Registration No. 333-97157
Post-effective Amendment No. 1 to Registration Statement No. 333-65750
Post-effective Amendment No. 2 to Registration Statement No. 333-47222
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
BANK OF AMERICA CORPORATION
(Exact name of registrant as specified in its charter)
<Table>
DELAWARE 56-0906609
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
</Table>
BANK OF AMERICA CORPORATE CENTER, 100 NORTH TRYON STREET, CHARLOTTE, NORTH
CAROLINA 28255
(704) 386-5972
(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
(704) 386-7484
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
<Table>
BOYD C. CAMPBELL, JR. JAMES R. TANENBAUM
HELMS MULLISS & WICKER, PLLC STROOCK & STROOCK & LAVAN LLP
201 NORTH TRYON STREET 180 MAIDEN LANE
CHARLOTTE, NORTH CAROLINA 28202 NEW YORK, NEW YORK 10038
</Table>
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APPROXIMATE DATE OF COMMENCEMENT OF THE 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, please 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, 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. [X]
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CALCULATION OF REGISTRATION FEE
<Table>
<Caption>
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TITLE OF EACH AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
CLASS OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1)(2)(3)(4) PER UNIT(5) OFFERING PRICE(4)(5) FEE(4)(6)
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Debt Securities.................. $6,000,000,000 100% $6,000,000,000 $552,000
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</Table>
(1) In no event will the aggregate initial offering price of the debt
securities issued under this Registration Statement exceed
$6,000,000,000.
(2) This Registration Statement also covers an indeterminable amount of the
debt securities that may be reoffered and resold on an ongoing basis
after their initial sale in market making activities by affiliates of the
Registrant, including Banc of America Securities LLC and Incapital LLC.
(3) Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
contained in this Registration Statement also covers an indeterminable
amount of debt securities that may be reoffered and resold on an ongoing
basis by affiliates of the Registrant in market making activities in
securities that have previously been registered by the Registrant
pursuant to the below-referenced Registration Statements. Accordingly,
this amendment constitutes Post-Effective Amendment No. 1 to Registration
Statement No. 333-65750 and Post-Effective Amendment No. 2 to
Registration Statement No. 333-47222. Such post-effective amendments
shall hereafter become effective concurrently with the effectiveness of
this Registration Statement and in accordance with Section 8(c) of the
Securities Act.
(4) Pursuant to this Amendment No. 2 to Registration No. 333-97157 the
Registrant is increasing the amount of securities registered under this
Registration Statement from $5,892,045,000 to $6,000,000,000. The
Registrant has transmitted the additional filing fee of $9,931.86 in
connection with the registration of the additional $107,955,000 of debt
securities.
(5) Estimated in accordance with Rule 457(o) under the Securities Act of 1933
solely for purposes of computing the registration fee. The proposed
maximum offering price will be determined from time to time by the
Registrant in connection with the issuance by the Registrant of the
securities registered hereunder.
(6) Pursuant to Rule 457(q), no filing fee is required for the registration
of an indeterminable amount of debt securities to be offered in market
making transactions by affiliates of the Registrant as described in Notes
(2) and (3) above.
---------------------
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.
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EXPLANATORY NOTE
The prospectus filed with this Registration Statement also is a market
maker prospectus intended for use by affiliates of the Registrant, including
Banc of America Securities LLC and Incapital LLC, in connection with offers and
sales related to secondary market transactions in debt securities registered by
the Registrant under the Securities Act of 1933, as amended, pursuant to the
Registration Statements referred to in footnote 3 on the cover page of this
Registration Statement and in debt securities that are initially offered and
sold by or on behalf of the Registrant under this Registration Statement after
the effective date of this Registration Statement.
THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED AUGUST 20, 2002
PROSPECTUS
(BANK OF AMERICA LOGO)
$6,000,000,000 INTERNOTES(R)
We may offer to sell our Bank of America Corporation InterNotes(R) from time
to time. The specific terms of our InterNotes(R) will be determined prior to the
time of sale and will be described in a separate supplement. You should read
this prospectus and the applicable supplement carefully before you invest.
We may offer the notes to or through agents for resale. The amount we expect
to receive if all the notes are sold is from $5,988,000,000 to $5,820,000,000,
after paying agents concessions of between $12,000,000 and $180,000,000. The
agents are not required to sell any specific amount of notes but will sell the
notes on a best efforts basis. We also may offer the notes directly. We have not
set a date for termination of our offering.
The agents have advised us that from time to time they may purchase and sell
notes in the secondary market, but they are not obligated to make a market in
the notes and may suspend or completely stop that activity at any time. The
notes are currently not listed on any stock exchange.
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OUR NOTES ARE UNSECURED AND ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER
OBLIGATIONS OF A BANK. OUR NOTES ARE NOT GUARANTEED BY BANK OF AMERICA, N.A. OR
ANY OTHER BANK, ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR
ANY OTHER GOVERNMENTAL AGENCY AND INVOLVE INVESTMENT RISKS, INCLUDING POSSIBLE
LOSS OF PRINCIPAL. POTENTIAL PURCHASERS OF THE NOTES ALSO SHOULD CONSIDER THE
INFORMATION SET FORTH IN "RISK FACTORS" ON PAGE 6.
NONE OF THE SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES
COMMISSION OR ANY OTHER REGULATORY BODY HAS APPROVED OR DISAPPROVED OF THESE
NOTES OR PASSED ON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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JOINT LEAD MANAGERS AND LEAD AGENTS
BANC OF AMERICA SECURITIES LLC INCAPITAL LLC
AGENTS
A.G. EDWARDS & SONS, INC. CHARLES SCHWAB & CO., INC.
EDWARD JONES MERRILL LYNCH & CO.
MORGAN STANLEY SALOMON SMITH BARNEY
PRUDENTIAL SECURITIES UBS PAINEWEBBER INC.
Prospectus dated , 2002.
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TABLE OF CONTENTS
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<Table>
<Caption>
PAGE
----
ABOUT THIS PROSPECTUS................... 3
SUMMARY................................. 4
RISK FACTORS............................ 6
BANK OF AMERICA CORPORATION............. 6
Business Segment Operations........... 6
Acquisitions and Sales................ 9
Outstanding Debt...................... 9
REGULATORY MATTERS...................... 9
Interstate Banking.................... 10
Changes in Regulations................ 10
Capital and Operational
Requirements....................... 11
Distributions......................... 12
Source of Strength.................... 12
USE OF PROCEEDS......................... 12
RATIOS OF EARNINGS TO FIXED CHARGES..... 13
DESCRIPTION OF NOTES.................... 13
Payment of Principal and Interest..... 14
Interest and Interest Rates........... 15
Redemption and Repayment.............. 15
Survivor's Option..................... 16
Subordination......................... 18
Sale or Issuance of Capital Stock of
Principal Subsidiary Bank.......... 19
</Table>
<Table>
<Caption>
PAGE
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Waiver of Covenants................... 20
Modification of the Indentures........ 20
Meetings and Action by Noteholders.... 20
Defaults and Rights of Acceleration... 20
Collection of Indebtedness............ 21
Notices............................... 21
Concerning the Trustees............... 21
REGISTRATION AND SETTLEMENT............. 21
The Depository Trust Company.......... 21
Registration, Transfer and Payment of
Certificated Notes................. 24
TAX CONSEQUENCES TO U.S. HOLDERS........ 24
EMPLOYEE RETIREMENT INCOME SECURITY
ACT................................... 27
PLAN OF DISTRIBUTION.................... 28
WHERE YOU CAN FIND MORE INFORMATION..... 30
FORWARD-LOOKING STATEMENTS.............. 31
LEGAL OPINIONS.......................... 32
EXPERTS................................. 32
</Table>
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InterNotes(R) is a registered trademark of Incapital Holdings LLC
2
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ABOUT THIS PROSPECTUS
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This document is a prospectus and is part of a registration statement that we
filed with the SEC using a "shelf" registration or continuous offering process.
This prospectus provides you with a general description of the notes we may
offer in connection with the Bank of America Corporation InterNotes(R) program.
Using this shelf process, we may from time to time sell these InterNotes(R) in
various offerings up to a total dollar amount of $6,000,000,000. While we have
various notes and other evidence of indebtedness outstanding, references in this
prospectus to "notes" are to the Bank of America Corporation InterNotes(R) only.
The specific terms and conditions of the notes being offered will be contained
in a pricing supplement or a prospectus supplement. A copy of that supplement
will be provided to you along with a copy of this prospectus. That supplement
also may add, update or change information in this prospectus. If there is any
inconsistency between the information in this prospectus and the supplement, you
should rely on the information in the supplement. You should read both this
prospectus and the supplement together with the additional information that is
incorporated by reference in this prospectus. That additional information is
described under the heading "Where You Can Find More Information" beginning on
page 30 of this prospectus.
You should rely only on the information provided in this prospectus and the
supplement, including the information incorporated by reference. Neither we, nor
any dealers or agents, have authorized anyone to provide you with different
information. We are not offering the notes in any jurisdiction where the offer
is not permitted. You should not assume that the information in this prospectus
or any supplement is accurate at any date other than the date indicated on the
cover page of those documents.
Unless otherwise indicated or unless the context requires otherwise, all
references in this prospectus to "we," "us," "our," or similar references are to
Bank of America Corporation.
Affiliates of Bank of America Corporation, including Banc of America
Securities LLC and Incapital LLC may use this prospectus in connection with
offers and sales in the secondary market of Bank of America Corporation
InterNotes(R). These affiliates may act as principal or agent in those
transactions. Secondary market sales made by them will be made at prices related
to market prices at the time of sale.
3
SUMMARY
This section summarizes the legal and financial terms of the notes that are
described in more detail in the section entitled "Description of Notes"
beginning on page 13. Final terms of any particular notes will be determined at
the time of sale and will be contained in the supplement relating to those
notes. The terms in that supplement may vary from and supersede the terms
contained in this prospectus. Before you decide to purchase any notes, you
should read the more detailed information appearing elsewhere in this prospectus
and in the supplement.
Issuer................... Bank of America Corporation, Bank of America
Corporate Center, 100 North Tryon Street, Charlotte,
North Carolina 28255; telephone: (704) 386-5972
Purchasing Agent......... Incapital LLC
Joint Lead Managers and
Lead Agents.............. Banc of America Securities LLC and Incapital LLC
Agents................... A.G. Edwards & Sons, Inc.
Charles Schwab & Co., Inc.
Edward D. Jones & Co., L.P.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Prudential Securities Incorporated
Salomon Smith Barney Inc.
UBS PaineWebber Inc.
Title of Notes........... Bank of America Corporation InterNotes(R)
Affiliates............... Bank of America Corporation is the indirect parent of
Banc of America Securities LLC, one of two Joint Lead
Managers and a Lead Agent. Bank of America
Corporation, through a subsidiary, also owns a
significant equity interest in Incapital Holdings
LLC, the parent of Incapital LLC, the Purchasing
Agent. Additional details of these relationships are
disclosed in the section entitled "Plan of
Distribution" beginning on page 28.
Amount................... We may issue up to $6,000,000,000 of notes in
connection with this prospectus. There are no
limitations on our ability to issue additional
indebtedness in the form of InterNotes(R) or
otherwise.
Denominations............ The notes will be issued and sold in denominations of
$1,000 and multiples of $1,000 or in any other
denomination provided in the applicable supplement.
Status................... The notes will be our direct unsecured obligations.
Each supplement will state whether the notes will be
senior or subordinated debt. Senior notes will rank
equally with our other unsecured senior debt, and
subordinated notes will rank equally with our other
unsecured subordinated debt and junior in right of
payment to our senior debt.
Although we are a bank holding company, the notes are
not savings accounts or deposits in our banking
subsidiaries, are not guaranteed by those banks and
are not insured or guaranteed by the FDIC or any
other government agency.
4
Holders of Subordinated
Notes have Limited
Rights................... Payment of principal of our subordinated notes may
not be accelerated if there is a default in the
payment of principal or any premium or interest or in
the performance of any of our other Indenture
covenants.
Maturities............... Each note will mature nine months or more from its
issue date.
Interest................. Each note will bear interest from its issue date at a
fixed rate per year.
Interest on each note will be payable either monthly,
quarterly, semi-annually or annually on each interest
payment date and on the maturity date. If a note is
redeemed or repurchased prior to maturity, interest
also will be paid on the date of redemption or
repayment.
Interest on the notes will be computed on the basis
of a 360-day year of twelve 30-day months.
Principal................ The principal amount of each note will be payable on
its maturity date at the corporate trust office of
the paying agent or at any other place we may
designate. If, however, a note is redeemed or
repurchased prior to maturity, the principal amount
of the note will be paid on the date of redemption or
repayment.
Redemption and Repayment. Unless stated in the applicable supplement, the notes
will not be redeemable at our option or repayable at
the option of the holder prior to the maturity date.
The notes will be unsecured and will not be subject
to any sinking fund.
Survivor's Option........ Specific notes may contain a provision that requires
us, upon request by the authorized representative of
the beneficial owner of the notes, to repay those
notes prior to maturity following the death of the
beneficial owner of the notes, so long as the notes
were acquired by the deceased beneficial owner at
least six months prior to the request. This feature
is referred to as the Survivor's Option. Your notes
may not be repaid in this manner unless the
supplement for your notes provides for the Survivor's
Option. The right to exercise the Survivor's Option
will be subject to limits set by us on (1) the
permitted dollar amount of total exercises by all
holders of notes in any calendar year, and (2) the
permitted dollar amount of an individual exercise by
a holder of a note in any calendar year. Additional
details relating to this right are described in the
section entitled "Survivor's Option" beginning on
page 16.
Sale and Clearance....... We will sell notes in the United States only. Notes
will be issued in book-entry only form and clear
through The Depository Trust Company. We do not
intend to issue notes in certificated form.
Trustee.................. The Trustee for senior and subordinated notes is The
Bank of New York, 101 Barclay Street, New York, New
York 10286, under separate amended and restated
Indentures, each dated as of July 1, 2001.
Selling Group............ The agents and dealers comprising the selling group
are broker-dealers and securities firms. The agents,
including the Purchasing Agent, have entered into an
Amended and Restated Selling Agent Agreement with us
dated as of August , 2002. Dealers who are members
of the selling group have executed a Master Selected
Dealer Agreement with the Purchasing Agent. You may
contact the Purchasing Agent by telephone at
1-877-284-2663 or by email at info@incapital.com for
a list of selling group members.
5
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RISK FACTORS
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Your investment in the notes will involve certain risks. This prospectus does
not describe all of those risks. Neither we nor the agents are responsible for
advising you of these risks now or as they may change in the future.
In consultation with your own financial and legal advisors, you should
carefully consider, among other matters, the following discussion of risks
before deciding whether an investment in the notes is suitable for you. The
notes are not an appropriate investment for you if you are not knowledgeable
about significant features of the notes or financial matters in general. You
should not purchase notes unless you understand and know you can bear these
investment risks.
Redemption -- We may choose to redeem notes when prevailing interest rates are
relatively low.
If your notes are redeemable at our option, we may choose to redeem your notes
from time to time. Prevailing interest rates at the time we redeem your notes
likely would be lower than the rate then borne by the notes. In such a case you
would not be able to reinvest the redemption proceeds in a comparable security
at an effective interest rate as high as the interest rate on the notes being
redeemed. Our redemption right also may adversely impact your ability to sell
your notes as our redemption date approaches.
Uncertain Trading Markets -- We cannot assure that a trading market for your
notes will ever develop or be maintained.
We cannot assure you that a trading market for your notes will ever develop or
be maintained, which may limit your ability to sell the notes prior to maturity.
Many factors independent of our creditworthiness affect the trading market for
and market value of your notes. Those factors include, without limitation:
- the method of calculating the principal and interest for the notes;
- the time remaining to the maturity of the notes;
- the outstanding amount of the notes;
- the redemption or repayment features of the notes;
- market rates of interest higher than rates borne by the notes; and
- the level, direction and volatility of interest rates generally.
There may be a limited number of buyers when you decide to sell your notes.
This may affect the price you receive for your notes or your ability to sell
your notes at all.
Subordinated notes have limited acceleration rights.
The holders of senior notes may declare those notes in default and accelerate
the due date of those notes. Holders of subordinated notes do not have that
right and may accelerate payment of indebtedness only upon our bankruptcy.
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BANK OF AMERICA CORPORATION
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Bank of America Corporation is a Delaware corporation, a bank holding company
and a financial holding company. Our principal assets are our shares of stock of
Bank of America, N.A. and our other banking and nonbanking subsidiaries. We
operate in 21 states and the District of Columbia and have offices located in 34
countries.
BUSINESS SEGMENT OPERATIONS
We provide a diversified range of banking and nonbanking financial services
and products through our various subsidiaries. We manage our operations through
four business segments: (1) Consumer and Commercial Banking, (2) Asset
Management, (3) Global Corporate and Investment Banking and
6
(4) Equity Investments. Certain operating segments have been aggregated into a
single business segment. A customer-centered strategic approach is changing the
way we focus on our business. In addition to traditional financial reporting, we
have begun using customer segment-based financial operating information.
CONSUMER AND COMMERCIAL BANKING
Consumer and Commercial Banking provides a wide array of products and services
to individuals, small businesses and middle market companies through multiple
delivery channels. The major components of Consumer and Commercial Banking are
Banking Regions, Consumer Products and Commercial Banking.
- Banking Regions
Banking Regions serves consumer households in 21 states and the District of
Columbia and overseas through our network of over 4,200 banking centers, over
12,800 ATMs, telephone and Internet channels on www.bankofamerica.com. Banking
Regions provides a wide array of products and services, including deposit
products such as checking, money market savings accounts, time deposits and
IRAs, debit card products and credit products such as home equity, mortgage
and personal auto loans. Banking Regions also includes small business banking
providing treasury management, credit services, community investment, check
card, e-commerce and brokerage services to nearly two million small business
relationships across the franchise.
- Consumer Products
Consumer Products provides specialized services such as the origination and
servicing of residential mortgage loans, issuance and servicing of credit
cards, direct banking via the telephone and the Internet, lending and
investing to develop low- and moderate-income communities, student lending and
certain insurance services. Consumer Products also provides retail finance and
floorplan programs to marine, RV and auto dealerships.
- Commercial Banking
Commercial Banking provides commercial lending and treasury management
services to middle market companies with annual revenue between $10 million
and $500 million. These services are available through relationship manager
teams as well as through alternative channels such as the telephone via the
commercial service center and the Internet by accessing Bank of America
Direct. In the first quarter of 2002, certain commercial lending businesses
being liquidated were transferred from Commercial Banking to Corporate Other.
ASSET MANAGEMENT
Asset Management includes the Private Bank, Banc of America Capital Management
and the Individual Investor Group. The Private Bank's goal is to assist
individuals and families in building and preserving their wealth by providing
investment, fiduciary and comprehensive credit expertise to high-net-worth
clients. Banc of America Capital Management is an asset-gathering and asset
management organization serving the needs of institutional clients,
high-net-worth individuals and retail customers. Banc of America Capital
Management manages money and distribution channels, manufactures investment
products, offers institutional separate accounts and wrap programs and provides
advice to clients through asset allocation expertise and software. The
Individual Investor Group, which is comprised of Private Client Services and
Banc of America Investment Services, Inc., provides investment, securities and
financial planning services to affluent and high-net-worth individuals. Private
Client Services focuses on high-net-worth individuals. Banc of America Invest-
7
ment Services, Inc. includes both the full-service network of investment
professionals and an extensive on-line investor service.
One of our strategies is to focus on and grow the asset management business.
Recent initiatives include new investment platforms that broaden our
capabilities to maximize market opportunity for our clients. We continue to
enhance the financial planning tools used to assist clients with their financial
goals.
GLOBAL CORPORATE AND INVESTMENT BANKING
Global Corporate and Investment Banking provides a broad array of financial
services such as investment banking, capital markets, trade finance, treasury
management, lending, leasing and financial advisory services to domestic and
international corporations, financial institutions and government entities.
Clients are supported through offices in 34 countries in four distinct
geographic regions: United States and Canada; Asia; Europe, Middle East and
Africa; and Latin America. Products and services provided include loan
origination, merger and acquisition advisory services, debt and equity
underwriting and trading, cash management, derivatives, foreign exchange,
leasing, leveraged finance, project finance, structured finance and trade
services.
Global Corporate and Investment Banking offers clients a comprehensive range
of global capabilities through three components: Global Investment Banking,
Global Credit Products and Global Treasury Services.
- Global Investment Banking
Global Investment Banking includes our investment banking activities and risk
management products. Through a separate subsidiary, Banc of America Securities
LLC, Global Investment Banking underwrites and makes markets in equity
securities, high-grade and high-yield corporate debt securities, commercial
paper and mortgage-backed and asset-backed securities. Banc of America
Securities LLC also provides correspondent clearing services for other
securities broker/dealers and prime-brokerage services. Debt and equity
securities research, loan syndications, merger and acquisition advisory
services and private placements also are provided through Banc of America
Securities LLC.
In addition, Global Investment Banking provides risk management solutions for
our global customer base using interest rate, equity, credit and commodity
derivatives, foreign exchange, fixed income and mortgage-related products. In
support of these activities, the businesses will take positions in these
products and capitalize on market-making activities. The Global Investment
Banking business also takes an active role in the trading of fixed income
securities in all of the regions in which Global Corporate and Investment
Banking transacts business and is a primary dealer in the United States as
well as in several international locations.
- Global Credit Products
Global Credit Products provides credit and lending services and includes the
corporate industry-focused portfolio, leasing and project finance.
- Global Treasury Services
Global Treasury Services provides the technology, strategies and integrated
solutions to help financial institutions, government agencies and public and
private companies manage their operations and cash flows on a local, regional,
national and global level.
8
EQUITY INVESTMENTS
Equity Investments includes Principal Investing, which is comprised of a
diversified portfolio of investments in companies at all stages of the business
cycle, from start up to buyout. Investments are made on both a direct and
indirect basis in the United States and overseas. Direct investing activity
focuses on playing an active role in the strategic and financial direction of
the portfolio company as well as providing broad business experience and access
to our global resources. Indirect investments represent passive limited
partnership stakes in funds managed by experienced third-party private equity
investors who act as general partners. Equity Investments also includes our
strategic technology and alliances investment portfolio.
CORPORATE OTHER
Corporate Other consists primarily of gains and losses associated with
managing our balance sheet, certain consumer finance and commercial lending
businesses being liquidated and certain residential mortgages originated by the
mortgage group or otherwise acquired and held for asset/liability management
purposes.
ACQUISITIONS AND SALES
As part of our operations, we regularly evaluate the potential acquisition of,
and hold discussions with, various financial institutions and other businesses
of a type eligible for financial holding company ownership or control. In
addition, we regularly analyze the values of, and submit bids for, the
acquisition of customer-based funds and other liabilities and assets of such
financial institutions and other businesses. We also regularly consider the
potential disposition of certain of our assets, branches, subsidiaries or lines
of businesses. As a general rule, we publicly announce any material acquisitions
or dispositions when a definitive agreement has been reached.
OUTSTANDING DEBT
The following table sets forth our outstanding long-term debt as of June 30,
2002, and as adjusted for the issuance and maturity of certain of our long-term
debt from July 1, 2002 through August 14, 2002:
<Table>
<Caption>
ACTUAL AS ADJUSTED
------- -----------
(AMOUNTS IN MILLIONS)
Senior debt
Bank of America
Corporation................ $23,579 $23,558
Subsidiaries................. 14,867 14,864
------- -------
Total senior debt.......... 38,446 38,422
------- -------
Subordinated debt
Bank of America
Corporation................ 20,333 19,954
Subsidiaries................. 402 402
------- -------
Total subordinated debt.... 20,735 20,356
------- -------
Total long-term debt....... $59,181 $58,778
======= =======
Guaranteed Preferred Beneficial
Interests in Junior
Subordinated Notes........... $ 5,530 $ 5,980
------- -------
Total................. $64,711 $64,758
======= =======
</Table>
As of June 30, 2002, we and our subsidiaries had $1.9 billion of commercial
paper outstanding.
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REGULATORY MATTERS
- ---------------------------------------------------------
The following discussion describes elements of an extensive regulatory
framework applicable to bank holding companies, financial holding companies and
banks and specific information about us and our subsidiaries. Federal regulation
of banks, bank holding companies and financial holding companies is intended
primarily for the protection of depositors and the Bank Insurance Fund rather
than for the protection of securityholders and creditors.
As a registered bank holding company and a financial holding company, we are
subject to the supervision of, and to regular inspection by, the Board of
Governors of the Federal Reserve System, or the "Federal Reserve Board." Our
banking subsidiaries are organized predominantly as national banking
associations, which are subject to regulation,
9
supervision and examination by the Office of the Comptroller of the Currency, or
the "Comptroller", the Federal Deposit Insurance Corporation, or the "FDIC", the
Federal Reserve Board and other federal and state regulatory agencies. In
addition to banking laws, regulations and regulatory agencies, we and our
subsidiaries and affiliates are subject to various other laws and regulations
and supervision and examination by other regulatory agencies, all of which
directly or indirectly affect our operations and management and our ability to
make distributions to stockholders.
A financial holding company, and the non-bank companies under its control, are
permitted to engage in activities considered "financial in nature" as defined by
the Gramm-Leach-Bliley Act and Federal Reserve Board interpretations (including,
without limitation, insurance and securities activities), and therefore may
engage in a broader range of activities than permitted for bank holding
companies and their subsidiaries. A financial holding company may engage
directly or indirectly in activities considered financial in nature, either de
novo or by acquisition, provided the financial holding company gives the Federal
Reserve Board after-the-fact notice of the new activities. The
Gramm-Leach-Bliley Act also permits national banks, such as our banking
subsidiaries, to engage in activities considered financial in nature through a
financial subsidiary, subject to certain conditions and limitations and with the
approval of the Comptroller.
INTERSTATE BANKING
Bank holding companies (including bank holding companies that also are
financial holding companies) also are required to obtain the prior approval of
the Federal Reserve Board before acquiring more than 5% of any class of voting
stock of any bank which is not already majority-owned by the bank holding
company. Pursuant to the Riegle-Neal Interstate Banking and Branching Efficiency
Act of 1994, a bank holding company may acquire banks in states other than its
home state without regard to the permissibility of such acquisitions under state
law, but subject to any state requirement that the bank has been organized and
operating for a minimum period of time, not to exceed five years, and the
requirement that the bank holding company, after the proposed acquisition,
controls no more than 10% of the total amount of deposits of insured depository
institutions in the United States and no more than 30% or such lesser or greater
amount set by state law of such deposits in that state.
Subject to certain restrictions, the Riegle-Neal Interstate Banking and
Branching Efficiency Act of 1994 also authorizes banks to merge across state
lines to create interstate branches. This act also permits a bank to open new
branches in a state in which it does not already have banking operations if such
state enacts a law permitting de novo branching. We have consolidated our retail
subsidiary banks into a single interstate bank (Bank of America, N.A.),
headquartered in Charlotte, North Carolina, with full service branch offices in
21 states and the District of Columbia. In addition, we operate a limited
purpose nationally chartered credit card bank (Bank of America, N.A. (USA)),
headquartered in Phoenix, Arizona, and three nationally chartered banker's
banks: Bank of America Oregon, N.A., headquartered in Portland, Oregon; Bank of
America California, N.A., headquartered in San Francisco, California; and Bank
of America Georgia, N.A., headquartered in Atlanta, Georgia.
CHANGES IN REGULATIONS
Proposals to change the laws and regulations governing the banking industry
are frequently introduced in Congress, in the state legislatures and before the
various bank regulatory agencies. The likelihood and timing of any proposals or
legislation and the impact they might have on us and our subsidiaries cannot be
determined at this time.
10
CAPITAL AND OPERATIONAL REQUIREMENTS
The Federal Reserve Board, the Comptroller and the FDIC have issued
substantially similar risk-based and leverage capital guidelines applicable to
United States banking organizations. In addition, these regulatory agencies from
time to time may require that a banking organization maintain capital above the
minimum levels, whether because of its financial condition or actual or
anticipated growth. The Federal Reserve Board risk-based guidelines define a
three-tier capital framework. Tier 1 capital includes common shareholders'
equity and qualifying preferred stock, less goodwill and other adjustments. Tier
2 capital consists of preferred stock not qualifying as Tier 1 capital,
mandatory convertible debt, limited amounts of subordinated debt, other
qualifying term debt and the allowance for credit losses up to 1.25% of
risk-weighted assets. Tier 3 capital includes subordinated debt that is
unsecured, fully paid, has an original maturity of at least two years, is not
redeemable before maturity without prior approval by the Federal Reserve Board
and includes a lock-in clause precluding payment of either interest or principal
if the payment would cause the issuing bank's risk-based capital ratio to fall
or remain below the required minimum. The sum of Tier 1 and Tier 2 capital less
investments in unconsolidated subsidiaries represents our qualifying total
capital. Risk-based capital ratios are calculated by dividing Tier 1 and total
capital by risk-weighted assets. Assets and off-balance sheet exposures are
assigned to one of four categories of risk-weights, based primarily on relative
credit risk. The minimum Tier 1 capital ratio is 4% and the minimum total
capital ratio is 8%. Our Tier 1 and total risk-based capital ratios under these
guidelines at June 30, 2002 were 8.09% and 12.42%, respectively. At June 30,
2002, we did not have any subordinated debt that qualified as Tier 3 capital.
The leverage ratio is determined by dividing Tier 1 capital by adjusted
average total assets. Although the stated minimum ratio is 100 to 200 basis
points above 3%, banking organizations are required to maintain a ratio of at
least 5% to be classified as well capitalized. Our leverage ratio at June 30,
2002 was 6.47%. We meet our leverage ratio requirement.
The Federal Deposit Insurance Corporation Improvement Act of 1991, among other
things, identifies five capital categories for insured depository institutions
(well capitalized, adequately capitalized, undercapitalized, significantly
undercapitalized and critically undercapitalized) and requires the respective
federal regulatory agencies to implement systems for "prompt corrective action"
for insured depository institutions that do not meet minimum capital
requirements within such categories. This act imposes progressively more
restrictive constraints on operations, management and capital distributions,
depending on the category in which an institution is classified. Failure to meet
the capital guidelines could also subject a banking institution to capital
raising requirements. An "undercapitalized" bank must develop a capital
restoration plan and its parent holding company must guarantee that bank's
compliance with the plan. The liability of the parent holding company under any
such guarantee is limited to the lesser of 5% of the bank's assets at the time
it became "undercapitalized" or the amount needed to comply with the plan.
Furthermore, in the event of the bankruptcy of the parent holding company, such
guarantee would take priority over the parent's general unsecured creditors. In
addition, this act requires the various regulatory agencies to prescribe certain
non-capital standards for safety and soundness relating generally to operations
and management, asset quality and executive compensation and permits regulatory
action against a financial institution that does not meet such standards.
The various regulatory agencies have adopted substantially similar regulations
that define the five capital categories identified by this act, using the total
risk-based capital, Tier 1 risk-based capital and leverage capital ratios as the
relevant capital mea-
11
sures. Such regulations establish various degrees of corrective action to be
taken when an institution is considered undercapitalized. Under the regulations,
a "well capitalized" institution must have a Tier 1 risk-based capital ratio of
at least 6%, a total risk-based capital ratio of at least 10% and a leverage
ratio of at least 5% and not be subject to a capital directive order. Under
these guidelines, each of our banking subsidiaries is considered well
capitalized as of June 30, 2002.
Regulators also must take into consideration (a) concentrations of credit
risk; (b) interest rate risk (when the interest rate sensitivity of an
institution's assets does not match the sensitivity of its liabilities or its
off-balance-sheet position); and (c) risks from non-traditional activities, as
well as an institution's ability to manage those risks, when determining the
adequacy of an institution's capital. This evaluation will be made as a part of
the institution's regular safety and soundness examination. In addition, we and
any of our banking subsidiaries with significant trading activity must
incorporate a measure for market risk in our regulatory capital calculations.
DISTRIBUTIONS
Our funds for payment of our indebtedness, including the notes, are derived
from a variety of sources, including cash and temporary investments. However,
the primary source of these funds is dividends received from our banking
subsidiaries. Each of our banking subsidiaries is subject to various regulatory
policies and requirements relating to the payment of dividends, including
requirements to maintain capital above regulatory minimums. The appropriate
federal regulatory authority is authorized to determine under certain
circumstances relating to the financial condition of a bank or bank holding
company that the payment of dividends would be an unsafe or unsound practice and
to prohibit payment thereof.
In addition, the ability of our banking subsidiaries to pay dividends may be
affected by the various minimum capital requirements and the capital and
non-capital standards established under the Federal Deposit Insurance
Corporation Improvement Act of 1991, as described above. Our right, and the
right of our stockholders and creditors, to participate in any distribution of
the assets or earnings of our subsidiaries is further subject to the prior
claims of creditors of the respective subsidiaries.
SOURCE OF STRENGTH
According to Federal Reserve Board policy, bank holding companies are expected
to act as a source of financial strength to each subsidiary bank and to commit
resources to support each such subsidiary. This support may be required at times
when a bank holding company may not be able to provide such support. Similarly,
under the cross-guarantee provisions of the Federal Deposit Insurance Act, in
the event of a loss suffered or anticipated by the FDIC -- either as a result of
default of a banking subsidiary or related to FDIC assistance provided to a
subsidiary in danger of default -- the other banking subsidiaries may be
assessed for the FDIC's loss, subject to certain exceptions.
- ---------------------------------------------------------
USE OF PROCEEDS
- ---------------------------------------------------------
Unless we describe a different use in a supplement, we will use the net
proceeds from the sale of the notes for general corporate purposes. General
corporate purposes include:
- our working capital needs;
- investments in, or extensions of credit to, our banking and nonbanking
subsidiaries;
- the possible acquisitions of other financial institutions or their assets or
liabilities;
- the possible acquisitions of or investments in other businesses of a type we
are eligible to acquire;
12
- the possible reduction of our outstanding indebtedness; and
- the possible repurchase of our outstanding equity securities.
Until we designate the use of these net proceeds, we will temporarily invest
them. We may, from time to time, engage in additional capital financings as we
determine appropriate based on our needs and prevailing market conditions. These
additional capital financings may include the sale of other notes and
securities.
- ---------------------------------------------------------
RATIOS OF EARNINGS TO FIXED CHARGES
- ---------------------------------------------------------
Our consolidated ratio of earnings to fixed charges for each of the years in
the five-year period ended December 31, 2001 and for the six months ended June
30, 2002 are as follows:
<Table>
<Caption>
YEAR ENDED DECEMBER 31, SIX MONTHS
- -------------------------------- ENDED
1997 1998 1999 2000 2001 JUNE 30, 2002
- ---- ---- ---- ---- ---- -------------
Excluding interest on deposits
2.2 1.8 2.2 1.8 2.1 3.1
Including interest on deposits
1.5 1.4 1.6 1.5 1.6 2.1
</Table>
The ratio of earnings to fixed charges has been computed by dividing (a) net
income before taxes and fixed charges less (b) equity in undistributed earnings
of unconsolidated subsidiaries by (c) fixed charges.
Fixed charges consist of:
- interest expense, which we calculate excluding interest on deposits in one
case and including that interest in the other;
- amortization of debt discount and appropriate issuance costs; and
- one-third (the amount deemed to represent an appropriate interest factor) of
net rent expense under lease commitments.
- ---------------------------------------------------------
DESCRIPTION OF NOTES
- ---------------------------------------------------------
Our senior notes will be issued under an amended and restated indenture dated
as of July 1, 2001 (the "Senior Indenture") between us and The Bank of New York.
Our subordinated notes will be issued under an amended and restated indenture
dated as of July 1, 2001 (the "Subordinated Indenture," and together with the
Senior Indenture, the "Indentures") between us and The Bank of New York. The
statements in this prospectus and the related supplements concerning the notes
and the Indentures are not complete and are subject to, and qualified in their
entirety by, all of the provisions of the Indentures. If you would like more
information concerning these provisions, you should review the Indentures, which
are on file with the SEC. You also may review the Indentures at the offices of
The Bank of New York at the address indicated in the section entitled "Summary"
beginning on page 4. Whenever we refer to particular provisions of the
Indentures or the defined terms contained in the Indentures, those provisions
and defined terms are incorporated in this prospectus and any supplement by
reference.
The Indentures do not limit the amount of additional indebtedness that we may
incur. Accordingly, without the consent of the holders of the notes, we may
issue additional indebtedness under the Indentures in excess of the
$6,000,000,000 initial offering price of the notes offered by this prospectus.
Notes issued in accordance with this prospectus and a related supplement will
have the following general characteristics:
- The notes will be our direct unsecured obligations. Each supplement will
state whether the notes are senior or subordinated debt. Senior notes will
rank equally with all of our other unsecured senior debt, and subordinated
notes will rank equally with all of our other unsecured subordinated debt
and junior in right of payment to our senior debt.
13
- The notes may be offered from time to time by us through the Purchasing
Agent and each note will mature on a day that is nine months or more from
its issue date.
- Each note will bear interest from its issue date at a fixed rate per year.
- The notes will not be subject to any sinking fund.
- The minimum denomination of the notes will be $1,000 and multiples of $1,000
unless another denomination is stated in the supplement.
In addition, the supplement relating to each offering of notes will describe
specific terms of the notes, including:
- the principal amount of the note offered;
- the price, which may be expressed as a percentage of the aggregate initial
public offering price of the note, at which the note will be issued to the
public;
- the Purchasing Agent's concession;
- the net proceeds to us;
- the date on which the note will be issued to the public;
- the stated maturity date of the note;
- the annual interest rate on the note;
- the interest payment frequency;
- whether the "Survivor's Option" described on page 16 will be applicable;
- if we decide to list any note on a stock exchange, we will specify the
exchange;
- if the note may be redeemed at our option or repaid at the option of the
holder prior to its maturity date and the provisions relating to such
redemption or repayment;
- any special U.S. Federal income tax consequences of the purchase, ownership
and disposition of the note; and
- any other material terms of the note not inconsistent with the provisions of
the applicable Indenture.
PAYMENT OF PRINCIPAL AND INTEREST
Principal of, premium, if any, and interest on the notes will be paid to
owners of a beneficial interest in the notes in accordance with the arrangements
then in place between the paying agent and the Depository Trust Company
(referred to as "DTC"), as the Depositary, and its participants as described
under the section entitled "Registration and Settlement" beginning on page 21.
Interest on each note will be payable either monthly, quarterly, semiannually or
annually on each interest payment date and at maturity or on the date of
redemption or repayment if a note is redeemed or repaid prior to maturity. If
the date for payment of any amount with respect to any note is not a Business
Day, the payment will be postponed until the next following Business Day and
will be made in the relevant place. The holder of the note will not be entitled
to further interest or other payment with respect to this delay. "Business Day"
means, with respect to any note, unless the supplement relating to that note
states otherwise, any weekday that is (1) not a legal holiday in New York, New
York or Charlotte, North Carolina and (2) not a day on which banking
institutions in those cities are authorized or required by law or regulation to
be closed.
Interest will be payable to the person in whose name a note is registered at
the close of business on the regular record date before each interest payment
date. Interest payable at maturity, on a date of redemption or repayment or in
connection with the exercise of a Survivor's Option will be payable to the
person to whom principal is payable.
We will pay any administrative costs imposed by banks in connection with
making payments in immediately available funds, but any tax, assessment or
governmental charge imposed upon payments, includ-
14
ing, without limitation, any withholding tax, will be the responsibility of the
holders of beneficial interests in the notes in respect of which such payments
are made.
INTEREST AND INTEREST RATES
Each note will begin to accrue interest on its issue date. The applicable
supplement will specify a fixed interest rate per year payable monthly,
quarterly, semi-annually or annually. Interest on the notes will be computed on
the basis of a 360-day year of twelve 30-day months.
Interest on the notes will be paid as follows:
<Table>
<Caption>
Interest Payment
Frequency Interest Payment Dates
Monthly........ Fifteenth day of each
calendar month, beginning in
the first calendar month
following the month the note
was issued.
Quarterly...... Fifteenth day of every third
month, beginning in the
third calendar month
following the month the note
was issued.
Semi-annually... Fifteenth day of every sixth
month, beginning in the
sixth calendar month
following the month the note
was issued.
Annually....... Fifteenth day of every
twelfth month, beginning in
the twelfth calendar month
following the month the note
was issued.
</Table>
The regular record date for any interest payment date will be the first day of
the calendar month in which the interest payment date occurs, except that the
regular record date for interest due on the stated maturity date or date of
earlier redemption or repayment will be the date of payment.
Interest on a note will be payable beginning on the first interest payment
date after its issue date to holders of record on the corresponding regular
record date.
REDEMPTION AND REPAYMENT
Unless we otherwise provide in the applicable supplement, the notes will not
be redeemable or repayable prior to their stated maturity dates.
If the supplement states that the note is redeemable at our option prior to
its stated maturity date, then on the date or dates specified in the supplement,
we may redeem any of those notes either in whole or from time to time in part,
upon not less than 30 nor more than 60 days' written notice to the holder of the
note.
If the supplement states that your note is repayable at your option prior to
its stated maturity date, we will require receipt of notice of the request for
repayment at least 30 but not more than 60 days prior to the date or dates
specified in the supplement. We also must receive the completed form entitled
"Option to Elect Repayment." Exercise of the repayment option by the holder of a
note will be irrevocable.
Since the notes will be represented by a global note, DTC (as the Depositary)
or its nominee will be treated as the holder of the notes; therefore DTC or its
nominee will be the only entity that receives notices of redemption of notes
from us, in the case of our redemption of notes, and will be the only entity
that can exercise the right to repayment of notes, in the case of optional
repayment. See the section entitled "Registration and Settlement" beginning on
page 21.
To ensure that DTC or its nominee will timely exercise a right to repayment
with respect to a particular beneficial interest in a note, the beneficial owner
of such interest must instruct the broker or other direct or indirect
participant through which it holds a beneficial interest in the note to notify
DTC or its nominee of its desire to exercise a right to repayment. Because
different firms have different
15
cut-off times for accepting instructions from their customers, each beneficial
owner should consult the broker or other direct or indirect participant through
which it holds the beneficial interest in a note to determine the cut-off time
by which the instruction must be given for timely notice to be delivered to DTC
or its nominee. Conveyance of notices and other communications by DTC or its
nominee to participants, by participants to indirect participants and by
participants and indirect participants to beneficial owners of the notes will be
governed by agreements among them and any applicable statutory or regulatory
requirements.
The actual redemption or repayment of a note normally will occur on the
interest payment date or dates following receipt of a valid notice. Unless
otherwise specified in the supplement, the redemption or repayment price will
equal 100% of the principal amount of the note plus accrued and unpaid interest
to the date or dates of redemption or repayment. Notes will not be redeemed, in
part, in increments less than their minimum denominations.
We may at any time purchase notes, including those otherwise tendered for
repayment by a holder, or a holder's duly authorized representative through the
exercise of the Survivor's Option described below, at any price or prices in the
open market or otherwise. If we purchase notes in this manner, we will have the
discretion to either hold, resell or surrender these notes to the Trustee for
cancellation.
SURVIVOR'S OPTION
The "Survivor's Option" is a provision in a note in which we agree to repay
that note, if requested by the authorized representative of the beneficial owner
of that note, following the death of the beneficial owner of the note, so long
as the note was acquired by the beneficial owner at least six months prior to
the request. The supplement relating to any note will state whether the
Survivor's Option applies to that note.
If the Survivor's Option is applicable to a note, upon the valid exercise of
the Survivor's Option and the proper tender of the note for repayment, we will
repay that note, in whole or in part, at a price equal to 100% of the principal
amount of the deceased beneficial owner's beneficial interest in the note plus
accrued and unpaid interest to the date of repayment.
To be valid, the Survivor's Option must be exercised by or on behalf of the
person who has authority to act on behalf of the deceased beneficial owner of
the note under the laws of the applicable jurisdiction (including, without
limitation, the personal representative of or the executor of the estate of the
deceased beneficial owner or the surviving joint owner with the deceased
beneficial owner).
A beneficial owner of a note is a person who has the right, immediately prior
to such person's death, to receive the proceeds from the disposition of that
note, as well as the right to receive payment of the principal of the note.
The death of a person holding a beneficial ownership interest in a note as a
joint tenant or tenant by the entirety with another person, or as a tenant in
common with the deceased holder's spouse, will be deemed the death of a
beneficial owner of that note, and the entire principal amount of the note held
in this manner will be subject to repayment by us upon request. However, the
death of a person holding a beneficial ownership interest in a note as tenant in
common with a person other than such deceased holder's spouse will be deemed the
death of a beneficial owner only with respect to the such deceased person's
interest in the note, and only the deceased beneficial owner's percentage
interest in the principal amount of the note will be subject to repayment.
The death of a person who, during his or her lifetime, was entitled to
substantially all of the beneficial ownership interests in a note will be deemed
the death of the beneficial owner of that
16
note for purposes of the Survivor's Option, regardless of whether that
beneficial owner was the registered holder of the note, if the beneficial
ownership interest can be established to the satisfaction of the applicable
Trustee. A beneficial ownership interest will be deemed to exist in typical
cases of nominee ownership, ownership under the Uniform Transfers to Minors Act
or Uniform Gifts to Minors Act, community property or other joint ownership
arrangements between a husband and wife. In addition, the beneficial ownership
interest in a note will be deemed to exist in custodial and trust arrangements
where one person has all of the beneficial ownership interest in that note
during his or her lifetime.
We have the discretionary right to limit the aggregate principal amount of
notes as to which exercises of the Survivor's Option will be accepted by us from
all authorized representatives of deceased beneficial owners in any calendar
year to an amount equal to the greater of $2,000,000 or 2% of the principal
amount of all notes outstanding as of the end of the most recent calendar year.
We also have the discretionary right to limit the aggregate principal amount of
notes as to which exercises of the Survivor's Option will be accepted by us from
the authorized representative for any individual deceased beneficial owner of
notes in any calendar year to $250,000. In addition, we will not permit the
exercise of the Survivor's Option for a principal amount less than $1,000 and we
will not permit the exercise of the Survivor's Option if such exercise will
result in a note with a principal amount of less than $1,000 outstanding. If,
however, the original principal amount of a note was less than $1,000, the
authorized representative of the deceased beneficial owner of such note may
exercise the Survivor's Option, but only for the full principal amount of such
note.
An otherwise valid election to exercise the Survivor's Option may not be
withdrawn. An election to exercise the Survivor's Option will be accepted in the
order that it was received by the Trustee, except for any note the acceptance of
which would contravene any of the limitations described above. Notes accepted
for repayment through the exercise of the Survivor's Option normally will be
repaid on the first interest payment date that occurs 20 or more calendar days
after the date of the acceptance. For example, if the acceptance date of a note
tendered pursuant to a valid exercise of the Survivor's Option is May 1, 2003,
and interest on that note is paid monthly, we would normally, at our option,
repay or repurchase that note on the interest payment date occurring on June 15,
2003, because the May 15, 2003 interest payment date would occur less than 20
days from the date of acceptance. Each tendered note that is not accepted in any
calendar year due to the application of any of the limitations described in the
preceding paragraph will be deemed to be tendered in the following calendar year
in the order in which all such notes were originally tendered. If a note
tendered through a valid exercise of the Survivor's Option is not accepted, the
applicable Trustee will deliver a notice by first-class mail to the registered
holder, at that holder's last known address as indicated in the note Register,
that states the reason that note has not been accepted for repayment.
Since the notes will be represented by a global note, DTC, as Depositary, or
its nominee will be treated as the holder of the notes and will be the only
entity that can exercise the Survivor's Option for such notes. To obtain
repayment of a note pursuant to exercise of the Survivor's Option, the deceased
beneficial owner's authorized representative must provide the following items to
the broker or other entity through which the beneficial interest in the note is
held by the deceased beneficial owner:
- appropriate evidence satisfactory to the Trustee that:
(a) the deceased was the beneficial owner of the note at the time of death
and his or her
17
interest in the note was acquired by the deceased beneficial owner at
least six months prior to the request for repayment,
(b) the death of the beneficial owner has occurred and the date of death,
and
(c) the representative has authority to act on behalf of the deceased
beneficial owner;
- if the beneficial interest in the note is held by a nominee of the deceased
beneficial owner, a certificate satisfactory to the applicable Trustee from
the nominee attesting to the deceased's beneficial ownership of that note;
- a written request for repayment signed by the authorized representative of
the deceased beneficial owner with the signature guaranteed by a member firm
of a registered national securities exchange or of the National Association
of Securities Dealers, Inc. or a commercial bank or trust company having an
office or correspondent in the United States;
- if applicable, a properly executed assignment or endorsement;
- tax waivers and any other instruments or documents that the Trustee
reasonably requires in order to establish the validity of the beneficial
ownership of the note and the claimant's entitlement to payment; and
- any additional information the Trustee requires to evidence satisfaction of
any conditions to the exercise of the Survivor's Option or to document
beneficial ownership or authority to make the election and to cause the
repayment of the note.
In turn, the broker or other entity will deliver each of these items to the
Trustee and will certify to the Trustee that the broker or other entity
represents the deceased beneficial owner.
We retain the right to limit the aggregate principal amount of notes as to
which exercises of the Survivor's Option will be accepted in any one calendar
year as described above. All other questions regarding the eligibility or
validity of any exercise of the Survivor's Option will be determined by the
Trustee, in its sole discretion, which determination will be final and binding
on all parties.
The broker or other entity will be responsible for disbursing payments
received from the Trustee to the authorized representative. See the section
entitled "Registration and Settlement" beginning on page 21.
Forms for the exercise of the Survivor's Option may be obtained from The Bank
of New York, 101 Barclay Street, New York, New York 10286, Attention:
Reorganization Department, (212) 815-3472.
On July 1, 2001, the Indentures were amended and restated primarily to modify
the Survivor's Option provision. Each of our InterNotes(R) issued prior to July
1, 2001 that included the Survivor's Option specifically limited the exercise of
the Survivor's Option to situations where the beneficial owner had owned the
securities continuously for a period of at least six months immediately prior to
his or her death. All of our InterNotes(R) issued after July 1, 2001 only
require a period of six months to elapse between the date of purchase of the
notes by the beneficial owner and the date of a valid request to exercise the
Survivor's Option by an authorized representative of the beneficial owner's
estate. The other limitations on the exercise of the Survivor's Option did not
change. If one of our affiliates delivers this prospectus in connection with a
secondary market transaction, the applicable supplement will indicate when the
notes were originally issued and whether the Survivor's Option applies.
SUBORDINATION
The subordinated notes will be subordinated in right of payment to our Senior
Indebtedness. The Subordinated Indenture generally defines "Senior Indebtedness"
as any indebtedness for money borrowed, including all of our indebtedness for
borrowed
18
and purchased money, all of our obligations arising from off-balance sheet
guarantees and direct credit substitutes and our obligations associated with
derivative products such as interest and foreign exchange rate contracts and
commodity contracts, that were outstanding on the date we executed the
Subordinated Indenture, or were created, incurred or assumed after that date,
and all deferrals, renewals, extensions and refundings of that indebtedness or
obligations unless the instrument creating or evidencing the indebtedness
provides that the indebtedness is subordinate in right of payment to any of our
other indebtedness. Our senior notes will be Senior Indebtedness.
We will not be able to make any principal, premium or interest payments on the
subordinated notes or repurchase our subordinated notes if there is a default or
event of default on any Senior Indebtedness that is not remedied and we and the
Subordinated Trustee receive notice of this from the holders of at least 10% in
principal amount of any kind or category of any Senior Indebtedness or the
Subordinated Trustee receives notice from us.
If we repay any subordinated note before the required date or in connection
with a distribution of our assets to creditors pursuant to a dissolution,
winding up, liquidation or reorganization, any principal, premium or interest
owing to holders of our Senior Indebtedness will be paid to those holders before
any holders of subordinated notes will be paid. In addition, if such amounts
were previously paid to the holder of a subordinated note or the Subordinated
Trustee, the holders of our Senior Indebtedness will have first rights to such
amounts previously paid.
Until all Senior Indebtedness is repaid in full, the holders of subordinated
notes will be subject to the rights of the holders of Senior Indebtedness to
receive payments or distributions of our assets.
SALE OR ISSUANCE OF CAPITAL STOCK OF PRINCIPAL SUBSIDIARY BANK
The Senior Indenture prohibits the issuance, sale or other disposition of
capital stock, or securities convertible into, or options, warrants or rights to
acquire, capital stock, of any Principal Subsidiary Bank (as defined below) or
of any subsidiary which owns shares of capital stock, or securities convertible
into or options, warrants or rights to acquire capital stock, of any Principal
Subsidiary Bank, with the following exceptions:
- sales of directors' qualifying shares;
- sales or other dispositions for fair market value, if, after giving effect
to the disposition and to the conversion of any shares or securities
convertible into capital stock of a Principal Subsidiary Bank, we would own
at least 80% of each class of the capital stock of such Principal Subsidiary
Bank;
- sales or other dispositions made in compliance with an order of a court or
regulatory authority of competent jurisdiction;
- any sale by a Principal Subsidiary Bank of additional shares of its capital
stock, securities convertible into shares of its capital stock, or options,
warrants or rights to subscribe for or purchase shares of its capital stock,
to its shareholders at any price, so long as before such sale we owned,
directly or indirectly, securities of the same class and immediately after
the sale we owned, directly or indirectly, at least as great a percentage of
each class of securities of the Principal Subsidiary Bank as we owned before
such sale of additional securities; and
- any issuance of shares of capital stock, or securities convertible into or
options, warrants or rights to subscribe for or purchase shares of capital
stock, of a Principal Subsidiary Bank or any subsidiary which owns shares of
capital
19
stock, or securities convertible into or options, warrants or rights to
acquire capital stock, of any Principal Subsidiary Bank, to us or our wholly
owned subsidiary.
A Principal Subsidiary Bank is defined in the Senior Indenture as any of our
banking subsidiaries (other than any credit card bank with total assets equal to
more than 10% of our total consolidated assets (presently Bank of America N.A.
(USA)). At present, Bank of America, N.A. is our only Principal Subsidiary Bank.
There is no comparable covenant in the Subordinated Indenture.
WAIVER OF COVENANTS
The holders of a majority in principal amount of the notes affected that are
outstanding under each of the Indentures may waive compliance with certain
covenants or conditions of such Indentures.
MODIFICATION OF THE INDENTURES
We and the applicable Trustee may modify each of the Senior and Subordinated
Indentures with the consent of the holders of at least 66 2/3% of the aggregate
principal amount of the notes at the time outstanding under the applicable
Indenture, voting as one class. However, we cannot modify either Indenture to
extend the fixed maturity of, reduce the principal amount or redemption premium
of, or reduce the rate of or extend the time of payment of interest on, any note
without the consent of each noteholder. Furthermore, we cannot modify either
Indenture to reduce the percentage of notes required to consent to modification
without the consent of all holders of the notes outstanding under the Indenture.
In addition, we and the applicable Trustee may execute supplemental indentures
in limited circumstances without the consent of any holders of outstanding
notes.
MEETINGS AND ACTION BY NOTEHOLDERS
The Trustee may call a meeting in its discretion or upon request by us or the
holders of at least 10% in principal amount of the notes outstanding under
either Indenture upon the giving of notice. If a meeting of noteholders is duly
held, any resolution raised or decision taken will be binding on all holders of
notes outstanding under the Indenture.
DEFAULTS AND RIGHTS OF ACCELERATION
The Senior Indenture defines an event of default as any one of the following
events:
- our failure to pay principal or premium when due on any notes;
- our failure to pay interest on any notes within 30 days after the interest
becomes due;
- our breach of any of our other covenants contained in the senior notes or
the Senior Indenture that is not cured within 90 days after written notice
to us by the Senior Trustee, or to us and the Senior Trustee by the holders
of at least 25% in principal amount of all senior notes then outstanding
under the Senior Indenture and affected thereby; and
- certain events involving our bankruptcy, insolvency or liquidation.
The Subordinated Indenture defines an event of default solely as our
bankruptcy under Federal bankruptcy laws.
If an event of default occurs and is continuing, either the Trustee or the
holders of 25% in principal amount of the notes outstanding under the applicable
Indenture may declare the principal amount of all such notes to be due and
payable immediately. The holders of a majority in principal amount of the notes
then outstanding under the applicable Indenture may annul the declaration of an
event of default and waive past defaults.
Payment of principal of the subordinated notes may not be accelerated in the
case of a default in the
20
payment of principal or any premium or interest or the performance of any other
covenants.
COLLECTION OF INDEBTEDNESS
If we fail to pay principal or premium on the notes or if we are over 30 days
late on an interest payment on the notes, the applicable Trustee can demand that
we pay to it, for the benefit of the noteholders under the applicable Indenture,
the amount which is due and payable on those notes. If we fail to pay the
required amount on demand, the Trustee may take appropriate action including
instituting judicial proceedings.
The holders of a majority in principal amount of the notes then outstanding
under an Indenture may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee under that Indenture. The
Trustee, however, will be entitled to receive from the holders reasonable
indemnity against expenses and liabilities.
At least annually, we are required to file with the Trustee a certificate
stating that we are not in default with any of the terms of the respective
Indentures.
NOTICES
We will provide to noteholders any required notices by first-class mail to the
addresses of the holders as they appear in the note Register.
CONCERNING THE TRUSTEES
We and our subsidiaries have from time to time maintained deposit accounts and
conducted other banking transactions with The Bank of New York and its
affiliated entities in the ordinary course of business. The Bank of New York
also serves as trustee for a number of series of our outstanding indebtedness
under other indentures.
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REGISTRATION AND SETTLEMENT
- ---------------------------------------------------------
THE DEPOSITORY TRUST COMPANY
All of the notes we offer will be issued in book-entry only form. This means
that we will not issue actual notes or certificates, except in the limited case
described below. Instead, we will issue global notes in registered form (each, a
"Global Note"). Each Global Note is held through DTC, as Depositary, and is
registered in the name of Cede & Co., as nominee of DTC. Accordingly, Cede & Co.
will be the holder of record of the notes. Each note represents a beneficial
interest in that Global Note.
Beneficial interests in a Global Note are shown on, and transfers are effected
through, records maintained by DTC or its participants. In order to own a
beneficial interest in a note, you must be an institution that has an account
with DTC or have a direct or indirect account with such an institution.
Transfers of ownership interests in the notes will be accomplished by making
entries in DTC participants' books acting on behalf of beneficial owners.
Beneficial owners of these notes will not receive certificates representing
their ownership interest, unless the use of the book-entry system is
discontinued.
So long as DTC or its nominee is the registered owner of a Global Note, DTC or
its nominee, as the case may be, will be the sole holder of the notes
represented thereby for all purposes, including payment of principal and
interest, under the applicable Indenture. Except as otherwise provided below,
the beneficial owners of the notes are not entitled to receive physical delivery
of certificated notes and will not be considered the holders of the notes for
any purpose under the applicable Indenture. Accordingly, each beneficial owner
must rely on the procedures of DTC and, if such beneficial owner is not a DTC
participant, on the procedures of the DTC participant through which such
beneficial owner owns its interest in order to exercise any rights of a holder
of a note under the applicable Indenture. The laws of some
21
jurisdictions require that certain purchasers of notes take physical delivery of
such notes in certificated form. Those limits and laws may impair the ability to
transfer beneficial interests in the notes.
Each Global Note representing notes will be exchangeable for certificated
notes of like tenor and terms and of differing authorized denominations in a
like aggregate principal amount, only if (i) DTC notifies us that it is
unwilling or unable to continue as Depositary for the Global Notes or we become
aware that DTC has ceased to be a clearing agency registered under the
Securities Exchange Act of 1934 and, in any such case we fail to appoint a
successor to DTC within 60 calendar days, (ii) we, in our sole discretion,
determine that the Global Notes shall be exchangeable for certificated notes or
(iii) an event of default has occurred and is continuing with respect to the
notes under the applicable Indenture. Upon any such exchange, the certificated
notes shall be registered in the names of the beneficial owners of the Global
Note representing the notes.
The following is based on information furnished by DTC:
DTC will act as securities depository for the notes. The notes will be
issued as fully-registered notes registered in the name of Cede & Co. (DTC's
partnership nominee) or such other name as may be requested by an authorized
representative of DTC. Generally, one fully registered Global Note will be
issued for all of the principal amount of the notes. If, however, the
aggregate principal amount of any note exceeds $500 million, one certificate
will be issued with respect to each $500 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such note.
DTC, the world's largest depository, is a limited-purpose trust company
organized under the New York Banking Law, a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code, and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934. DTC holds and provides asset
servicing for over two million issues of U.S. and non-U.S. equity issues,
corporate and municipal debt issues, and money market instruments from over 85
countries that its participants deposit with DTC. DTC also facilitates the
post-trade settlement among direct participants of sales and other securities
transactions in deposited securities, through electronic computerized
book-entry transfers and pledges between direct participants. This eliminates
the need for physical movement of securities certificates. Direct participants
include both U.S. and non-U.S. securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations. DTC is a
wholly-owned subsidiary of The Depository Trust & Clearing Corporation
("DTCC"). DTCC, in turn, is owned by a number of direct participants of DTC
and members of the National Securities Clearing Corporation, Government
Securities Clearing Corporation, MBS Clearing Corporation, and Emerging
Markets Clearing Corporation, also subsidiaries of DTCC, as well as by The New
York Stock Exchange, Inc., the American Stock Exchange LLC, and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as both U.S. and non-U.S. securities brokers and
dealers, banks, trust companies, and clearing corporations that clear through
or maintain a custodial relationship with a direct participant, either
directly or indirectly. The DTC rules applicable to participants are on file
with the SEC. More information about DTC can be found at www.dtcc.com.
Purchases of the notes under the DTC system must be made by or through
direct participants,
22
which will receive a credit for the notes on DTC's records. The beneficial
interest of each actual purchaser of each note is in turn to be recorded on
the direct and indirect participants' records. Beneficial owners will not
receive written confirmation from DTC of their purchase. Beneficial owners,
however, are expected to receive written confirmations providing details of
the transaction, as well as periodic statements of their holdings, from the
direct or indirect participant through which the beneficial owner entered into
the transaction. Transfers of beneficial interests in the notes are to be
accomplished by entries made on the books of direct and indirect participants
acting on behalf of beneficial owners. Beneficial owners will not receive
certificates representing their beneficial interests in the notes, except in
the event that use of the book-entry system for the notes is discontinued.
To facilitate subsequent transfers, all notes deposited by direct
participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. or such other name as may be requested by an authorized
representative of DTC. The deposit of the notes with DTC and their
registration in the name of Cede & Co. or such other DTC nominee do not effect
any change in beneficial ownership. DTC has no knowledge of the actual
beneficial owners of the notes; DTC's records reflect only the identity of the
direct participants to whose accounts such notes are credited, which may or
may not be the beneficial owners. The direct and indirect participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants, and by direct
participants and indirect participants to beneficial owners will be governed
by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time. Beneficial owners of the
notes may wish to take certain steps to augment the transmission to them of
notices of significant events with respect to the notes, such as redemptions,
tenders, defaults, and proposed amendments to the security documents. For
example, beneficial owners of the notes may wish to ascertain that the nominee
holding the notes for their benefit has agreed to obtain and transmit notices
to beneficial owners. In the alternative, beneficial owners may wish to
provide their names and addresses to the registrar and request that copies of
notices be provided directly to them.
Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or vote
with respect to the notes unless authorized by a direct participant in
accordance with DTC's procedures. Under its usual procedures, DTC mails an
omnibus proxy to us as soon as possible after the regular record date. The
omnibus proxy assigns Cede & Co.'s consenting or voting rights to those direct
participants to whose accounts the notes are credited on the regular record
date (identified in a listing attached to the omnibus proxy).
We will pay principal and any premium or interest payments on the notes in
immediately available funds directly to Cede & Co., or such other nominee as
may be requested by an authorized representative of DTC. DTC's practice is to
credit direct participants' accounts upon DTC's receipt of funds and
corresponding detail information from us, on the applicable payment date in
accordance with their respective holdings shown on DTC's records. Payments by
participants to beneficial owners will be governed by standing instructions
and customary practices, as is the case with securities held for the accounts
of customers in bearer form or registered in "street name." These payments
will be the responsibility of these participants and not of DTC or any other
party, subject
23
to any statutory or regulatory requirements that may be in effect from time to
time. Payment of principal and any premium or interest to Cede & Co. (or such
other nominee as may be requested by an authorized representative of DTC) is
our responsibility, disbursement of such payments to direct participants is
the responsibility of DTC, and disbursement of such payments to the beneficial
owners is the responsibility of the direct or indirect participant.
We will send any redemption notices to DTC. If less than all of the notes
are being redeemed, DTC's practice is to determine by lot the amount of the
interest of each direct participant to be redeemed.
DTC may discontinue providing its services as depository for the notes at
any time by giving us reasonable notice. Under such circumstances, if a
successor securities depository is not obtained, we will print and deliver
certificated notes.
The information in this section concerning DTC and DTC's book-entry system has
been obtained from sources that we believe to be reliable, but neither we nor
any agent takes responsibility for its accuracy.
REGISTRATION, TRANSFER AND PAYMENT OF CERTIFICATED NOTES
If we ever issue notes in certificated form, those notes may be presented for
registration, transfer and payment at the office of the registrar or at the
office of any transfer agent designated and maintained by us. We have originally
designated The Bank of New York, 101 Barclay Street, New York, New York 10286 to
act in those capacities for both senior and subordinated notes. The registrar or
transfer agent will make the transfer or registration only if it is satisfied
with the documents of title and identity of the person making the request. There
will not be a service charge for any exchange or registration of transfer of the
notes, but we may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with the exchange. At any
time we may change transfer agents or approve a change in the location through
which any transfer agent acts. We also may designate additional transfer agents
for any notes at any time.
We will not be required to (1) issue, exchange or register the transfer of any
note to be redeemed for a period of 15 days before the selection of the notes to
be redeemed; or (2) exchange or register the transfer of any note that was
selected, called or is being called for redemption, except the unredeemed
portion of any note being redeemed in part.
We will pay principal and any premium and interest on any certificated notes
at the offices of the paying agents we may designate from time to time.
Generally, we will pay interest on a note on any interest payment date to the
person in whose name the note is registered at the close of business on the
regular record date for that payment.
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TAX CONSEQUENCES TO U.S. HOLDERS
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The following general summary describes the principal United States. Federal
income and estate tax consequences of the ownership and disposition of the
notes. This summary provides general information only and is directed solely to
original holders who hold the notes as capital assets within the meaning of
Section 1221 of the Internal Revenue Code of 1986, as amended (the "Code"), and
does not purport to discuss all United States Federal income tax consequences
that may be applicable to particular categories of investors that may be subject
to special rules, such as certain financial institutions, insurance companies,
dealers in securities, persons holding notes as part of a "straddle," conversion
transaction, hedging or other integrated transaction, persons who have ceased to
be United States citizens or to be taxed as resident aliens or persons that are
not U.S. Holders. In addition, the tax consequences
24
of holding a particular note will depend, in part, on the particular terms of
such note as described in the applicable supplement. This summary also does not
discuss the tax consequences that are specific to holders who purchase notes
that are treated as issued with "original issue discount."
Holders of notes are advised to consult their own tax advisors with regard to
the application of the United States Federal income and estate tax laws to their
particular situations as well as any tax consequences arising under the laws of
any state, local or foreign tax jurisdiction.
This summary is based on the Code, United States Treasury Regulations
(including proposed and temporary regulations) promulgated under the Code,
rulings, official pronouncements and judicial decisions as of the date of this
Prospectus. The authorities on which this summary is based are subject to change
or differing interpretations, which could apply retroactively, so as to result
in United States Federal income tax consequences different from those discussed
below.
For purposes of the following discussion, "U.S. Holder" means a beneficial
owner of a note that is:
(1) for United States Federal income tax purposes a citizen or resident of
the United States;
(2) a corporation or partnership (or other entity properly classified as a
corporation or partnership for United States federal income tax purposes)
created or organized in the United States or under the laws of the United
States or any state (including the District of Columbia);
(3) an estate the income of which is subject to United States Federal income
taxation regardless of its source;
(4) a trust if (a) a court within the United States is able to exercise
primary supervision over the administration of the trust and (b) one or more
United States persons have the authority to control all substantial decisions
of the trust; or
(5) any other holder whose income with respect to a note is effectively
connected with such holder's conduct of a United States trade or business.
Payment of Interest
Interest on a note will generally be taxable to a U.S. Holder as ordinary
interest income at the time it is accrued or is received in accordance with the
U.S. Holder's method of accounting for tax purposes.
Market Discount
If a U.S. Holder purchases a note for an amount that is less than the
principal amount of the note by 0.25% or more of the principal amount of the
note multiplied by the number of remaining whole years to maturity, such holder
will be considered to have purchased such note with "market discount." In such
case, any gain realized by a U.S. Holder on the sale, exchange or redemption of
the note generally will be treated as ordinary interest income to the extent of
the market discount that accrued on the note during such holder's holding
period. In addition, a U.S. Holder may be required to defer the deduction of a
portion of the interest paid on any indebtedness incurred or maintained to
purchase or carry the note. In general, market discount is treated as accruing
ratably over the term of the note unless an election is made to accrue such
market discount under a constant yield method.
A U.S. Holder may elect to include market discount in gross income currently
as it accrues (on either a ratable or constant yield basis), in lieu of treating
a portion of any gain realized on a sale, exchange or redemption of the notes as
ordinary income. If an election is made to include market discount on a current
basis, the interest deduction deferral rule described above will not apply. If a
U.S. Holder makes such an election, it will apply to all market discount debt
instruments acquired by such holder on or after the first day of the first
taxable
25
year to which the election applies. The election may not be revoked without the
consent of the United States Internal Revenue Service, or "IRS."
Bond Premium
If a U.S. Holder purchases a note for an amount that is greater than the
principal amount of the note, such holder will be considered to have purchased
such note with "amortizable bond premium" equal in amount to such excess. A U.S.
Holder may elect (in accordance with applicable Code provisions) to amortize
such premium over the remaining term of the note (where such note is not
redeemable prior to its maturity date), based on the U.S. Holder's yield to
maturity with respect to the note.
A U.S. Holder generally may use the amortizable bond premium allocable to an
accrual period to offset interest required to be included in the U.S. Holder's
income with respect to the note in that accrual period. If the amortizable bond
premium allocable to an accrual period exceeds the amount of interest allocable
to such accrual period, such excess would be allowed as a deduction for such
accrual period, but only to the extent of the U.S. Holder's prior interest
inclusions on the note that have not been offset previously by bond premium. Any
excess is generally carried forward and allocable to the next accrual period.
If such note may be redeemed by us prior to its maturity date, the amount of
amortizable bond premium is determined with reference to either the amount
payable on maturity or, if it results in a smaller premium, the amount payable
on the earlier redemption date. A U.S. Holder who elects to amortize bond
premium must reduce his tax basis in the note as described under "Sale, Exchange
or Redemption of the Notes" below.
An election to amortize bond premium applies to all taxable debt obligations
held by the U.S. Holder at the beginning of the first taxable year to which the
election applies and thereafter acquired by the U.S. Holder and may be revoked
only with the consent of the IRS. Generally, a holder may make an election to
include in gross income its entire return on a note (i.e., the excess of all
remaining payments to be received on the note over the amount paid for the note
by such holder) in accordance with a constant yield method based on the
compounding of interest. If a holder makes such an election for a note with
amortizable bond premium, such election will result in a deemed election to
amortize bond premium for all of the holder's debt instruments with amortizable
bond premium and may be revoked only with the permission of the IRS.
Sale, Exchange or Redemption of the Notes
Upon the sale, exchange or redemption of a note, a U.S. Holder will recognize
taxable gain or loss equal to the difference between the amount realized on the
sale, exchange or redemption (other than amounts representing interest not
previously included in income) and the U.S. Holder's adjusted tax basis in the
note. A U.S. Holder's adjusted tax basis in a note will generally be the U.S.
dollar cost of the note to such U.S. Holder, increased by any market discount
previously included in income by the U.S. Holder and reduced by any principal
payments received by the U.S. Holder and any amortizable bond premium used to
offset interest.
Except as discussed above with respect to market discount, gain or loss
realized on the sale, exchange or redemption of a note will be capital gain or
loss. Prospective investors should consult their tax advisors regarding the
treatment of capital gains (which may be taxed at lower rates than ordinary
income for taxpayers who are individuals, trusts or estates) and losses (the
deductibility of which is subject to limitation).
If a U.S. Holder disposes of only a portion of a note pursuant to a redemption
or repayment (including the Survivor's Option, if applicable), such disposition
will be treated as a pro rata prepayment in retirement of a portion of a debt
instrument. Gener-
26
ally, the resulting gain or loss would be calculated by assuming that the
original note being tendered consists of two instruments, one that is retired
(or repaid), and one that remains outstanding. The adjusted issue price and the
U.S. Holder's adjusted basis, determined immediately before the disposition,
would be allocated between these two instruments based on the portion of the
instrument that is treated as retired by the pro rata prepayment.
Flat Notes
We expect that most of the notes will trade in the secondary market with
accrued interest. However, we may issue notes with terms and conditions that
would make it likely that such notes would trade "flat" in the secondary market,
which means that upon a sale of a note a U.S. Holder would not be paid an amount
that reflects the accrued but unpaid interest with respect to such note.
Nevertheless, for United States Federal income tax purposes, a portion of the
sales proceeds equal to the interest accrued with respect to such note from the
last interest payment date to the sale date must be treated as interest income
rather than as an amount realized upon the sale. Accordingly, a U.S. Holder that
sells such a note between interest payment dates would be required to recognize
interest income and, in certain circumstances, would recognize a capital loss
(the deductibility of which is subject to limitations) on the sale of the notes.
Concomitantly, a U.S. Holder that purchases such a note between interest payment
dates would not be required to include in income that portion of any interest
payment received that is attributable to interest that accrued prior to his or
her purchase. If we issue such notes, we will state in the applicable supplement
that such notes are expected to trade "flat." A U.S. Holder that purchases such
a note between interest payment dates should consult his or her own tax advisor
concerning such holder's adjusted tax basis in the note and whether such notes
should be treated as having been purchased with market discount.
Backup Withholding and Information Reporting
Backup withholding and information reporting requirements may apply to certain
payments of principal, premium and interest on a note, and to payments of
proceeds of the sale or redemption of a note, to certain non-corporate U.S.
Holders. We, our agent, a broker, the relevant Trustee or any paying agent, as
the case may be, will be required to withhold from any payment made during
calendar year 2002 or 2003 a tax equal to 30% of such payment if the U.S. Holder
fails to furnish or certify his or her correct taxpayer identification number
(social security number or employer identification number) to the payor in the
manner required, fails to certify that such U.S. Holder is not subject to backup
withholding, or otherwise fails to comply with the applicable requirements of
the backup withholding rules. The withholding tax will be reduced to 29% for
payments made during the 2004 and 2005 calendar years and will be further
reduced to 28% for payments made in 2006 through 2010. For payments made in 2011
and thereafter, the withholding tax rate will be reduced to 31%. Any amounts
withheld under the backup withholding rules from a payment to a holder may be
credited against such holder's United States Federal income tax and may entitle
such holder to a refund, provided that the required information is furnished to
the IRS.
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EMPLOYEE RETIREMENT INCOME
SECURITY ACT
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A fiduciary of a pension plan or other employee benefit plan (including a
governmental plan, an IRA or a Keogh plan) proposing to invest in the notes
should consider this section carefully.
A fiduciary of an employee benefit plan subject to the Employee Retirement
Income Security Act of 1974, as amended (commonly referred to as "ERISA") should
consider fiduciary standards under ERISA in the context of the particular
circum-
27
stances of such plan before authorizing an investment in the notes. A plan
fiduciary also should consider whether the investment is in accordance with the
documents and instruments governing the plan.
In addition, ERISA and the Code prohibit certain transactions (referred to as
"prohibited transactions") involving the assets of a plan subject to ERISA or
the assets of an individual retirement account or plan subject to Section 4975
of the Code (referred to as an "ERISA plan"), on the one hand, and persons who
have certain specified relationships to the plan ("parties in interest" within
the meaning of ERISA or "disqualified persons" within the meaning of the Code),
on the other. If we (or an affiliate) are considered a party in interest or
disqualified person with respect to an ERISA plan, then the investment in notes
by the ERISA plan may give rise to a prohibited transaction. There are several
ways by which Bank of America Corporation or its affiliates may be considered a
party in interest or a disqualified person with respect to an ERISA plan. For
example, if we provide banking or financial advisory services to an ERISA plan,
or act as a trustee or in a similar fiduciary role for ERISA plan assets, we may
be considered a party in interest or a disqualified person with respect to that
ERISA plan.
By purchasing and holding the notes, the person making the decision to invest
on behalf of an ERISA plan is representing to us that the purchase and holding
of the notes will not result in a prohibited transaction under ERISA or the
Code. Therefore, an ERISA plan should not invest in the notes unless the plan
fiduciary or other person acquiring securities on behalf of the ERISA plan
determines that neither we nor an affiliate is a party in interest or a
disqualified person or, alternatively, that an exemption from the prohibited
transaction rules is available. If an ERISA plan engages in a prohibited
transaction, the transaction may require "correction" and may cause the ERISA
plan fiduciary to incur certain liabilities and the parties in interest or
disqualified persons to be subject to excise taxes.
If you are the fiduciary of a pension plan or other ERISA plan, or an
insurance company that is providing investment advice or other features to a
pension plan or other ERISA plan, and you propose to invest in the notes with
the assets of the ERISA plan, you should consult your own legal counsel for
further guidance.
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PLAN OF DISTRIBUTION
- ---------------------------------------------------------
Under the terms of an Amended and Restated Selling Agent Agreement dated as of
August , 2002, the notes are offered from time to time by us to the Purchasing
Agent for subsequent resale to the agents and other dealers. The agents,
including the Purchasing Agent, are parties to that agreement. The notes will be
offered for sale in the United States only. Dealers who are members of the
selling group have executed a Master Selected Dealer Agreement with the
Purchasing Agent. The agents have agreed to use their reasonable best efforts to
solicit offers from investors to purchase the notes. We also may appoint
additional agents to solicit offers to purchase the notes. Any solicitation and
sale of the notes through those additional agents, however, will be on the same
terms and conditions to which the original agents have agreed.
We will pay the Purchasing Agent a gross selling concession to be divided
among the Purchasing Agent and the other agents as they agree. The concession is
payable to the Purchasing Agent in the form of a discount ranging from 0.2% to
3.0% of the non-discounted price for each note sold. However, we also may pay
the Purchasing Agent a concession greater than or less than the range specified
above. The gross selling concession that we will pay to the Purchasing Agent
will be set forth in the related supplement. The Purchasing Agent also may sell
notes to dealers at a discount not in excess of the
28
concession it received from us. In certain cases, the Purchasing Agent and the
other agents and dealers may agree that the Purchasing Agent will retain the
entire gross selling concession. It is anticipated that in these circumstances
the other agents and dealers will be compensated based on a percentage of assets
under management. We will disclose any of these arrangements in the related
supplement.
Following the solicitation of orders, each of the agents, severally and not
jointly, may purchase notes as principal for its own account from the Purchasing
Agent. Unless otherwise set forth in the applicable supplement, these notes will
be purchased by the agents and resold by them to one or more investors at a
fixed public offering price. After the initial public offering of notes to be
resold by an agent to investors, the public offering price (in the case of notes
to be resold at a fixed public offering price), concession and discount may be
changed.
We have the sole right to accept offers to purchase notes and may reject any
proposed offer to purchase notes in whole or in part. Each agent also has the
right, in its discretion reasonably exercised, to reject any proposed offer to
purchase notes in whole or in part. We reserve the right to withdraw, cancel or
modify any offer without notice. We also may change the terms, including the
interest rate we will pay on the notes, at any time prior to our acceptance of
an offer to purchase.
Each agent, including the Purchasing Agent, may be deemed to be an
"underwriter" within the meaning of the Securities Act of 1933. We have agreed
to indemnify the agents against certain liabilities, including liabilities under
the Securities Act of 1933, or to contribute to payments the agents may be
required to make with respect to those liabilities. We also have agreed to
reimburse the agents for certain expenses.
If any notes are to be distributed by means other than those set forth in the
Amended and Restated Selling Agent Agreement, prior to commencement of such
distribution, copies of the proposed distribution agreements will be submitted
to the National Association of Securities Dealers, Inc. for review along with an
estimate of the maximum compensation to be received by any NASD member or
related person participating in the distribution.
The notes are currently not listed on any stock exchange. If we decide to list
any note on a stock exchange, we will specify the exchange in the supplement
relating to those notes. No note will have an established trading market when
issued. However, we have been advised by the agents that they may purchase and
sell notes in the secondary market as permitted by applicable laws and
regulations. The agents are not obligated to make a market in the notes, and
they may discontinue making a market in the notes at any time without notice.
Neither we nor the agents can provide any assurance regarding the development,
liquidity or maintenance of any trading market for any notes. All secondary
trading in the notes will settle in immediately available funds. See the section
entitled "Registration and Settlement" beginning on page 21.
In connection with certain offerings of notes, the rules of the SEC permit the
Purchasing Agent to engage in transactions that may stabilize the price of the
notes. The Purchasing Agent will conduct these activities for the agents. These
transactions may consist of short sales, stabilizing transactions and purchases
to cover positions created by short sales. A short sale is the sale by the
Purchasing Agent of a greater amount of notes than the amount the Purchasing
Agent has agreed to purchase in connection with a specific offering of notes.
Stabilizing transactions consist of certain bids or purchases made by the
Purchasing Agent to prevent or retard a decline in the price of the notes while
an offering of notes is in process. In general, these purchases or bids for the
notes for the purpose of stabilization or to reduce a syndicate short position
could cause the price of the notes to be higher than it might
29
otherwise be in the absence of those purchases or bids. Neither we nor the
Purchasing Agent makes any representation or prediction as to the direction or
magnitude of any effect that these transactions may have on the price of any
notes. In addition, neither we nor the Purchasing Agent makes any representation
that, once commenced, these transactions will not be discontinued without
notice. The Purchasing Agent is not required to engage in these activities and
may end any of these activities at any time.
Banc of America Securities LLC is a broker-dealer and one of our subsidiaries.
Through one of our subsidiaries we own a significant equity interest in
Incapital Holdings LLC, the parent of Incapital LLC, the Purchasing Agent.
Because of the relationship between us, Banc of America Securities LLC and
Incapital LLC, each offering and any remarketing of notes will be conducted in
compliance with the requirements of Rule 2720 of the Conduct Rules of the
National Association of Securities Dealers, Inc. regarding the offer and sale of
securities of an affiliated entity.
Following the initial distribution of notes, our affiliated entities,
including Banc of America Securities LLC and Incapital LLC, may buy and sell the
notes in secondary market transactions as part of their business as
broker-dealers. Any sale will be at negotiated prices relating to prevailing
prices at the time of sale. This prospectus and related supplements may be used
by one or more of our affiliated entities in connection with offers and sales
related to secondary market transactions in our InterNotes(R) to the extent
permitted by applicable law. Any of our affiliated entities may act as principal
or agent in these transactions. None of Banc of America Securities LLC,
Incapital LLC or any other member of the National Association of Securities
Dealers, Inc. participating in the distribution of our InterNotes(R) will
execute a transaction in our InterNotes(R) in a discretionary account without
specific prior written approval of that customer.
The agents or dealers to or through which we may sell notes may engage in
transactions with us and perform services for us in the ordinary course of
business.
The maximum underwriting concession or discount to be received by any member
of the National Association of Securities Dealers, Inc. or independent
broker-dealer will not be greater than 8.0% of the initial gross proceeds of the
notes sold.
- ---------------------------------------------------------
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 with
the SEC at the Public Reference Room of the SEC 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 also may inspect
our filings over the Internet at the SEC's home page at http://www.sec.gov. You
also can inspect reports and other information we file at the offices of The New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
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
- information that we file with the SEC will automatically update and
supersede this incorporated information and certain information in this
prospectus.
30
We incorporate by reference the documents listed below which were filed with
the SEC under the Securities Exchange Act of 1934:
- our annual report on Form 10-K for the year ended December 31, 2001;
- our quarterly reports on Form 10-Q for the periods ended March 31, 2002 and
June 30, 2002; and
- our current reports on Form 8-K dated January 22, 2002, January 31, 2002,
January 31, 2002, February 11, 2002, April 15, 2002, April 23, 2002, July
15, 2002, August 9, 2002, August 14, 2002 and August 14, 2002 (in each case,
with the exception of any information filed pursuant to Item 9 of Form 8-K
which is not incorporated herein by reference).
We also incorporate by reference each of the following documents that we will
file with the SEC after the date of this prospectus (except any information
filed pursuant to Item 9 of Form 8-K):
- reports filed under Sections 13(a) and (c) of the Securities Exchange Act of
1934;
- definitive proxy or information statements filed under Section 14 of the
Securities Exchange Act of 1934 in connection with any subsequent
stockholders' meetings; and
- any reports filed under Section 15(d) of the Securities Exchange Act of
1934.
You should assume that the information appearing in this prospectus is
accurate as of the date of this prospectus only. Our business, financial
position and results of operations may have changed since that date.
You may request a copy of any filings referred to above (excluding exhibits),
at no cost, by contacting us at the following address:
Bank of America Corporation
Corporate Treasury Division
NC1-007-23-01
100 North Tryon Street
Charlotte, North Carolina 28255
(704) 386-5972
- ---------------------------------------------------------
FORWARD-LOOKING STATEMENTS
- ---------------------------------------------------------
This prospectus and all accompanying supplements contain or incorporate
statements that constitute "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. Those statements can be identified by the use of
forward-looking language such as "will likely result," "may," "are expected to,"
"is anticipated," "estimate," "projected," "intends to," or other similar words.
Our actual results, performance or achievements could differ materially from the
results expressed in, or implied by, those forward-looking statements. Those
statements are subject to certain risks and uncertainties, including but not
limited to, certain risks described in the prospectus supplement. When
considering those forward-looking statements, you should keep in mind these
risks, uncertainties and other cautionary statements made in this prospectus and
the prospectus supplement. You should not place undue reliance on any
forward-looking statement which speaks only as of the date made.
Information regarding important factors that could cause actual results,
performance, or achievements to differ, perhaps materially, from those in our
forward-looking statements is contained under the caption "Item 7, Management's
Discussion and Analysis of Financial Condition and Results of Operations" in our
Annual Report on Form 10-K for the year ended December 31, 2001, which is
incorporated by reference. See "Where You Can Find More Information"
31
above for information about how to obtain a copy of our annual report.
- ---------------------------------------------------------
LEGAL OPINIONS
- ---------------------------------------------------------
The legality of the notes will be passed upon for us by Helms Mulliss &
Wicker, PLLC, Charlotte, North Carolina, and for the agents by Stroock & Stroock
& Lavan LLP, New York, New York. As of the date of this prospectus, certain
members of Helms Mulliss & Wicker, PLLC, beneficially owned less than one-tenth
of 1% of our outstanding shares of common stock.
- ---------------------------------------------------------
EXPERTS
- ---------------------------------------------------------
Our consolidated financial statements incorporated in this prospectus by
reference to our annual report on Form 10-K for the year ended December 31, 2001
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.
32
[BACK COVER]
[Bank of America Logo]
Bank of America Corporation
------------
INTERNOTES(R)
PROSPECTUS
__________, 2002
--------------------------------------------
Our affiliated entities, including Banc
of America Securities LLC and Incapital
LLC, will deliver this prospectus for
offers and sales in the secondary market.
--------------------------------------------
[Bank of America Logo]
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses, other than underwriting or broker-dealer fees,
discounts and commissions, in connection with the offering are as follows:
<Table>
Securities Act Registration Fee............................. $ 552,000
NASD Fee.................................................... 30,500
Printing and Engraving Expenses............................. 150,000
Legal Fees and Expenses..................................... 150,000
Accounting Fees and Expenses................................ 100,000
Blue Sky Fees and Expenses.................................. 30,000
Trustee's and Depositary's Fees and Expenses (including
counsel fees)............................................. 545,000
Rating Agency Fees and Expenses............................. 225,000
Miscellaneous............................................... 50,000
----------
$1,832,500
==========
</Table>
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 such 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
his or her 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 such 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 him or her 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 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
II-1
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 145 also provides that the
expenses incurred by an officer or director in defending any action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
the action, suit or proceeding upon receipt of an undertaking of the director or
officer to repay the expenses if it is ultimately determined that the director
or officer is not entitled to be indemnified therefor.
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 (a) any breach of
the director's duty of loyalty to the corporation or its stockholders; (b) acts
or omissions not in good faith or which involved intentional misconduct or a
knowing violation of the law; (c) willful or negligent unlawful payment of a
dividend or stock purchase or redemption; or (d) any transaction from which the
director derived an improper personal benefit.
The Amended and 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, certain sections of the form of the Amended and Restated
Selling Agent Agreement filed as an Exhibit hereto provide for indemnification
of the Registrant and its directors and officers by the underwriters or agents
against certain liabilities, including certain liabilities under the Securities
Act of 1933 (the "Securities Act"). From time to time similar provisions have
been contained in other agreements relating to other securities of the
Registrant.
II-2
ITEM 16. LIST OF EXHIBITS
<Table>
1.1 -- Form of Amended and Restated Selling Agent Agreement among
Bank of America Corporation and the agents*
4.1 -- Amended and Restated Senior Indenture dated as of July 1,
2001 between Bank of America Corporation and The Bank of New
York, as trustee, incorporated herein by reference to
Exhibit 4.1 to the Registrant's Registration Statement on
Form S-3 (No. 333-65750)
4.2 -- Amended and Restated Subordinated Indenture dated as of July
1, 2001 between Bank of America Corporation and The Bank of
New York, as trustee, incorporated herein by reference to
Exhibit 4.2 to the Registrant's Registration Statement on
Form S-3 (No. 333-65750)
4.3 -- Restated Senior Indenture dated as of January 1, 2001
between Bank of America Corporation and The Bank of New
York, as trustee, incorporated herein by reference to
Exhibit 4.1 to the Registrant's Registration Statement on
Form S-3 (No. 333-47222)
4.4 -- Restated Subordinated Indenture dated as of January 1, 2001
between Bank of America Corporation and The Bank of New
York, as trustee, incorporated herein by reference to
Exhibit 4.2 to the Registrant's Registration Statement on
Form S-3 (No. 333-47222)
4.5 -- Form of Bank of America Corporation Senior InterNote*
4.6 -- Form of Bank of America Corporation Subordinated InterNote*
5.1 -- Opinion of Helms Mulliss & Wicker, PLLC regarding legality
of notes being registered*
12.1 -- Calculation of Ratio of Earnings to Fixed Charges,
incorporated herein by reference to Exhibit 12 of the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2002, filed August 14, 2002
23.1 -- Consent of Helms Mulliss & Wicker, PLLC (included in Exhibit
5.1)*
23.2 -- Consent of PricewaterhouseCoopers LLP
24.1 -- Power of Attorney*
24.2 -- Certified Resolutions*
25.1 -- Statement of Eligibility of Senior Trustee on Form T-1*
25.2 -- Statement of Eligibility of Subordinated Trustee on Form
T-1*
</Table>
- ---------------
* Previously filed with this Registration Statement.
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 this 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 notes 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.
II-3
provided, however, that paragraphs (1)(i) and (1)(ii) above do not
apply if the Registration Statement is on Form S-3 or 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 Securities Exchange Act of 1934 (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 Securities and Exchange 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 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.
The Registrant hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act of 1939, as amended (the "Act"), in
accordance with the rules and regulations prescribed by the Securities and
Exchange Commission under Section 305(b)(2) of the Act.
II-4
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 Amendment No. 2 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Charlotte, North Carolina, on August
20, 2002.
BANK OF AMERICA CORPORATION
By: * KENNETH D. LEWIS
------------------------------------
Kenneth D. Lewis
Chairman of the Board, Chief
Executive Officer and President
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<Table>
<Caption>
SIGNATURE TITLE DATE
--------- ----- ----
* KENNETH D. LEWIS Chairman of the Board, Chief August 20, 2002
- ----------------------------------------------------- Executive Officer, President and
Kenneth D. Lewis Director (Principal Executive
Officer)
* JAMES H. HANCE, JR. Vice Chairman, Chief Financial August 20, 2002
- ----------------------------------------------------- Officer and Director
James H. Hance, Jr. (Principal Financial Officer)
* MARC D. OKEN Executive Vice President and August 20, 2002
- ----------------------------------------------------- Principal Financial Executive
Marc D. Oken (Principal Accounting Officer)
* JOHN R. BELK Director August 20, 2002
- -----------------------------------------------------
John R. Belk
* CHARLES W. COKER Director August 20, 2002
- -----------------------------------------------------
Charles W. Coker
* FRANK DOWD, IV Director August 20, 2002
- -----------------------------------------------------
Frank Dowd, IV
* KATHLEEN FELDSTEIN Director August 20, 2002
- -----------------------------------------------------
Kathleen Feldstein
* PAUL FULTON Director August 20, 2002
- -----------------------------------------------------
Paul Fulton
* DONALD E. GUINN Director August 20, 2002
- -----------------------------------------------------
Donald E. Guinn
* C. RAY HOLMAN Director August 20, 2002
- -----------------------------------------------------
C. Ray Holman
Director , 2002
- -----------------------------------------------------
Walter E. Massey
</Table>
II-5
<Table>
<Caption>
SIGNATURE TITLE DATE
--------- ----- ----
* C. STEVEN MCMILLAN Director August 20, 2002
- -----------------------------------------------------
C. Steven McMillan
* PATRICIA E. MITCHELL Director August 20, 2002
- -----------------------------------------------------
Patricia E. Mitchell
* O. TEMPLE SLOAN, JR. Director August 20, 2002
- -----------------------------------------------------
O. Temple Sloan, Jr.
* MEREDITH R. SPANGLER Director August 20, 2002
- -----------------------------------------------------
Meredith R. Spangler
* RONALD TOWNSEND Director August 20, 2002
- -----------------------------------------------------
Ronald Townsend
* PETER V. UEBERROTH Director August 20, 2002
- -----------------------------------------------------
Peter V. Ueberroth
* JACKIE M. WARD Director August 20, 2002
- -----------------------------------------------------
Jackie M. Ward
Director , 2002
- -----------------------------------------------------
Virgil R. Williams
*By: /s/ CHARLES M. BERGER
------------------------------------------------
Charles M. Berger
Attorney-in-Fact
</Table>
II-6
EXHIBIT INDEX
<Table>
1.1 -- Form of Amended and Restated Selling Agent Agreement among
Bank of America Corporation and the agents*
4.1 -- Amended and Restated Senior Indenture dated as of July 1,
2001 between Bank of America Corporation and The Bank of New
York, as trustee, incorporated herein by reference to
Exhibit 4.1 to the Registrant's Registration Statement on
Form S-3 (No. 333-65750)
4.2 -- Amended and Restated Subordinated Indenture dated as of July
1, 2001 between Bank of America Corporation and The Bank of
New York, as trustee, incorporated herein by reference to
Exhibit 4.2 to the Registrant's Registration Statement on
Form S-3 (No. 333-65750)
4.3 -- Restated Senior Indenture dated as of January 1, 2001
between Bank of America Corporation and The Bank of New
York, as trustee, incorporated herein by reference to
Exhibit 4.1 to the Registrant's Registration Statement on
Form S-3 (No. 333-47222)
4.4 -- Restated Subordinated Indenture dated as of January 1, 2001
between Bank of America Corporation and The Bank of New
York, as trustee, incorporated herein by reference to
Exhibit 4.2 to the Registrant's Registration Statement on
Form S-3 (No. 333-47222)
4.5 -- Form of Bank of America Corporation Senior InterNote*
4.6 -- Form of Bank of America Corporation Subordinated InterNote*
5.1 -- Opinion of Helms Mulliss & Wicker, PLLC regarding legality
of notes being registered*
12.1 -- Calculation of Ratio of Earnings to Fixed Charges,
incorporated herein by reference to Exhibit 12 of the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2002, filed August 14, 2002
23.1 -- Consent of Helms Mulliss & Wicker, PLLC (included in Exhibit
5.1)*
23.2 -- Consent of PricewaterhouseCoopers LLP
24.1 -- Power of Attorney*
24.2 -- Certified Resolutions*
25.1 -- Statement of Eligibility of Senior Trustee on Form T-1*
25.2 -- Statement of Eligibility of Subordinated Trustee on Form
T-1*
</Table>
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* Previously filed with this Registration Statement.
II-7