Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Bank of America Corporation
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 56-0906609 | |
|
(State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
|
|
Bank of America Corporate Center 100 North Tryon Street Charlotte, North Carolina |
28255 (Zip Code) |
|
| (Address of Principal Executive Offices) | ||
Bank of America Corporation Key Associate Stock Plan
(Full Title of the Plan)
TIMOTHY J. MAYOPOULOS, ESQ.
General Counsel
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
(Name and Address of Agent for Service)
1.800.299.2265
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
| Title of Securities to be Registered |
Amount to be Registered |
Proposed Maximum Offering Price Per Unit (1) |
Proposed Maximum Aggregate Offering Price (1) |
Amount of Registration Fee (1) |
||||
|
Common Stock |
141,600,000 shares | $45.68 | $6,468,288,000 | $761,318 |
| (1) | Determined on the basis of the average of the high and low prices of the Common Stock reported on the New York Stock Exchange on December 17, 2004 in accordance with Rule 457(c) under the Securities Act of 1933, as amended (the “Securities Act”), solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act. |
STATEMENT UNDER GENERAL INSTRUCTION E
REGISTRATION OF ADDITIONAL SECURITIES
This Registration Statement on Form S-8 registers additional securities of the same class as other securities for which a Registration Statement on Form S-8 relating to the Bank of America Corporation Key Associate Stock Plan is effective. Accordingly, pursuant to General Instruction E to Form S-8, Bank of America Corporation (the “Registrant”) hereby incorporates by reference herein the contents of such Registration Statement on Form S-8 (Registration No. 333-102043) and hereby deems such contents to be a part hereof, except as otherwise updated or modified by this Registration Statement.
As permitted by Rule 429 under the Securities Act, the prospectus related to this Registration Statement also covers securities registered under Registration No. 333-102043.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been heretofore filed by the Registrant with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference herein:
(a) The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2003;
(b) The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2004, June 30, 2004, and September 30, 2004, and Current Reports on Form 8-K filed since January 1, 2004; and
(c) The description of the Registrant’s Common Stock contained in its registration statement filed pursuant to Section 12 of the Exchange Act, and any amendment or report filed for the purpose of updating such description, including the Registrant’s Current Report on Form 8-K filed March 30, 2004.
All documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the effectiveness of this Registration Statement and prior to the filing of a post-effective amendment hereto that either indicates that all securities offered hereby have been sold or deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained
herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. The Registrant has not restated its Annual Report on Form 10-K for the year ended December 31, 2003 or its Quarterly Report on Form 10-Q for the quarter ended March 31, 2004 to reflect the restated segment presentation within the Registrant’s Quarterly Reports on Form 10-Q for the quarters ended June 30, 2004 and September 30, 2004.
The Registrant will provide without charge to each participant in the Bank of America Corporation Key Associate Stock Plan, on the written or oral request of any such person, a copy of any or all of the documents incorporated herein by reference (other than exhibits to such documents which are not specifically incorporated by reference in such documents). Written requests for such copies should be addressed to: Bank of America Management Stock Plans, NC1-007-21-02, 100 North Tryon Street, Charlotte, North Carolina 28255. To obtain information by telephone, participants should call Bank of America Executive Compensation at 704.387.0896.
Item 8. Exhibits.
The following exhibits are filed with or incorporated by reference in this Registration Statement.
|
Exhibit No.
|
Description of Exhibit |
|
| 5.1 | Opinion of Jacqueline Jarvis Jones, Esq., Associate General Counsel of the Registrant, as to the legality of the securities being registered. | |
| 23.1 | Consent of PricewaterhouseCoopers LLP. | |
| 23.2 | Consent of Jacqueline Jarvis Jones, Esq., Associate General Counsel of the Registrant (included in Exhibit 5.1). | |
| 24.1 | Power of Attorney and Certified Resolution. | |
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-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Charlotte, State of North Carolina, on December 21, 2004.
| BANK OF AMERICA CORPORATION | ||
| By: |
*/s/ Kenneth D. Lewis |
|
| Kenneth D. Lewis | ||
| President and | ||
| Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
|
|
Director | December , 2004 | ||
| Gary L. Countryman | ||||
|
*/s/ Paul Fulton |
Director | December 21, 2004 | ||
| Paul Fulton | ||||
|
|
Chairman and Director | December , 2004 | ||
| Charles K. Gifford | ||||
|
*/s/ Donald E. Guinn |
Director | December 21, 2004 | ||
| Donald E. Guinn | ||||
|
*/s/ James H. Hance, Jr. |
Vice Chairman and Director | December 21, 2004 | ||
| James H. Hance, Jr. | ||||
|
*/s/ Walter E. Massey |
Director | December 21, 2004 | ||
| Walter E. Massey | ||||
|
|
Director | December , 2004 | ||
| Thomas J. May | ||||
|
*/s/ C. Steven McMillan |
Director | December 21, 2004 | ||
|
C. Steven McMillan |
||||
|
*/s/ Patricia E. Mitchell |
Director | December 21, 2004 | ||
| Patricia E. Mitchell | ||||
|
*/s/ Edward L. Romero |
Director | December 21, 2004 | ||
| Edward L. Romero | ||||
|
|
Director | December , 2004 | ||
| Thomas M. Ryan | ||||
|
*/s/ O. Temple Sloan, Jr. |
Director | December 21, 2004 | ||
| O. Temple Sloan, Jr. | ||||
|
*/s/ Meredith R. Spangler |
Director | December 21, 2004 | ||
| Meredith R. Spangler | ||||
|
*/s/ Jackie M. Ward |
Director | December 21, 2004 | ||
| Jackie M. Ward | ||||
| *By: |
/s/ Jacqueline Jarvis Jones |
|
| Jacqueline Jarvis Jones | ||
| Attorney-in-Fact |
INDEX TO EXHIBITS
|
Exhibit No.
|
Description of Exhibit |
|
| 5.1 | Opinion of Jacqueline Jarvis Jones, Esq., Associate General Counsel of the Registrant, as to the legality of the securities being registered. | |
| 23.1 | Consent of PricewaterhouseCoopers LLP. | |
| 23.2 | Consent of Jacqueline Jarvis Jones, Esq., Associate General Counsel of the Registrant (included in Exhibit 5.1). | |
| 24.1 | Power of Attorney and Certified Resolution. | |
Exhibit 5.1
[Bank of America Corporation letterhead]
December 21, 2004
Board of Directors
Bank of America Corporation
Bank of America Corporate Center
Charlotte, North Carolina 28255
Ladies and Gentlemen:
In connection with the proposed registration under the Securities Act of 1933, as amended, of 141,600,000 shares (the “Shares”) of the common stock of Bank of America Corporation (the “Common Stock”) to be issued pursuant to the terms of the Bank of America Corporation Key Associate Stock Plan (the “Plan”), I have examined such corporate records and other documents, including the Registration Statement on Form S-8 (the “Registration Statement”) and Prospectus relating to the Shares, and have reviewed such matters of law as we have deemed necessary or appropriate for this opinion. I have also examined the Bank of America Corporation Registration Statement on Form S-8 (Registration No. 333-102043) relating to the issuance of up to 200,000,000 shares of Common Stock pursuant to the Plan (post-split). Based on such examination and review, it is my opinion that the Shares have been duly and validly authorized and, when issued and paid for in accordance with and upon the terms and conditions of the Plan, will be validly issued, fully paid and nonassessable.
I consent to be named in the Registration Statement as the attorney who passed upon the legality of the Shares, and to the filing of a copy of this opinion as an exhibit to the Registration Statement.
Very truly yours,
|
/s/ Jacqueline Jarvis Jones |
| Jacqueline Jarvis Jones |
| Associate General Counsel |
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 15, 2004 relating to the financial statements, which appears in the 2003 Annual Report to Shareholders of Bank of America Corporation, which is incorporated by reference in Bank of America Corporation’s Annual Report on Form 10-K for the year ended December 31, 2003.
| /s/ PricewaterhouseCoopers LLP |
|
Charlotte, North Carolina |
|
December 21, 2004 |
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of Bank of America Corporation, and the several undersigned Officers and Directors thereof whose signatures appear below, hereby makes, constitutes and appoints J. Steele Alphin, Rachel R. Cummings and Jacqueline Jarvis Jones, and each of them acting individually, its, his and her true and lawful attorneys with power to act without any other and with full power of substitution, to execute, deliver and file in its, his and her name and on its, his and her behalf, and in each of the undersigned Officer’s and Director’s capacity or capacities as shown below, (a) one or more Registration Statements of Bank of America Corporation on Form S-8 relating to the issuance of shares of the Common Stock of Bank of America Corporation pursuant to the Bank of America Corporation 2003 Key Associate Stock Plan, as amended and restated, and any and all documents in support thereof or supplemental thereto and any and all amendments, including any and all post-effective amendments, to the foregoing (hereinafter called the “Registration Statements”), and (b) such registration statements, petitions, applications, consents to service of process or other instruments, any and all documents in support thereof or supplemental thereto, and any and all amendments or supplements to the foregoing, as may be necessary or advisable to qualify or register the securities covered by said Registration Statements under such securities laws, regulations or requirements as may be applicable; and each of Bank of America Corporation and said Officers and Directors hereby grants to said attorneys, and to each of them, full power and authority to do and perform each and every act and thing whatsoever as said attorneys or attorney may deem necessary or advisable to carry out fully the intent of this power of attorney to the same extent and with the same effect as Bank of America Corporation might or could do, and as each of said Officers and Directors might or could do personally in his or her capacity or capacities as aforesaid, and each of Bank of America Corporation and said Officers and Directors hereby ratifies and confirms all acts and things which said attorneys or attorney might do or cause to be done by virtue of this power of attorney and its, his or her signature as the same may be signed by said attorneys or attorney, or any of them, to any or all of the following (and/or any and all amendments and supplements to any or all thereof): such Registration Statements under the Securities Act of 1933, as amended, and all such registration statements, petitions, applications, consents to service of process and other instruments, and any and all documents in support thereof or supplemental thereto, under such securities laws, regulations and requirements as may be applicable.
IN WITNESS WHEREOF, Bank of America Corporation has caused this power of attorney to be signed on its behalf, and each of the undersigned Officers and Directors in the capacity or capacities noted has hereunto set his or her hand as of the date indicated below.
| BANK OF AMERICA CORPORATION |
|
/s/ Kenneth D. Lewis |
|
Kenneth D. Lewis |
|
Chairman, President and Chief Executive Officer |
Dated: December 9, 2003
|
Signature |
Title |
Date |
||
|
/s/ Kenneth D. Lewis |
Chairman, President, Chief Executive Officer and Director (Principal Executive Officer) |
December 9, 2003 | ||
| Kenneth D. Lewis | ||||
|
/s/ James H. Hance, Jr. |
Vice Chairman, Chief Financial Officer and Director (Principal Financial Officer) |
December 9, 2003 | ||
| James H. Hance, Jr. | ||||
|
/s/ Marc D. Oken |
Executive Vice President and Principal Financial Executive (Principal Accounting Officer) |
December 9, 2003 | ||
| Marc D. Oken | ||||
|
/s/ John R. Belk |
Director | December 9, 2003 | ||
| John R. Belk | ||||
|
/s/ Charles W. Coker |
Director | December 9, 2003 | ||
| Charles W. Coker | ||||
|
/s/ Frank Dowd, IV |
Director | December 9, 2003 | ||
| Frank Dowd, IV | ||||
|
/s/ Kathleen F. Feldstein |
Director | December 9, 2003 | ||
| Kathleen F. Feldstein | ||||
|
/s/ Paul Fulton |
Director | December 9, 2003 | ||
| Paul Fulton | ||||
|
/s/ Donald E. Guinn |
Director | December 9, 2003 | ||
| Donald E. Guinn | ||||
|
/s/ Walter E. Massey |
Director | December 9, 2003 | ||
| Walter E. Massey | ||||
|
/s/ C. Steven McMillan |
Director | December 9, 2003 | ||
| C. Steven McMillan | ||||
|
/s/ Patricia E. Mitchell |
Director | December 9, 2003 | ||
|
Patricia E. Mitchell |
||||
|
/s/ Edward L. Romero |
Director | December 9, 2003 | ||
|
Edward L. Romero |
||||
|
/s/ O. Temple Sloan, Jr. |
Director | December 9, 2003 | ||
|
O. Temple Sloan, Jr. |
||||
|
/s/ Meredith R. Spangler |
Director | December 9, 2003 | ||
|
Meredith R. Spangler |
||||
|
/s/ Ronald Townsend |
Director | December 9, 2003 | ||
|
Ronald Townsend |
||||
|
/s/ Jackie M. Ward |
Director | December 9, 2003 | ||
|
Jackie M. Ward |
||||
|
/s/ Virgil R. Williams |
Director | December 9, 2003 | ||
|
Virgil R. Williams |
||||
Bank of America Corporation
Extract of Board of Director Resolutions
December 9, 2003
FURTHER RESOLVED, that J. Steele Alphin, Rachel R. Cummings and Jacqueline Jarvis Jones be, and each of them with full power to act without the other hereby is, authorized and empowered to sign the aforesaid Registration Statements [relating to the Bank of America Corporation Key Associate Stock Plan] and any amendment or amendments thereto (including any post-effective amendments) on behalf of and as attorneys for the Corporation and on behalf of and as attorneys for any of the following: the chief executive officer, the principal financial officer, the principal accounting officer and any other officer of the Corporation.
CERTIFICATE OF SECRETARY
I, ALLISON L. GILLIAM, Assistant Secretary of Bank of America Corporation, a corporation duly organized and existing under the laws of the State of Delaware, do hereby certify that the foregoing is a true and correct extract of resolutions duly adopted by a majority of the entire Board of Directors of said Corporation at a meeting of said Board of Directors held on December 9, 2003, at which meeting a quorum was present and acted throughout and that said resolution is in full force and effect and has not been amended or rescinded as of the date hereof.
IN WITNESS WHEREOF, I have hereupon set my hand and affixed the seal of said corporation this 21st day of December, 2004.
(SEAL)
|
/s/ Allison L. Gilliam |
| Allison L. Gilliam |
| Assistant Secretary |