Certifcate of Designation of 6.75% Perpetual Preferred Stock of Bank of America



 Exhibit 4(a) 
  
 CERTIFICATE OF DESIGNATION 
  
 OF 
  
 6.75% PERPETUAL PREFERRED STOCK 
  
 OF 
  
 BANK OF AMERICA
CORPORATION 
  
 (Pursuant to Section 151 of the Delaware
Corporation Law) 
  
 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 required by Section 151 of the General Corporation Law of the State of Delaware, at a meeting duly convened and held on January 28, 2004: 
  
 RESOLVED, that pursuant to the authority granted to and vested in the Board
of Directors in accordance with 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, without par
value (the “Preferred Stock”) and hereby states the designation and number thereof and fixes the voting powers, preferences and relative, participating, optional and other special rights, and the qualifications, limitations and
restrictions thereof, as follows: 
  
 (a) Designation. The
designation of the series of Preferred Stock shall be “6.75% Perpetual Preferred Stock” (hereinafter called this “Series”) and the number of shares constituting this Series is Six Hundred Ninety Thousand (690,000). 
  
 (b) Dividend Rate. 
  
 (1) The holders of shares of this Series shall be entitled
to receive dividends thereon at a rate of 6.75% per annum computed on the basis of an issue price thereof of $250 per share, and no more, payable quarterly out of the funds of the Corporation legally available for the payment of dividends. Such
dividends shall be cumulative from the date of original issue of such shares and shall be payable, when, as and if declared by the Board, on January 15, April 15, July 15 and October 15 of each year, commencing April 15, 2004 (a “Dividend
Payment Date”). Each such dividend shall be paid to the holders of record of shares of this Series as they appear on the stock register of the Corporation on such record date, not exceeding 30 days preceding the payment date thereof, as shall
be fixed by the Board. Dividends on account of arrears for any past quarters may be declared and paid at any time, without reference to any regular dividend payment date, to holders of record on such date, not exceeding 45 days preceding the payment
date thereof, as may be fixed by the Board. 







 (2) If one or more amendments to the Internal Revenue Code of 1986, as amended (the
“Code”), are enacted that change the percentage of the dividends received deduction (currently 70%) as specified in Section 243(a)(1) of the Code or any successor provision (the “Dividends Received Percentage”), the amount of
each dividend payable per share of this Series for dividend payments made on or after the date of enactment of such change shall be adjusted by multiplying the amount of the dividend payable determined as described above (before adjustment) by a
factor which shall be the number determined in accordance with the following formula (the “DRD Formula”), and rounding the result to the nearest cent: 
  


	
	 1 –  .35 (1 – .70)


	 1 –  .35 (1 –  DRP)


  
 For
the purposes of the DRD Formula, “DRP” means the Dividends Received Percentage applicable to the dividend in question. No amendment to the Code, other than a change in the percentage of the dividends received deduction set forth in Section
243(a)(1) of the Code or any successor provision, will give rise to an adjustment. Notwithstanding the foregoing provisions, in the event that, with respect to any such amendment, the Corporation shall receive either an unqualified opinion of
independent recognized tax counsel or a private letter ruling or similar form of authorization from the Internal Revenue Service to the effect that such an amendment would not apply to dividends payable on shares of this Series, then any such
amendment shall not result in the adjustment provided for pursuant to the DRD Formula. The Corporation’s calculation of the dividends payable as so adjusted and as certified accurate as to calculation and reasonable as to method by the
independent certified public accountants then regularly engaged by the Corporation shall be final and not subject to review. 
  
 If any amendment to the Code which reduces the Dividends Received Percentage is enacted after a dividend payable on a Dividend Payment
Date has been declared, the amount of dividend payable on such Dividend Payment Date will not be increased; but instead, an amount, equal to the excess of (x) the product of the dividends paid by the Corporation on such Dividend Payment Date and the
DRD Formula (where the DRP used in the DRD Formula would be equal to the reduced Dividends Received Percentage) and (y) the dividends paid by the Corporation on such Dividend Payment Date, will be payable to holders of record on the next succeeding
Dividend Payment Date in addition to any other amounts payable on such date. 
  
 (3) No full dividends shall be declared or paid or set apart for payment on the Preferred Stock of any series ranking, as to dividends, on a parity with or junior to this Series for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on this Series for all dividend payment periods terminating on or prior to the date of payment of such
full cumulative dividends. When dividends are not paid in full, as aforesaid, upon the shares of this Series and any other preferred stock ranking on a parity as to dividends with this Series, all dividends declared upon shares of this Series

  
  

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 and any other class or series of preferred stock of the Corporation ranking on a parity as to dividends
with this Series shall be declared pro rata so that the amount of dividends declared per share on this Series and such other preferred stock shall in all cases bear to each other the same ratio that accrued dividends per share on the shares of this
Series and such other preferred stock bear to each other. Holders of shares of this Series shall not be entitled to any dividend, whether payable in cash, property or stocks, in excess of full cumulative dividends, as herein provided, on this
Series. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on this Series which may be in arrears. 
  
 (4) So long as any shares of this Series are outstanding, no dividend (other than a dividend in Common Stock
or in any other stock ranking junior to this Series as to dividends and upon liquidation and other than as provided in subsection (3) of this Section (b)) shall be declared or paid or set aside for payment or other distribution declared or made upon
the Common Stock or upon any other stock ranking junior to or on a parity with this Series as to dividends or upon liquidation, nor shall any Common Stock nor any other stock of the Corporation ranking junior to or on a parity with this Series as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by the Corporation (except by
conversion into or exchange for stock of the Corporation ranking junior to this Series as to dividends and upon liquidation) unless, in each case, the full cumulative dividends on all outstanding shares of this Series shall have been paid for all
past dividend payment periods. 
  
 (5) Dividends
payable on this Series for any period shall be computed on the basis of a 360-day year consisting of twelve 30-day months. 
  
 (c) Redemption. 
  
 (1) (A) The shares of this Series shall not be redeemable prior to April 15, 2006. On and after April 15, 2006, the Corporation, at its
option, may redeem shares of this Series, in whole or in part, at any time or from time to time, at a redemption price of $250 per share, plus accrued and unpaid dividends thereon to the date fixed for redemption. 
  
       (B) In the event that
fewer than all the outstanding shares of this Series are to be redeemed pursuant to subsection (1)(A), the number of shares to be redeemed shall be determined by the Board and the shares to be redeemed shall be determined by lot or pro rata as may
be determined by the Board or by any other method as may be determined by the Board in its sole discretion to be equitable. 
  
 (2) (A) Notwithstanding subsection (1) above, if the Dividends Received Percentage is equal to or less than 40% and, as a result, the
amount of dividends on the shares of this Series payable on any Dividend Payment Date will be or is adjusted upwards as described in Section (b)(2) above, the Corporation, at its option, may redeem all, but not less than all, of the outstanding
shares of this Series; provided, that within sixty days of the date on which an amendment to the Code is enacted which reduces the 
  
  

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 Dividends Received Percentage to 40% or less, the Corporation sends notice to holders of shares of this
Series of such redemption in accordance with subsection (3) below. 
  
       (B) Any redemption of the Perpetual Preferred Stock in accordance with this subsection (2) shall be at the applicable redemption price set forth in the following table, in each case
plus accrued and unpaid dividends (whether or not declared) thereon to the date fixed for redemption, including any changes in dividends payable due to changes in the Dividends Received Percentage. 
  

					
	 Redemption Period

	  	Redemption
Price Per Share

	  	Redemption Price Per
Depositary Share


	 April 2, 2004 to April 14, 2004
	  	253.75	  	50.75
	 April 15, 2004 to April 14, 2005
	  	252.50	  	50.50
	 April 15, 2005 to April 14, 2006
	  	251.25	  	50.25
	 On or after April 15, 2006
	  	250.00	  	50.00

  
 (3) In
the event the Corporation shall redeem shares of this Series pursuant to subsections (1) or (2) above, notice of such redemption shall be given by first class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the
redemption date, to each holder of record of the shares to be redeemed, at such holder’s address as the same appears on the stock register of the Corporation. Each such notice shall state: (i) the redemption date; (ii) the number of shares of
this Series to be redeemed and, if fewer than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from such holder; (iii) the redemption price; (iv) the place or places where certificates for such shares
are to be surrendered for payment of the redemption price; and (v) that dividends on the shares to be redeemed will cease to accrue on such redemption date. 
  
 (4) Notice having been mailed as aforesaid, from and after the redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on the shares of this Series so called for redemption under either subsection (1) or (2) above shall cease to accrue, and said shares shall no longer be deemed to be outstanding, and
all rights of the holders thereof as stockholders of the Corporation (except the right to receive from the Corporation the redemption price) shall cease. Upon surrender in accordance with said notice of the certificates for any shares so redeemed
(properly endorsed or assigned for transfer, if the Board shall so require and the notice shall so state), such shares shall be redeemed by the Corporation at the applicable redemption price. In case fewer than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without cost to the holder thereof. 
  
 (5) Notwithstanding the foregoing provisions of this Section (c), if any dividends on this Series are in arrears, no shares of this Series
shall be redeemed unless all outstanding shares of this Series are simultaneously redeemed, and the Corporation shall not purchase or otherwise acquire any shares of this Series; provided, however, that the foregoing shall not prevent the purchase
or acquisition of shares of this Series pursuant to 
  
  

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 a purchase or exchange offer made on the same terms to holders of all outstanding shares
of this Series. 
  
 (d) Liquidation Rights. 
  
 (1) Upon the dissolution, liquidation or winding up of the
Corporation, the holders of the shares of this Series shall be entitled to receive and be paid out of the assets of the Corporation available for distribution to its stockholders, before any payment or distribution shall be made on the Common Stock
or on any other class of stock ranking junior to the shares of this Series upon liquidation, the amount of $250 per share, plus a sum equal to all dividends (whether or not earned or declared) on such shares accrued and unpaid thereon to the date of
final distribution. 
  
 (2) Neither the sale of
all or substantially all the property or business of the Corporation nor the merger or consolidation of the Corporation into or with any other corporation or the merger or consolidation of any other corporation into or with the Corporation, shall be
deemed to be a dissolution, liquidation or winding up, voluntary or involuntary, for the purposes of this Section (d). 
  
 (3) After the payment to the holders of the shares of this Series of the full preferential amounts provided for in this Section (d), the
holders of this Series as such shall have no right or claim to any of the remaining assets of the Corporation. 
  
 (4) In the event the assets of the Corporation available for distribution to the holders of shares of this Series upon any dissolution,
liquidation or winding up of the Corporation, whether voluntary or involuntary, shall be insufficient to pay in full all amounts to which such holders are entitled pursuant to paragraph (1) of this Section (d), no such distribution shall be made on
account of any shares of any other class or series of Preferred Stock ranking on a parity with the shares of this Series upon such dissolution, liquidation or winding up unless proportionate distributive amounts shall be paid on account of the
shares of this Series, ratably, in proportion to the full distributable amounts for which holders of all such parity shares are respectively entitled upon such dissolution, liquidation or winding up. 
  
 (e) Conversion or Exchange. The holders of shares of this Series shall
not have any rights herein to convert such shares into or exchange such shares for shares of any other class or classes or of any other series of any class or classes of capital stock of the Corporation. 
  
 (f) Voting. The shares of this Series shall not have any voting
powers, either general or special, except that: 
  
 (1) Unless the vote or consent of the holders of a greater number of shares shall then be required by law, the consent of the holders of at least 66 2/3% of all of the shares of this Series at the time outstanding, given in person or by
proxy, either in writing or by a vote at a meeting called for the purpose at which the holders of shares of this Series shall vote together as a separate class, shall be necessary for authorizing, effecting or validating the amendment, alteration or
repeal of any of the provisions of the 
  
  

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 Corporation’s Amended and Restated Certificate of Incorporation or of any certificate amendatory
thereof or supplemental thereto (including any Certificate of the Voting Powers, Designations, Preferences and Relative, Participating, Optional or Other Special Rights, and the Qualifications, Limitations or Restrictions thereof, or any similar
document relating to any series of Preferred Stock) which would adversely affect the preferences, rights, powers or privileges of this Series; 
  
 (2) Unless the vote or consent of the holders of a greater number of shares shall then be required by law, the consent of the holders of
at least 66 2/3% of all of the shares of this Series and all other series of Preferred Stock ranking on a parity with shares of this Series, either as to dividends or upon liquidation, at the time outstanding, given in person or by proxy, either in
writing or by a vote at a meeting called for the purpose at which the holders of shares of this Series and such other series of Preferred Stock shall vote together as a single class without regard to series, shall be necessary for authorizing,
effecting, increasing or validating the creation, authorization or issue of any shares of any class of stock of the Corporation ranking prior to the shares of this Series as to dividends or upon liquidation, or the reclassification of any authorized
stock of the Corporation into any such prior shares, or the creation, authorization or issue of any obligation or security convertible, into or evidencing the right to purchase any such prior shares. 
  
 (3) If, at the time of any annual meeting of stockholders for
the election of directors, a default in preference dividends on any series of the Preferred Stock or any other class or series of preferred stock of the Corporation (other than any other class or series of the Corporation’s preferred stock
expressly entitled to elect additional directors to the Board by a vote separate and distinct from the vote provided for in this paragraph (3) (“Voting Preferred”)) shall exist, the number of directors constituting the Board shall be
increased by two (without duplication of any increase made pursuant to the terms of any other class or series of the Corporation’s preferred stock other than any Voting Preferred) and the holders of the Corporation’s preferred stock of all
classes and series (other than any such Voting Preferred) shall have the right at such meeting, voting together as a single class without regard to class or series, to the exclusion of the holders of Common Stock and the Voting Preferred, to elect
two directors of the Corporation to fill such newly created directorships. Such right shall continue until there are no dividends in arrears upon shares of any class or series of the Corporation’s preferred stock ranking prior to or on a parity
with shares of this Series as to dividends (other than any Voting Preferred). Each director elected by the holders of shares of any series of the Preferred Stock or any other class or series of the Corporation’s preferred stock in an election
provided for by this paragraph (3) (herein called a “Preferred Director”) shall continue to serve as such director for the full term for which he shall have been elected, notwithstanding that prior to the end of such term a default in
preference dividends shall cease to exist. Any Preferred Director may be removed by, and shall not be removed except by, the vote of the holders of record of the outstanding shares of the Corporation’s preferred stock entitled to have
originally voted for such director’s election, voting together as a single class without regard to class or series, at a meeting of the stockholders, or of the holders of shares of the Corporation’s preferred stock, called for that
purpose. So long as a default in any preference dividends on any series of the Preferred Stock or any other class or series of preferred stock of the Corporation shall 
  
  

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 exist (other than any Voting Preferred) (A) any vacancy in the office of a Preferred Director may be
filled (except as provided in the following clause (B)) by an instrument in writing signed by the remaining Preferred Director and filed with the Corporation and (B) in the case of the removal of any Preferred Director, the vacancy may be filled by
the vote of the holders of the outstanding shares of the Corporation’s preferred stock entitled to have originally voted for the removed director’s election, voting together as a single class without regard to class or series, at the same
meeting at which such removal shall be voted. Each director appointed as aforesaid shall be deemed for all purposes hereto to be a Preferred Director. 
  
 Whenever the term of office of the Preferred Directors shall end and a default in preference dividends shall no longer exist, the number
of directors constituting the Board shall be reduced by two. For purposes hereof, a “default in preference dividends” on any series of the Preferred Stock or any other class or series of preferred stock of the Corporation shall be deemed
to have occurred whenever the amount of accrued dividends upon such class or series of the Corporation’s preferred stock shall be equivalent to six full quarterly dividends or more, and, having so occurred, such default shall be deemed to exist
thereafter until, but only until, all accrued dividends on all such shares of the Corporation’s preferred stock of each and every series then outstanding (other than any Voting Preferred or shares of any class or series ranking junior to shares
of this Series as to dividends) shall have been paid to the end of the last preceding quarterly dividend period. 
  
 (4) Without limiting the foregoing, under any circumstances in which the Series would have additional rights under Rhode Island law if the
Corporation were incorporated under the Rhode Island Business Corporation Act (rather than the Delaware General Corporation Law), holders of shares of the Series shall be entitled to such rights, including, without limitation, voting rights under
Chapter 7-1.1-55, voting and notice rights under Chapter 7-1.1-67 and dissenters’ rights under Chapters 7-1.1-73 and 7-1.1-74 of the Rhode Island Business Corporation Act (as such Chapters may be amended from time to time). 
  
 (g) Reacquired Shares. Shares of this Series which have been issued
and reacquired through redemption or purchase shall, upon compliance with an applicable provision of the Delaware General Corporation Law, have the status of authorized and unissued shares of Preferred Stock and may be reissued but only as part of a
new series of Preferred Stock to be created by resolution or resolutions of the Board. 
  
 (h) Relation to Existing Preferred Classes of Stock. Shares of this Series are equal in rank and preference with all other series of the Preferred Stock outstanding on the date of original issue of the shares
of this Series and are senior in rank and preference to the Common Stock. 
  
 (i) Relation to Other Preferred Classes of Stock. For purposes of this resolution, any stock of any class or classes of the Corporation shall be deemed to rank: 
  
  

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 (1) prior to the shares of this Series, either as to dividends or upon liquidation, if
the holders of such class or classes shall be entitled to the receipt of dividends or of amounts distributable upon dissolution, liquidation or winding up of the Corporation, as the case may be, in preference or priority to the holders of shares of
this Series; 
  
 (2) on a parity with shares of
this Series, either as to dividends or upon liquidation, whether or not the dividend rates, dividend payment dates or redemption or liquidation prices per share or sinking fund provisions, if any, be different from those of this Series, if the
holders of such stock shall be entitled to the receipt of dividends or of amounts distributable upon dissolution, liquidation or winding up of the Corporation, as the case may be, in proportion to their respective dividend rates or liquidation
prices, without preference or priority, one over the other, as between the holders of such stock and the holders of shares of this Series; and 
  
 (3) junior to the shares of this Series, either as to dividends or upon liquidation, if such class shall be Common Stock or if the holders
of shares of this Series shall be entitled to receipt of dividends or of amounts distributable upon dissolution, liquidation or winding up of the Corporation, as the case may be, in preference or priority to the holders of shares of such class or
classes. 
  
  

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 IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designation to be duly executed by
Kenneth D. Lewis, its Chairman, President and Chief Executive Officer, and attested to by Rachel R. Cummings, its Corporate Secretary, and has caused the corporate seal to be affixed hereto, this 28th day of January, 2004. 
  
  

			
	 BANK OF AMERICA CORPORATION

		
	 By:  
	  	/S/    KENNETH D. LEWIS
	 	  	

	 	  	Chairman, President and Chief Executive Officer


  
  
  

	
	 ATTEST:

	
	 /S/    RACHEL R. CUMMINGS

	

	 Corporate Secretary

	 (Corporate Seal)


  

	

  

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