EX-4.B






Exhibit 4(b)




BANK OF AMERICA CORPORATION





 




FORM OF




CERTIFICATE OF DESIGNATIONS




Pursuant to Section 151 of the




General Corporation Law of the State of Delaware




 





FLOATING RATE NON-CUMULATIVE PREFERRED STOCK, SERIES 2




(Par Value $0.01 Per Share)




 





 









 





     Bank of America Corporation, a corporation organized and existing under the General
Corporation Law of the State of Delaware (the “Corporation”), hereby certifies that the following
resolutions were adopted by the Board of Directors of the Corporation
(the “Board of Directors”)
pursuant to the authority of the Board of Directors as conferred by Section 151 of the General
Corporation Law of the State of Delaware, at a meeting duly convened and held on [ ], 2008:



     RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors by
the provisions of the Amended and Restated Certificate of Incorporation of the Corporation, the
Board of Directors hereby creates a series of the Corporation’s previously authorized preferred
stock, par value $0.01 per share (the “Preferred Stock”), and hereby states the designation and
number of shares thereof and establishes the voting powers, preferences and relative,
participating, optional and other special rights, and the qualifications, limitations and
restrictions thereof, as follows:



FLOATING RATE NON-CUMULATIVE PREFERRED STOCK, SERIES 2




     (1) Number of Shares and Designation. 37,000 shares of the preferred stock, par value
$0.01 per share, of the Corporation are hereby constituted as a series of preferred stock, par
value $0.01 per share, designated as Floating Rate Non-Cumulative Preferred Stock, Series 2
(hereinafter called the “Preferred Stock, Series 2”).



     (2) Dividends. (a) The holders of shares of the Preferred Stock, Series 2, shall be
entitled to receive, as, if and when declared by the Board of Directors of the Corporation (or a
duly authorized committee thereof), out of assets of the Corporation legally available under
Delaware law for the payment of dividends, non-cumulative cash dividends at the rate set forth
below in this Section (2) applied to the amount of $30,000 per share. Such dividends shall be
payable quarterly, in arrears, as, if and when declared by the Board of Directors of the
Corporation (or a duly authorized committee thereof), on February 28, May 28, August 28 and
November 28 (the “Payment Dates”); provided that if any such Payment Date is not a
New York Business Day and London Business Day, the Payment Date will be the next succeeding day
that is a New York Business Day and London Business Day, unless such day falls in the next calendar
month, in which case the Payment Date will be the immediately preceding New York Business Day and
London Business Day. The dividend, if declared, for the initial Dividend Period (as defined below)
shall be paid on [ ], 200[ ]. Each such dividend shall be payable to the holders of record of
shares of the Preferred Stock, Series 2, as they appear on the stock register of the Corporation on
such record dates, which shall be a date not more than 30 days nor less than 10 days preceding the
applicable Payment Dates, as shall be fixed by the Board of Directors of the Corporation (or a duly
authorized committee thereof). “London Business Day” means a day other than a Saturday or
Sunday on which dealings in deposits in U.S. dollars are transacted, or with respect to any future
date are expected to be transacted, in the London interbank market. A “New York Business
Day” means any day that is not a Saturday or Sunday and that, in New York City, is not a day on
which banking institutions generally are authorized or obligated by law or executive order to be
closed.



          (b) (i) Dividend periods (“Dividend Periods”) shall commence on each Payment Date
(other than the initial Dividend Period which shall be deemed to have commenced on [ ]) and
shall end on and exclude the next succeeding Payment Date. The dividend rate on the shares of
Preferred Stock, Series 2, for each Dividend Period shall be a floating rate per annum



 









 






equal to three-month U.S. dollar LIBOR plus 0.65%, but in no event will the rate be less than
3.00% per annum, of the $30,000 liquidation preference per share of Preferred Stock, Series 2.




     The “three-month U.S. dollar LIBOR”, with respect to a Dividend Period, means the rate
(expressed as a percentage per annum) for deposits in U.S. dollars for a three month period that
normally appears on Moneyline Telerate Page 3750, as displayed on page “BBAM” (British
Bankers Association Official BBA LIBOR Fixings) in the Bloomberg Professional Service (or any other
service that may replace Moneyline Telerate, Inc. on page BBAM or any other page that may replace
page BBAM on the Bloomberg Professional Service or a successor service, in each case, for the
purpose of displaying London interbank offered rates of major banks) as of 11:00 a.m. (London time)
on the second London Business Day immediately preceding the first day of such Dividend Period.



     If three-month U.S. dollar LIBOR cannot be determined as described above, the Corporation will
select four major banks in the London interbank market. The Corporation will request that the
principal London offices of those four selected banks provide their offered quotations to prime
banks in the London interbank market at approximately 11:00 a.m., London time, on the second London
Business Day immediately preceding the first day of such Dividend Period. These quotations will be
for deposits in U.S. dollars for a three month period. Offered quotations must be based on a
principal amount equal to an amount that is representative of a single transaction in U.S. dollars
in the market at the time.



     If two or more quotations are provided, three-month U.S. dollar LIBOR for the Dividend Period
will be the arithmetic mean of the quotations. If fewer than two quotations are provided, the
Corporation will select three major banks in New York City and will then determine three-month U.S.
dollar LIBOR for the Dividend Period as the arithmetic mean of rates quoted by those three major
banks in New York City to leading European banks at approximately 3:00 p.m., New York City time, on
the second London Business Day immediately preceding the first day of such Dividend Period. The
rates quoted will be for loans in U.S. dollars, for a three month period. Rates quoted must be
based on a principal amount equal to an amount that is representative of a single transaction in
U.S. dollars in the market at the time. If fewer than three New York City banks selected by the
Corporation are quoting rates, three-month U.S. dollar LIBOR for the applicable period will be the
same as for the immediately preceding Dividend Period.



               (ii) Dividends on the Preferred Stock, Series 2, shall (if and when declared, as herein
provided) be computed on the basis of a 360-day year and the actual number of days elapsed in each
Dividend Period. Accordingly, the amount of dividends payable per share for each Dividend Period
(including the initial Dividend Period) for the Preferred Stock, Series 2 shall (if and when
declared, as herein provided) equal the product of (i) the applicable dividend rate, (ii) $30,000
and (iii) a fraction (A) the numerator of which will be the actual number of days elapsed in such
Dividend Period, and (B) the denominator of which will be 360. The amount of dividends payable on
the Preferred Stock, Series 2, shall be rounded to the nearest cent, with one-half cent being
rounded upwards.



          (c) So long as any shares of the Preferred Stock, Series 2 are outstanding, the Corporation
may not declare or pay dividends on, make distributions with respect to, or redeem, purchase or
acquire (except for purchases by the Corporation or its affiliates in connection with




 









 







transactions effected by or for the account of customers of the Corporation or customers of
any of its subsidiaries or in connection with the distribution or trading of such stock), or make a
liquidation payment with respect to the preferred stock of the Corporation of any series and any
other stock of the Corporation ranking, as to dividends, on a parity with the Preferred Stock,
Series 2 unless for such Dividend Period full dividends on all outstanding shares of Preferred
Stock, Series 2 have been declared, paid or set aside for payment. When dividends are not paid in
full, as aforesaid, upon the shares of the Preferred Stock, Series 2, and any other preferred stock
and other stock of the Corporation ranking on a parity as to dividends with the Preferred Stock,
Series 2, all dividends declared upon shares of the Preferred Stock, Series 2, and any other
preferred stock and other stock of the Corporation ranking on a parity as to dividends (whether
cumulative or non-cumulative) shall be declared pro rata so that the amount of dividends declared
per share on the Preferred Stock, Series 2, and all such other stock of the Corporation shall in
all cases bear to each other the same ratio that accrued dividends per share on the shares of the
Preferred Stock, Series 2 (but without, in the case of any non-cumulative preferred stock,
accumulation of unpaid dividends for prior Dividend Periods) and all such other stock bear to each
other.




          (d) So long as any shares of the Preferred Stock, Series 2 are outstanding, the Corporation
may not, at any time, declare or pay dividends on, make distributions with respect to, or redeem,
purchase or acquire, or make a liquidation payment with respect to, any Common Stock or any other
stock of the Corporation ranking as to dividends or distribution of assets junior to the Preferred
Stock, Series 2 unless full dividends on all outstanding shares of Preferred Stock, Series 2 have
been declared, paid or set aside for payment for the immediately preceding Dividend Period (except
for (x) dividends or distributions paid in shares of, or options, warrants or rights to subscribe
for or purchase shares of, the Common Stock or other of the Corporation’s capital stock ranking
junior to Preferred Stock, Series 2 as to dividends and distribution of assets upon dissolution,
liquidation or winding up of the Corporation, (y) redemptions or purchases of any rights pursuant
to the Amended and Restated Rights Agreement, adopted on December 2, 1997 or any agreement that
replaces such Amended and Restated Rights Agreement, or by conversion or exchange for the
Corporation’s capital stock ranking junior to Preferred Stock, Series 2 as to dividends and
distribution of assets upon dissolution, liquidation or winding up of the Corporation and (z)
purchases by the Corporation or its affiliates in connection with transactions effected by or for
the account of customers of the Corporation or customers of any of its subsidiaries or in
connection with the distribution or trading of such capital stock); provided,
however, that the foregoing dividend preference shall not be cumulative and shall not in
any way create any claim or right in favor of the holders of Preferred Stock, Series 2 in the event
that dividends have not been declared or paid on the Preferred Stock, Series 2 in respect of any
prior Dividend Period. If the full dividend on the Preferred Stock, Series 2 is not paid for any
Dividend Period, the holders of Preferred Stock, Series 2 will have no claim in respect of the
unpaid amount so long as no dividend (other than those referred to above) is paid on the Common
Stock or other of the Corporation’s capital stock ranking junior to Preferred Stock, Series 2 as to
dividends and distribution of assets upon dissolution, liquidation or winding up of the
Corporation.




          (e) No dividends may be declared or paid or set aside for payment on any shares of Preferred
Stock, Series 2 if at the same time any arrears exists in the payment of dividends on any
outstanding class or series of stock of the Corporation ranking, as to the payment of dividends,
prior to the Preferred Stock, Series 2.




 









 








          (f) Holders of shares of the Preferred Stock, Series 2, shall not be entitled to any
dividends, whether payable in cash, property or stock, in excess of full dividends, as herein
provided, on the Preferred Stock, Series 2. No interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or payments on the Preferred Stock, Series 2,
which may be in arrears.




     (3) Liquidation Preference. (a) In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, before any payment or distribution
of the assets of the Corporation or proceeds thereof (whether capital or surplus) shall be made to
or set apart for the holders of any series or class or classes of stock of the Corporation ranking
junior to the Preferred Stock, Series 2, upon liquidation, dissolution, or winding up, the holders
of the shares of the Preferred Stock, Series 2, shall be entitled to receive $30,000 per share plus
an amount equal to declared and unpaid dividends, without accumulation of undeclared dividends.
If, upon any liquidation, dissolution, or winding up of the Corporation, the assets of the
Corporation, or proceeds thereof, distributable among the holders of the shares of the Preferred
Stock, Series 2, shall be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other shares of preferred stock ranking, as to liquidation, dissolution
or winding up, on a parity with the Preferred Stock, Series 2, then such assets, or the proceeds
thereof, shall be distributed among the holders of shares of Preferred Stock, Series 2, and any
such other preferred stock ratably in accordance with the respective amounts which would be payable
on such shares of Preferred Stock, Series 2, and any such other preferred stock if all amounts
payable thereon were paid in full. For the purposes of this Section (3), neither the sale, lease
or exchange (for cash, shares of stock, securities or other consideration) of all or substantially
all of the property and assets of the Corporation, nor the consolidation, merger or combination of
the Corporation into or with one or more corporations or the consolidation, merger or combination
of any other corporation or entity into or with the Corporation, shall be deemed to be a voluntary
or involuntary liquidation, dissolution or winding up of the Corporation for purposes of this
Section (3).



          (b) After payment shall have been made in full to the holders of Preferred Stock, Series 2, as
provided in this Section (3), the holders of Preferred Stock, Series 2 will not be entitled to any
further participation in any distribution of assets of the Corporation. Subject to the rights of
the holders of shares of any series or class or classes of stock ranking on a parity with or prior
to the Preferred Stock, Series 2, upon liquidation, dissolution or winding up, upon any
liquidation, dissolution or winding up of the Corporation, after payment shall have been made in
full to the holders of Preferred Stock, Series 2, as provided in this Section (3), but not prior
thereto, any other series or class or classes of stock ranking junior to the Preferred Stock,
Series 2, shall, subject to the respective terms and provisions (if any) applying thereto, be
entitled to receive any and all assets remaining to be paid or distributed, and the holders of the
Preferred Stock, Series 2, shall not be entitled to share therein.




     (4) Redemption. (a) The Preferred Stock, Series 2, may not be redeemed prior to
November 28, 2009. On and after November 28, 2009, the Corporation, at its option, may redeem
shares of the Preferred Stock, Series 2, as a whole at any time or in part from time to time, at a
redemption price of $30,000 per share, together in each case with declared and unpaid dividends,
without accumulation of any undeclared dividends. The Chief Financial Officer or the Treasurer may
exercise the Corporation’s right to redeem the Preferred Stock, Series 2 as a whole at any time
without further action of the Board of Directors or a duly authorized committee thereof. The



 









 







Corporation may only elect to redeem the Preferred Stock, Series 2 in part pursuant to a
resolution by the Board of Directors or a duly authorized committee thereof.



          (b) In the event the Corporation shall redeem shares of Preferred Stock, Series 2, notice of
such redemption shall be given by first class mail, postage prepaid, mailed not less than 30 days
nor more than 60 days prior to the redemption date, to each holder of record of the shares to be
redeemed, at such holder’s address as the same appears on the stock register of the Corporation.
Each such notice shall state: (1) the redemption date; (2) the number of shares of Preferred
Stock, Series 2, to be redeemed and, if less than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (3) the redemption price; and
(4) the place or places where certificates for such shares are to be surrendered for payment of the
redemption price. Notice having been mailed as aforesaid, from and after the redemption date
(unless default shall be made by the Corporation in providing money for the payment of the
redemption price) said shares shall no longer be deemed to be outstanding, and all rights of the
holders thereof as stockholders of the Corporation (except the right to receive from the
Corporation the redemption price) shall cease. The Corporation’s obligation to provide moneys in
accordance with the preceding sentence shall be deemed fulfilled if, on or before the redemption
date, the Corporation shall deposit with a bank or trust company (which may be an affiliate of the
Corporation) having an office in the Borough of Manhattan, City of New York, having a capital and
surplus of at least $50,000,000, funds necessary for such redemption, in trust, with irrevocable
instructions that such funds be applied to the redemption of the shares of Preferred Stock, Series
2, so called for redemption. Any interest accrued on such funds shall be paid to the Corporation
from time to time. Any funds so deposited and unclaimed at the end of two years from such
redemption date shall be released or repaid to the Corporation, after which the holder or holders
of such shares of Preferred Stock, Series 2, so called for redemption shall look only to the
Corporation for payment of the redemption price.




     Upon surrender, in accordance with said notice, of the certificates for any such shares so
redeemed (properly endorsed or assigned for transfer, if the Board of Directors of the Corporation
shall so require and the notice shall so state), such shares shall be redeemed by the Corporation
at the applicable redemption price aforesaid. If less than all the outstanding shares of Preferred
Stock, Series 2, are to be redeemed, shares to be redeemed shall be selected by the Board of
Directors of the Corporation (or a duly authorized committee thereof) from outstanding shares of
Preferred Stock, Series 2, not previously called for redemption by lot or pro rata or by any other
method determined by the Board of Directors of the Corporation (or a duly authorized committee
thereof) to be equitable. If fewer than all the shares represented by any certificate are
redeemed, a new certificate shall be issued representing the unredeemed shares without charge to
the holder thereof.



     The Preferred Stock, Series 2 will not be subject to any mandatory redemption, sinking fund or
other similar provisions. Holders of Preferred Stock, Series 2 will have no right to require
redemption of any shares of Preferred Stock, Series 2.



     (5) Terms Dependent on Regulatory Changes. If, (a) the Corporation (by election or
otherwise) is subject to any law, rule, regulation or guidance (together, “Regulations”) relating
to its capital adequacy which Regulation (x) provides for a type or level of capital characterized
as “Tier 1” in, or pursuant to Regulations of any governmental agency, authority or body having
regulatory jurisdiction over the Corporation and implementing, the capital standards published by



 









 







the Basel Committee on Banking Supervision, the Securities and Exchange Commission, the Board
of Governors of the Federal Reserve System, or any other United States national governmental
agency, authority or body, or (y) provides for a type or level of capital that in the judgment of
the Board of Directors (or a duly authorized committee thereof) after consultation with legal
counsel of recognized standing is substantially equivalent to such “Tier 1” capital (such capital
described in either (x) or (y) is referred to below as “Tier 1 Capital”), and (b) the Board of
Directors (or a duly authorized committee thereof) affirmatively elects to qualify the Preferred
Stock, Series 2 for such Tier 1 Capital treatment without any sublimit or other quantitative
restrictions on the inclusion of such Preferred Stock, Series 2 in Tier 1 Capital (other than any
limitation requiring that common equity or a specified form of common equity constitute the
dominant form of Tier 1 Capital) under such Regulations, then, upon such affirmative election, the
terms of the Preferred Stock, Series 2 shall automatically be amended to reflect the following
modifications (without any action or consent by the holders of the Preferred Stock, Series 2 or any
other vote of stockholders of the Corporation):



               (i) If and to the extent such modification is a Required Unrestricted Tier 1 Provision (as
defined below), the Corporation’s right to redeem the Preferred Stock, Series 2 on and after
November 28, 2009 pursuant to Section 4 hereof shall be restricted (such restrictions including but
not limited to any requirement that the Corporation receive prior approval for such redemption from
any applicable governmental agency, authority or body or that such redemption be prohibited);



               (ii) If and to the extent such modification is a Required Unrestricted Tier 1 Provision, the
Corporation’s right to make distributions with respect to, or redeem, purchase or acquire or make
payments on, securities junior to the Preferred Stock, Series 2 (upon a non-payment of dividends on
the Preferred Stock, Series 2) shall become subject to additional restrictions (other than those
set forth in Section 2(d) hereof) pursuant to the terms of the Preferred Stock, Series 2; and



               (iii) If and to the extent such modification is a Required Unrestricted Tier 1 Provision, any
other new provisions or terms shall be added to the Preferred Stock, Series 2, or existing terms
shall be modified; provided, however, that no such provision or term shall be
added, and no such modification shall be made pursuant to the terms of this Section 5(iii), if it
would alter or change the rights, powers or preferences of the shares of the Preferred Stock,
Series 2 so as to affect the shares of the Preferred Stock, Series 2 adversely.



     As used above, the term “Required Unrestricted Tier 1 Provision” means a term which
is, in the written opinion of legal counsel of recognized standing and delivered to the
Corporation, required for the Preferred Stock, Series 2 to be treated as Tier 1 Capital of the
Corporation without any sublimit or other quantitative restriction on the inclusion of such
Preferred Stock, Series 2 in Tier 1 Capital (other than any limitation requiring that common equity
or a specified form of common equity constitute the dominant form of Tier 1 Capital) pursuant to
the applicable Regulations. The Corporation shall provide notice to holders of any Preferred
Stock, Series 2 of any such changes in the terms of the Preferred Stock, Series 2 made pursuant to
the terms of this Section 5 on or about the date of effectiveness of any such modification and
shall maintain a copy of such notice on file at the principal offices of the Corporation. A copy
of the relevant



 









 







Regulations shall also be on file at the principal offices of the Corporation and, upon
request, will be made available to such holders.



     (6) Voting Rights. The Preferred Stock, Series 2, shall have no voting rights, except
as hereinafter set forth or as otherwise from time to time required by law.



     The holders of the Preferred Stock shall be entitled to vote on all matters submitted to a
vote of the holders of Common Stock of the Corporation, voting together with the holders of Common
Stock as one class. Each share of Preferred Stock shall be entitled to 150 votes.



     Whenever dividends payable on the Preferred Stock, Series 2, have not been declared or paid
for such number of Dividend Periods, whether or not consecutive, which in the aggregate is
equivalent to six Dividend Periods (a “Nonpayment”), the holders of outstanding shares of
the Preferred Stock, Series 2, shall have the exclusive right, voting as a class with holders of
shares of all other series of preferred stock ranking on a parity with the Preferred Stock, Series
2, either as to dividends or the distribution of assets upon liquidation, dissolution or winding up
and upon which like voting rights have been conferred and are exercisable (to the extent such other
series of preferred stock are entitled to vote pursuant to the terms thereof), to vote for the
election of two additional directors at the next annual meeting of stockholders and at each
subsequent annual meeting of stockholders on the terms set forth below. At elections for such
directors, each holder of the Preferred Stock, Series 2, shall be entitled to three votes for each
share of Preferred Stock, Series 2 held (the holders of shares of any other series of preferred
stock ranking on such a parity being entitled to such number of votes, if any, for each share of
stock held as may be granted to them).



     Upon the vesting of such right of such holders, the maximum authorized number of members of
the Board of Directors shall automatically be increased by two and the two vacancies so created
shall be filled by vote of the holders of such outstanding shares of Preferred Stock, Series 2,
(either alone or together with the holders of shares of all other series of preferred stock ranking
on such a parity) as hereinafter set forth. The right of such holders of such shares of the
Preferred Stock, Series 2, voting as a class with holders of shares of all other series of
preferred stock ranking on such a parity, to elect members of the Board of Directors of the
Corporation as aforesaid shall continue until all dividends on such shares of Preferred Stock,
Series 2, shall have been paid in full for at least four Dividend Periods following the Nonpayment.
Upon payment in full of such dividends, such voting rights shall terminate except as expressly
provided by law, subject to re-vesting in the event of each and every subsequent Nonpayment in the
payment of dividends as aforesaid.



     Upon termination of the right of the holders of the Preferred Stock, Series 2, to vote for
directors as provided in the previous paragraph, the term of office of all directors then in office
elected by such holders will terminate immediately. If the office of any director elected by such
holders voting as a class becomes vacant by reason of death, resignation, retirement,
disqualification, removal from office or otherwise, the remaining director elected by such holders
voting as a class may choose a successor who shall hold office for the unexpired term in respect of
which such vacancy occurred. Whenever the term of office of the directors elected by such holders
voting as a class shall end and the special voting rights shall have expired, the number of
directors



 









 







shall be such number as may be provided for in the By-laws irrespective of any increase made
pursuant to the provisions hereof.



     So long as any shares of the Preferred Stock, Series 2, remain outstanding, the affirmative
vote or consent of the holders of at least two-thirds of the shares of the Preferred Stock, Series
2, outstanding at the time (voting as a class with all other series of preferred stock ranking on a
parity with the Preferred Stock, Series 2, either as to dividends or the distribution of assets
upon liquidation, dissolution or winding up and upon which like voting rights have been conferred
and are exercisable), given in person or by proxy, either in writing or at any meeting called for
the purpose, shall be necessary to permit, effect or validate any one or more of the following:



               (i) the authorization, creation or issuance, or any increase in the authorized or issued
amount, of any class or series of stock ranking prior to the Preferred Stock, Series 2, with
respect to payment of dividends or the distribution of assets upon liquidation, dissolution or
winding up; or



               (ii) the amendment, alteration or repeal, whether by merger, consolidation or otherwise, of
any of the provisions of the Amended and Restated Certificate of Incorporation, as amended, or of
the resolutions set forth in a Certificate of Designations for such Preferred Stock, Series 2,
which would adversely affect any right, preference, privilege or voting power of the Preferred
Stock, Series 2, or of the holders thereof;


provided, however, that any increase in the amount of issued Preferred Stock,
Series 2 or authorized preferred stock or the creation and issuance, or an increase in the
authorized or issued amount, of other series of preferred stock, in each case ranking on a parity
with or junior to the Preferred Stock, Series 2, with respect to the payment of dividends (whether
such dividends were cumulative or non-cumulative) and the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to adversely affect such rights, preferences,
privileges or voting powers.




     Without the consent of the holders of the Preferred Stock, Series 2, so long as such action
does not adversely affect the interests of holders of Preferred Stock, Series 2, the Corporation
may amend, alter, supplement or repeal any terms of the Preferred Stock, Series 2:



               (i) to cure any ambiguity, or to cure, correct or supplement any provision contained in a
Certificate of Designations for such Preferred Stock, Series 2 that may be defective or
inconsistent; or



               (ii) to make any provision with respect to matters or questions arising with respect to the
Preferred Stock, Series 2 that is not inconsistent with the provisions of a Certificate of
Designations for such Preferred Stock, Series 2.



     The rules and procedures for calling and conducting any meeting of the holders of Preferred
Stock, Series 2 (including, without limitation, the fixing of a record date in connection
therewith), the solicitation and use of proxies at such a meeting, the obtaining of written
consents, and any other aspect or matter with regard to such a meeting or such consents shall be
governed by any rules the Board of Directors of the Corporation, or a duly authorized committee
thereof, in its discretion, may adopt from time to time, which rules and procedures shall conform
to the



 









 







requirements of any national securities exchange on which the Preferred Stock, Series 2 are
listed at the time.



     The foregoing voting provisions shall not apply if, at or prior to the time when the act with
respect to which such vote would otherwise be required shall be effected, all outstanding shares of
Preferred Stock, Series 2, shall have been redeemed or sufficient funds shall have been deposited
in trust to effect such a redemption which is scheduled to be consummated within three months after
the time that such rights would otherwise be exercisable.



     (7) Record Holders. The Corporation and the transfer agent for the Preferred Stock,
Series 2, may deem and treat the record holder of any share of such Preferred Stock as the true and
lawful owner thereof for all purposes, and neither the Corporation nor such transfer agent shall be
affected by any notice to the contrary.



     (8) Ranking. Any class or classes of stock of the Corporation shall be deemed to
rank:



               (i) on a parity with the Preferred Stock, Series 2, as to dividends or as to distribution of
assets upon liquidation, dissolution or winding up, whether or not the dividend rates, dividend
payment dates, or redemption or liquidation prices per share thereof be different from those of the
Preferred Stock, Series 2, if the holders of such class of stock and the Preferred Stock, Series 2,
shall be entitled to the receipt of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in proportion to their respective dividend rates
(whether cumulative or non-cumulative) or liquidation prices, without preference or priority one
over the other; and



               (ii) junior to the Preferred Stock, Series 2, as to dividends or as to the distribution of
assets upon liquidation, dissolution or winding up, if such stock shall be Common Stock or if the
holders of Preferred Stock, Series 2, shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up, as the case may be, in preference or
priority to the holders of shares of such stock.



               (iii) The Shares of Preferred Stock of the Corporation designated “Floating Rate
Non-Cumulative Preferred Stock, Series 1,” “6.375% Non-Cumulative Preferred Stock, Series 3,”
“Floating Rate Non-Cumulative Preferred Stock, Series 4,” “Floating Rate Non-Cumulative Preferred
Stock, Series 5,” “6.70% Non-Cumulative Perpetual Preferred Stock, Series 6,” “6.25% Non-Cumulative
Perpetual Preferred Stock, Series 7,” “8.625% Non-Cumulative Preferred Stock, Series 8,”
“Cumulative Redeemable Preferred Stock, Series B,” “Floating Rate Non-Cumulative Preferred Stock,
Series E,” “6.204% Non-Cumulative Preferred Stock, Series D” “Floating Rate Non-Cumulative
Preferred Stock, Series F,” “Adjustable Rate Non-Cumulative Preferred Stock, Series G,” “8.20%
Non-Cumulative Preferred Stock, Series H,” “6.625% Non-Cumulative Preferred Stock, Series I,”
“7.25% Non-Cumulative Preferred Stock, Series J,” “7.25% Non-Cumulative Perpetual Convertible
Preferred Stock, Series L,” “Fixed-to-Floating Rate Non-Cumulative Preferred Stock, Series K,” and
“Fixed-to-Floating Rate Non-Cumulative Preferred Stock, Series M,” and any other class or series of
stock of the Corporation hereafter authorized that ranks on parity with the Preferred Stock, Series
2, as to dividends and distribution of assets upon liquidation, dissolution or winding up of the
Corporation,



 









 







shall be deemed to rank on a parity with the shares of the Preferred Stock, Series 2, as to
dividends and distribution of assets upon the liquidation, dissolution or winding up of the
Corporation.



     (9) Exclusion of Other Rights. Unless otherwise required by law, shares of Preferred
Stock, Series 2, shall not have any rights, including preemptive rights, or preferences other than
those specifically set forth herein or as provided by applicable law.



     (10) Notices. All notices or communications unless otherwise specified in the By-laws
of the Corporation or the Amended and Restated Certificate of Incorporation, as amended, shall be
sufficiently given if in writing and delivered in person or by first class mail, postage prepaid.
Notice shall be deemed given on the earlier of the date received or the date such notice is mailed.



     IN WITNESS WHEREOF, the undersigned, being duly authorized thereto, does hereby affirm, under
penalties of perjury, that this certificate is the act and deed of the Corporation and that the
facts herein stated are true, and accordingly has hereunto set her hand this [ ] day of [ ],
200[ ].



	 	 	 	 	 
	BANK OF AMERICA CORPORATION	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name: Teresa M. Brenner
	 	 
	 

	 	Title: Associate General Counsel