Registration No. 333-
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-3
Registration Statement Under
The Securities Act of 1933
Bank of America Corporation
(Exact name of Registrant as Specified in its Charter)
Delaware 56-0906609
(State or Other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification No.)
Bank of America Corporate Center
Charlotte, North Carolina 28255
(888) 279-3457
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
_____________________
Paul J. Polking
Executive Vice President and General Counsel
Bank of America Corporation
Bank of America Corporate Center
Charlotte, North Carolina 28255
(888) 279-3457
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
_____________________
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
________________________________
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [_] ____________
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [_] ____________________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
_____________________
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of each class of Amount to be registered Proposed maximum offering Proposed maximum aggregate Amount of
securities to be registered price per unit(1) offering price(1) registration fee
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock 2,000,000 $59.63 $119,260,000 $29,815
====================================================================================================================================
(1) Determined on the basis of the average of the high and low prices of the
Common Stock reported on the New York Stock Exchange on June 29, 2001
in accordance with Rule 457(c) under the Securities Act of 1933, as amended,
solely for the purpose of calculating the amount of the registration fee.
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 date as the Commission, acting pursuant to said Section 8(a),
may determine.
PROSPECTUS
BANK OF AMERICA CORPORATION
Bank of America Corporate Center
Charlotte, North Carolina 28255
(888) 279-3457
2,000,000 Shares of Common Stock
We have granted, and we expect to grant in the future, non-qualified stock
options under our Key Employee Stock Plan (which we sometimes refer to as the
KESOP), exercisable for shares of our common stock. We grant those options to
our key associates, but the KESOP now permits our key associates to transfer
their options, by gift or sale, to their immediate family members. We have
prepared this prospectus for you and other transferees in connection with the
exercise of options that have been transferred by sale to immediate family
members by our key associates.
The exercise price at which you may purchase shares of our common stock by
exercising your option is determined by the terms of the particular option, and
may be more or less than the current market price for our common stock at any
time. The principal market on which our common stock is traded is the New York
Stock Exchange, where it is traded under the symbol "BAC." Our common stock is
also listed on the London Stock Exchange and the Pacific Stock Exchange, and
certain shares are listed on the Tokyo Stock Exchange.
All proceeds we receive from the exercise of options granted under the
KESOP will be retained by us and will be used for general corporate purposes.
In this prospectus, we provide general information about the KESOP, as it
is relevant to you and others who have acquired non-qualified stock options by
sale transfers from our key associates. We also tell you where you may obtain
additional information about us and the KESOP.
________________________
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
________________________
The date of this Prospectus is ______________, 2001.
DESCRIPTION OF THE KESOP AND THE STOCK OPTIONS
The following summary of the KESOP is subject to, and qualified in its
entirety by reference to, all the provisions of the KESOP (a copy of which may
be obtained upon request from us) and any applicable award agreements.
General
The KESOP is a stock-based employee benefit plan under which we may award
stock options, stock appreciation rights, restricted stock or restricted stock
units to our key associates. Its purpose is to promote our success and enhance
our value by linking the personal interests of our key associates with the
interests of our stockholders, and to provide our key associates with an
incentive for outstanding performance. The KESOP is further intended to enhance
our ability to motivate, attract and retain the services of key associates upon
whose judgment, interest and special effort our success is largely dependent.
The KESOP is not a qualified pension, profit-sharing or stock bonus plan
within the meaning of Section 401(a) of the Internal Revenue Code of 1986, as
amended. Further, in our view, the KESOP is not subject to the provisions of
the Employee Retirement Income Security Act of 1974, as amended.
You can obtain a copy of the KESOP and additional information concerning
the KESOP and its administrators by contacting our Corporate Personnel Executive
at Bank of America Corporation, Bank of America Corporate Center, 100 North
Tryon Street, Charlotte, North Carolina 28255, telephone (888) 279-3457.
Eligibility
Only our key associates may receive awards under the KESOP. Key associates
are those employees who occupy managerial or other important positions and who
have made, or are expected to make, significant contributions to our business,
as determined by the Committee (see the section entitled "Administration"
below), including persons employed outside the United States. The Committee, in
its discretion, selects the award recipients and the nature and amount of any
awards.
Number of Shares
The number of shares available for issuance under the KESOP is 0.75% of the
outstanding shares of our common stock as of the first business day of each
calendar year from 1995 through 1998, and 1.50% of our outstanding shares of
common stock as of the last day of the immediately preceding calendar year of
each calendar year from 1999 through 2004. An additional 38,724,102 shares have
been made available under the KESOP as a result of the termination of our 1986
Restricted Stock Award Plan and the mergers with Boatmen's Bancshares, Inc.,
Barnett Banks, Inc. and the former BankAmerica Corporation.
All shares available for granting awards in any year that are not used, as
well as shares allocated to awards that have lapsed, expired, terminated or been
canceled, become available for use in subsequent years (with certain limited
exceptions in the case of stock appreciation rights granted in tandem with stock
options). Shares of common stock issued pursuant to the KESOP may be original
issue shares, treasury stock or shares purchased in the open market or
otherwise. In no event may an individual receive awards under the KESOP for a
calendar year covering more than 2,000,000 shares of common stock. In addition,
the maximum number of shares that may be issued as incentive stock options under
the KESOP equals 10 times 1.50% of the outstanding shares of common stock on the
first business day of 1998.
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Awards
Under the KESOP, the Committee may elect to grant stock options (which may
be either non-qualified stock options or incentive stock options), stock
appreciation rights, restricted stock or restricted stock units. However, this
Prospectus relates only to non-qualified stock options that have been
transferred by sale to the immediate family member of a key associate, so we
have limited our discussion to non-qualified stock options.
Generally, a non-qualified stock option gives the holder the right to
purchase a specified number of shares of our common stock at a fixed price for a
fixed period of time. Options granted under the KESOP have a 10-year term and an
exercise price that is no less than the fair market value of the stock on the
date of grant. The option term can end earlier, however, if the key associate
terminates employment with us, in which case the option term may end immediately
or extend for some limited period of time after the date of termination
depending on the reason for termination. Each key associate who is granted an
option under the KESOP receives an option award agreement specifying the number
of shares, exercise price, term, post-termination exercise period and other
terms and conditions of the award.
The option award agreement will also specify the vesting conditions that
apply to the award. Generally, an option cannot be exercised except to the
extent that it is vested. Options granted under the KESOP generally vest over
time during the key associate's period of employment with us. If the key
associate terminates employment with us before full vesting, the option will be
canceled and forfeited to the extent not vested. However, the option award
agreement may provide that the option will become fully vested if termination is
due to death, disability or retirement. The KESOP also provides that, in the
event of our change in control (as defined in the KESOP), all options will
become fully exercisable as of the date of the change in control and will remain
exercisable through their full term.
The option exercise price may be paid either in cash or by tendering shares
of common stock with a fair market value at the date of the exercise equal to
the portion of the exercise price which is not paid in cash. In addition, the
Committee may from time to time allow cashless exercises by any means which it
determines to be consistent with the KESOP's purposes and applicable law. You do
not have any rights as a stockholder until you become the holder of record of
shares of common stock issued upon exercise of the option.
Transferability of Awards
Most awards under the KESOP cannot be transferred except in the case of the
key associate's death. However, we have instituted an option transfer program
under which non-qualified stock options held by certain key associates may be
transferred to one or more immediate family members of the key associate while
the key associate is still alive. An immediate family member includes the key
associate's spouse, child, or grandchild (including adoptive relationships and
step-children), a trust for the benefit of such family members, or a
partnership, limited liability company or similar entity in which such family
members are the sole owners.
Option transfers may occur by either a gift transfer or a sale transfer.
This prospectus is to be used by transferees who have received an option
transfer by sale, meaning that the transferee purchased the option from the key
associate for consideration. You may have paid for the option by delivery of
cash, property or a promissory note to the key associate. As a condition to the
transfer, you have agreed that the option remains subject to all of the terms
and conditions of the award agreement and that the option may not be further
transferred by you (except in the case of your death). See "FEDERAL INCOME TAX
CONSEQUENCES" below for a discussion of the tax consequences of the transfer.
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Changes in Capitalization and Similar Changes
In the event of any change in the outstanding shares of common stock by
reason of any stock dividend, stock split, spin-off, recapitalization, merger,
consolidation, combination, exchange of shares or otherwise, the aggregate
number of shares of common stock with respect to which awards may be made under
the KESOP, and the terms, types of shares and number of shares of any
outstanding awards under the KESOP, may be equitably adjusted by the Committee
in its discretion to preserve the benefit of the award for us and the
participant.
Amendment and Termination of Plan
Our Board of Directors has the power to amend, modify or terminate the
KESOP on a prospective basis, provided that the Board may condition any
amendment to the KESOP on stockholder approval if it deems stockholder approval
to be necessary or appropriate. The KESOP automatically terminates on December
31, 2004 if not terminated earlier.
Administration
The KESOP is generally administered by the Compensation Committee of our
Board of Directors. With respect to awards to any key employee who is not an
"insider" or "named executive officer" (each as defined in the KESOP), the
Compensation Committee may appoint any individual or committee of individuals to
administer the KESOP as the "Committee." The Compensation Committee retains all
administrative authority as to awards to insiders and named executive officers.
Under the KESOP, the Committee has the authority to (i) select the key
associates to receive awards from time to time, (ii) make awards in such amounts
as it determines, (iii) impose such limitations, restrictions and conditions
upon awards as it deems appropriate, (iv) interpret the KESOP and adopt, amend
and rescind administrative guidelines and other rules and regulations relating
to the KESOP, (v) correct any defect or omission or reconcile any inconsistency
in the KESOP or any award granted thereunder and (vi) make all other
determinations and take all other actions necessary or advisable for the
implementation and administration of the KESOP. The Committee also has the
authority to accelerate the vesting and to waive any restrictions on outstanding
awards. The Committee may delegate its authority under the KESOP to the extent
permitted by applicable law. All determinations and decisions made by the
Committee pursuant to the KESOP will be final, conclusive and binding.
Federal Income Tax Consequences
This section contains only a general discussion of the potential federal
income tax consequences to the key associate, you and us. State or local tax
rules which may apply are not discussed. The federal income tax consequences
relating to options transferred by sale are complex, and you should consult with
your personal tax advisor regarding such consequences. IN ADDITION, UNLIKE
OPTION TRANSFERS BY GIFT, THE INTERNAL REVENUE SERVICE HAS NOT DIRECTLY RULED ON
THE TAX CONSEQUENCES OF AN OPTION TRANSFER BY SALE. WHILE THIS PROSPECTUS
INCLUDES A DISCUSSION OF THE POSSIBLE FEDERAL INCOME TAX CONSEQUENCES, WE DO NOT
GUARANTY ANY SPECIFIC TAX RESULTS. GIVEN THE ABSENCE OF INTERNAL REVENUE
SERVICE GUIDANCE, YOU SHOULD CONSULT WITH YOUR ADVISORS TO DETERMINE THE LEVEL
OF TAX RISK YOU ARE WILLING TO ASSUME.
Income tax consequences for the key associate. The key associate will
recognize ordinary income on the amount of the sale proceeds received from you
for the option, although the timing of taxation may vary depending on whether
the purchase price for the option is paid in cash or by delivery of a promissory
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note. There should be no gift tax as a direct result of the sale assuming the
price was not less than the option's fair market value, and the option should
cease to be a part of the key associate's estate. The key associate should not
recognize any additional income tax when you later exercise the option or sell
the shares acquired by exercise. The tax consequences for the key associate
(and for you) may be somewhat more complex if you deliver a promissory note to
the key associate for the purchase price of the option or for a loan in
connection with the option exercise.
Income tax consequences for you. You should not have any tax consequence
until you sell the shares acquired upon exercise. You should have basis in the
stock equal to the price you paid for the option plus the option exercise price
paid for the stock. You will have a capital gain or loss when you sell the
shares depending on whether the sale price is greater than or less than your
basis. Any capital gain will be taxed as long-term or short-term capital gain
depending on how long you have held the shares after exercise.
Income tax consequences for us. We will receive a deduction equal to the
amount of ordinary income recognized by the key associate as a result of the
sale of the option to you, and we will receive that deduction at the same time
as the key associate recognizes the ordinary income.
Restrictions On Resale
If you or your transferor is an "affiliate" of ours, as defined in Rule 144
under the Securities Act of 1933, resales of shares of common stock acquired by
you from the exercise of the option may be subject to the volume, manner of sale
and reporting requirements of Rule 144 unless we register the shares under the
Securities Act for resale pursuant to a separate prospectus (which we have not
undertaken to do). Also, your sales may be attributed to your immediate family
members and other related parties, and theirs to you, for purposes of Rule 144
and Section 16(b). In addition, if you or your transferor is subject to Section
16(b) of the Securities Exchange Act of 1934 (the "Exchange Act"), any sale by
you or your transferor may be "matched" with nonexempt purchases of common stock
within the previous or following six months for purposes of the "short-swing
profits" recovery provisions of Section 16(b). Further, in no event may you
exercise your option and sell shares of common stock if you are in possession of
material information regarding us that has not been publicly disclosed.
You and your transferor-immediate family members are encouraged to consult
with counsel regarding your and their status as affiliates or Section 16(b)
insiders and the application of other federal and state securities laws to
resales of shares of common stock acquired by you pursuant to the exercise of
options transferred to you.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document that we file at
the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C.
20549. You may obtain information on the operation of the Public Reference Room
by calling the SEC at 1-800-SEC-0330. You may also inspect our filings over the
Internet at the SEC's website at http://www.sec.gov.
The SEC allows us to incorporate by reference the information we file with
it, which means:
. incorporated documents are considered part of this prospectus;
. we can disclose important information to you by referring you to those
documents; and
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. information that we file with the SEC will automatically update and
supersede this incorporated information.
We incorporate by reference the documents listed below which were filed
with the SEC under the Exchange Act:
. our annual report on Form 10-K for the year ended December 31, 2000;
. our quarterly report on Form 10-Q for the period ended March 31, 2001;
. our current reports on Form 8-K dated January 16, 2001, January 17,
2001, January 24, 2001, April 16, 2001, June 5, 2001, June 22, 2001 and
June 27, 2001; and
. the description of our common stock which is contained in our
registration statement filed pursuant to Section 12 of the Exchange
Act, as modified in our current report on Form 8-K dated September 25,
1998.
We also incorporate by reference each of the following documents that we
will file with the SEC after the date of this prospectus:
. reports filed under Sections 13(a) and (c) of the Exchange Act;
. definitive proxy or information statements filed under Section 14 of
the Exchange Act in connection with any subsequent stockholders'
meetings; and
. any reports filed under Section 15(d) of the Exchange Act.
You should rely only on the information provided in this prospectus,
including the information incorporated by reference, in connection with your
options. We have not authorized anyone to provide you with different
information. We are not offering these securities in any state where the offer
is not permitted.
You should assume that the information appearing in this prospectus is
accurate as of the date of this prospectus only, and that the information
appearing in the documents incorporated by reference is accurate as of the
respective dates of those documents only. Our business, financial position and
results of operations may have changed since those dates.
Each person, including any beneficial owner, to whom this prospectus is
delivered may request a copy of any filings referred to above (excluding
exhibits that are not specifically incorporated in such filings), at no cost, by
contacting us orally or in writing at the following address:
Bank of America Corporation
Marketing and Corporate Affairs Department
NC1-003-06-09
901 West Trade Street
Charlotte, North Carolina 28202
(800) 441-2999
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LEGAL OPINION
The legality of the Common Stock covered by this Prospectus will be
passed upon for us by Jacqueline Jarvis Jones, our Assistant General Counsel.
Ms. Jones owns approximately 1,389 shares of our common stock, approximately 102
shares of our ESOP Convertible Preferred Stock, Series C, options to purchase up
to 7,500 shares of common stock granted under the KESOP and options to purchase
up to 720 shares of common stock granted under our Take Ownership! plan.
EXPERTS
Our consolidated financial statements incorporated by reference to our
Annual Report on Form 10-K for the year ended December 31, 2000 have been
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of that firm as experts in
auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The fees and expenses to be paid in connection with the distribution of the
securities being registered hereby are estimated as follows:
Registration fee $ 29,815
Legal fees and expenses 15,000
Accounting fees and expenses 6,000
Miscellaneous 1,000
Total $ 51,815
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the Delaware General Corporation Law
(the "DGCL") empowers a corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
the person's conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by the person in
connection with the defense or settlement of such action or suit if such person
acted in accordance with the above standards, except that no indemnification may
be made in respect to any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which the action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnification for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 145 of the DGCL further provides that, to the extent that a
director or officer of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in the defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith; and that indemnification provided by, or granted pursuant to, Section
145 shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled. Section 145 further empowers the corporation to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation
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or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of such person's status as
such, whether or not the corporation would have the power to indemnify such
person against such liabilities under Section 145 of the DGCL.
Section 102(b)(7) of the DGCL permits a corporation's certificate of
incorporation to contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director; provided that such provision
shall not eliminate or limit the liability of a director for (i) any breach of
the director's duty of loyalty to the corporation or its stockholders; (ii) acts
or omissions not in good faith or which involved intentional misconduct or a
knowing violation of the law; (iii) willful or negligent unlawful payment of a
dividend or stock purchase or redemption; or (iv) any transaction from which the
director derived an improper personal benefit. The Restated Certificate of
Incorporation of the Registrant eliminates the ability to recover monetary
damages against directors of the Registrant for breach of fiduciary duty to the
fullest extent permitted by the DGCL. In accordance with the provisions of the
DGCL, the Bylaws of the Registrant provide that, in addition to the
indemnification of directors and officers otherwise provided by the DGCL, the
Registrant shall, under certain circumstances, indemnify its directors,
executive officers and certain other designated officers against any and all
liability and litigation expense, including reasonable attorneys' fees, arising
out of their status or activities as directors and officers, except for
liability or litigation expense incurred on account of activities that were at
the time known or believed by such director or officer to be in conflict with
the best interests of the Registrant. Pursuant to such Bylaws and as authorized
by statute, the Registrant may also maintain, and does maintain, insurance on
behalf of its directors and officers against liability asserted against such
persons in such capacity whether or not such directors or officers have the
right to indemnification pursuant to the Bylaws or otherwise.
In addition, pursuant to the Agreement and Plan of Reorganization dated as
of April 10, 1998 (the "Merger Agreement") between the Registrant, formerly,
NationsBank Corporation ("NationsBank") and the former BankAmerica Corporation
("old BankAmerica"), for six years after September 30, 1998 (the date of the
consummation of the merger of old BankAmerica with and into the Registrant (the
"Merger")), the Registrant will indemnify directors, officers and employees of
old BankAmerica, NationsBank, or any of their respective subsidiaries against
certain liabilities in connection with such persons' status as such or in
connection with the Merger Agreement or any of the transactions contemplated
thereby. Pursuant to the Merger Agreement, the Registrant will also, for six
years after September 30, 1998 and with respect to events occurring prior to the
consummation of the Merger, honor all rights to indemnification and limitations
of liability existing in favor of the foregoing persons as provided in the
governing documents of NationsBank, old BankAmerica or their respective
subsidiaries. Pursuant to the Merger Agreement, for six years after September
30, 1998, the Registrant will also use its best efforts to cause the directors
and officers of old BankAmerica and NationsBank to be covered by a directors'
and officers' liability insurance policy with respect to acts or omissions
occurring prior to the consummation of the Merger.
The foregoing is only a general summary of certain aspects of Delaware law
dealing with indemnification of directors and officers and does not purport to
be complete. It is qualified in its entirety by reference to the relevant
statutes which contain detailed specific provisions regarding the circumstances
under which and the persons for whose benefit indemnification shall or may be
made. In addition, from time to time provisions providing for indemnification of
the Registrant and its directors and officers by underwriters or agents against
certain liabilities, including certain liabilities under the Securities Act of
1933, as amended (the "Securities Act") have been contained in agreements
relating to other securities of the Registrant.
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ITEM 16. EXHIBITS
5.1 Opinion of Jacqueline Jarvis Jones
10.1 Bank of America Corporation Key Employee Stock Plan, as amended and
restated effective September 24, 1998, incorporated by reference to
Exhibit 10(a) of Registrant's Quarterly Report on Form 10-Q dated November
16, 1998
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Jacqueline Jarvis Jones (included in the opinion filed as
Exhibit 5.1)
24.1 Power of Attorney and Certified Resolution
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ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if
the Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has
11
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Charlotte, State of North Carolina, on the 2nd day
of July, 2001.
BANK OF AMERICA CORPORATION
By: */s/ Kenneth D. Lewis
--------------------------------------
Kenneth D. Lewis
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
SIGNATURES TITLE DATE
*/s/ Kenneth D. Lewis July 2, 2001
----------------------------- Chairman, Chief Executive
Kenneth D. Lewis Officer and Director (Principal
Executive Officer)
*/s/ James H. Hance, Jr. July 2, 2001
----------------------------- Vice Chairman, Chief Financial
James H. Hance, Jr. Officer and Director (Principal
Financial Officer)
*/s/ Marc D. Oken July 2, 2001
----------------------------- Executive Vice President and
Marc D. Oken Principal Financial Executive
(Principal Accounting Officer)
*/s/ John R. Belk Director July 2, 2001
-----------------------------
John R. Belk
*/s/ Charles W. Coker Director July 2, 2001
-----------------------------
Charles W. Coker
*/s/ Frank Dowd, IV Director July 2, 2001
-----------------------------
Frank Dowd, IV
*/s/ Kathleen F. Feldstein Director July 2, 2001
-----------------------------
Kathleen F. Feldstein
*/s/ Paul Fulton Director July 2, 2001
-----------------------------
Paul Fulton
*/s/ Donald E. Guinn Director July 2, 2001
-----------------------------
Donald E. Guinn
____________________________ Director ______, 2001
C. Ray Holman
*/s/ Walter E. Massey Director July 2, 2001
----------------------------
Walter E. Massey
*/s/ C. Steven McMillan Director July 2, 2001
----------------------------
C. Steven McMillan
*/s/ Patricia E. Mitchell Director July 2, 2001
----------------------------
Patricia E. Mitchell
*/s/ O. Temple Sloan, Jr. Director July 2, 2001
----------------------------
O. Temple Sloan, Jr.
*/s Meredith R. Spangler Director July 2, 2001
----------------------------
Meredith R. Spangler
*/s/ Ronald Townsend Director July 2, 2001
----------------------------
Ronald Townsend
*/S/ Jackie M. Ward Director July 2, 2001
----------------------------
Jackie M. Ward
*/s/ Virgil R. Williams Director July 2, 2001
----------------------------
Virgil R. Williams
* By: /s/ Charles M. Berger
----------------------
Attorney-in-Fact