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Bank of America Corp/DE · S-4 · On 12/4/03

Filed On 12/4/03 4:17pm ET   ·   SEC File 333-110924   ·   Accession Number 1193125-3-89416

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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

Registration of Securities Issued in a Business-Combination Transaction   ·   Form S-4
Filing Table of Contents

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 


S-4   ·   Registration Statement
Document Table of Contents

Page (sequential) | (alphabetic) Top
 
11st Page
"Table of Contents
"Questions and Answers About Voting Procedures for the Special Meetings
"Summary
"Selected Consolidated Historical Financial Data of Bank of America
"Selected Consolidated Historical Financial Data of Fleetboston
"Selected Consolidated Unaudited Pro Forma Financial Information
"Comparative Per Share Data
"Cautionary Statement Regarding Forward-Looking Statements
"The Bank of America Special Meeting
"Matters to Be Considered
"Proxies
"Solicitation of Proxies
"Householding
"Record Date
"Voting Rights and Vote Required
"Recommendations of the Bank of America Board of Directors
"Attending the Meeting
"The Fleetboston Special Meeting
"Recommendation of the FleetBoston Board of Directors
"Information About the Companies
"The Merger
"General
"Structure
"Background of the Merger
"Bank of America s Reasons for the Merger; Recommendation of the Merger by the Bank of America Board of Directors
"FleetBoston s Reasons for the Merger; Recommendation of the Merger by the FleetBoston Board of Directors
"Analyses of Financial Advisors
"Opinion of Bank of America s Financial Advisor
"Opinion of FleetBoston s Financial Advisor
"Board of Directors and Management of Bank of America following Completion of the Merger
"Distribution of Bank of America Shares
"Fractional Shares
"Public Trading Markets
"Bank of America Dividends
"Appraisal Rights of Dissenting Stockholders
"Regulatory Approvals Required for the Merger
"FleetBoston s Directors and Officers Have Financial Interests in the Merger
"The Merger Agreement
"Terms of the Merger
"Treatment of FleetBoston Stock Options and Other Equity-Based Awards
"Closing and Effective Time of the Merger
"Representations, Warranties, Covenants and Agreements
"Declaration and Payment of Dividends
"Agreement Not to Solicit Other Offers
"Expenses and Fees
"Conditions to Complete the Merger
"Amendment, Waiver and Termination of the Merger Agreement
"Resales of Bank of America Stock by Affiliates
"Employee Benefit Matters
"The Stock Option Agreements
"The Stock Options
"Purpose of the Stock Option Agreements
"Exercise; Expiration
"Rights Under the Stock Option Agreements
"Accounting Treatment
"Federal Income Tax Consequences of the Merger
"Description of Bank of America Capital Stock
"Description of Common Stock
"Description of Preferred Stock
"Comparison of Stockholders Rights
"Preferred Stock
"Selected Provisions in the Restated Articles of Incorporation of FleetBoston
"Adoption of Bank of America S Amended Stock Plan
"Number of Shares
"Types of Awards
"Administration
"Eligibility
"Awards of Stock Options and Stock Appreciation Rights
"Awards of Restricted Stock Shares and Restricted Stock Units
"Stock Plan Benefits Table
"Internal Revenue Code Section 162(m)
"Withholding for Payment of Taxes
"Changes in Capitalization and Similar Changes
"Changes in Control
"Amendment and Termination of the Plan
"No Repricings
"Federal Income Tax Treatment
"Amendment to the Bank of America Amended and Restated Certificate of Incorporation
"Comparative Market Prices and Dividends
"Unaudited Pro Forma Condensed Combined Financial Information
"Notes to the Unaudited Pro Forma Condensed Combined Financial Information
"Legal Matters
"Experts
"Other Matters
"Bank of America 2004 Annual Meeting Stockholder Proposals
"FleetBoston 2004 Annual Meeting Stockholder Proposals
"Annual Meetings
"Where You Can Find More Information
"Agreement and Plan of Merger, dated as of October 27, 2003, by and between FleetBoston Financial Corporation and Bank of America Corporation
"Article I
"Effective Time
"Effects of the Merger
"Conversion of FleetBoston Capital Stock
"Bank of America Capital Stock
"Bank of America Mirror Preferred Stock
"Options and SARs; Other Stock-Based Awards
"Certificate of Incorporation of Bank of America
"Bylaws of Bank of America
"Tax Consequences
"Certain Post-Closing Matters
"Article Ii
"Exchange of Shares
"Bank of America to Make Shares Available
"Article Iii
"Representations and Warranties of Fleetboston
"Corporate Organization
"Capitalization
"Authority; No Violation
"Consents and Approvals
"Reports
"Financial Statements
"Broker s Fees
"Absence of Certain Changes or Events
"Legal Proceedings
"Taxes and Tax Returns
"Employees
"SEC Reports
"Compliance with Applicable Law
"Certain Contracts
"Agreements with Regulatory Agencies
"Interest Rate Risk Management Instruments
"Undisclosed Liabilities
"Environmental Liability
"State Takeover Laws; FleetBoston Rights Agreement
"Reorganization
"Opinions
"FleetBoston Information
"Article Iv
"Representations and Warranties of Bank of America
"State Takeover Laws
"Bank of America Information
"Article V
"Covenants Relating to Conduct of Business
"Conduct of Businesses Prior to the Effective Time
"FleetBoston Forbearances
"Bank of America Forbearances
"Article Vi
"Additional Agreements
"Regulatory Matters
"Access to Information
"Shareholder Approvals
"Legal Conditions to Merger
"Affiliates
"NYSE Listing
"Employee Matters
"Indemnification; Directors and Officers Insurance
"Advice of Changes
"Dividends
"Exemption from Liability Under Section 16(b)
"No Solicitation
"Restructuring Efforts
"Article Vii
"Conditions Precedent
"Conditions to Each Party s Obligation To Effect the Merger
"Conditions to Obligations of Bank of America
"Conditions to Obligations of FleetBoston
"Article Viii
"Termination and Amendment
"Termination
"Effect of Termination
"Amendment
"Extension; Waiver
"Article Ix
"General Provisions
"Closing
"Standard
"Nonsurvival of Representations, Warranties and Agreements
"Expenses
"Notices
"Interpretation
"Counterparts
"Entire Agreement
"Governing Law
"Publicity
"Assignment; Third Party Beneficiaries
"Stock Option Agreement, dated as of October 27, 2003, between FleetBoston Financial Corporation, as issuer, and Bank of America Corporation, as grantee
"Stock Option Agreement, dated as of October 27, 2003, between Bank of America Corporation, as issuer, and FleetBoston Financial Corporation, as grantee
"Opinion of Goldman, Sachs & Co
"Opinion of Morgan Stanley & Co. Incorporated
"Chapter 7-1.1-74 of the Rhode Island Business Corporation Act
"Section 262 of the Delaware General Corporation Law
"Bank of America s 2003 Key Associate Stock Plan, as Amended and Restated

This is an EDGAR HTML document rendered as filed.  [ Alternative Formats ]


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  Registration Statement  
Table of Contents

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

Boston, Massachusetts 02110

(617) 434-2870

 

Edward D. Herlihy, Esq.

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, New York 10019

(212) 403-1000

 

John C. Murphy, Jr., Esq.

Cleary, Gottlieb, Steen & Hamilton

2000 Pennsylvania Avenue, NW

Washington, DC 20006

(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.



Table of Contents

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.


Table of Contents

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,
 

Rachel R. Cummings

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.


Table of Contents

FLEETBOSTON FINANCIAL CORPORATION

100 Federal Street

Boston, Massachusetts 02110

 

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.

 


Table of Contents

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.

 

Picture -- LOGO   Picture -- LOGO

 

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


At October 24, 2003

   $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.


Table of Contents

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.


Table of Contents

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.


Table of Contents

 TABLE OF CONTENTS

 

     Page

QUESTIONS AND ANSWERS ABOUT VOTING PROCEDURES FOR THE SPECIAL MEETINGS

   1

SUMMARY

   3

SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA OF BANK OF AMERICA

   11

SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA OF FLEETBOSTON

   12

SELECTED CONSOLIDATED UNAUDITED PRO FORMA FINANCIAL INFORMATION

   13

COMPARATIVE PER SHARE DATA

   15

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

   16

THE BANK OF AMERICA SPECIAL MEETING

   17

Matters to Be Considered

   17

Proxies

   17

Solicitation of Proxies

   18

Householding

   18

Record Date

   18

Voting Rights and Vote Required

   19

Recommendations of the Bank of America Board of Directors

   19

Attending the Meeting

   20

THE FLEETBOSTON SPECIAL MEETING

   21

Matters to Be Considered

   21

Proxies

   21

Solicitation of Proxies

   22

Record Date

   22

Voting Rights and Vote Required

   22

Recommendation of the FleetBoston Board of Directors

   23

Attending the Meeting

   23

INFORMATION ABOUT THE COMPANIES

   24

THE MERGER

   25

General

   25

Structure

   25

Background of the Merger

   26

Bank of America’s Reasons for the Merger; Recommendation of the Merger by the Bank of America Board of Directors

   28

FleetBoston’s Reasons for the Merger; Recommendation of the Merger by the FleetBoston Board of Directors

   30

Analyses of Financial Advisors

   31

Opinion of Bank of America’s Financial Advisor

   32

Opinion of FleetBoston’s Financial Advisor

   39

Board of Directors and Management of Bank of America following Completion of the Merger

   45

 

i


Table of Contents
     Page

Distribution of Bank of America Shares

   46

Fractional Shares

   47

Public Trading Markets

   47

Bank of America Dividends

   48

Appraisal Rights of Dissenting Stockholders

   48

Regulatory Approvals Required for the Merger

   51

FleetBoston’s Directors and Officers Have Financial Interests in the Merger

   53

THE MERGER AGREEMENT

   57

Terms of the Merger

   57

Treatment of FleetBoston Stock Options and Other Equity-Based Awards

   57

Closing and Effective Time of the Merger

   58

Representations, Warranties, Covenants and Agreements

   58

Declaration and Payment of Dividends

   60

Agreement Not to Solicit Other Offers

   60

Expenses and Fees

   61

Conditions to Complete the Merger

   62

Amendment, Waiver and Termination of the Merger Agreement

   62

Resales of Bank of America Stock by Affiliates

   63

Employee Benefit Matters

   63

THE STOCK OPTION AGREEMENTS

   64

The Stock Options

   64

Purpose of the Stock Option Agreements

   64

Exercise; Expiration

   64

Rights Under the Stock Option Agreements

   66

ACCOUNTING TREATMENT

   67

FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER

   67

DESCRIPTION OF BANK OF AMERICA CAPITAL STOCK

   69

Description of Common Stock

   69

Description of Preferred Stock

   70

COMPARISON OF STOCKHOLDERS’ RIGHTS

   75

General

   75

Preferred Stock

   83

Selected Provisions in the Restated Articles of Incorporation of FleetBoston

   83

ADOPTION OF BANK OF AMERICA’S AMENDED STOCK PLAN

   85

Number of Shares

   85

Types of Awards

   86

Administration

   86

Eligibility

   87

Awards of Stock Options and Stock Appreciation Rights

   87

Awards of Restricted Stock Shares and Restricted Stock Units

   88

Stock Plan Benefits Table

   89

Internal Revenue Code Section 162(m)

   89

Withholding for Payment of Taxes

   90

 

ii


Table of Contents
     Page

Changes in Capitalization and Similar Changes

   90

Changes in Control

   90

Amendment and Termination of the Plan

   90

No Repricings

   91

Federal Income Tax Treatment

   91

AMENDMENT TO THE BANK OF AMERICA AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

   93

COMPARATIVE MARKET PRICES AND DIVIDENDS

   94

UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION

   95

NOTES TO THE UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION

   99

LEGAL MATTERS

   102

EXPERTS

   102

OTHER MATTERS

   102

Bank of America 2004 Annual Meeting Stockholder Proposals

   102

FleetBoston 2004 Annual Meeting Stockholder Proposals

   103

ANNUAL MEETINGS

   103

WHERE YOU CAN FIND MORE INFORMATION

   103

 

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APPENDICES:

 

     Page

APPENDIX A

    

Agreement and Plan of Merger, dated as of October 27, 2003, by and between FleetBoston Financial Corporation and Bank of America Corporation

   A-1

APPENDIX B

    

Stock Option Agreement, dated as of October 27, 2003, between FleetBoston Financial Corporation, as issuer, and Bank of America Corporation, as grantee

   B-1

APPENDIX C

    

Stock Option Agreement, dated as of October 27, 2003, between Bank of America Corporation, as issuer, and FleetBoston Financial Corporation, as grantee

   C-1

APPENDIX D

    

Opinion of Goldman, Sachs & Co.

   D-1

APPENDIX E

    

Opinion of Morgan Stanley & Co. Incorporated

   E-1

APPENDIX F

    

Chapter 7-1.1-74 of the Rhode Island Business Corporation Act

   F-1

APPENDIX G

    

Section 262 of the Delaware General Corporation Law

   G-1

APPENDIX H

    

Bank of America’s 2003 Key Associate Stock Plan, as Amended and Restated

   H-1

 

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 QUESTIONS AND ANSWERS ABOUT VOTING PROCEDURES FOR THE SPECIAL MEETINGS

 

Q: What matters will be considered at the special meetings?

 

A: At the Bank of America special meeting, Bank of America stockholders will be asked to vote in favor of adopting the merger agreement. Bank of America stockholders will also be asked to vote in favor of adopting Bank of America’s Amended Stock Plan, as well as a proposal to increase the number of authorized shares of Bank of America common stock. Each of the proposals is independent, and is not contingent on approval by stockholders, of the other proposals. At the FleetBoston special meeting, FleetBoston stockholders will be asked to vote in favor of adopting the merger agreement.

 

Q: What do I need to do now?

 

A: After you have carefully read this document and have decided how you wish to vote your shares, please vote by accessing the Internet site listed on your proxy card, by calling the toll-free number listed on your proxy card or by submitting your proxy card by mail. To submit your proxy card by mail, you must complete, sign, date and mail your proxy card in the enclosed postage paid return envelope as soon as possible. This will enable your shares to be represented and voted at the Bank of America special meeting or the FleetBoston special meeting.

 

Q: Why is my vote important?

 

A: The failure of a Bank of America or a FleetBoston stockholder to vote, by proxy or in person, will have the same effect as a vote against the merger and, for Bank of America stockholders, the proposal to increase the number of authorized shares of Bank of America common stock. In the case of Bank of America, the merger and the proposal to increase the number of authorized shares of Bank of America common stock must be approved by the holders 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 its special meeting, voting together without regard to class. Bank of America’s Amended Stock Plan must be approved by 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. In the case of FleetBoston, the merger must be approved by the holders of a majority of the outstanding shares of FleetBoston common stock entitled to vote at its special meeting.

 

Q: If my shares are held in street name by my broker, will my broker automatically vote my shares for me?

 

A: No. Your broker cannot vote your shares without instructions from you. You should instruct your broker as to how to vote your shares, following the directions your broker provides to you. Please check the voting form used by your broker.

 

Q: What if I abstain from voting or fail to instruct my broker?

 

A: If you abstain from voting or fail to instruct your broker to vote your shares and the broker submits an unvoted proxy, the resulting “broker non-vote” will be counted toward a quorum at your special meeting, but it will have the same effect as a vote against the merger. In the case of the Bank of America special meeting, abstentions and broker non-votes also will have the same effect as votes cast against the proposal to increase the number of authorized shares of Bank of America common stock. Each of the proposals is independent, and is not conditioned on approval by stockholders, of the other proposals. Abstentions from voting, as well as broker non-votes, are not treated as votes cast and, therefore, will have no effect on the proposal to approve Bank of America’s Amended Stock Plan.

 

Q: Can I attend the special meeting and vote my shares in person?

 

A:

Yes. All stockholders, including stockholders of record and stockholders who hold their shares through banks, brokers, nominees or any other holder of record, are invited to attend their respective special meeting. Stockholders of record can vote in person at the special meeting. If you are not a stockholder of record, you must obtain a proxy, executed in your favor, from the record holder of your shares, such as a

 

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broker, bank or other nominee, to be able to vote in person at the special meeting. If you plan to attend the special meeting, you must hold your shares in your own name or have a letter from the record holder of your shares confirming your ownership, and you must bring a form of personal photo identification with you in order to be admitted. We reserve the right to refuse admittance to anyone without proper proof of share ownership and without proper photo identification.

 

Q: Can I change my vote?

 

A: Yes. You may revoke your signed proxy card at any time before it is voted by signing and returning a proxy card with a later date, delivering a written revocation letter to, in the case of Bank of America, Rachel R. Cummings, Corporate Secretary, or in the case of FleetBoston, Gary A. Spiess, Secretary, or by attending the appropriate special meeting in person, notifying Ms. Cummings or Mr. Spiess, as the case may be, and voting by ballot at the special meeting. Ms. Cummings’s mailing address is Bank of America Corporation, NC1-007-56-11, 100 North Tryon Street, Charlotte, North Carolina 28255, and Mr. Spiess’s mailing address is FleetBoston Financial Corporation, 100 Federal Street, MA DE 10026A, Boston, Massachusetts 02110. If you have voted your shares by telephone or through the Internet, you may revoke your prior telephone or Internet vote by recording a different vote using telephone or Internet voting, or by signing and returning a proxy card dated as of a date that is later than your last telephone or Internet vote.

 

Any stockholder entitled to vote in person at the appropriate special meeting may vote in person whether or not a proxy has been previously given, but the mere presence (without notifying Ms. Cummings or Mr. Spiess, as the case may be) of a stockholder at the special meeting will not constitute revocation of a previously given proxy.

 

Q: If I am a FleetBoston stockholder, should I send in my FleetBoston stock certificates now?

 

A: No. You should NOT send in your FleetBoston stock certificates at this time. We will send you instructions for exchanging FleetBoston stock certificates for shares of Bank of America stock. Unless FleetBoston stockholders specifically request to receive Bank of America stock certificates, the shares of Bank of America stock they receive in the merger will be issued in book-entry form. Bank of America stockholders do not need to exchange or take any other action regarding their Bank of America stock certificates in connection with the merger.

 

Q: When do you expect to complete the merger?

 

A: We expect to complete the merger in the first half of 2004. However, we cannot assure you when or if the merger will occur. We must first obtain the approvals of our stockholders at the special meetings and the necessary regulatory approvals.

 

Q: Whom should I call with questions?

 

A: Bank of America stockholders should call the Bank of America Investor Relations Department at (704) 386-5681 with any questions about the merger and related transactions.

 

FleetBoston stockholders should call the FleetBoston Investor Relations Department at (617) 434-7858 with any questions about the merger and related transactions.

 

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 SUMMARY

 

This summary highlights selected information from this document. It does not contain all of the information that is important to you. We urge you to carefully read the entire document and the other documents to which we refer in order to fully understand the merger and the related transactions. See “Where You Can Find More Information” on page 103. Each item in this summary refers to the page of this document on which that subject is discussed in more detail.

 

In the Merger FleetBoston Common Stockholders Will Have the Right to Receive 0.5553 of a Share of Bank of America Common Stock Per Share of FleetBoston Common Stock (page 25)

 

We are proposing the merger of FleetBoston with and into Bank of America. If the merger is completed, FleetBoston stockholders other than FleetBoston and Bank of America 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. We refer to this 0.5553-to-1 ratio as the exchange ratio. Upon completion of the merger, current holders of Bank of America common stock will, as a group, own approximately 72% of the outstanding common stock of the combined company and current holders of FleetBoston common stock will, as a group, own approximately 28% of the outstanding common stock of the combined company. Bank of America will not issue any fractional shares of Bank of America common stock in the merger. FleetBoston stockholders who would otherwise be entitled to a fractional share of Bank of America common stock will instead receive an amount in cash based on the average of the closing sale prices of Bank of America common stock on the five full trading days immediately prior to the date on which the merger is completed.

 

Example: If you hold 110 shares of FleetBoston common stock, you will receive 61 shares of Bank of America common stock and a cash payment instead of the 0.083 of a share of Bank of America common stock that you otherwise would have received (i.e., 110 shares x 0.5553 = 61.083 shares).

 

Tax-Free Transaction to FleetBoston Stockholders (page 67)

 

The merger has been structured to qualify as a reorganization for U.S. federal income tax purposes. Accordingly, holders of FleetBoston stock generally will not recognize any gain or loss for U.S. federal income tax purposes on the exchange of their FleetBoston stock for Bank of America stock in the merger, except for any gain or loss that may result from the receipt of cash instead of a fractional share of Bank of America common stock. It is a condition to our respective obligations to complete the merger that Bank of America receive the opinion of Cleary, Gottlieb, Steen & Hamilton, and FleetBoston receive the opinion of Wachtell, Lipton, Rosen & Katz, in each case, that the merger qualifies as a reorganization for U.S. federal income tax purposes.

 

The federal income tax consequences described above may not apply to all holders of FleetBoston stock. Your tax consequences will depend on your individual situation. Accordingly, we strongly urge you to consult your tax advisor for a full understanding of the particular tax consequences of the merger to you.

 

Comparative Market Prices and Share Information (page 94)

 

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.” The following table shows the closing sale prices of Bank of America common stock and FleetBoston common stock as reported on the NYSE 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 document. This table also shows the implied value of the merger consideration proposed

 

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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 of
One Share of
FleetBoston
Common Stock


 

At October 24, 2003

   $ 81.86     $ 31.80     $ 45.46  

At [                ], 2004

   $ [         ]   $ [         ]   $ [         ]

 

The market prices of Bank of America common stock and FleetBoston common stock will fluctuate prior to the merger. You should obtain current market quotations for the shares of both companies.

 

Bank of America’s Financial Advisor Provided an Opinion to the Bank of America Board of Directors (page 32)

 

In connection with the merger, Bank of America retained Goldman, Sachs & Co., sometimes referred to as Goldman Sachs, and Banc of America Securities, LLC as financial advisors. In deciding to approve the merger, the Bank of America board of directors considered the oral opinion of Goldman Sachs provided to the Bank of America board of directors on October 26, 2003, subsequently confirmed in writing, that, as of the date of the opinion and based upon and subject to the considerations described in its opinion and other matters as Goldman Sachs considered relevant, the exchange ratio was fair to Bank of America from a financial point of view. A copy of the opinion is attached to this document as Appendix D. Bank of America stockholders should read the opinion completely and carefully to understand the assumptions made, matters considered and limitations on the review undertaken by Goldman Sachs in providing the opinion. Bank of America agreed to pay a transaction fee of up to $25 million to Goldman Sachs for its services in connection with the merger. The principal portion of this fee is payable upon completion of the merger. The Goldman Sachs opinion is not a recommendation as to how any stockholder of Bank of America should vote with respect to the merger or any other matter.

 

FleetBoston’s Financial Advisor Provided an Opinion to the FleetBoston Board of Directors (page 39)

 

In deciding to approve the merger, the FleetBoston board of directors considered the opinion of its financial advisor, Morgan Stanley & Co. Incorporated, sometimes referred to as Morgan Stanley, provided to the FleetBoston board of directors on October 26, 2003, that as of the date of the opinion, and based on and subject to the considerations in its opinion, the exchange ratio in the merger agreement was fair from a financial point of view to holders of FleetBoston common stock. A copy of the opinion is attached to this document as Appendix E. FleetBoston stockholders should read the opinion completely and carefully to understand the assumptions made, matters considered and limitations of the review undertaken by Morgan Stanley in providing its opinion. FleetBoston agreed to pay Morgan Stanley a transaction fee of up to $25 million in connection with the merger. The principal portion of such fee is payable upon completion of the merger. The Morgan Stanley opinion is not a recommendation as to how any stockholder of FleetBoston should vote with respect to the merger or any other matter.

 

Bank of America’s Dividend Policy (page 48)

 

During 2002, Bank of America paid cash dividends totaling $2.44 per share. Bank of America currently pays a quarterly dividend of $0.80 per share, although the Bank of America board of directors may change this dividend policy at any time.

 

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Our Reasons for the Merger (pages 28 and 30)

 

Our companies are proposing to merge because, among other things, we believe that both sets of stockholders will benefit from the facts that:

 

  the merger will create the first banking institution with a truly national scope, with an unrivaled presence in America’s growth and wealth markets;

 

  the merger would establish a new Bank of America that will serve approximately 33 million consumer relationships, with leading market shares throughout the Northeast, Southeast, Midwest, Southwest and West regions of the United States; and

 

  the resulting banking franchise will be America’s best, with unrivaled retail distribution in the most attractive markets.

 

The Bank of America Board of Directors Recommends that Bank of America Stockholders Vote “FOR” Adoption of the Merger Agreement, the Increase in the Number of Authorized Shares and the Amended Stock Plan (page 19)

 

The Bank of America board of directors believes that the merger is in the best interests of Bank of America and its stockholders and has unanimously approved the merger agreement. The Bank of America board of directors unanimously recommends that Bank of America stockholders vote “FOR” adoption of the merger agreement. The Bank of America board of directors has also unanimously approved the proposals to increase the number of authorized shares of Bank of America common stock and to adopt the Amended Stock Plan. The Bank of America board of directors unanimously recommends that Bank of America stockholders vote “FOR” the proposals to increase the number of authorized shares of Bank of America common stock and to adopt the Amended Stock Plan.

 

The FleetBoston Board of Directors Recommends that FleetBoston Stockholders Vote “FOR” Approval of the Merger Agreement (page 23)

 

The FleetBoston board of directors believes that the merger is in the best interests of FleetBoston and its stockholders and has unanimously approved the merger agreement. The FleetBoston board of directors unanimously recommends that FleetBoston stockholders vote “FOR” approval of the merger agreement.

 

FleetBoston’s Directors and Officers Have Financial Interests in the Merger That Differ From Your Interests (page 53)

 

FleetBoston’s executive officers and directors have economic interests in the merger that are different from, or in addition to, their interests as FleetBoston stockholders. The FleetBoston board of directors considered these interests in its decision to approve the merger agreement. Several executive officers of FleetBoston have existing agreements that provide severance benefits in the case of qualifying terminations of employment following a change in control of FleetBoston. Four of FleetBoston’s executive officers — Eugene McQuade, Brian Moynihan, Jay Sarles and Bradford Warner — have entered into employment agreements with Bank of America that provide for their employment after completion of the merger. Some of FleetBoston’s compensation and benefits plans, including its equity award plans, provide for the payment or accelerated vesting of rights or benefits upon a transaction such as the merger. Also, Messrs. Gifford and McQuade will join the board of directors of the combined company, with Mr. Gifford serving as its Chairman.

 

Holders of Bank of America Preferred Stock Have Appraisal Rights (page 48)

 

Bank of America is incorporated in Delaware. Under Delaware law, holders of Bank of America common stock do not have any right to dissent from the merger or to a related court determination, in a proceeding known as an appraisal, of the fair value of their shares in connection with the merger. However, holders of Bank of America Series B Preferred Stock and ESOP Preferred Stock are entitled to appraisal rights in connection with the merger.

 

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Holders of FleetBoston Series VII Preferred Stock Have Appraisal Rights (page 48)

 

FleetBoston is incorporated in Rhode Island. Under Rhode Island law, holders of FleetBoston common stock do not have any right to dissent from the merger or to a related court determination, in a proceeding known as an appraisal, of the fair value of their shares in connection with the merger. However, holders of FleetBoston Series VII Fixed/Adjustable Rate Cumulative Preferred Stock are entitled to appraisal rights in connection with the merger.

 

Information about the Companies (page 24)

 

Bank of America Corporation

 

Bank of America Corporation is a Delaware corporation, a bank holding company and a financial holding company under U.S. federal law. Through its banking and various nonbanking subsidiaries, Bank of America provides a diversified range of banking and nonbanking financial services and products, primarily throughout the Mid-Atlantic (Maryland, Virginia and the District of Columbia), the Midwest (Illinois, Iowa, Kansas and Missouri), the Southeast (Florida, Georgia, North Carolina, South Carolina and Tennessee), the Southwest (Arizona, Arkansas, New Mexico, Oklahoma and Texas), the Northwest (Oregon, Idaho and Washington) and the West (California and Nevada) regions of the United States and in selected international markets. As of September 30, 2003, Bank of America had total consolidated assets of approximately $737.1 billion, total consolidated deposits of approximately $408.5 billion and total consolidated stockholders’ equity of approximately $50.4 billion. The principal executive offices of Bank of America are located in the Bank of America Corporate Center, 100 N. Tryon Street, Charlotte, North Carolina 28255, and our telephone number is (704) 386-8486.

 

FleetBoston Financial Corporation

 

FleetBoston Financial Corporation is a Rhode Island corporation and a diversified financial services company offering a comprehensive array of financial solutions to its customers. FleetBoston’s three major domestic business lines are Personal Financial Services, Regional Commercial Financial Services and Investment Management, and National Commercial Financial Services. FleetBoston’s other lines of business are International Banking and Capital Markets. As of September 30, 2003, FleetBoston had total consolidated assets of approximately $196.4 billion, total consolidated deposits of approximately $132.5 billion and total consolidated stockholders’ equity of approximately $17.6 billion. The principal executive offices of FleetBoston are located at 100 Federal Street, Boston, Massachusetts 02110, and our telephone number is (617) 434-2200.

 

Conditions That Must Be Satisfied or Waived for the Merger to Occur (page 62)

 

Currently, we expect to complete the merger in the first half of 2004. However, as more fully described in this document and in the merger agreement, the completion of the merger depends on a number of conditions being satisfied or, where legally permissible, waived. These conditions include, among others, approval by the stockholders of each company, the receipt of all required regulatory approvals, such as approval by the Board of Governors of the Federal Reserve System, and the receipt of legal opinions by each company regarding the tax treatment of the merger.

 

We cannot be certain when, or if, the conditions to the merger will be satisfied or waived, or that the merger will be completed.

 

Termination of the Merger Agreement (page 62)

 

We may agree to terminate the merger agreement before completing the merger, even after stockholder approval, as long as the termination is approved by each of our boards of directors.

 

 

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In addition, either of us may decide to terminate the merger agreement, even after stockholder approval, if certain conditions have not been met, such as obtaining the necessary regulatory approvals or the other company’s material breach of a representation, warranty or covenant. Either of us may terminate the merger agreement if the merger has not been completed by October 27, 2004, unless the reason the merger has not been completed by that date is a breach of the merger agreement by the company seeking to terminate the merger agreement. If either of us fails to obtain stockholder approval of the merger, we may not terminate the merger agreement before October 27, 2004 as long as both of us continue to make specified efforts to restructure the transaction for the purpose of presenting it to the stockholders again for approval.

 

Board of Directors and Management of Bank of America following Completion of the Merger (page 45)

 

After the merger, the board of directors of the combined company will have a total of nineteen members, twelve of whom will be individuals who are currently Bank of America directors and seven of whom will be individuals who are currently FleetBoston directors or officers. Charles K. Gifford will be the Chairman of the Board of the combined company. Kenneth D. Lewis will be the Chief Executive Officer, Eugene M. McQuade will be the President and James H. Hance, Jr. will be the Vice Chairman and Chief Financial Officer.

 

Following completion of the merger, executive officers of the combined company will comprise an  eleven-member Risk and Capital Committee, chaired by the Chief Executive Officer, which will be composed of  seven current Bank of America executives and four current FleetBoston executives.

 

The Rights of FleetBoston Stockholders will be Governed by Delaware Law and by New Governing Documents after the Merger (page 75)

 

The rights of FleetBoston stockholders will change as a result of the merger due to differences in Bank of America’s and FleetBoston’s governing documents and due to the fact that the companies are incorporated in different states (FleetBoston in Rhode Island and Bank of America in Delaware). Bank of America’s stockholders’ rights will not change as a result of the merger. This document contains descriptions of stockholder rights under each of the Bank of America and FleetBoston governing documents and applicable state law, and describes the material differences between them.

 

FleetBoston Granted a Stock Option to Bank of America (page 64)

 

To induce Bank of America to enter into the merger agreement, FleetBoston granted Bank of America an option to purchase up to 209,496,275 shares of FleetBoston common stock at a price per share of $31.80; however, in no case may Bank of America acquire more than 19.9% of the outstanding shares of FleetBoston common stock under this stock option agreement. Bank of America cannot exercise the option unless the merger is not completed and specified triggering events occur. These events generally relate to business combinations or acquisition transactions involving FleetBoston and a third party. We do not know of any event that has occurred as of the date of this document that would allow Bank of America to exercise the option.

 

The option could have the effect of discouraging a company from trying to acquire FleetBoston prior to completion of the merger or termination of the merger agreement. Upon the occurrence of certain triggering events, FleetBoston may be required to repurchase the option and any shares of FleetBoston common stock purchased under the option at a predetermined price, or Bank of America may choose to surrender the option to FleetBoston for a cash payment of $1.8948 billion. In no event will the total profit received by Bank of America with respect to this option exceed $2.3685 billion.

 

The FleetBoston stock option agreement is attached to this document as Appendix B.

 

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Bank of America Granted a Stock Option to FleetBoston (page 64)

 

To induce FleetBoston to enter into the merger agreement, Bank of America granted FleetBoston an option to purchase up to 297,374,945 shares of Bank of America common stock at a price per share of $81.86; however, in no case may FleetBoston acquire more than 19.9% of the outstanding shares of Bank of America common stock under this stock option agreement. FleetBoston cannot exercise the option unless the merger is not completed and specified triggering events occur. These events generally relate to business combinations or acquisition transactions involving Bank of America and a third party. We do not know of any event that has occurred as of the date of this document that would allow FleetBoston to exercise the option.

 

The option could have the effect of discouraging a company from trying to acquire Bank of America prior to completion of the merger or termination of the merger agreement. Upon the occurrence of certain triggering events, Bank of America may be required to repurchase the option and any shares of Bank of America common stock purchased under the option at a predetermined price, or FleetBoston may choose to surrender the option to Bank of America for a cash payment of $1.8948 billion. In no event will the total profit received by FleetBoston with respect to the option exceed $2.3685 billion.

 

The Bank of America stock option agreement is attached to this document as Appendix C.

 

Regulatory Approvals Required for the Merger (page 51)

 

We have agreed to use our reasonable best efforts to obtain all regulatory approvals required to complete the transactions contemplated by the merger agreement. These approvals include approval from the Federal Reserve Board and various federal, state and foreign regulatory authorities. Bank of America and FleetBoston have completed, or will complete, the filing of applications and notifications to obtain the required regulatory approvals.

 

Although we do not know of any reason why we cannot obtain these regulatory approvals in a timely manner, we cannot be certain when or if we will obtain them.

 

Bank of America will Hold its Special Meeting on [            ], 2004 (page 17)

 

The Bank of America special meeting will be held on [            ], 2004, at 10:00 a.m., local time, at [            ]. At the Bank of America special meeting, Bank of America stockholders will be asked to:

 

  adopt the merger agreement;

 

  adopt Bank of America’s Amended Stock Plan;

 

  approve the proposal to increase the number of authorized shares of Bank of America common stock from 5 billion to 7.5 billion; and

 

  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.

 

Record Date. Only holders of record at the close of business on [            ], 2004 will be entitled to vote at the Bank of America special meeting. Holders of Bank of America common stock, Series B Preferred Stock and ESOP Preferred Stock vote together without regard to class. 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. As of the record date of [            ], 2004, there were [            ] shares of Bank of America common stock, [            ] shares of Series B Preferred Stock, and [            ] shares of ESOP Preferred Stock entitled to vote at the Bank of America special meeting.

 

 

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Required Vote. Adoption of the merger agreement and 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, voting together without regard to class. Because the required vote is based on the affirmative vote of a majority of votes outstanding, your failure to vote, including a broker non-vote or an abstention, will have the same effect as a vote against the merger and the proposal to increase the number of authorized shares of Bank of America common stock. Each of the proposals is independent, and is not contingent on approval by stockholders, of the other proposals.

 

Adoption of Bank of America’s Amended Stock Plan requires the affirmative vote of a majority of the votes cast at the special meeting by the holders of Bank of America common stock, Series B Preferred Stock and ESOP Preferred Stock, voting together without regard to class. Because the required vote is based on the affirmative vote of the majority of votes cast, your failure to vote, including a broker non-vote or an abstention, will not be treated as a vote cast and, therefore, will have no effect on the proposal to approve Bank of America’s Amended Stock Plan.

 

If you abstain from voting or fail to instruct your broker to vote your shares and the broker submits an unvoted proxy, the resulting abstention or “broker non-vote” will be counted toward a quorum at the special meeting.

 

As of the Bank of America record date, directors and executive officers of Bank of America and their affiliates had the right to vote [            ] shares of Bank of America common stock, or [            ]% of the outstanding Bank of America common stock entitled to be voted at the Bank of America special meeting; [            ] shares of Series B Preferred Stock, or [            ]% of the outstanding Series B Preferred Stock; and [            ] shares of ESOP Preferred Stock, or [            ]% of the outstanding shares of ESOP Preferred Stock. At that date, directors and executive officers of FleetBoston and their affiliates, including FleetBoston, had the right to vote [            ] shares of Bank of America common stock entitled to be voted at the Bank of America special meeting, or [            ]% of the outstanding Bank of America common stock; [            ] shares of Series B Preferred Stock, or [            ]% of the outstanding Series B Preferred Stock; and [            ] shares of ESOP Preferred Stock, or [            ]% of the outstanding shares of ESOP Preferred Stock.

 

FleetBoston will Hold its Special Meeting on [            ], 2004 (page 21)

 

The FleetBoston special meeting will be held on [            ], 2004, at 10:00 a.m., local time, at [            ]. At the FleetBoston special meeting, FleetBoston stockholders will be asked to:

 

  approve the merger agreement; and

 

  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 merger agreement.

 

Record Date. Only common stockholders of record at the close of business on [            ], 2004 will be entitled to vote at the FleetBoston special meeting. Each share of FleetBoston common stock is entitled to one vote. As of the record date of [            ], 2004, there were [            ] shares of FleetBoston common stock entitled to vote at the FleetBoston special meeting.

 

Required Vote. To approve the merger agreement, the holders of a majority of the outstanding shares of FleetBoston common stock entitled to vote must vote in favor of approving the merger agreement. Because approval is based on the affirmative vote of a majority of shares outstanding, a FleetBoston stockholder’s failure to vote, a broker non-vote or an abstention will have the same effect as a vote against the merger.

 

As of the FleetBoston record date, directors and executive officers of FleetBoston and their affiliates had the right to vote [            ] shares of FleetBoston common stock, or [    ]% of the outstanding FleetBoston common stock entitled to be voted at the FleetBoston special meeting. At that date, directors and executive officers of

 

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Bank of America and their affiliates, including Bank of America, had the right to vote [            ] shares of FleetBoston common stock entitled to be voted at the FleetBoston special meeting, or [    ]% of the outstanding FleetBoston common stock.

 

Comparative Market Prices and Dividends

 

Bank of America common stock and FleetBoston common stock are listed on the NYSE, among other stock exchanges. The following table sets forth the high and low closing prices of shares of Bank of America common stock and FleetBoston common stock as reported on the NYSE, and the quarterly cash dividends paid per share in the periods indicated.

 

    

Bank of America

Common Stock


  

FleetBoston

Common Stock


     High

   Low

   Dividend

   High

   Low

   Dividend

2001

                                         

First Quarter

   $ 55.47    $ 46.75    $ 0.56    $ 43.64    $ 34.39    $ 0.33

Second Quarter

     61.94      49.59      0.56      42.28      36.06      0.33

Third Quarter

     65.00      51.00      0.56      39.73      32.65      0.33

Fourth Quarter

     64.99      52.15      0.60      38.64      31.45      0.33

2002

                                         

First Quarter

     69.18      58.85      0.60      37.21      31.10      0.35

Second Quarter

     76.90      67.45      0.60      36.60      30.70      0.35

Third Quarter

     71.94      57.90      0.60      31.75      18.75      0.35

Fourth Quarter

     71.42      54.15      0.64      27.49      17.75      0.35

2003

                                         

First Quarter

     72.48      65.63      0.64      27.64      21.98      0.35

Second Quarter

     79.89      68.00      0.64      31.15      24.55      0.35

Third Quarter

     83.53      74.87      0.80      31.54      29.35      0.35

Through [            ], 2003

                                         

 

Bank of America stockholders and FleetBoston stockholders are advised to obtain current market quotations for Bank of America common stock and FleetBoston common stock. The market price of Bank of America common stock and FleetBoston common stock will fluctuate between the date of this joint proxy statement/prospectus and the completion of the merger. No assurance can be given concerning the market price of Bank of America common stock or FleetBoston common stock before or after completion of the merger.

 

 

10


Table of Contents

 SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA OF BANK OF AMERICA

 

Set forth below are highlights from Bank of America’s consolidated financial data as of and for the years ended December 31, 2002 through 1998 and Bank of America’s unaudited consolidated financial data as of and for the nine months ended September 30, 2003 and 2002. The results of operations for the nine months ended September 30, 2003 are not necessarily indicative of the results of operations for the full year or any other interim period. Bank of America management prepared the unaudited information on the same basis as it prepared Bank of America’s audited consolidated financial statements. In the opinion of Bank of America management, this information reflects all adjustments, consisting of only normal recurring adjustments, necessary for a fair presentation of this data for those dates. You should read this information in conjunction with Bank of America’s consolidated financial statements and related notes included in Bank of America’s Annual Report on Form 10-K for the year ended December 31, 2002, and Bank of America’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2003, which are incorporated by reference in this document and from which this information is derived. See “Where You Can Find More Information” on page 103.

 

Bank of America — Summary of Selected Financial Data(1)

 

     Years Ended December 31,

    Nine Months Ended
September 30,


 

(Dollars in millions, except

        per share information)

   2002

    2001

    2000

    1999

    1998

    2003

    2002

 

Income statement

                                                        

Net interest income

   $ 20,923     $ 20,290     $ 18,349     $ 18,127     $ 18,298     $ 15,878     $ 15,549  

Noninterest income

     13,571       14,348       14,582       14,179       12,189       12,379       10,141  

Total revenue

     34,494       34,638       32,931       32,306       30,487       28,257       25,690  

Provision for credit losses

     3,697       4,287       2,535       1,820       2,920       2,256       2,532  

Gains on sales of securities

     630       475       25       240       1,017       802       326  

Noninterest expense

     18,436       20,709       18,633       18,511       20,536       14,845       13,604  

Income before income taxes

     12,991       10,117       11,788       12,215       8,048       11,958       9,880  

Income tax expense

     3,742       3,325       4,271       4,333       2,883       3,874       3,245  

Net income

     9,249       6,792       7,517       7,882       5,165       8,084       6,635  

Average common shares issued and outstanding (in thousands)

     1,520,042       1,594,957       1,646,398       1,726,006       1,732,057       1,494,369       1,526,946  

Average diluted common shares issued and outstanding (in thousands)

     1,565,467       1,625,654       1,664,929       1,760,058       1,775,760       1,523,523       1,573,203  
    


 


 


 


 


 


 


Performance ratios

                                                        

Return on average assets

     1.40 %     1.05 %     1.12 %     1.28 %     0.88 %     1.43 %     1.36 %

Return on average common shareholders’ equity

     19.44       13.96       15.96       16.93       11.56       21.85       18.71  

Total equity to total assets (period end)

     7.62       7.80       7.42       7.02       7.44       6.84       7.31  

Total average equity to total average assets

     7.19       7.49       7.02       7.55       7.67       6.53       7.29  

Dividend payout ratio

     40.07       53.44       45.02       40.54       50.18       38.53       41.37  
    


 


 


 


 


 


 


Per common share data

                                                        

Earnings

   $ 6.08     $ 4.26     $ 4.56     $ 4.56     $ 2.97     $ 5.41     $ 4.34  

Diluted earnings

     5.91       4.18       4.52       4.48       2.90       5.31       4.22  

Cash dividends paid

     2.44       2.28       2.06       1.85       1.59       2.08       1.80  

Book value

     33.49       31.07       29.47       26.44       26.60       33.83       32.07  
    


 


 


 


 


 


 


Average balance sheet

                                                        

Total loans and leases

   $ 336,819     $ 365,447     $ 392,622     $ 362,783     $ 347,840     $ 351,119     $ 334,703  

Total assets

     662,401       649,547       671,573       616,838       584,487       758,140       651,257  

Total deposits

     371,479       362,653       353,294       341,748       345,485       401,985       368,142  

Long-term debt (2)

     66,045       69,622       70,293       57,574       49,969       67,702       66,161  

Common shareholders’ equity

     47,552       48,609       47,057       46,527       44,467       49,455       47,396  

Total shareholders’ equity

     47,613       48,678       47,132       46,601       44,829       49,512       47,457  
    


 


 


 


 


 


 


Capital ratios

                                                        

Risk-based capital:

                                                        

Tier 1

     8.22 %     8.30 %     7.50 %     7.35 %     7.06 %     8.25 %     8.13 %

Total

     12.43       12.67       11.04       10.88       10.94       12.17       12.38  

Leverage

     6.29       6.56       6.12       6.26       6.22       5.96       6.35  
    


 


 


 


 


 


 


Market price per share of common stock

                                                        

Closing

   $ 69.57     $ 62.95     $ 45.88     $ 50.19     $ 60.13     $ 78.04     $ 63.80  

High closing

     76.90       65.00       59.25       75.50       87.94       83.53       76.90  

Low closing

     54.15       46.75       38.00       48.00       48.06       65.63       57.90  
    


 


 


 


 


 


 



(1) As a result of the adoption of SFAS 142 on January 1, 2002, Bank of America no longer amortizes goodwill. Goodwill amortization expense was $662, $635, $635 and $633 in 2001, 2000, 1999 and 1998, respectively.
(2) Includes long-term debt related to trust preferred securities.

 

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 SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA OF FLEETBOSTON

 

Set forth below are highlights from FleetBoston’s consolidated financial data as of and for the years ended December 31, 2002 through 1998 and FleetBoston’s unaudited consolidated financial data as of and for the nine months ended September 30, 2003 and 2002. Discontinued operations reported in FleetBoston’s historical consolidated statements of income have been excluded. The results of operations for the nine months ended September 30, 2003 are not necessarily indicative of the results of operations for the full year or any other interim period. The unaudited information was prepared on the same basis as FleetBoston’s audited consolidated financial statements. In the opinion of FleetBoston management, this information reflects all adjustments, consisting of only normal recurring adjustments, necessary for a fair presentation of this data for those dates. You should read this information in conjunction with FleetBoston’s consolidated financial statements and related notes included in FleetBoston’s Annual Report on Form 10-K for the year ended December 31, 2002, and FleetBoston’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2003, which are incorporated by reference in this document and from which this information is derived. See “Where You Can Find More Information” on page 103.

 

FleetBoston — Summary of Selected Financial Data(1)

 

     Years Ended December 31,

    Nine Months Ended
September 30,


 

(Dollars in millions, except

        per share information)

   2002

    2001

    2000

    1999

    1998

    2003

    2002

 

Income statement

                                                        

Net interest income

   $ 6,420     $ 7,287     $ 7,756     $ 7,973     $ 7,555     $ 4,736     $ 4,869  

Noninterest income

     5,036       4,555       7,559       6,091       5,303       3,698       3,725  

Total revenue

     11,456       11,842       15,315       14,064       12,858       8,434       8,594  

Provision for credit losses

     2,760       2,324       1,290       1,056       907       830       2,010  

Noninterest expense

     6,404       7,977       8,100       9,089       7,454       4,778       4,738  

Income from continuing operations before income taxes

     2,292       1,541       5,925       3,919       4,498       2,826       1,846  

Income tax expense

     768       573       2,353       1,538       1,693       1,003       619  

Income from continuing operations

     1,524       968       3,572       2,381       2,805       1,823       1,227  

Average common shares issued and outstanding (in thousands)

     1,045,336       1,074,204       1,081,377       1,095,740       1,094,700       1,047,454       1,045,092  

Average diluted common shares issued and outstanding (in thousands)

     1,048,734       1,083,676       1,098,740       1,121,488       1,119,721       1,050,655       1,049,208  
    


 


 


 


 


 


 


Performance ratios

                                                        

Return on average assets(2)

     0.82 %     0.48 %     1.66 %     1.12 %     1.41 %     1.26 %     0.88 %

Return on average common shareholders’ equity

     8.84       4.96       20.12       13.88       17.73       14.23       9.44  

Total equity to total assets (period end)

     8.84       8.64       8.84       7.97       8.01       8.96       9.01  

Total average equity to total average assets

     9.12       9.25       8.10       7.83       8.12       8.88       9.15  

Dividend payout ratio

     125.00       159.52       34.36       50.23       40.32       59.32       120.69  
    


 


 


 


 


 


 


Per common share data

                                                        

Earnings from continuing operations

   $ 1.44     $ 0.88     $ 3.27     $ 2.12     $ 2.51     $ 1.73     $ 1.16  

Diluted earnings from continuing operations

     1.44       0.87       3.22       2.07       2.45       1.72       1.16  

Cash dividends paid

     1.40       1.32       1.20       1.08       0.98       1.05       1.05  

Book value

     15.78       16.61       17.31       15.92       14.78       16.46       15.84  
    


 


 


 


 


 


 


Average balance sheet

                                                        

Total loans and leases

   $ 119,932     $ 128,792     $ 138,609     $ 138,571     $ 130,098     $ 123,283     $ 120,320  

Total assets

     189,866       208,931       223,238       223,238       201,042       194,506       190,887  

Total deposits

     120,488       124,489       130,381       138,152       134,146       128,724       120,157  

Long-term debt

     22,658       27,945       31,191       26,198       12,957       18,827       23,306  

Common shareholders’ equity

     17,046       18,949       17,562       16,788       15,480       16,995       17,186  

Total shareholders’ equity

     17,316       19,330       18,134       17,479       16,319       17,266       17,457  
    


 


 


 


 


 


 


Capital ratios

                                                        

Risk-based capital:

                                                        

Tier 1

     8.24 %     7.37 %     8.08 %     7.15 %     7.56 %     8.64 %     8.24 %

Total

     11.72       10.95       11.87       11.44       11.65       11.79       11.77  

Leverage

     8.27       7.50       8.01       6.85       7.30       8.38       8.34  
    


 


 


 


 


 


 


Market price per share of common stock

                                                        

Closing

   $ 24.30     $ 36.50     $ 37.56     $ 34.81     $ 44.69     $ 30.15     $ 20.33  

High closing

     37.21       43.64       43.00       46.75       45.00       31.54       37.21  

Low closing

     17.75       31.45       25.25       33.81       31.69       21.98       18.75  
    


 


 


 


 


 


 



(1) As a result of the adoption of SFAS 142 on January 1, 2002, FleetBoston no longer amortizes goodwill. Goodwill amortization expense was $301, $292, $269 and $209 in 2001, 2000, 1999 and 1998, respectively.
(2) Net income from continuing operations divided by total average assets less average assets of discontinued operations.

 

12


Table of Contents

 SELECTED CONSOLIDATED UNAUDITED PRO FORMA FINANCIAL INFORMATION

 

The following table shows information about our financial condition and results of operations, including per share data and financial ratios, after giving effect to the merger. This information is called pro forma financial information in this document. The table sets forth the information as if the merger had become effective on September 30, 2003, with respect to financial condition data, and on January 1, 2002, with respect to results of operations data. This pro forma financial information assumes that the merger is accounted for using the purchase method of accounting and represents a current estimate based on available information of the combined company’s results of operations. See “Accounting Treatment” on page 67. The pro forma financial information includes adjustments to record the assets and liabilities of FleetBoston at their estimated fair values and is subject to further adjustment as additional information becomes available and as additional analyses are performed. The unaudited pro forma condensed combined balance sheet includes an anticipated $1.27 billion, $800 million after-tax, charge for restructuring the existing Bank of America operations and merger-related charges to be recorded in conjunction with the merger. Estimates related to restructuring and merger-related charges are subject to adjustment based on final decisions related to combining the two companies. The unaudited pro forma condensed combined financial information does not reflect any asset impairments or accrued liabilities resulting from the restructuring of FleetBoston’s current operations, as we are currently in the process of assessing these activities. When these amounts, if any, are determined, they will be included as purchase accounting adjustments and will be reflected in goodwill in conformity with accounting principles generally accepted in the United States of America (GAAP). See the Notes to the Unaudited Pro Forma Condensed Combined Financial Information for a further discussion of the treatment of restructuring charges. This table should be read in conjunction with, and is qualified in its entirety by, the historical financial statements, including the notes thereto, of Bank of America and FleetBoston incorporated by reference in this document and the more detailed pro forma financial information, including the notes thereto, appearing elsewhere in this document. See “Where You Can Find More Information” on page 103 and “Unaudited Pro Forma Condensed Combined Financial Information” on page 95.

 

The pro forma financial information, while helpful in illustrating the financial characteristics of the combined company under one set of assumptions, does not reflect the impact of possible revenue enhancements, expense efficiencies, asset dispositions and share repurchases, among other factors, that may result as a consequence of the merger and, accordingly, does not attempt to predict or suggest future results. It also does not necessarily reflect what the historical results of the combined company would have been had our companies been combined during these periods.

 

13


Table of Contents

SELECTED CONSOLIDATED UNAUDITED PRO FORMA FINANCIAL INFORMATION

 

     Twelve Months Ended
December 31, 2002


    Nine Months Ended
September 30, 2003


 
(Dollars in millions, except per share information)       

Income statement

                

Net interest income

   $ 27,573     $ 20,751  

Noninterest income

     18,601       15,973  

Total revenue

     46,174       36,724  

Provision for credit losses

     6,457       3,086  

Gains on sales of securities

     636       906  

Noninterest expense

     25,347       19,961  

Income from continuing operations before income taxes

     15,006       14,583  

Income tax expense

     4,408       4,803  

Income from continuing operations

     10,598       9,780  

Average common shares issued and outstanding (in thousands)

     2,100,497       2,076,046  

Average diluted common shares issued and outstanding
(in thousands)

     2,147,810       2,106,977  

Performance ratios(1)

                

Return on average assets

     n/m       1.33 %

Return on average common shareholders’ equity

     n/m       13.83  

Total equity to total assets (period end)

     n/m       9.95  

Total average equity to total average assets

     n/m       9.63  

Dividend payout ratio

     48.51 %     44.26  

Per common share data(1)

                

Earnings

   $ 5.03     $ 4.70  

Diluted earnings

     4.93       4.64  

Cash dividends paid

     2.44       2.08  

Book value

     n/m       46.11  

Average balance sheet(1)

                

Total loans and leases

     n/m     $ 474,402  

Total assets

     n/m       983,384  

Total deposits

     n/m       531,004  

Long-term debt(2)

     n/m       87,606  

Common shareholders’ equity

     n/m       94,374  

Total shareholders’ equity

     n/m       94,702  

Capital Ratios(1)

                

Risk-based capital:

                

Tier 1

     n/m       7.75 %

Total

     n/m       11.51  

Leverage

     n/m       5.97  

(1) Average balance sheet amounts and capital and other ratios as of December 31, 2002 are not meaningful (n/m) as purchase accounting adjustments were calculated as of September 30, 2003.
(2) Includes long-term debt related to trust preferred securities.

 

14


Table of Contents

 COMPARATIVE PER SHARE DATA

 

The following table sets forth for Bank of America common stock and FleetBoston common stock certain historical, pro forma and pro forma-equivalent per share financial information. The pro forma and pro forma-equivalent per share information gives effect to the merger as if the merger had been effective on the dates presented, in the case of the book value data, and as if the merger had become effective on January 1, 2002, in the case of the income from continuing operations and dividends paid data. The pro forma data in the tables assume that the merger is accounted for using the purchase method of accounting and represents a current estimate based on available information of the combined company’s results of operations. See “Accounting Treatment” on page 67. The pro forma financial adjustments record the assets and liabilities of FleetBoston at their estimated fair values and are subject to adjustment as additional information becomes available and as additional analyses are performed. The information in the following table is based on, and should be read together with, the historical financial information that we have presented in our prior filings with the Securities and Exchange Commission and the pro forma financial information that appears elsewhere in this document. See “Where You Can Find More Information” on page 103 and “Unaudited Pro Forma Condensed Combined Financial Information” on page 95.

 

The pro forma information, while helpful in illustrating the financial characteristics of the combined company under one set of assumptions, does not reflect the impact of possible revenue enhancements, expense efficiencies, asset dispositions and share repurchases, among other factors, that may result as a consequence of the merger and, accordingly, does not attempt to predict or suggest future results. It also does not necessarily reflect what the historical results of the combined company would have been had our companies been combined during these periods. Upon completion of the merger, the operating results of FleetBoston will be reflected in the consolidated financial statements of Bank of America on a prospective basis.

 

     Comparative Per Share Data

     Bank of
America
Historical


   FleetBoston
Historical


   Pro
Forma
Combined


   Per
Equivalent
FleetBoston
Share(1)


Income from continuing operations for
the twelve months ended December 31,
2002

                           

Basic

   $ 6.08    $ 1.44    $ 5.03    $ 2.79

Diluted

     5.91      1.44      4.93      2.74

Income from continuing operations for
the nine months ended September 30,
2003

                           

Basic

     5.41      1.73      4.70      2.61

Diluted

     5.31      1.72      4.64      2.58

Cash Dividends Paid

                           

For the twelve months ended December 31, 2002

     2.44      1.40      2.44      1.35

For the nine months ended September 30, 2003

     2.08      1.05      2.08      1.16

Book Value(2)

                           

As of December 31, 2002

     33.49      15.78      n/m      n/m

As of September 30, 2003

     33.83      16.46      46.11      25.60

(1) Reflects FleetBoston shares at the exchange ratio after giving effect to the pro forma adjustments. See “Unaudited Pro Forma Condensed Combined Financial Information” on page 95.
(2) Book value as of December 31, 2002 is not meaningful (n/m) as purchase accounting adjustments were calculated as of September 30, 2003.

 

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Table of Contents

 CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

 

This document contains or incorporates by reference a number of forward-looking statements regarding the financial condition, results of operations, earnings outlook, business and prospects of Bank of America, FleetBoston and the potential combined company and may include statements for the period following the completion of the merger. You can find many of these statements by looking for words such as “plan,” “believe,” “expect,” “intend,” “anticipate,” “estimate,” “project,” “potential,” “possible” or other similar expressions.

 

The forward-looking statements involve certain risks and uncertainties. The ability of either Bank of America or FleetBoston to predict results or the actual effects of its plans and strategies, or those of the combined company, is inherently uncertain. Accordingly, actual results may differ materially from anticipated results. Some of the factors that may cause actual results or earnings to differ materially from those contemplated by the forward-looking statements include, but are not limited to, the following:

 

  projected business increases following process changes and other investments are lower than expected;

 

  competitive pressure among financial services companies increases significantly;

 

  general economic conditions are less favorable than expected;

 

  political conditions and related actions by the United States military abroad may adversely affect either company’s businesses and economic conditions as a whole;

 

  changes in the interest rate environment reduce interest margins and impact funding sources;

 

  changes in foreign exchange rates increase risk to foreign currency exposure;

 

  changes in market rates and prices may adversely impact the value of financial products and assets;

 

  legislation or regulatory environments, requirements or changes adversely affect businesses in which either company is engaged;

 

  litigation liabilities, including costs, expenses, settlements and judgments, may adversely affect either company or its businesses;

 

  completion of the merger is dependent on, among other things, receipt of shareholder and regulatory approvals, the timing of which cannot be predicted with precision and which may not be received at all;

 

  the merger may be more expensive to complete than anticipated, including as a result of unexpected factors or events;

 

  the integration of FleetBoston’s business and operations with those of Bank of America, including systems conversions, may take longer than anticipated, may be more costly than anticipated and may have unanticipated adverse results relating to FleetBoston’s or Bank of America’s existing businesses;

 

  the anticipated cost savings of the merger may take longer to be realized or may not be achieved in their entirety; and

 

  decisions to downsize, sell or close units or otherwise change the business mix of either company.

 

Because these forward-looking statements are subject to assumptions and uncertainties, actual results may differ materially from those expressed or implied by these forward-looking statements. Bank of America stockholders and FleetBoston stockholders are cautioned not to place undue reliance on these statements, which speak only as of the date of this document or the date of any document incorporated by reference in this document.

 

All subsequent written and oral forward-looking statements concerning the merger or other matters addressed in this document and attributable to Bank of America or FleetBoston or any person acting on their behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section. Except to the extent required by applicable law or regulation, Bank of America and FleetBoston undertake no obligation to update these forward-looking statements to reflect events or circumstances after the date of this document or to reflect the occurrence of unanticipated events.

 

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 THE BANK OF AMERICA SPECIAL MEETING

 

This section contains information from Bank of America for Bank of America stockholders about the special meeting of Bank of America stockholders that has been called to consider and adopt the merger agreement.

 

Together with this document, we are also sending you a notice of the Bank of America special meeting and a form of proxy that is solicited by the Bank of America board of directors. The Bank of America special meeting will be held on [        ], 2004, at 10:00 a.m., local time, at [        ].

 

 Matters to Be Considered

 

The purpose of the Bank of America special meeting is to vote upon the following matters:

 

  a proposal to adopt the merger agreement;

 

  a proposal to adopt Bank of America’s Amended Stock Plan;

 

  a proposal to adopt an amendment to increase the number of authorized shares of Bank of America common stock from 5 billion to 7.5 billion;

 

You also will be asked to vote on a proposal to approve the adjournment of the Bank of America 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.

 

 Proxies

 

Each copy of this document mailed to Bank of America stockholders is accompanied by a form of proxy with instructions for voting by mail, by telephone or through the Internet. If voting by mail, you should complete and return the proxy card accompanying this document in order to ensure that your vote is counted at the Bank of America special meeting, or at any adjournment or postponement of the Bank of America special meeting, regardless of whether you plan to attend the Bank of America special meeting. You may also vote your shares by telephone or through the Internet. Information and applicable deadlines for voting by telephone or through the Internet are set forth in the enclosed proxy card instructions.

 

You may revoke your signed proxy card at any time before it is voted by signing and returning a proxy card with a later date, delivering a written revocation letter to Bank of America’s Corporate Secretary, or by attending the Bank of America special meeting in person, notifying the Corporate Secretary, and voting by ballot at the Bank of America special meeting. If you have voted your shares by telephone or through the Internet, you may revoke your prior telephone or Internet vote by recording a different vote, or by signing and returning a proxy card dated as of a date that is later than your last telephone or Internet vote.

 

Any stockholder entitled to vote in person at the Bank of America special meeting may vote in person whether or not a proxy has been previously given, but the mere presence (without notifying the Corporate Secretary) of a stockholder at the Bank of America special meeting will not constitute revocation of a previously given proxy.

 

Written notices of revocation and other communications regarding the revocation of your proxy should be addressed to:

 

Bank of America Corporation

NC1-007-56-11

100 North Tryon Street

Charlotte, North Carolina 28255

Attention: Rachel R. Cummings

Corporate Secretary

 

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If your shares are held in street name by a bank, broker or other nominee, you should follow the instructions of your bank, broker or other nominee regarding the revocation of proxies.

 

All shares represented by valid proxies that we receive through this solicitation, and that are not revoked, will be voted in accordance with the instructions on the proxy card. If you make no specification on your proxy card as to how you want your shares voted before signing and returning it, your proxy will be voted “FOR” adoption of the merger agreement, adoption of Bank of America’s Amended Stock Plan, approval of the proposal to increase the number of authorized shares of Bank of America common stock and approval of the proposal to adjourn 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. According to the Bank of America bylaws, business to be conducted at a special meeting of stockholders may only be brought before the meeting pursuant to Bank of America’s notice of meeting. Accordingly, no matters other than the matters described in this joint proxy statement/prospectus will be presented for action at the Bank of America special meeting or at any adjournment or postponement of the Bank of America special meeting.

 

Bank of America stockholders should NOT send Bank of America stock certificates with their proxy cards. If the merger is completed, Bank of America stockholders will not need to exchange their current Bank of America stock certificates.

 

 Solicitation of Proxies

 

We will bear the entire cost of soliciting proxies from you. In addition to solicitation of proxies by mail, we will request that banks, brokers and other nominees send proxies and proxy material to the beneficial owners of Bank of America common stock and secure their voting instructions, if necessary. We will reimburse the banks, brokers and other nominees for their reasonable expenses in taking those actions. We also have made arrangements with Georgeson Shareholder Communications, Inc. to assist us in soliciting proxies and have agreed to pay them $20,000 plus reasonable expenses for these services. If necessary, we also may use several of our regular employees, who will not be specially compensated, to solicit proxies from Bank of America stockholders, either personally or by telephone, facsimile, letter or other electronic means.

 

 Householding

 

Unless it has received contrary instructions, Bank of America may send a single copy of this joint proxy statement/prospectus to any household at which two or more Bank of America stockholders reside if Bank of America believes the stockholders are members of the same family. Each stockholder in the household will continue to receive a separate proxy card. This process, known as “householding,” reduces the volume of duplicate information received at your household and helps to reduce Bank of America’s expenses.

 

If you would like to receive your own joint proxy statement/prospectus, follow the instructions described below. Similarly, if you share an address with another stockholder and together both of you would like to receive only a single joint proxy statement/prospectus, follow these instructions:

 

If your shares are registered in your own name, please contact our transfer agent, Mellon Investor Services, and inform them of your request by calling them at (800) 642-9855 or writing to them at P.O. Box 3315, South Hackensack, New Jersey 07606-1915.

 

If a bank, broker or other nominee holds your shares, please contact your bank, broker or other nominee directly.

 

 Record Date

 

The Bank of America board of directors has fixed the close of business on [            ], 2004 as the record date for determining the Bank of America stockholders entitled to receive notice of and to vote at the Bank of America

 

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special meeting. At that time, [            ] shares of Bank of America common stock, [            ] shares of Series B Preferred Stock and [            ] shares of ESOP Preferred Stock were outstanding.

 

 Voting Rights and Vote Required

 

The presence, in person or by properly executed proxy, of the holders of a majority of the votes represented by the aggregate of all of the outstanding shares of Bank of America common stock, Series B Preferred Stock and ESOP Preferred Stock is necessary to constitute a quorum at the Bank of America special meeting. You are entitled to one vote for each share of Bank of America common stock and Series B Preferred Stock you held as of the record date, and two votes for each share of ESOP Preferred Stock you held as of the record date. Abstentions and broker non-votes will be counted solely for the purpose of determining whether a quorum is present. When we refer to broker non-votes, we are referring to unvoted proxies submitted by brokers, who are not able to vote on a proposal absent instructions from the applicable beneficial owner.

 

Adoption of the merger agreement and 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, voting together without regard to class. Because the required vote is based on the affirmative vote of a majority of the votes outstanding, your failure to vote, a broker non-vote or an abstention will have the same effect as a vote against the merger and the proposal to increase the number of authorized shares of Bank of America common stock. Each of the proposals is independent, and is not contingent on approval by stockholders, of the other proposals.

 

Adoption of Bank of America’s 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. Because the required vote is based on the affirmative vote of a majority of the votes cast, your failure to vote, a broker non-vote or an abstention will not be treated as a vote cast and, therefore, will have no effect on the proposal to approve Bank of America’s Amended Stock Plan.

 

The Bank of America board of directors urges Bank of America stockholders to: complete, date and sign the accompanying proxy card and return it promptly in the enclosed postage-paid envelope if voting by mail; call the toll-free number listed in the proxy card instructions if voting by telephone; or access the Internet site listed in the proxy card instructions if voting through the Internet.

 

As of the record date:

 

  Directors and executive officers of Bank of America and their affiliates had the right to vote [            ] shares of Bank of America common stock, or [            ]% of the Bank of America common stock outstanding on that date; [            ] shares of Series B Preferred Stock, or [            ]% of the outstanding Series B Preferred Stock; and [            ] shares of ESOP Preferred Stock, or [            ]% of the outstanding shares of ESOP Preferred Stock.

 

  Directors and executive officers of FleetBoston and their affiliates, including FleetBoston (excluding the shares subject to the Bank of America stock option described in “The Stock Option Agreements” on page 64), had the right to vote [            ] shares of Bank of America common stock, or [            ]% of the Bank of America common stock outstanding on that date; [            ] shares of Series B Preferred Stock, or [            ]% of the outstanding Series B Preferred Stock; and [            ] shares of ESOP Preferred Stock, or [            ]% of the outstanding shares of ESOP Preferred Stock.

 

 Recommendations of the Bank of America Board of Directors

 

The Bank of America board of directors has unanimously approved the merger agreement and the transactions it contemplates. The Bank of America board of directors determined that the merger agreement and

 

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the transactions it contemplates are advisable and in the best interests of Bank of America and its stockholders, and unanimously recommends that you vote “FOR” adoption of the merger agreement. See “The Merger — Bank of America’s Reasons for the Merger; Recommendation of the Merger by the Bank of America Board of Directors” on page 28 for a more detailed discussion of the Bank of America board of directors’ recommendation.

 

The Bank of America board of directors also has unanimously approved the proposals to increase the authorized number of shares of Bank of America common stock and adopt the Amended Stock Plan. The Bank of America board of directors determined that the proposals are advisable and in the best interests of Bank of America and its stockholders. The Bank of America board of directors unanimously recommends that you vote “FOR” the proposals to increase the authorized number of shares of Bank of America common stock and to adopt the Amended Stock Plan.

 

 Attending the Meeting

 

All Bank of America stockholders, including stockholders of record and stockholders who hold their shares through banks, brokers, nominees or any other holder of record, are invited to attend the Bank of America special meeting. Stockholders of record can vote in person at the special meeting. If you are not a stockholder of record, you must obtain a proxy, executed in your favor, from the record holder of your shares, such as a broker, bank or other nominee, to be able to vote in person at the special meeting. If you plan to attend the special meeting, you must hold your shares in your own name or have a letter from the record holder of your shares confirming your ownership, and you must bring a form of personal photo identification with you in order to be admitted. We reserve the right to refuse admittance to anyone without proper proof of share ownership and without proper photo identification.

 

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 THE FLEETBOSTON SPECIAL MEETING

 

This section contains information from FleetBoston for FleetBoston stockholders about the special meeting of FleetBoston stockholders that has been called to consider and approve the merger agreement.

 

Together with this document, we are also sending you a notice of the FleetBoston special meeting and a form of proxy that is solicited by the FleetBoston board of directors. The FleetBoston special meeting will be held on [            ], 2004 at 10:00 a.m., local time, at [            ].

 

 Matters to Be Considered

 

The purpose of the FleetBoston special meeting is to vote on a proposal for approval of the merger agreement.

 

You also will be asked to vote upon 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 merger agreement.

 

 Proxies

 

Each copy of this document mailed to FleetBoston common stockholders is accompanied by a form of proxy with instructions for voting by mail, by telephone or through the Internet. If voting by mail, you should complete and return the proxy card accompanying this document to ensure that your vote is counted at the FleetBoston special meeting, or at any adjournment or postponement of the FleetBoston special meeting, regardless of whether you plan to attend the FleetBoston special meeting. You may also vote your shares by telephone or through the Internet. Information and applicable deadlines for voting by telephone or through the Internet are set forth in the enclosed proxy card instructions.

 

You may revoke your signed proxy card at any time before it is voted by signing and returning a proxy card with a later date, delivering a written revocation letter to FleetBoston’s Secretary, or by attending the FleetBoston special meeting in person, notifying the Secretary, and voting by ballot at the FleetBoston special meeting. If you have voted your shares by telephone or through the Internet, you may revoke your prior telephone or Internet vote by recording a different vote, or by signing and returning a proxy card dated as of a date that is later than your last telephone or Internet vote.

 

Any stockholder entitled to vote in person at the FleetBoston special meeting may vote in person whether or not a proxy has been previously given, but the mere presence (without notifying the Secretary) of a stockholder at the FleetBoston special meeting will not constitute revocation of a previously given proxy.

 

Written notices of revocation and other communications about revoking your proxy should be addressed to:

 

FleetBoston Financial Corporation

100 Federal Street

MA DE 10026A

Boston, Massachusetts 02110

Attention: Gary A. Spiess

Secretary

 

If your shares are held in street name by a broker, bank or other nominee, you should follow the instructions of your broker, bank or other nominee regarding the revocation of proxies.

 

All shares represented by valid proxies that we receive through this solicitation, and that are not revoked, will be voted in accordance with your instructions on the proxy card. If you make no specification on your proxy

 

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card as to how you want your shares voted before signing and returning it, your proxy will be voted “FOR” approval of the merger agreement and “FOR” approval of the proposal to adjourn 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 merger agreement. According to the FleetBoston bylaws, business to be conducted at a special meeting of stockholders may only be brought before the meeting pursuant to FleetBoston’s notice of meeting. Accordingly, no matters other than the matters described in this joint proxy statement/prospectus will be presented for action at the FleetBoston special meeting or at any adjournment or postponement of the FleetBoston special meeting.

 

FleetBoston stockholders should NOT send FleetBoston stock certificates with their proxy cards. FleetBoston stockholders will be mailed a transmittal form with instructions on how to exchange their FleetBoston stock certificates for Bank of America stock certificates and cash instead of fractional shares, if applicable.

 

 Solicitation of Proxies

 

We will bear the entire cost of soliciting proxies from you. In addition to solicitation of proxies by mail, we will request that banks, brokers, and other record holders send proxies and proxy material to the beneficial owners of FleetBoston common stock and secure their voting instructions, if necessary. We will reimburse the record holders for their reasonable expenses in taking those actions. We have also made arrangements with  D.F. King & Co., Inc. to assist us in soliciting proxies and have agreed to pay them $10,000 plus reasonable expenses for these services. If necessary, we may use several of our regular employees, who will not be specially compensated, to solicit proxies from FleetBoston stockholders, either personally or by telephone, facsimile, letter or other electronic means.

 

 Record Date

 

The FleetBoston board of directors has fixed the close of business on [            ], 2004 as the record date for determining the FleetBoston stockholders entitled to receive notice of and/or vote at the FleetBoston special meeting. At that time, [            ] shares of FleetBoston common stock were outstanding.

 

 Voting Rights and Vote Required

 

The presence, in person or by properly executed proxy, of the holders of a majority of the outstanding  shares of FleetBoston common stock is necessary to constitute a quorum at the FleetBoston special meeting. Abstentions and broker non-votes will be counted for the purpose of determining whether a quorum is present. When we refer to broker non-votes, we are referring to unvoted proxies submitted by brokers, who are not able to vote on the merger agreement absent instructions from the applicable beneficial owner.

 

Approval of the merger agreement requires the affirmative vote of the holders of a majority of the outstanding shares of FleetBoston common stock entitled to vote at the FleetBoston special meeting. You are entitled to one vote for each share of FleetBoston common stock you held as of the record date. Holders of shares of FleetBoston preferred stock are not entitled to vote at the FleetBoston special meeting.

 

Because the affirmative vote of the holders of a majority of the outstanding shares of FleetBoston common stock entitled to vote at the FleetBoston special meeting is needed for us to proceed with the merger, the failure to vote by proxy or in person will have the same effect as a vote against the merger. Abstentions and broker non-votes also will have the same effect as a vote against the merger. Accordingly, the FleetBoston board of directors urges FleetBoston stockholders to: complete, date, and sign the accompanying proxy card and return it promptly in the enclosed postage-paid envelope if voting by mail; call the toll-free number listed in the proxy card instructions if voting by telephone; or access the Internet site listed in the proxy card instructions if voting through the Internet.

 

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As of the record date:

 

  Directors and executive officers of FleetBoston and their affiliates had the right to vote [            ] shares of FleetBoston common stock, or [    ]% of the outstanding FleetBoston common stock at that date.

 

  Directors and executive officers of Bank of America and their affiliates, including Bank of America (excluding the shares subject to the FleetBoston stock option described in “The Stock Option Agreements” on page 64), had the right to vote [            ] shares of FleetBoston common stock, or [    ]% of the outstanding FleetBoston common stock on that date.

 

 Recommendation of the FleetBoston Board of Directors

 

The FleetBoston board of directors has unanimously approved the merger agreement and the transactions it contemplates. The FleetBoston board of directors determined that the merger agreement and the transactions it contemplates are advisable and in the best interests of FleetBoston and its stockholders and unanimously recommends that you vote “FOR” approval of the merger agreement. See “The Merger — FleetBoston’s Reasons for the Merger; Recommendation of the Merger by the FleetBoston Board of Directors” on page 30 for a more detailed discussion of the FleetBoston board of directors’ recommendation.

 

 Attending the Meeting

 

All FleetBoston stockholders, including stockholders of record and stockholders who hold their shares through banks, brokers, nominees or any other holder of record, are invited to attend the FleetBoston special meeting. Stockholders of record can vote in person at the special meeting. If you are not a stockholder of record, you must obtain a proxy executed in your favor, from the record holder of your shares, such as a broker, bank or other nominee, to be able to vote in person at the special meeting. If you plan to attend the special meeting, you must hold your shares in your own name or have a letter from the record holder of your shares confirming your ownership and you must bring a form of personal photo identification with you in order to be admitted. We reserve the right to refuse admittance to anyone without proper proof of share ownership and without proper photo identification.

 

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 INFORMATION ABOUT THE COMPANIES

 

Bank of America Corporation

Bank of America Corporate Center

100 N. Tryon Street

Charlotte, North Carolina 28255

(704) 386-8486

 

Bank of America Corporation is a Delaware corporation, a bank holding company and a financial holding company under federal law. Through its banking and various nonbanking subsidiaries, Bank of America provides a diversified range of banking and nonbanking financial services and products, primarily throughout the Mid-Atlantic (Maryland, Virginia and the District of Columbia), the Midwest (Illinois, Iowa, Kansas and Missouri), the Southeast (Florida, Georgia, North Carolina, South Carolina and Tennessee), the Southwest (Arizona, Arkansas, New Mexico, Oklahoma and Texas), the Northwest (Oregon, Idaho and Washington) and the West (California and Nevada) regions of the United States and in selected international markets. As of September 30, 2003, Bank of America had total consolidated assets of approximately $737.1 billion, total consolidated deposits of approximately $408.5 billion, and total consolidated stockholders’ equity of approximately $50.4 billion. The pr