As filed with the Securities and Exchange Commission on June 25, 2010
Registration No. 333-
UNITED STATES
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 |
Bank of America Corporate Center 100 North Tryon Street Charlotte, North Carolina 28255 |
56-0906609 | ||
|
(State or other jurisdiction of incorporation or organization) |
(Address of principal executive offices, including zip code) |
(I.R.S. Employer Identification No.) |
Bank of America Corporation 2003 Key Associate Stock Plan,
As Amended and Restated Effective April 28, 2010
(Full title of the plan)
ALICE A. HERALD
Deputy General Counsel and Corporate Secretary
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
(704) 386-8072
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
BOYD C. CAMPBELL, JR.
McGuireWoods LLP
201 North Tryon Street
Charlotte, North Carolina 28202
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer | x | Accelerated filer | ¨ | |||
| Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ | |||
CALCULATION OF REGISTRATION FEE
| Title of securities to be registered |
Amount to be
registered (1) |
Proposed maximum
offering price per share (2) |
Proposed maximum
aggregate offering price (2) |
Amount of
registration fee (2) |
||||
|
Common Stock |
500,000,000 shares | $15.15 | $7,575,000,000 | $540,097.50 | ||||
| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers any additional shares of Common Stock that become issuable under the above-named plan by reason of any stock dividend, stock split, recapitalization or any other similar transaction. |
| (2) | Determined on the basis of the average of the high and low prices of the Common Stock reported on the New York Stock Exchange on June 24, 2010 in accordance with Rule 457(c) under the Securities Act, solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act. |
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 2003 Key Associate Stock Plan, as amended and restated effective April 28, 2010 (the “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 Statements on Form S-8 (Registration Nos. 333-102043, 333-121513, 333-133566 and 333-157085) and hereby deems such
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
| Item 1. | Plan Information.* |
| Item 2. | Registrant Information and Employee Plan Annual Information.* |
| * |
Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with the Note to
|
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed by the Registrant with the Securities and Exchange Commission (the “SEC”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference herein and in the Prospectus constituting a part of this Registration Statement:
(a) The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2009;
(b) The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2010;
(c) The Registrant’s Current Reports on Form 8-K filed January 15, 2010, January 20, 2010, February 2, 2010, February 5, 2010, February 24, 2010, March 9, 2010, April 16, 2010 (two filings) and May 3, 2010 (in each case, other than information that is furnished but that is deemed not to have been filed); and
(d) The description of the Registrant’s Common Stock that is contained in the Registrant’s registration statement filed pursuant to Section 12 of the Exchange Act, as modified by the Registrant’s Current Reports on Form 8-K filed April 20, 2009, December 9, 2009, February 24, 2010 and May 3, 2010 and any other amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than any information that is furnished but that is deemed not to have been filed) 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 the Prospectus 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 and the Prospectus 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.
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The Registrant will provide without charge to each participant in the 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 Investor Relations, NC1-007-56-70, 100 North Tryon Street, Charlotte, North Carolina 28255. Telephone requests may be directed to 704.386.5681.
| Item 6. | Indemnification of Directors and Officers. |
Section 145(a) of the General Corporation Law of the State of Delaware (“Delaware Corporation Law”) provides, in general, that a corporation has the power 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), because the 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 any other enterprise. Such indemnity may be against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and if, with respect to any criminal action or proceeding, the person did not have reasonable cause to believe the person’s conduct was unlawful.
Section 145(b) of the Delaware Corporation Law provides, in general, that a corporation has the power 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 because the 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 any other enterprise, against any expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of 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 such 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 indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 145(g) of the Delaware Corporation Law provides, in general, that a corporation has the power 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 any other enterprise, against any liability asserted against the person in any such capacity, or arising out of the person’s status as such, regardless of whether the corporation would have the power to indemnify the person against such liability under the provisions of Section 145 of the Delaware Corporation Law.
Article VIII of the Registrant’s bylaws provides for indemnification to the fullest extent authorized by the Delaware Corporation Law for any person who is or was a director or officer of the Registrant who is or was involved or threatened to be made involved in any proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was serving as a director, officer, manager or employee of the Registrant or is or was serving at the request of the Registrant as a director, officer, manager or employee of any other enterprise. Such indemnification is provided only if the director, officer, manager or employee acted in good faith and in a manner that the director, officer, manager or employee reasonably believed to be in, or not opposed to, the best interests of the Registrant, and with respect to any criminal proceeding, had no reasonable cause to believe that the conduct was unlawful.
The foregoing is only a general summary of certain aspects of the Delaware Corporation Law and the Registrant’s bylaws dealing with indemnification of directors and officers, and does not purport to be complete. It is qualified in its entirety by reference to the detailed provisions of Section 145 of the Delaware Corporation Law and Article VIII of the bylaws of the Registrant.
Pursuant to the Registrant’s bylaws, the Registrant may maintain a directors’ and officers’ insurance policy which insures the directors and officers of the Registrant against liability asserted against such persons in such capacity
2
whether or not the Registrant would have the power to indemnify such person against such liability under the Delaware Corporation Law.
| Item 8. | Exhibits. |
The following exhibits are filed with or incorporated by reference in this Registration Statement.
|
Exhibit
|
Description of Exhibit |
|
| 4(a) | Bank of America Corporation 2003 Key Associate Stock Plan, originally effective January 1, 2003, as amended and restated effective April 28, 2010, incorporated by reference to Appendix B to the Registrant’s Definitive Proxy Statement filed with the SEC on March 17, 2010 | |
| 5(a) | Opinion of McGuireWoods LLP as to the legality of the securities being registered | |
| 23(a) | Consent of McGuireWoods LLP (included in Exhibit 5(a)) | |
| 23(b) | Consent of PricewaterhouseCoopers LLP | |
| 24(a) | Power of Attorney | |
| 24(b) | Certified Resolutions | |
| Item 9. | Undertakings. |
(a) 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 of 1933, as amended (the “Securities Act”); (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement (notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement); and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided , however , that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act, that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) 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
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the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this registration statement 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.
(c) 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 SEC 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 this 25th day of June, 2010.
| BANK OF AMERICA CORPORATION | ||
| By: |
* |
|
| Brian T. Moynihan | ||
| Chief Executive Officer and President | ||
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
|
Signature |
Title |
Date |
||||||
|
* Brian T. Moynihan |
Chief Executive Officer, President and Director (Principal Executive Officer) | June 25, 2010 | ||||||
|
* Charles H. Noski |
Executive Vice President and Chief Financial Officer (Principal Financial Officer) | June 25, 2010 | ||||||
|
* Neil A. Cotty |
Chief Accounting Officer (Principal Accounting Officer) | June 25, 2010 | ||||||
|
* Susan S. Bies |
Director | June 25, 2010 | ||||||
|
* William P. Boardman |
Director | June 25, 2010 | ||||||
|
* Frank P. Bramble, Sr. |
Director | June 25, 2010 | ||||||
|
* Virgis W. Colbert |
Director | June 25, 2010 | ||||||
|
* Charles K. Gifford |
Director | June 25, 2010 | ||||||
|
* Charles O. Holliday, Jr. |
Chairman and Director | June 25, 2010 | ||||||
|
* D. Paul Jones, Jr. |
Director | June 25, 2010 | ||||||
|
* Monica C. Lozano |
Director | June 25, 2010 | ||||||
|
* Thomas J. May |
Director | June 25, 2010 | ||||||
|
Signature |
Title |
Date |
||||||
|
* Donald E. Powell |
Director | June 25, 2010 | ||||||
|
* Charles O. Rossotti |
Director | June 25, 2010 | ||||||
|
* Robert W. Scully |
Director | June 25, 2010 | ||||||
|
*By: |
/s/ Teresa M. Brenner Teresa M. Brenner Attorney-in-Fact |
June 25, 2010 |
INDEX TO EXHIBITS
|
Exhibit
|
Description of Exhibit |
|
| 4(a) | Bank of America Corporation 2003 Key Associate Stock Plan, originally effective January 1, 2003, as amended and restated effective April 28, 2010, incorporated by reference to Appendix B to the Registrant’s Definitive Proxy Statement filed with the SEC on March 17, 2010 | |
| 5(a) | Opinion of McGuireWoods LLP as to the legality of the securities being registered | |
| 23(a) | Consent of McGuireWoods LLP (included in Exhibit 5(a)) | |
| 23(b) | Consent of PricewaterhouseCoopers LLP | |
| 24(a) | Power of Attorney | |
| 24(b) | Certified Resolutions | |
Exhibit 5(a)
[LETTERHEAD OF MCGUIREWOODS LLP]
June 25, 2010
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
| Re: | Registration Statement on Form S-8 |
500,000,000 Shares of Common Stock of Bank of America Corporation
Pursuant to the Bank of America Corporation 2003 Key Associate Stock Plan, as amended and
restated effective April 28, 2010
Ladies and Gentlemen:
We have acted as counsel to Bank of America Corporation, a Delaware corporation (the “Corporation”) in connection with the Registration Statement on Form S-8 (the “Registration Statement”) that is being filed on the date hereof with the Securities and Exchange Commission by the Corporation pursuant to the Securities Act of 1933, as amended, relating to the registration of 500,000,000 shares (the “Shares”) of the Corporation’s common stock, par value $0.01 per share (the “Common Stock”), which may be issued pursuant to the Corporation’s 2003 Key Associate Stock Plan, as amended and restated effective April 28, 2010 (the “Plan”).
We have examined such documents, corporate records and other instruments as we have deemed necessary for the purposes of this opinion.
Based on the foregoing, we are of the opinion that the Shares were 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.
This opinion is rendered to you and for your benefit solely in connection with the registration of the Shares to be issued pursuant to the Plan. This opinion may not be relied on by you for any other purpose and may not be relied upon by, nor may copies thereof be provided to, any other person, firm, corporation, or entity for any purposes whatsoever without our prior written consent. Notwithstanding the foregoing, we hereby consent to be named in the Registration Statement as attorneys who passed upon the legality of the Shares and to the filing of a copy of this opinion as Exhibit 5(a) to the Registration Statement.
| Very truly yours, |
| / S / MCGUIREWOODS LLP |
Exhibit 23(b)
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 26, 2010, relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Bank of America Corporation’s Annual Report on Form 10-K for the year ended December 31, 2009.
| /s/ PricewaterhouseCoopers LLP |
| PricewaterhouseCoopers LLP |
| Charlotte, North Carolina |
| June 25, 2010 |
Exhibit 24(a)
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 Alice A. Herald and Teresa M. Brenner, 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 Common Stock of Bank of America Corporation pursuant to the Bank of America 2003 Key Associate Stock Plan, as amended and restated effective April 28, 2010, and as may be subsequently amended, 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 / BRIAN T. MOYNIHAN |
| Brian T. Moynihan |
| Chief Executive Officer and President |
Dated: June 23, 2010
|
Signature |
Title |
Date |
||||||
|
/s/ BRIAN T. MOYNIHAN Brian T. Moynihan |
Chief Executive Officer, President and Director (Principal Executive Officer) | June 23, 2010 | ||||||
|
/s/ CHARLES H. NOSKI Charles H. Noski |
Executive Vice President and Chief Financial Officer (Principal Financial Officer) | June 23, 2010 | ||||||
|
/s/ NEIL A. COTTY Neil A. Cotty |
Chief Accounting Officer (Principal Accounting Officer) | June 23, 2010 | ||||||
|
/s/ SUSAN S. BIES Susan S. Bies |
Director | June 23, 2010 | ||||||
|
/s/ WILLIAM P. BOARDMAN William P. Boardman |
Director | June 23, 2010 | ||||||
|
/s/ FRANK P. BRAMBLE, SR. Frank P. Bramble, Sr. |
Director | June 23, 2010 | ||||||
|
/s/ VIRGIS W. COLBERT Virgis W. Colbert |
Director | June 23, 2010 | ||||||
|
/s/ CHARLES K. GIFFORD Charles K. Gifford |
Director | June 23, 2010 | ||||||
|
/s/ CHARLES O. HOLLIDAY, JR. Charles O. Holliday, Jr. |
Chairman and Director | June 23, 2010 | ||||||
|
/s/ D. PAUL JONES, JR. D. Paul Jones, Jr. |
Director | June 23, 2010 | ||||||
|
/s/ MONICA C. LOZANO Monica C. Lozano |
Director | June 23, 2010 | ||||||
|
/s/ THOMAS J. MAY Thomas J. May |
Director | June 23, 2010 | ||||||
|
/s/ DONALD E. POWELL Donald E. Powell |
Director | June 23, 2010 | ||||||
|
/s/ CHARLES O. ROSSOTTI Charles O. Rossotti |
Director | June 23, 2010 | ||||||
|
/s/ ROBERT W. SCULLY Robert W. Scully |
Director | June 23, 2010 | ||||||
Exhibit 24(b)
BANK OF AMERICA CORPORATION
Extract of Board of Director Resolutions
January 27, 2010
FURTHER RESOLVED, that J. Steele Alphin, Alice Herald and Teresa Brenner be, and each of them with full power to act without the other hereby is, authorized and empowered to sign the aforesaid Registration Statements 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 ASSISTANT 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 January 27, 2010, 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 25th day of June, 2010.
(SEAL)
|
/s/ ALLISON L. GILLIAM |
| Allison L. Gilliam |
| Assistant Secretary |