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As Of Filer Filing As/For/On Docs:Pgs Issuer Agent 12/04/03 Bank of America Corp/DE S-4 10:304 RR Donnelley/FA
Document/Exhibit Description Pages Size
1: S-4 Registration Statement HTML 1,997K
2: EX-10.(A) Employment Agreement, Dated As of October 27, 2003 HTML 71K
3: EX-10.(B) Employment Agreement, Dated As of October 27, 2003 HTML 71K
4: EX-10.(C) Employment Agreement, Dated As of October 27, 2003 HTML 70K
5: EX-10.(D) Employment Agreement, Dated As of October 27, 2003 HTML 70K
6: EX-23.(B) Consent of Pricewaterhousecoopers Llp As to Bank HTML 7K
of America
7: EX-23.(C) Consent of Pricewaterhousecoopers Llp As to HTML 7K
Fleetboston
8: EX-24.(A) Power of Attorney and Certified Resolutions HTML 31K
9: EX-99.(A) Consent of Goldman Sachs & Co HTML 12K
10: EX-99.(B) Consent of Morgan Stanley & Co. Incorporated HTML 9K
| Registration Statement |
As filed with the Securities and Exchange Commission on December 4, 2003
Registration No. 333-[ ]
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
Under
The Securities Act of 1933
BANK OF AMERICA CORPORATION
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 6021 | 56-0906609 | ||
| (State or other jurisdiction of incorporation) |
(Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification Number) |
| Bank of America Corporate Center 100 N. Tryon Street Charlotte, North Carolina, 28255 (704) 386-8486 |
(Address, including Zip Code, and Telephone Number, including Area Code, of Registrant’s Principal Executive Offices)
Paul J. Polking, Esq.
Executive Vice President and General Counsel
Bank of America Corporation
Bank of America Corporate Center
Charlotte, North Carolina 28255
(704) 386-5724
(Name, Address, including Zip Code, and Telephone Number, including Area Code, of Agent for Service)
With copies to:
| Gary A. Spiess, Esq. Executive Vice President, General Counsel and Secretary FleetBoston Financial Corporation 100 Federal Street (617) 434-2870 |
Edward D. Herlihy, Esq. Wachtell, Lipton, Rosen & Katz 51 West 52nd Street (212) 403-1000 |
John C. Murphy, Jr., Esq. Cleary, Gottlieb, Steen & Hamilton 2000 Pennsylvania Avenue, NW (202) 974-1500 |
Approximate date of commencement of the proposed sale of the securities to the public: As soon as practicable after this Registration Statement becomes effective and upon completion of the merger described in the enclosed joint proxy statement/prospectus.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, 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(d) 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. ¨
CALCULATION OF REGISTRATION FEE
| Title of Each Class of Securities to be Registered |
Amount to be Registered |
Proposed Maximum Offering Price Per Share of Common Stock |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee |
||||||||
| Common stock, par value $0.01 |
650,974,529 | (1) | N/A | $ | 26,383,997,657 | $ | 2,134,465 | (2) | ||||
| 6.75% Perpetual Preferred Stock |
1,912,250 | N/A | $ | 109,476,313 | $ | 8,857 | (3) | |||||
| Depositary shares, each representing a one-fifth interest in a share of Fixed/Adjustable Rate Cumulative Preferred Stock |
700,000 | N/A | $ | 175,000,000 | $ | 14,158 | (4) | |||||
| (1) | Represents the maximum number of shares of Bank of America Corporation common stock estimated to be issuable upon the completion of the merger of FleetBoston Financial Corporation with and into Bank of America, based on the number of shares of FleetBoston common stock, par value $0.01 per share, outstanding, or reserved for issuance under various plans, immediately prior to the merger and the exchange of each share of FleetBoston common stock for 0.5553 of a share of Bank of America common stock. |
| (2) | Pursuant to Rules 457(c) and 457(f) under the Securities Act of 1933, as amended, the registration fee is based on the average of the high and low sales prices of FleetBoston common stock, as reported on the New York Stock Exchange on December 1, 2003, and computed based on the estimated maximum number of shares that may be exchanged for the Bank of America common stock being registered, including shares issuable upon exercise of outstanding options or other securities to acquire FleetBoston common stock. |
| (3) | Pursuant to Rules 457(c) and 457(f) under the Securities Act of 1933, as amended, the registration fee is based on the average of the high and low sales prices of the depositary shares, each representing a one-fifth interest in a share of the FleetBoston Series VI 6.75% Perpetual Preferred Stock, as reported on the New York Stock Exchange on December 1, 2003, and computed based on the number of shares that may be exchanged for the Bank of America 6.75% Perpetual Preferred Stock being registered. |
| (4) | Pursuant to Rule 457(f) under the Securities Act of 1933, as amended, the registration fee is based on the book value of the FleetBoston Series VII Fixed/Adjustable Rate Cumulative Preferred Stock computed as of the latest practicable date prior to the date of filing the Registration Statement. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such dates as the Commission, acting pursuant to said section 8(a), may determine.
BANK OF AMERICA CORPORATION
Bank of America Corporate Center
Charlotte, North Carolina 28255
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
Bank of America Corporation will hold a special meeting of stockholders at [ ] at 10:00 a.m., local time, on [ ], 2004 to consider and vote upon the following matters:
| • | a proposal to adopt the Agreement and Plan of Merger, dated as of October 27, 2003, by and between Bank of America Corporation and FleetBoston Financial Corporation, pursuant to which FleetBoston will merge with and into Bank of America; |
| • | a proposal to adopt the Amended and Restated Bank of America 2003 Key Associate Stock Plan; |
| • | a proposal to adopt an amendment to the Bank of America amended and restated certificate of incorporation, to increase the number of authorized shares of Bank of America common stock from 5 billion to 7.5 billion; and |
| • | a proposal to approve the adjournment of the special meeting, if necessary, to solicit additional proxies, in the event that there are not sufficient votes at the time of the special meeting to approve the proposals. |
The Bank of America board of directors has fixed the close of business on [ ], 2004 as the record date for the Bank of America special meeting. Only Bank of America stockholders of record at that time are entitled to notice of, and to vote at, the Bank of America special meeting, or any adjournment or postponement of the Bank of America special meeting. Holders of the Bank of America common stock, 7% Cumulative Redeemable Preferred Stock, Series B, which we refer to as the Series B Preferred Stock, and ESOP Convertible Preferred Stock, Series C, which we refer to as the ESOP Preferred Stock, vote together without regard to class and will be entitled to vote at the special meeting. A complete list of the Bank of America stockholders entitled to vote at the Bank of America special meeting will be made available for inspection by any Bank of America stockholder for ten days prior to the Bank of America special meeting at the principal executive offices of Bank of America, and at the time and place of the Bank of America special meeting. Each share of Bank of America common stock and Series B Preferred Stock is entitled to one vote, and each share of ESOP Preferred Stock is entitled to two votes. Adoption of the merger agreement and the approval of the proposal to increase the number of authorized shares of Bank of America common stock each requires the affirmative vote of a majority of the votes represented by the outstanding shares of Bank of America common stock, Series B Preferred Stock and ESOP Preferred Stock entitled to vote at the special meeting, voting together without regard to class. Adoption of the Amended Stock Plan requires the affirmative vote of a majority of the votes cast at the special meeting by the holders of the Bank of America common stock, Series B Preferred Stock and ESOP Preferred Stock, voting together without regard to class.
Whether or not you plan to attend the special meeting, please submit your proxy with voting instructions. Please vote as soon as possible by accessing the Internet site listed on the Bank of America proxy card, by calling the toll-free number listed on the Bank of America proxy card, or by submitting your proxy card by mail. To submit your proxy by mail, please complete, sign, date and return the accompanying proxy card in the enclosed self-addressed, stamped envelope. This will not prevent you from voting in person, but it will help to secure a quorum and avoid added solicitation costs. Any holder of Bank of America common stock, Series B Preferred Stock or ESOP Preferred Stock who is present at the Bank of America special meeting may vote in person instead of by proxy, thereby canceling any previous proxy. In any event, a proxy may be revoked in writing at any time before the Bank of America special meeting in the manner described in the accompanying joint proxy statement/prospectus.
The Bank of America board of directors approved, by the unanimous vote of the directors present, the merger agreement and unanimously recommends that Bank of America stockholders vote “FOR” adoption of the merger agreement and the other proposals. Each of the proposals is independent, and is not contingent on approval by stockholders, of the other proposals.
| BY ORDER OF THE BOARD OF DIRECTORS, |
| Corporate Secretary |
[ ], 2004
YOUR VOTE IS IMPORTANT. PLEASE COMPLETE, SIGN, DATE AND RETURN YOUR PROXY CARD WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING.
FLEETBOSTON FINANCIAL CORPORATION
100 Federal Street
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
FleetBoston Financial Corporation will hold a special meeting of stockholders at [ ] at 10:00 a.m., local time, on [ ], 2004 to consider and vote upon the following matters:
| • | a proposal to approve the Agreement and Plan of Merger, dated as of October 27, 2003, by and between Bank of America Corporation and FleetBoston Financial Corporation, pursuant to which FleetBoston will merge with and into Bank of America; and |
| • | a proposal to approve the adjournment of the special meeting, if necessary, to solicit additional proxies, in the event that there are not sufficient votes at the time of the special meeting to approve the proposal. |
The FleetBoston board of directors has fixed the close of business on [ ], 2004 as the record date for the FleetBoston special meeting. Only FleetBoston stockholders of record at that time are entitled to notice of, and to vote at, the FleetBoston special meeting, or any adjournment or postponement of the special meeting. A complete list of FleetBoston stockholders entitled to vote at the special meeting will be made available for inspection by any FleetBoston stockholder at the time and place of the FleetBoston special meeting. In order for the merger agreement to be approved, the holders of a majority of the outstanding shares of FleetBoston common stock entitled to vote thereon must vote in favor of approval of the merger agreement.
Whether or not you plan to attend the special meeting, please submit your proxy with voting instructions. Please vote as soon as possible by accessing the Internet site listed on the FleetBoston proxy card, by calling the toll-free number listed on the FleetBoston proxy card, or by submitting your proxy card by mail. To submit your proxy by mail, please complete, sign, date and return the accompanying proxy card in the enclosed self-addressed, stamped envelope. This will not prevent you from voting in person, but it will help to secure a quorum and avoid added solicitation costs. Any holder of FleetBoston common stock who is present at the FleetBoston special meeting may vote in person instead of by proxy, thereby canceling any previous proxy. In any event, a proxy may be revoked in writing at any time before the FleetBoston special meeting in the manner described in the accompanying joint proxy statement/prospectus.
The FleetBoston board of directors has unanimously approved the merger agreement and unanimously recommends that FleetBoston stockholders vote “FOR” approval of the merger agreement.
| BY ORDER OF THE BOARD OF DIRECTORS, |
| Gary A. Spiess |
Secretary
[ ], 2004
YOUR VOTE IS IMPORTANT. PLEASE COMPLETE, SIGN, DATE AND RETURN YOUR PROXY CARD, WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING.
Information contained herein is subject to completion or amendment. A registration statement relating to these securities has been filed with the Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This joint proxy statement/prospectus shall not constitute an offer to sell or the solicitation of any offer to buy nor shall there be any sale of these securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
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MERGER PROPOSED—YOUR VOTE IS VERY IMPORTANT
The boards of directors of Bank of America Corporation and FleetBoston Financial Corporation each have unanimously approved a strategic merger that will combine our two franchises to create the first banking institution with a truly national scope, with an unrivaled presence in America’s growth and wealth markets. After completion of the merger, we expect that current Bank of America stockholders will, as a group, own approximately 72% of the combined company and FleetBoston stockholders will, as a group, own approximately 28% of the combined company.
If the merger is completed, FleetBoston stockholders will have the right to receive 0.5553 of a share of Bank of America common stock for each share of FleetBoston common stock held immediately prior to the merger. Bank of America stockholders will continue to own their existing Bank of America common stock. Each share of each series of FleetBoston preferred stock issued and outstanding immediately prior to the completion of the merger will be converted into a share of a series of Bank of America preferred stock with the same terms (to the fullest extent possible) as the corresponding FleetBoston preferred stock. The following table shows the closing sale prices of Bank of America common stock and FleetBoston common stock as reported on the New York Stock Exchange on October 24, 2003, the last trading day before we announced the merger, and on [ ], 2004, the last practicable trading day before the distribution of this joint proxy statement/prospectus. This table also shows the implied value of the merger consideration proposed for each share of FleetBoston common stock, which we calculated by multiplying the closing price of Bank of America common stock on those dates by 0.5553, the exchange ratio.
| Bank of America Common Stock |
FleetBoston Common Stock |
Implied Value per Share of FleetBoston Common Stock | ||||
| $81.86 | $31.80 | $45.46 | ||||
| At [ ], 2004 |
$ [ ] | $ [ ] | $ [ ] |
We expect that the merger will generally be tax free to FleetBoston stockholders, except for taxes on cash received by FleetBoston stockholders instead of receiving fractions of shares of Bank of America common stock.
We cannot complete the merger unless the stockholders of both of our companies approve it. Each of us will hold a special meeting of our stockholders to vote on this merger proposal. Your vote is important. Whether or not you plan to attend your special stockholders’ meeting, please take the time to vote your shares in accordance with the instructions contained in this document. Your failure to vote will have the same effect as voting against the merger. The places, dates and times of the special meetings are as follows:
For Bank of America stockholders: |
For FleetBoston stockholders: | |
| the Bank of America board of directors unanimously recommends that Bank of America stockholders vote FOR adoption of the merger agreement. |
the FleetBoston board of directors unanimously recommends that FleetBoston stockholders vote FOR approval of the merger agreement. | |
This document describes the special meetings, the merger, the documents related to the merger and certain other matters. Please carefully read this entire document. You also can obtain information about our companies from documents that we have filed with the Securities and Exchange Commission.
KENNETH D. LEWIS Chairman, President and Chief Executive Officer Bank of America Corporation |
CHARLES K. GIFFORD Chairman and Chief Executive Officer FleetBoston Financial Corporation |
Bank of America common stock is quoted on the NYSE under the symbol “BAC.” FleetBoston common stock is quoted on the NYSE under the symbol “FBF.”
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved the Bank of America common stock to be issued under this joint proxy statement/prospectus or determined if this joint proxy statement/prospectus is accurate or adequate.
Any representation to the contrary is a criminal offense.
The date of this joint proxy statement/prospectus is [ ], 2004, and it is first being mailed or otherwise delivered to Bank of America stockholders and FleetBoston stockholders on or about [ ], 2004.
REFERENCES TO ADDITIONAL INFORMATION
This document incorporates important business and financial information about Bank of America and FleetBoston from documents that are not included in or delivered with this document. You can obtain documents incorporated by reference in this document, other than certain exhibits to those documents, by requesting them in writing or by telephone from the appropriate company at the following addresses:
| Bank of America Corporation | FleetBoston Financial Corporation | |
| Bank of America Corporate Center | 100 Federal Street | |
| Charlotte, North Carolina 28255 | Boston, Massachusetts 02110 | |
| Attention: Investor Relations | Mail Stop MA DE 10032F | |
| Telephone: (704) 386-5681 | Attention: Investor Relations | |
| Telephone: (617) 434-7858 |
You will not be charged for any of these documents that you request. Bank of America stockholders and FleetBoston stockholders requesting documents should do so by [ ], 2004 in order to receive them before the special meetings.
See “Where You Can Find More Information” on page 103.
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| QUESTIONS AND ANSWERS ABOUT VOTING PROCEDURES FOR THE SPECIAL MEETINGS |
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| SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA OF BANK OF AMERICA |
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| SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA OF FLEETBOSTON |
12 | |
| SELECTED CONSOLIDATED UNAUDITED PRO FORMA FINANCIAL INFORMATION |
13 | |
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| Board of Directors and Management of Bank of America following Completion of the Merger |
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| FleetBoston’s Directors and Officers Have Financial Interests in the Merger |
53 | |
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| Treatment of FleetBoston Stock Options and Other Equity-Based Awards |
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| Selected Provisions in the Restated Articles of Incorporation of FleetBoston |
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| Awards of Restricted Stock Shares and Restricted Stock Units |
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