
the securities represented thereby for all purposes under the applicable
Indenture or warrant or unit agreement. Except as otherwise provided below, the
beneficial owners of the securities will not be entitled to receive physical
delivery of the certificated security and will not be considered the holders
for any purpose under the applicable Indenture or agreement. Accordingly, each
beneficial owner must rely on the procedures of DTC and, if such beneficial
owner is not a DTC participant, on the procedures of the DTC participant
through which such beneficial owner owns its interest in order to exercise any
rights of a holder under such security or the applicable Indenture or
agreement. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in certificated form. Such
limits and laws may impair the ability to transfer beneficial interests in the
securities.
The following is based on information furnished by DTC:
DTC will act as securities depository for certain securities. Those
securities will be issued as fully registered securities registered in the
name of Cede & Co. (DTC's partnership nominee). One Global Security will be
issued for all of the principal amount of the securities, but if any series
exceeds an aggregate principal amount of $200,000,000, certificates will be
issued in increments of up to $200,000,000.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code,
and a "clearing agency registered pursuant to the provisions of Section 17A
of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
DTC holds securities that its participants deposit with it. DTC also
facilitates the settlement among its participants of securities
transactions, such as transfers and pledges, in deposited securities
through electronic book-entry changes in the participants' accounts,
thereby eliminating the need for physical movement of securities
certificates. Direct participants of DTC include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. DTC is owned by a number of its direct participants and by
the New York Stock Exchange, Inc., the American Stock Exchange, Inc., and
the National Association of Securities Dealers, Inc. Access to DTC's system
is also available to others such as securities brokers and dealers, banks
and trust companies that clear through or maintain a custodial relationship
with a direct participant, either directly or indirectly. The rules
applicable to DTC and its participants are on file with the SEC.
Purchases of securities under DTC's system must be made by or through
direct participants, which will receive a credit for the securities on
DTC's records. The ownership interest of each actual purchaser, the
beneficial owner, of each security represented by a Global Security is in
turn to be recorded on the records of direct and indirect participants.
Beneficial owners will not receive written confirmation from DTC of their
purchase, but beneficial owners are expected to receive written
confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the direct or indirect participants
through which the beneficial owner entered into the transaction. The
participants will remain responsible for keeping account of their holdings
on behalf of their customers.
Conveyance of notices and other communications by DTC to its direct
participants, by direct participants to indirect participants, and by
direct and indirect participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to the
securities. DTC assigns its right to consent or vote to its direct
participants.
28
Principal and any premium or interest payments on the securities will be
made in immediately available funds to DTC. DTC's practice is to credit
direct participants' accounts on the applicable payment date in accordance
with their respective holdings shown on DTC's records unless DTC has reason
to believe that it will not receive payment on such date. Payments by
participants to beneficial owners will be governed by standing instructions
and customary practices, as is the case with securities held for the
accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such participant and not of DTC or any other
party, subject to any statutory or regulatory requirements that may be in
effect from time to time. Payment of principal and any premium or interest
to DTC is our responsibility, disbursement of such payments to direct
participants is the responsibility of DTC, and disbursement of such
payments to the beneficial owners is the responsibility of the direct or
indirect participant.
Redemption notices will be sent to Cede & Co. If less than all of the
securities are being redeemed, DTC's practice is to determine by lot the
amount of the interest of each direct participant in such issue to be
redeemed.
DTC may discontinue providing its services as securities depository for
the securities at any time by giving us reasonable notice. Under such
circumstances, if a successor securities depository is not obtained,
certificated securities are required to be printed and delivered.
Management of DTC is aware that some computer applications and systems
for processing data that are dependent upon calendar dates, including dates
before, on, and after January 1, 2000, may encounter "Year 2000 problems."
DTC has informed its participants and other members of the financial
community that it has developed and is implementing a program so that its
systems, which relate to the timely payment of distributions (including
principal and interest payments) to securityholders, book-entry deliveries
and settlement of trades within DTC, continue to function appropriately.
This program includes a technical assessment and a remediation plan, each
of which is complete. Additionally, DTC's plan includes a testing phase,
which is expected to be completed within appropriate time frames.
However, DTC's ability to perform its services properly is also
dependent upon other parties, such as issuers and their agents, as well as
the DTC participants, third party vendors from whom DTC licenses software
and hardware and on whom DTC relies for information or the provision of
services, including telecommunication and electrical utility service
providers. DTC has informed the financial community that it is contacting,
and will continue to contact, third party vendors from whom DTC acquires
services to: (a) impress upon them the importance of such services being
Year 2000 compliant; and (b) determine the extent of their efforts for Year
2000 remediation (and, as appropriate, testing) of their services. In
addition, DTC is in the process of developing such contingency plans as it
deems appropriate.
The information in this section concerning DTC and DTC's system has been
obtained from sources that we believe to be reliable, but we take no
responsibility for the accuracy thereof.
Cedelbank and Euroclear
Securities of a series issued in book-entry form and sold or traded
outside the United States may be represented by one or more Global Securities
held through Cedelbank, societe anonyme ("Cedelbank"), or Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear System (the
"Euroclear Operator" or "Euroclear"), European international clearing systems.
Cedelbank and Euroclear hold omnibus positions on behalf of Cedelbank
participants and Euroclear participants, respectively, on the books of their
respective depositaries, which in turn hold such positions in customers'
securities accounts in the depositaries' names on the books of DTC.
29
Transfers between Cedelbank participants and Euroclear participants occur
in compliance with their rules and operating procedures. Cross-market transfers
between persons holding directly or indirectly through DTC in the United
States, on the one hand, and directly or indirectly through Cedelbank
participants or Euroclear participants, on the other, will be handled by DTC in
accordance with DTC rules on behalf of a European international clearing system
by its depositary; however, cross-market transactions will require delivery of
instructions to the European international clearing system by the counterparty
in such system in accordance with its rules and procedures and within its
established deadlines. A European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to its
depositary to take action to carry out final settlement on its behalf by
delivering or receiving securities in DTC, and making or receiving in
accordance with normal procedures for same-day funds settlement applicable to
DTC. Cedelbank participants and Euroclear participants may not deliver
instructions directly to the depositaries.
Because of time-zone differences, credits for securities in Cedelbank or
Euroclear as a result of a transaction with a DTC participant will be made
during the subsequent securities settlement processing, and will be dated the
business day following the DTC settlement date; those credits or any
transactions in those securities settled during processing will be reported to
the relevant Cedelbank participant or Euroclear participant on that business
day. Cash received in Cedelbank or Euroclear as a result of sales of securities
by or through a Cedelbank participant or a Euroclear participant to a DTC
participant will be received with value on the DTC settlement date but will be
available in the relevant Cedelbank or Euroclear cash account only as of the
business day following settlement in DTC.
Cedelbank is incorporated under the laws of Luxembourg as a depositary.
Cedelbank holds securities for its participating organizations and facilitates
the clearance and settlement of securities transactions between its
participants through electronic book-entry changes in accounts of those
participants, thereby eliminating the need for physical movement of
certificates. Transactions may be settled by Cedelbank in any of 28 currencies,
including United States dollars. Cedelbank provides to its participants
services for safekeeping, administration, clearance and settlement of
internationally traded securities and securities lending and borrowing.
Cedelbank interfaces with domestic markets in several countries. As a
depository, Cedelbank is subject to regulation by the Luxembourg Monetary
Institute. Cedelbank participants consist of recognized financial institutions
around the world, including underwriters, securities brokers and dealers,
banks, trust companies, clearing corporations and certain other organizations
and may include the underwriters or agents with respect to a particular series
of securities. Indirect access to Cedelbank is also available to other entities
that clear through or maintain a custodial relationship with a Cedelbank
participant.
The Euroclear System was created in 1968 to hold securities for
participants of the Euroclear System and to clear and settle transactions
between Euroclear participants through simultaneous electronic book-entry
delivery against payment, thereby eliminating the need for physical movement of
certificates and any risk from lack of simultaneous transfers of securities and
cash. Transactions now may be settled by Euroclear in any of 32 currencies,
including United States dollars. The Euroclear System includes various other
services, including securities lending and borrowing and interfaces with
domestic markets in several countries generally similar to the arrangements for
cross-market transfers with DTC described above. The Euroclear System is
operated by the Euroclear Operator, under contract with Euroclear Clearance
System, S.C., a Belgian cooperative corporation (the "Cooperative"). All
operations are conducted by the Euroclear Operator, and all Euroclear
securities clearance accounts and Euroclear cash accounts are accounts with the
Euroclear Operator, not the Cooperative. The Cooperative establishes policy for
the Euroclear System on behalf of Euroclear participants. Euroclear
participants include banks (including central banks), securities brokers and
dealers and other professional financial intermediaries and may include the
underwriters or agents for a particular series of
30
securities. Indirect access to the Euroclear System is also available to other
firms that clear through or maintain a custodial relationship with a Euroclear
participant.
The Euroclear Operator is the Brussels branch of a New York banking
corporation that is a member bank of the Federal Reserve System. As such, it is
regulated and examined by the Federal Reserve Board and the New York State
Banking Department, as well as the Belgian Banking Commission.
Securities clearance accounts and cash accounts with the Euroclear
Operator are governed by the Terms and Conditions Governing Use of Euroclear
and the related Operating Procedures of the Euroclear Systems and applicable
Belgian law (collectively, the "Terms and Conditions"). The Terms and
Conditions govern transfers of securities and cash within the Euroclear System,
withdrawal of securities and cash from the Euroclear System and receipts of
payments with respect to securities in the Euroclear System. All securities in
the Euroclear System are held on a fungible basis without attribution of
specific certificates to specific securities clearance accounts. The Euroclear
Operator acts under the Terms and Conditions only on behalf of Euroclear
participants and has no record of or relations with persons holding through
Euroclear participants.
Distributions for securities of a series held through Cedelbank or
Euroclear will be credited to the cash accounts of Cedelbank participants or
Euroclear participants in accordance with the relevant system's rules and
procedures. Distributions are subject to tax reporting in accordance with
relevant United States tax laws and regulations. The applicable prospectus
supplement will describe selected income tax consequences to foreign investors.
Cedelbank or the Euroclear Operator, will take any other action permitted to be
taken by a holder of securities under the applicable Indenture, warrant
agreement or unit agreement on behalf of a Cedelbank participant or a Euroclear
participant only in accordance with its relevant rules and procedures and
subject to its respective depositary's ability to carry out those actions on
its behalf through DTC.
Although Cedelbank and Euroclear have established these procedures to
facilitate transfers of applicable securities among participants of DTC,
Cedelbank and Euroclear, they are under no obligation to perform or continue to
perform those procedures, and those procedures may be discontinued at any time.
31
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document that we file at
the Public Reference Room of the SEC at 450 Fifth Street, N.W., Washington,
D.C. 20549. You may obtain information on the operation of the Public Reference
Room by calling the SEC at 1-800-SEC-0330. You may also inspect our filings at
the regional offices of the SEC located at 7 World Trade Center, New York, New
York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 or over the Internet at the SEC's home page at
http://www.sec.gov. You can also inspect reports and other information we file
at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York,
New York 10005.
The SEC allows us to incorporate by reference the information we file with
it, which means:
o incorporated documents are considered part of this prospectus;
o we can disclose important information to you by referring you to those
documents; and
o information that we file with the SEC will automatically update and
supersede this incorporated information.
We incorporate by reference the documents listed below which were filed
with the SEC under the Exchange Act:
o our annual report on Form 10-K for the year ended December 31, 1998;
o our quarterly report on Form 10-Q for the period ended March 31, 1999;
o our current reports on Form 8-K dated January 19, 1999, February 2, 1999,
April 19, 1999, April 28, 1999, June 9, 1999, June 23, 1999 and July 8,
1999; and
o the description of our common stock which is contained in our
registration statement filed pursuant to Section 12 of the Exchange Act,
as modified on our current report on Form 8-K dated September 25, 1998.
We also incorporate by reference each of the following documents that we
will file with the SEC after the date of this prospectus:
o reports filed under Sections 13(a) and (c) of the Exchange Act;
o definitive proxy or information statements filed under Section 14 of the
Exchange Act in connection with any subsequent stockholders' meetings;
and
o any reports filed under Section 15(d) of the Exchange Act.
You should assume that the information appearing in this prospectus is
accurate as of the date of this prospectus only. Our business, financial
position and results of operations may have changed since that date.
You may request a copy of any filings referred to above (excluding
exhibits), at no cost, by contacting us at the following address:
John E. Mack
Senior Vice President
Bank of America Corporation
Corporate Treasury Division
NC1-007-23-01
100 North Tryon Street
Charlotte, North Carolina 28255
(704) 386-5972
32
FORWARD-LOOKING STATEMENTS
This prospectus and accompanying prospectus supplements contain or
incorporate statements that constitute "forward-looking statements" within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. Those statements can be identified by the use of forward-looking language
such as "will likely result," "may," "are expected to," "is anticipated,"
"estimate," "projected," "intends to," or other similar words. Our actual
results, performance or achievements could differ materially from the results
expressed in, or implied by, those forward-looking statements. Those statements
are subject to certain risks and uncertainties, including but not limited to,
certain risks described in the prospectus supplement. When considering those
forward-looking statements, you should keep in mind these risks, uncertainties
and other cautionary statements made in this prospectus and the prospectus
supplement. You should not place undue reliance on any forward-looking
statement which speaks only as of the date made.
LEGAL OPINIONS
The legality of the securities will be passed upon for us by Smith Helms
Mulliss & Moore, L.L.P., Charlotte, North Carolina, and for the underwriters or
agents by Stroock & Stroock & Lavan LLP, New York, New York. As of the date of
this prospectus, certain members of Smith Helms Mulliss & Moore, L.L.P.,
beneficially owned approximately 160,000 shares of our common stock.
EXPERTS
Our consolidated financial statements incorporated by reference to our
Annual Report on Form 10-K for the year ended December 31, 1998 have been
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of that firm as experts in
auditing and accounting.
33
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Our affiliates, including Banc of America Securities LLC, will deliver this
prospectus for offers and sales in the secondary market.
You should rely only on the information incorporated by reference or provided
in this prospectus. Neither we, nor any underwriters or agents, have authorized
anyone to provide you with different information. We are not offering the
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus is accurate as of any date other than
the date on the front of this document.
(BANK OF AMERICA LOGO)
$15,000,000,000
Debt Securities
Warrants
Units
Preferred Stock
Depositary Shares
Common Stock
------------------------------
PROSPECTUS
------------------------------
, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses, other than underwriting or broker-dealer fees,
discounts and commissions, in connection with the offering are as follows:
Securities Act Registration Fee ................................... $4,169,807
Printing and Engraving Expenses ................................... 335,000
Legal Fees and Expenses ........................................... 710,000
Accounting Fees and Expenses ...................................... 300,000
Blue Sky Fees and Expenses ........................................ 60,000
Unit Agents', Warrant Agents', Trustees' and Preferred Stock
Depositary's Fees and Expenses (including counsel fees) ......... 800,000
Rating Agency Fees and Expenses ................................... 850,000
Listing Fees ...................................................... 100,000
Miscellaneous ..................................................... 50,193
----------
$7,375,000
Item 15. Indemnification of Directors and Officers.
Subsection (a) of Section 145 of the Delaware General Corporation Law (the
"DGCL") empowers a corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. Subsection (b) of
Section 145 of the DGCL empowers a corporation to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person acted in any of
the capacities set forth above, against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in accordance with
the above standards, except that no indemnification may be made in respect to
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which the action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnification for such expenses which the Court of Chancery or such other
court shall deem proper.
Section 145 of the DGCL further provides that, to the extent that a
director or officer of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in the defense of any claim, issue
or matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
therewith; and that indemnification provided by, or granted pursuant to,
Section 145 shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled. Section 145 further empowers the
corporation to purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the
II-1
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him or her and incurred by him or her in any such capacity, or
arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against such liabilities under
Section 145 of the DGCL.
Section 102 (b) (7) of the DGCL provides that provisions in a
corporation's certificate of incorporation eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director shall not eliminate or limit
the liability of a director for (i) any breach of the director's duty of
loyalty to the corporation or its stockholders; (ii) acts or omissions not in
good faith or which involved intentional misconduct or a knowing violation of
the law; (iii) willful or negligent unlawful payment of a dividend or stock
purchase or redemption; or (iv) any transaction from which the director derived
an improper personal benefit.
The Restated Certificate of Incorporation of the Registrant prevents the
recovery by the Registrant of monetary damages against its directors to the
fullest extent permitted by the DGCL. In accordance with the provisions of the
DGCL, the Bylaws of the Registrant provide that, in addition to the
indemnification of directors and officers otherwise provided by the DGCL, the
Registrant shall, under certain circumstances, indemnify its directors,
executive officers and certain other designated officers against any and all
liability and litigation expense, including reasonable attorneys' fees, arising
out of their status or activities as directors and officers, except for
liability or litigation expense incurred on account of activities that were at
the time known or believed by such director or officer to be in conflict with
the best interests of the Registrant. Pursuant to such Bylaws and as authorized
by statute, the Registrant may also maintain insurance on behalf of its
directors and officers against liability asserted against such persons in such
capacity whether or not such directors or officers have the right to
indemnification pursuant to the Bylaws or otherwise.
In addition, pursuant to the Agreement and Plan of Reorganization dated as
of April 10, 1998 (the "Merger Agreement") between the Registrant and the
former BankAmerica Corporation ("old BankAmerica"), for six years after
September 30, 1998 (the date of the merger of old BankAmerica with and into the
Registrant (the "Merger")), the Registrant will indemnify directors, officers
and employees of old BankAmerica, NationsBank, or any of their respective
subsidiaries against certain liabilities in connection with such persons'
status as such or in connection with the Merger Agreement or any of the
transactions contemplated thereby. Pursuant to the Merger Agreement, the
Registrant will also, for six years after September 30, 1998 and with respect
to events occurring prior to the consummation of the Merger, honor all rights
to indemnification and limitations of liability existing in favor of the
foregoing persons as provided in the governing documents of NationsBank, old
BankAmerica or their respective subsidiaries.
Pursuant to the Merger Agreement, for six years after September 30, 1998,
the Registrant will also use its best efforts to cause the directors and
officers of old BankAmerica and NationsBank to be covered by a directors' and
officers' liability insurance policy with respect to acts or omissions
occurring prior to the consummation of the Merger.
The foregoing is only a general summary of certain aspects of Delaware law
dealing with indemnification of directors and officers and does not purport to
be complete. It is qualified in its entirety by reference to the relevant
statutes which contain detailed specific provisions regarding the circumstances
under which and the persons for whose benefit indemnification shall or may be
made.
In addition, certain sections of each of the forms of Underwriting or
Distribution Agreements filed as Exhibits hereto provide for indemnification of
the Registrant and its directors and officers by the underwriters or agents
against certain liabilities, including certain liabilities under
II-2
the 1933 Act. From time to time similar provisions have been contained in other
agreements relating to other securities of the Registrant.
Item 16. List of Exhibits
1.1 Form of Underwriting Agreement for Debt Securities
1.2 Form of Underwriting Agreement for Preferred Stock
1.3 Form of Underwriting Agreement for Common Stock
1.4 Form of Underwriting Agreement for Warrants and Units
1.5 Form of Distribution Agreement for Medium-Term Notes
4.1 Indenture dated as of January 1, 1995 between NationsBank Corporation and
BankAmerica National Trust Company, as trustee, incorporated herein by
reference to Exhibit 4.1 of the Registrant's Registration Statement on Form S-3
(Registration No. 33-57533)
4.2 Successor Trustee Agreement effective December 15, 1995, between
NationsBank Corporation and First Trust New York, National Association (now
U.S. Bank Trust National Association), as successor trustee to BankAmerica
National Trust Company, incorporated herein by reference to Exhibit 4.2 of the
Registrant's Registration Statement on Form S-3 (Registration No. 333-7229)
4.3 First Supplemental Indenture dated as of September 18, 1998, among
NationsBank Corporation, NationsBank(DE) Corporation and U.S. Bank Trust
National Association, incorporated herein by reference to Exhibit 4.2 of the
Registrant's Current Report on Form 8-K filed November 18, 1998
4.4 Form of Senior Registered Note
4.5 Form of Senior Medium-Term Note (Fixed Rate)
4.6 Form of Senior Medium-Term Note (Floating Rate)
4.7 Indenture dated as of January 1, 1995 between NationsBank Corporation and
The Bank of New York, as trustee, incorporated herein by reference to Exhibit
4.5 of the Registrant's Registration Statement on Form S-3 (Registration
No. 33-57533)
4.8 First Supplemental Indenture dated as of August 28, 1998, among NationsBank
Corporation, NationsBank(DE) Corporation and The Bank of New York,
incorporated herein by reference to Exhibit 4.8 of the Registrant's Current
Report on Form 8-K filed November 18, 1998
4.9 Form of Subordinated Registered Note
4.10 Form of Subordinated Medium-Term Note (Fixed Rate)
4.11 Form of Subordinated Medium-Term Note (Floating Rate)
4.12 Form of Certificate for Preferred Stock
4.13 Specimen Common Stock certificate
4.14 Form of Deposit Agreement
4.15 Form of Depositary Receipt
4.16 Form of Warrant Agreement for Universal Warrant (The form of such Warrant
Agreement with respect to each particular offering will be filed as an exhibit to
a Current Report on Form 8-K and incorporated herein by reference)
4.17 Form of Warrant Agreement for Warrants Sold Alone (The form of such
Warrant Agreement with respect to each particular offering will be filed as an
exhibit to a Current Report on Form 8-K and incorporated herein by reference)
4.18 Form of Warrant Agreement for Warrants Sold Attached to Debt Securities (The
form of such Warrant Agreement with respect to each particular offering will be
filed as an exhibit to a Current Report on Form 8-K and incorporated herein by
reference)
4.19 Form of Unit Agreement (The form of such Unit Agreement with respect to
each particular offering will be filed as an exhibit to a Current Report on Form
8-K and incorporated herein by reference)
4.20 Form of Put Warrant (included in Exhibit 4.16)
4.21 Form of Call Warrant (included in Exhibit 4.16)
II-3
4.22 Form of Unit Certificate (included in Exhibit 4.19)
5.1 Opinion of Smith Helms Mulliss & Moore, L.L.P. regarding legality of securities
being registered
12.1 Calculation of Ratio of Earnings to Fixed Charges, incorporated herein by
reference to Exhibit 12(a) of the Registrants' Quarterly Report on Form 10-Q
for the quarter ended March 31, 1999, filed May 17, 1999
12.2 Calculation of Ratio of Earnings to Fixed Charges and Preferred Dividends,
incorporated herein by reference to Exhibit 12(b) of the Registrants' Quarterly
Report on Form 10-Q for the quarter ended March 31, 1999, filed May 17, 1999
23.1 Consent of Smith Helms Mulliss & Moore, L.L.P. (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney
24.2 Certified Resolutions
25.1 Statement of Eligibility of Senior Trustee on Form T-1
25.2 Statement of Eligibility of Subordinated Trustee on Form T-1
99.1 Provisions of the Delaware General Corporation Law, as amended, relating to
indemnification of directors and officers
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 the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the 1933
Act;
(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
amendment thereof) which, individually or in the aggregate,.represent a
fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20%.change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement.
(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 paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the Registrant pursuant to Section 13 or Section
15(d) of the 1934 Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the 1933 Act,
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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or
II-4
Section 15(d) of the 1934 Act 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 1933 Act may
be permitted to directors, officers controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the 1933 Act 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 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 1933 Act and will be governed by the final adjudication of
such issue.
The Registrant hereby undertakes (1) to use its best efforts to distribute
prior to the opening of bids, to prospective bidders, underwriters, and
dealers, a reasonable number of copies of a prospectus which at that time meets
the requirements of Section 10(a) of the 1933 Act, and relating to the
securities offered at competitive bidding, as contained in the Registration
Statement, together with any supplements thereto, and (2) to file an amendment
to the Registration Statement reflecting the results of bidding, the terms of
the reoffering and related matters to the extent required by the applicable
form, not later than the first use, authorized by the Registrant after the
opening of bids, of a prospectus relating to the securities offered at
competitive bidding, unless no further public offering of such securities by
the Registrant and no reoffering of such securities by the purchasers is
proposed to be made.
The Registrant hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act of 1939, as amended (the "Act"), in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-5
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 of Charlotte, North Carolina, on July 22, 1999.
BANK OF AMERICA CORPORATION
By: * HUGH L. MCCOLL, JR.
-----------------------------------
(Hugh L. McColl, Jr.)
Chairman and Chief Executive
Officer
Dated: July 22, 1999
Signature Title Date
- ---------------------------------- ----------------------------------- --------------
* HUGH L. MCCOLL, JR. Chairman of the Board, Chief July 22, 1999
- --------------------------------- Executive Officer and Director
(Hugh L. McColl, Jr.) (Principal Executive Officer)
* JAMES H. HANCE, JR. Vice Chairman and Chief Financial July 22, 1999
- --------------------------------- Officer (Principal Financial
(James H. Hance, Jr.) Officer)
* MARC D. OKEN Executive Vice President and July 22, 1999
- --------------------------------- Principal Financial Executive
(Marc D. Oken) (Principal Accounting Officer)
* CHARLES W. COKER Director July 22, 1999
- ---------------------------------
(Charles W. Coker)
Director July , 1999
- ---------------------------------
(Timm F. Crull)
* ALAN T. DICKSON Director July 22, 1999
- ---------------------------------
(Alan T. Dickson)
* KATHLEEN F. FELDSTEIN Director July 22, 1999
- ---------------------------------
(Kathleen F. Feldstein)
* PAUL FULTON Director July 22, 1999
- ---------------------------------
(Paul Fulton)
* DONALD E. GUINN Director July 22, 1999
- ---------------------------------
(Donald E. Guinn)
* C. RAY HOLMAN Director July 22, 1999
- ---------------------------------
(C. Ray Holman)
II-6
Signature Title Date
- ----------------------------------- ---------- --------------
* W.W. JOHNSON Director July 22, 1999
- ---------------------------------
(W.W. Johnson)
Director July , 1999
- ---------------------------------
(Walter E. Massey)
* RICHARD M. ROSENBERG Director July 22, 1999
- ---------------------------------
(Richard M. Rosenberg)
* O. TEMPLE SLOAN, JR. Director July 22, 1999
- ---------------------------------
(O. Temple Sloan, Jr.)
* MEREDITH R. SPANGLER Director July 22, 1999
- ---------------------------------
(Meredith R. Spangler)
Director July , 1999
- ---------------------------------
(A. Michael Spence)
* RONALD TOWNSEND Director July 22, 1999
- ---------------------------------
(Ronald Townsend)
* SOLOMON D. TRUJILLO Director July 22, 1999
- ---------------------------------
(Solomon D. Trujillo)
* JACKIE M. WARD Director July 22, 1999
- ---------------------------------
(Jackie M. Ward)
* VIRGIL R. WILLIAMS Director July 22, 1999
- ---------------------------------
(Virgil R. Williams)
* SHIRLEY YOUNG Director July 22, 1999
- ---------------------------------
(Shirley Young)
* By:/s/ PAUL J. POLKING
- ---------------------------------
(Paul J. Polking)
Attorney-in-Fact
II-7
EXHIBIT INDEX
1.1 Form of Underwriting Agreement for Debt Securities
1.2 Form of Underwriting Agreement for Preferred Stock
1.3 Form of Underwriting Agreement for Common Stock
1.4 Form of Underwriting Agreement for Warrants and Units
1.5 Form of Distribution Agreement for Medium-Term Notes
4.1 Indenture dated as of January 1, 1995 between NationsBank Corporation and
BankAmerica National Trust Company, as trustee, incorporated herein by
reference to Exhibit 4.1 of the Registrant's Registration Statement on Form S-3
(Registration No. 33-57533)
4.2 Successor Trustee Agreement effective December 15, 1995, between
NationsBank Corporation and First Trust New York, National Association (now
U.S. Bank Trust National Association), as successor trustee to BankAmerica
National Trust Company, incorporated herein by reference to Exhibit 4.2 of the
Registrant's Registration Statement on Form S-3 (Registration No. 333-7229)
4.3 First Supplemental Indenture dated as of September 18, 1998, among
NationsBank Corporation, NationsBank(DE) Corporation and U.S. Bank Trust
National Association, incorporated herein by reference to Exhibit 4.2 of the
Registrant's Current Report on Form 8-K filed November 18, 1998
4.4 Form of Senior Registered Note
4.5 Form of Senior Medium-Term Note (Fixed Rate)
4.6 Form of Senior Medium-Term Note (Floating Rate)
4.7 Indenture dated as of January 1, 1995 between NationsBank Corporation and
The Bank of New York, as trustee, incorporated herein by reference to Exhibit
4.5 of the Registrant's Registration Statement on Form S-3 (Registration
No. 33-57533)
4.8 First Supplemental Indenture dated as of August 28, 1998, among NationsBank
Corporation, NationsBank(DE) Corporation and The Bank of New York,
incorporated herein by reference to Exhibit 4.8 of the Registrant's Current
Report on Form 8-K filed November 18, 1998
4.9 Form of Subordinated Registered Note
4.10 Form of Subordinated Medium-Term Note (Fixed Rate)
4.11 Form of Subordinated Medium-Term Note (Floating Rate)
4.12 Form of Certificate for Preferred Stock
4.13 Specimen Common Stock certificate
4.14 Form of Deposit Agreement
4.15 Form of Depositary Receipt
4.16 Form of Warrant Agreement for Universal Warrant (The form of such Warrant
Agreement with respect to each particular offering will be filed as an exhibit to
a Current Report on Form 8-K and incorporated herein by reference)
4.17 Form of Warrant Agreement for Warrants Sold Alone (The form of such
Warrant Agreement with respect to each particular offering will be filed as an
exhibit to a Current Report on Form 8-K and incorporated herein by reference)
4.18 Form of Warrant Agreement for Warrants Sold Attached to Debt Securities (The
form of such Warrant Agreement with respect to each particular offering will be
filed as an exhibit to a Current Report on Form 8-K and incorporated herein by
reference)
4.19 Form of Unit Agreement (The form of such Unit Agreement with respect to
each particular offering will be filed as an exhibit to a Current Report on Form
8-K and incorporated herein by reference)
4.20 Form of Put Warrant (included in Exhibit 4.16)
4.21 Form of Call Warrant (included in Exhibit 4.16)
4.22 Form of Unit Certificate (included in Exhibit 4.19)
5.1 Opinion of Smith Helms Mulliss & Moore, L.L.P. regarding legality of securities
being registered
12.1 Calculation of Ratio of Earnings to Fixed Charges, incorporated herein by
reference to Exhibit 12(a) of the Registrants' Quarterly Report on Form 10-Q
for the quarter ended March 31, 1999, filed May 17, 1999
12.2 Calculation of Ratio of Earnings to Fixed Charges and Preferred Dividends,
incorporated herein by reference to Exhibit 12(b) of the Registrants' Quarterly
Report on Form 10-Q for the quarter ended March 31, 1999, filed May 17, 1999
23.1 Consent of Smith Helms Mulliss & Moore, L.L.P. (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney
24.2 Certified Resolutions
25.1 Statement of Eligibility of Senior Trustee on Form T-1
25.2 Statement of Eligibility of Subordinated Trustee on Form T-1
99.1 Provisions of the Delaware General Corporation Law, as amended, relating to
indemnification of directors and officers