Exhibit 99.1
------------
AGREEMENT AND PLAN OF MERGER
by and between
FLEETBOSTON FINANCIAL CORPORATION
and
BANK OF AMERICA CORPORATION
---------------------
DATED AS OF OCTOBER 27, 2003
TABLE OF CONTENTS
ARTICLE I
THE MERGER
1.1. The Merger........................................................2
1.2 Effective Time....................................................2
1.3 Effects of the Merger.............................................2
1.4 Conversion of FleetBoston Capital Stock...........................2
1.5 Bank of America Capital Stock.....................................4
1.6 Bank of America Mirror Preferred Stock............................4
1.7 Options and SARs; Other Stock-Based Awards........................4
1.8 Certificate of Incorporation of Bank of America...................6
1.9 ByLaws of Bank of America.........................................6
1.10 Tax Consequences..................................................6
1.11 Certain Post-Closing Matters......................................6
ARTICLE II
EXCHANGE OF SHARES
2.1 Bank of America to Make Shares Available..........................7
2.2 Exchange of Shares................................................7
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF FLEETBOSTON
3.1 Corporate Organization...........................................10
3.2 Capitalization...................................................11
3.3 Authority; No Violation..........................................12
3.4 Consents and Approvals...........................................13
3.5 Reports..........................................................14
3.6 Financial Statements.............................................14
3.7 Broker's Fees....................................................15
3.8 Absence of Certain Changes or Events.............................15
3.9 Legal Proceedings................................................15
3.10 Taxes and Tax Returns............................................15
3.11 Employees........................................................16
3.12 SEC Reports......................................................18
3.13 Compliance with Applicable Law...................................18
3.14 Certain Contracts................................................19
3.15 Agreements with Regulatory Agencies..............................19
3.16 Interest Rate Risk Management Instruments........................20
3.17 Undisclosed Liabilities..........................................20
3.18 Environmental Liability..........................................20
3.19 State Takeover Laws; FleetBoston Rights Agreement................20
3.20 Reorganization...................................................21
3.21 Opinions.........................................................21
3.22 FleetBoston Information..........................................21
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BANK OF AMERICA
4.1 Corporate Organization...........................................22
4.2 Capitalization...................................................22
4.3 Authority, No Violation..........................................23
4.4 Consents and Approvals...........................................24
4.5 Reports..........................................................25
4.6 Financial Statements.............................................25
4.7 Broker's Fees....................................................26
4.8 Absence of Certain Changes or Events.............................26
4.9 Legal Proceedings................................................26
4.10 Taxes and Tax Returns............................................26
4.11 SEC Reports......................................................27
4.12 Compliance with Applicable Law...................................27
4.13 Agreements with Regulatory Agencies..............................28
4.14 Interest Rate Risk Management Instruments........................28
4.15 Undisclosed Liabilities..........................................29
4.16 Environmental Liability..........................................29
4.17 State Takeover Laws..............................................29
4.18 Reorganization...................................................29
4.19 Opinions.........................................................29
4.20 Bank of America Information......................................30
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1 Conduct of Businesses Prior to the Effective Time................30
5.2 FleetBoston Forbearances.........................................30
5.3 Bank of America Forbearances.....................................33
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Regulatory Matters...............................................33
6.2 Access to Information............................................34
6.3 Shareholder Approvals............................................35
6.4 Legal Conditions to Merger.......................................35
6.5 Affiliates.......................................................35
6.6 NYSE Listing.....................................................36
6.7 Employee Matters.................................................36
6.8 Indemnification; Directors' and Officers' Insurance..............37
6.9 Additional Agreements............................................38
6.10 Advice of Changes................................................38
6.11 Dividends........................................................38
6.12 Exemption from Liability Under Section 16(b).....................38
6.13 No Solicitation..................................................39
6.14 Restructuring Efforts............................................41
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions to Each Party's Obligation To Effect the Merger.......41
7.2 Conditions to Obligations of Bank of America.....................42
7.3 Conditions to Obligations of FleetBoston.........................43
ARTICLE VIII
TERMINATION AND AMENDMENT
8.1 Termination......................................................43
8.2 Effect of Termination............................................44
8.3 Amendment........................................................44
8.4 Extension; Waiver................................................45
ARTICLE IX
GENERAL PROVISIONS
9.1 Closing..........................................................45
9.2 Standard.........................................................45
9.3 Nonsurvival of Representations, Warranties and Agreements........46
9.4 Expenses.........................................................46
9.5 Notices..........................................................46
9.6 Interpretation...................................................47
9.7 Counterparts.....................................................47
9.8 Entire Agreement.................................................47
9.9 Governing Law....................................................47
9.10 Publicity........................................................48
9.11 Assignment; Third Party Beneficiaries............................48
Exhibit A - FleetBoston Stock Option Agreement
Exhibit B - Bank of America Stock Option Agreement
Exhibit C - Form of Affiliate Letter
INDEX OF DEFINED TERMS
Section
-------
Acquisition Proposal............................................. 6.13(a)
Agreement........................................................ Preamble
Alternative Transaction.......................................... 6.13(a)
Articles of Merger............................................... 1.2
Assumed SAR...................................................... 1.7(a)
Assumed Stock-Based Award........................................ 1.7(b)
Assumed Stock Option............................................. 1.7(a)
Bank of America.................................................. Preamble
Bank of America 10-Q............................................. 4.6
Bank of America Capital Stock.................................... 1.5
Bank of America Certificate...................................... 4.1(a)
Bank of America Common Stock..................................... 1.4(a)
Bank of America Convertible Preferred............................ 4.2(a)
Bank of America Disclosure Schedule.............................. Art. IV
Bank of America Mirror Preferred Stock........................... 1.4(b)
Bank of America Preferred Stock.................................. 4.2(a)
Bank of America Regulatory Agreement............................. 4.13
Bank of America Reports.......................................... 4.11
Bank of America Stock Plans...................................... 4.2(a)
Bank of America Subsidiary....................................... 3.1(c)
Bank of America 2002 10-K........................................ 4.6
Benefits Transition Date......................................... 6.7(a)
BHC Act.......................................................... 3.1(b)
Certificate...................................................... 1.4(c)
Certificate of Merger............................................ 1.2
Closing.......................................................... 9.1
Closing Date..................................................... 9.1
Code............................................................. Recitals
Confidentiality Agreement........................................ 6.2(b)
Convertible Note Agreement....................................... 3.2
Covered Employees................................................ 6.7(a)
DGLC............................................................. 1.1(a)
DPC Common Shares................................................ 1.4(a)
DPC Preferred Shares............................................. 1.4(b)
DPC Shares....................................................... 1.4(b)
Effective Time................................................... 1.2
ERISA............................................................ 3.11(c)
Exchange Act..................................................... 3.6
Exchange Agent................................................... 2.1
Exchange Fund.................................................... 2.1
Exchange Ratio................................................... 1.4(a)
Federal Reserve Board............................................ 3.4
FleetBoston...................................................... Preamble
FleetBoston 10-Q................................................. 3.6
FleetBoston Articles............................................. 3.1(b)
FleetBoston Benefit Plans........................................ 3.11(a)
FleetBoston Bylaws............................................... 3.1(b)
FleetBoston Capital Stock........................................ 1.4(b)
FleetBoston Common Stock......................................... 1.4(a)
FleetBoston Contract............................................. 3.14
FleetBoston Disclosure Schedule.................................. Art. III
FleetBoston DRIP................................................. 1.7(d)
FleetBoston ERISA Affiliate...................................... 3.11(c)
FleetBoston ESPP................................................. 1.7(d)
FleetBoston Insiders............................................. 6.12
FleetBoston Preferred Stock...................................... 3.2
FleetBoston Regulatory Agreement................................. 3.15
FleetBoston Reports.............................................. 3.12
FleetBoston Rights Agreement..................................... 1.4(a)
FleetBoston SAR.................................................. 1.7(a)
FleetBoston Stock-Based Award.................................... 1.7(b)
FleetBoston Stock Plans.......................................... 1.7(a)
FleetBoston Stock Purchase Plans................................. 1.7(d)
FleetBoston Stock Option......................................... 1.7(a)
FleetBoston Shareholder Rights................................... 1.4(a)
FleetBoston Subsidiary........................................... 3.1(c)
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 10-K............................................ 3.6
Form S-4......................................................... 3.4
GAAP............................................................. 3.1(c)
Governmental Entity.............................................. 3.4
HSR Act.......................................................... 3.4
Indemnified Parties.............................................. 6.8
Injunction....................................................... 7.1(e)
IRS.............................................................. 3.10(a)
Joint Proxy Statement............................................ 3.4
Liens............................................................ 3.2(b)
Material Adverse Effect.......................................... 3.1(a)
Merger........................................................... Recitals
Merger Consideration............................................. 1.1(b)
NYSE............................................................. 2.2(e)
Other Regulatory Approvals....................................... 3.4
Regulatory Agencies.............................................. 3.5
Requisite Regulatory Approvals................................... 7.1(c)
RIBCA............................................................ 1.1(a)
SBA.............................................................. 3.4
SEC.............................................................. 3.4
Section 16 Information........................................... 6.12
Securities Act................................................... 3.12
SRO.............................................................. 3.4
Stock Option Agreements.......................................... Recitals
Subsidiary....................................................... 3.1(c)
Surviving Corporation............................................ Recitals
Takeover Statute................................................. 3.19(a)
Tax(es).......................................................... 3.10(b)
Trust Account Common Shares...................................... 1.4(a)
Trust Account Preferred Shares................................... 1.4(b)
Trust Account Shares............................................. 1.4(b)
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of October 27, 2003 (this
"Agreement"), by and between FLEETBOSTON FINANCIAL CORPORATION, a Rhode Island
corporation ("FleetBoston"), and BANK OF AMERICA CORPORATION, a Delaware
corporation ("Bank of America").
W I T N E S S E T H:
WHEREAS, the Boards of Directors of FleetBoston and Bank of America
have determined that it is in the best interests of their respective companies
and their stockholders to consummate the strategic business combination
transaction provided for in this Agreement in which FleetBoston will, on the
terms and subject to the conditions set forth in this Agreement, merge with and
into Bank of America (the "Merger"), so that Bank of America is the surviving
corporation in the Merger (sometimes referred to in such capacity as the
"Surviving Corporation"); and
WHEREAS, for Federal income Tax purposes, it is intended that the
Merger shall qualify as a reorganization under the provisions of Section 368(a)
of the Internal Revenue Code of 1986, as amended (the "Code"), and this
Agreement is intended to be and is adopted as a "plan of reorganization" for
purposes of Sections 354 and 361 of the Code; and
WHEREAS, as an inducement and condition to Bank of America's entering
into this Agreement, FleetBoston is granting to Bank of America an option
pursuant to a stock option agreement in the form set forth in Exhibit A (the
"FleetBoston Stock Option Agreement"), and as an inducement and condition to
FleetBoston's entering into this Agreement, Bank of America is granting to
FleetBoston an option pursuant to a stock option agreement in the form set forth
in Exhibit B (the "Bank of America Stock Option Agreement" and, together with
the FleetBoston Stock Option Agreement, the "Stock Option Agreements"); and
WHEREAS, the parties desire to make certain representations, warranties
and agreements in connection with the Merger and also to prescribe certain
conditions to the Merger.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements contained in this Agreement, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties agree
as follows:
ARTICLE I
THE MERGER
1.1 The Merger. (a) Subject to the terms and conditions of this
Agreement, in accordance with the Rhode Island Business Corporation Act (the
"RIBCA") and the Delaware General Corporation Law (the "DGCL"), at the Effective
Time, FleetBoston shall merge with and into Bank of America. Bank of America
shall be the Surviving Corporation in the Merger, and shall continue its
corporate existence under the laws of the State of Delaware. As of the Effective
Time, the separate corporate existence of FleetBoston shall cease.
(b) The parties may at any time change the method of effecting the
combination (including by providing for the merger of FleetBoston and a wholly
owned subsidiary of Bank of America) if and to the extent requested by either
party and consented to by the other party (such consent not to be unreasonably
withheld); provided, however, that no such change shall (i) alter or change the
amount or kind of consideration to be issued to holders of the capital stock of
FleetBoston as provided for in this Agreement (the "Merger Consideration"), (ii)
adversely affect the Tax treatment of FleetBoston's shareholders as a result of
receiving the Merger Consideration or the Tax treatment of either party pursuant
to this Agreement or (iii) materially impede or delay consummation of the
transactions contemplated by this Agreement.
1.2 Effective Time. The Merger shall become effective as set forth in
the articles of merger (the "Articles of Merger") that shall be filed with the
Secretary of State of the State of Rhode Island and the certificate of merger
(the "Certificate of Merger") that shall be filed with the Secretary of State of
the State of Delaware on the Closing Date. The term "Effective Time" shall be
the date and time when the Merger becomes effective as set forth in the Articles
of Merger and the Certificate of Merger.
1.3 Effects of the Merger. At and after the Effective Time, the Merger
shall have the effects set forth in Section 7-1.1-69 of the RIBCA and Section
259 of the DGCL.
1.4 Conversion of FleetBoston Capital Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of Bank of America,
FleetBoston or the holder of any of the following securities:
(a) Subject to Section 2.2(e), each share of the common stock, par
value $0.01 per share, of FleetBoston issued and outstanding immediately prior
to the Effective Time (together with the preferred share purchase rights
("FleetBoston Shareholder Rights") attached thereto issued pursuant to that
certain Rights Agreement dated as of August 16, 2000 (the "FleetBoston Rights
Agreement"), between FleetBoston and EquiServe, LP, as Rights Agent, the
"FleetBoston Common Stock"), except for shares of FleetBoston Common Stock owned
by FleetBoston or Bank of America (other than shares of FleetBoston Common Stock
held in trust accounts, managed accounts and the like, or otherwise held in a
fiduciary or agency capacity, that are beneficially owned by third parties (any
such shares, "Trust Account Common Shares") and other than shares of FleetBoston
Common Stock held, directly or indirectly, by FleetBoston or Bank of America in
respect of a debt previously contracted (any such shares, "DPC Common Shares")),
shall be converted into the right to receive 0.5553 of a share (the "Exchange
Ratio") of the common stock, par value $0.01 per share, of Bank of America (the
"Bank of America Common Stock").
(b) Each share of FleetBoston Preferred Stock (as defined in Section
3.2) (together with the FleetBoston Common Stock, the "FleetBoston Capital
Stock") issued and outstanding immediately prior to the Effective Time, except
for shares of FleetBoston Preferred Stock owned by FleetBoston or Bank of
America (other than shares of FleetBoston Preferred Stock held by FleetBoston or
Bank of America in trust accounts, managed accounts and the like, or otherwise
held in a fiduciary or agency capacity, that are beneficially owned by third
parties (any such shares, "Trust Account Preferred Shares," and together with
the Trust Account Common Shares, the "Trust Account Shares") and other than any
shares of FleetBoston Preferred Stock held by FleetBoston or Bank of America in
respect of a debt previously contracted (any such shares, "DPC Preferred
Shares," and together with the DPC Common Shares, the "DPC Shares")), shall be
converted, without any action on the part of the holder thereof, into one share
of a newly-designated series of Bank of America Preferred Stock (as defined in
Section 4.2) having the same terms (to the fullest extent possible) as the share
of FleetBoston Preferred Stock so converted (the "Bank of America Mirror
Preferred Stock").
(c) All of the shares of FleetBoston Capital Stock converted into the
right to receive Bank of America Capital Stock (as defined in Section 1.5)
pursuant to this Article I shall no longer be outstanding and shall
automatically be cancelled and shall cease to exist as of the Effective Time,
and (i) each certificate previously representing any such shares of FleetBoston
Common Stock (each a "Certificate") shall thereafter represent only the right to
receive (A) a certificate representing the number of whole shares of Bank of
America Common Stock and (B) cash in lieu of fractional shares into which the
shares of FleetBoston Common Stock represented by such Certificate have been
converted pursuant to this Section 1.4 and Section 2.2(e) and (ii) each
certificate representing FleetBoston Preferred Stock shall, as of and following
the Effective Time, remain outstanding and shall continue to represent the
number of shares of Bank of America Mirror Preferred Stock into which such
FleetBoston Preferred Stock shall have been converted pursuant to Section 1.4(b)
hereof. Certificates previously representing shares of FleetBoston Common Stock
shall be exchanged for certificates representing whole shares of Bank of America
Common Stock and cash in lieu of fractional shares issued in consideration
therefor upon the surrender of such Certificates in accordance with Section 2.2,
without any interest thereon. If, prior to the Effective Time, the outstanding
shares of Bank of America Common Stock or FleetBoston Common Stock shall have
been increased, decreased, changed into or exchanged for a different number or
kind of shares or securities as a result of a reorganization, recapitalization,
reclassification, stock dividend, stock split, reverse stock split, or other
similar change in capitalization, an appropriate and proportionate adjustment
shall be made to the Exchange Ratio.
(d) Notwithstanding anything in the Agreement to the contrary, at the
Effective Time, all shares of FleetBoston Capital Stock that are owned by
FleetBoston or Bank of America (other than Trust Account Shares and DPC Shares)
shall be cancelled and shall cease to exist and no stock of Bank of America or
other consideration shall be delivered in exchange therefor.
1.5 Bank of America Capital Stock. At and after the Effective Time,
each share of Bank of America Common Stock and each share of Bank of America
Preferred Stock (the Bank of America Common Stock and the Bank of America
Preferred Stock, the "Bank of America Capital Stock") issued and outstanding
immediately prior to the Effective Time shall remain issued and outstanding and
shall not be affected by the Merger.
1.6 Bank of America Mirror Preferred Stock. Prior to the Effective
Time, Bank of America shall take all corporate action necessary to designate the
rights and preferences of the Bank of America Mirror Preferred Stock.
1.7 Options and SARs; Other Stock-Based Awards. (a) Effective as of the
Effective Time, each then outstanding option to purchase shares of FleetBoston
Common Stock (each a "FleetBoston Stock Option") and stock appreciation right to
purchase shares of FleetBoston Common Stock or receive a cash payment in respect
of FleetBoston Common Stock (each a "FleetBoston SAR") granted, pursuant to the
equity-based compensation plans identified on Schedule 3.11(d) (the "FleetBoston
Stock Plans"), to any current or former employee or director of, or consultant
to, FleetBoston or any of its subsidiaries shall be assumed by Bank of America
and shall be converted into an option or a stock appreciation right to purchase
a number of shares of Bank of America Common Stock (rounded to the nearest whole
share) or in the case of an FleetBoston SAR settled in cash to receive a cash
payment in respect of a share of Bank of America Common Stock (rounded to the
nearest whole share) (an "Assumed Stock Option" or "Assumed SAR", as the case
may be) equal to (i) the number of shares of FleetBoston Common Stock subject to
such FleetBoston Stock Option or FleetBoston SAR immediately prior to the
Effective Time multiplied by (ii) the Exchange Ratio; and the per share exercise
price for Bank of America Common Stock issuable (or payable in the case of a
FleetBoston SAR settled in cash) upon the exercise of such Assumed Stock Option
or Assumed SAR shall be equal to (i) the exercise price per share of FleetBoston
Common Stock at which such FleetBoston Stock Option or FleetBoston SAR was
exercisable immediately prior to the Effective Time divided by (ii) the Exchange
Ratio (rounded to the nearest whole cent); provided, however, that in the case
of any FleetBoston Stock Option to which Section 421 of the Code applies by
reason of its qualification under Section 422 of the Code, the conversion
formula shall be adjusted, if necessary, to comply with Section 424(a) of the
Code. Except as otherwise provided herein, the Assumed Stock Options and Assumed
SARs shall be subject to the same terms and conditions (including expiration
date, vesting and exercise provisions) as were applicable to the corresponding
FleetBoston Stock Options and FleetBoston SARs immediately prior to the
Effective Time (but taking into account any changes thereto, including the
acceleration thereof, provided for in the FleetBoston Stock Plans or other
FleetBoston Benefit Plan or in any award agreement thereunder by reason of this
Agreement or the transactions contemplated hereby); provided, however, that
references to FleetBoston shall be deemed to be references to Bank of America.
(b) At the Effective Time, each right of any kind, contingent or
accrued, to receive shares of FleetBoston Common Stock or benefits measured by
the value of a number of shares of FleetBoston Common Stock, and each award of
any kind consisting of shares of FleetBoston Common Stock, granted under the
FleetBoston Stock Plans or any other FleetBoston Benefit Plan (including
restricted stock, restricted stock units, performance stock units, deferred
stock units and dividend equivalents), other than FleetBoston Stock Options and
FleetBoston SARs (each, a "FleetBoston Stock-Based Award"), whether vested or
unvested, which is outstanding or unsatisfied immediately prior to the Effective
Time, shall cease to represent a right or award with respect to shares of
FleetBoston Common Stock and shall be converted, at the Effective Time, into a
right or award with respect to shares of Bank of America Common Stock (an
"Assumed Stock-Based Award"), on the same terms and conditions (including
expiration date, vesting and exercise provisions) as were applicable under the
FleetBoston Stock-Based Awards (but taking into account any changes thereto,
including the acceleration thereof, provided for in the FleetBoston Stock Plans
or other FleetBoston Benefit Plan or in any award agreement thereunder by reason
of this Agreement or the transactions contemplated hereby). The number of shares
of Bank of America Common Stock subject to each such Assumed Stock-Based Award
shall be equal to the number of shares of FleetBoston Common Stock subject to
the FleetBoston Stock-Based Award, multiplied by the Exchange Ratio (rounded to
the nearest whole share of Bank of America Common Stock). All dividend
equivalents credited to the account of each holder of a FleetBoston Stock-Based
Award as of the Effective Time shall remain credited to such holder's account
immediately following the Effective Time, subject to adjustment in accordance
with the foregoing.
(c) Bank of America has taken all corporate actions necessary to
reserve for issuance a sufficient number of shares of Bank of America Common
Stock upon the exercise of the Assumed Stock Options and Assumed SARs and the
settlement or distribution of the Assumed Stock-Based Awards. On or as soon as
practicable following the Closing Date (and in no event more than five business
days after the Closing Date), Bank of America shall file a registration
statement on an appropriate form or a post-effective amendment to a previously
filed registration statement under the Securities Act with respect to the
issuance of (or settlement in cash in respect of) the shares of Bank of America
Common Stock subject to the Assumed Stock Options, the Assumed SARs and the
Assumed Stock-Based Awards and shall use its reasonable efforts to maintain the
effectiveness of such registration statement or registration statements (and
maintain the current status of the prospectus or prospectuses contained therein)
for so long as such equity awards remain outstanding.
(d) FleetBoston shall take such action as is necessary to (i) cause the
exercise (as of a date that is no later than three business days prior to the
Effective Date) of each outstanding purchase right under the FleetBoston
Employee Stock Purchase Plan (the "FleetBoston ESPP"); and (ii) provide that no
further purchase period shall commence under the FleetBoston ESPP following such
date; provided, however, that such exercise and cessation of further purchase
periods shall be conditioned upon the consummation of the Merger. On such new
exercise date, FleetBoston shall apply the funds credited as of such date under
the FleetBoston ESPP within each participant's payroll withholding account to
the purchase of shares of FleetBoston Common Stock in accordance with the terms
of the FleetBoston ESPP. In addition, FleetBoston shall take such action as is
necessary to provide that as of no later than three business days prior to the
Effective Date no further shares of FleetBoston Common Stock will be purchased
under the FleetBoston Automatic Dividend Reinvestment Plan (the "FleetBoston
DRIP" and, together with the FleetBoston ESPP, the "FleetBoston Stock Purchase
Plans"); provided, however, that such cessation of further purchases shall be
conditioned upon the consummation of the Merger. Immediately prior to and
effective as of the Effective Time and subject to the consummation of the
Merger, FleetBoston shall terminate the FleetBoston Stock Purchase Plans.
1.8 Certificate of Incorporation of Bank of America. At the Effective
Time, the Bank of America Certificate (as defined in Section 4.1) shall be the
certificate of incorporation of the Surviving Corporation until thereafter
amended in accordance with applicable law.
1.9 Bylaws of Bank of America. At the Effective Time, the Bank of
America Bylaws shall be the Bylaws of the Surviving Corporation until thereafter
amended in accordance with applicable law.
1.10 Tax Consequences. It is intended that the Merger shall constitute
a "reorganization" within the meaning of Section 368(a) of the Code, and that
this Agreement shall constitute a "plan of reorganization" for purposes of
Sections 354 and 361 of the Code.
1.11. Certain Post-Closing Matters.
(a) Board Composition. As of the Effective Time, and continuing for a
period of at least two years following the Effective Time:
(i) the ratio of Continuing Bank of America Directors to
Continuing FleetBoston Directors serving on the Board of Directors of the
Surviving Corporation shall be maintained at 12 to 7;
(ii) all vacancies on the Board of Directors of the Surviving
Corporation created by the cessation of service of a Continuing Bank of
America Director shall be filled by a nominee proposed to the nominating
committee of the Board of Directors of the Surviving Corporation by a majority
of the remaining Continuing Bank of America Directors; and
(iii) all vacancies on the Board of Directors of the Surviving
Corporation created by the cessation of service of a Continuing FleetBoston
Director shall be filled by a nominee proposed to the nominating committee of
the Board of Directors of the Surviving Corporation by a majority of the
remaining Continuing FleetBoston Directors.
(b) Commitment to the Communities of FleetBoston. From and after the
Effective Time:
(i) The headquarters of the Surviving Corporation's Wealth
Management, Latin American, Asset Based Lending, Small Business and Premier
Banking, and Leasing businesses shall each be located in the Boston,
Massachusetts metropolitan area;
(ii) The Surviving Corporation is committed to maintaining current
employment levels of FleetBoston in New England, it being the intention of the
Surviving Corporation to increase such employment levels over time at a level
equal to the growth in employment of the Surviving Corporation's United States
workforce; and
(iii) The Surviving Corporation will maintain FleetBoston's
annual level of charitable giving in each of New England and the other regions
within the FleetBoston footprint, respectively, at levels no less than the
levels set in 2003, it being the intention of the Surviving Corporation to
increase such giving in those areas over time in a manner equal to the growth in
the Surviving Corporation's annual charitable giving in its other principal
markets.
(c) Definition. The terms "Continuing Bank of America Directors" and
"Continuing FleetBoston Directors" shall for purposes of this Section 1.11 mean,
respectively, the directors of Bank of America or FleetBoston, as the case may
be, as of the Effective Time who were selected to be directors of the Surviving
Corporation by Bank of America or FleetBoston, as the case may be, prior to the
Effective Time, and any additional directors of the Surviving Corporation who
take office after the Effective Time who are nominated, or proposed to the
nominating committee of the Board of Directors of the Surviving Corporation, by
a majority of the Continuing Bank of America Directors or the Continuing
FleetBoston Directors, as the case may be.
(d) Survival/Adoption of Commitments. The commitments set forth in this
Section 1.11 shall survive the Effective Time as reflected in a formal
resolution of the Board of Directors of the Surviving Corporation to be
reflected in the minutes of the Surviving Corporation following the Merger.
ARTICLE II
EXCHANGE OF SHARES
2.1 Bank of America to Make Shares Available. At or prior to the
Effective Time, Bank of America shall deposit, or shall cause to be deposited,
with a bank or trust company Subsidiary of Bank of America, or another bank or
trust company reasonably acceptable to each of FleetBoston and Bank of America
(the "Exchange Agent"), for the benefit of the holders of Certificates, for
exchange in accordance with this Article II, certificates representing the
shares of Bank of America Common Stock, and cash in lieu of any fractional
shares (such cash and certificates for shares of Bank of America Common Stock,
together with any dividends or distributions with respect thereto, being
referred to as the "Exchange Fund"), to be issued pursuant to Section 1.4 and
paid pursuant to Section 2.2(e) in exchange for outstanding shares of
FleetBoston Common Stock.
2.2 Exchange of Shares. (a) As soon as practicable after the Effective
Time, the Exchange Agent shall mail to each holder of record of one or more
Certificates a letter of transmittal in customary form as reasonably agreed to
by the parties (which shall specify, among other things, that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Exchange Agent) and instructions for use in
effecting the surrender of the Certificates in exchange for certificates
representing the shares of Bank of America Common Stock and any cash in lieu of
fractional shares into which the shares of FleetBoston Common Stock represented
by such Certificate or Certificates shall have been converted pursuant to this
Agreement. Upon proper surrender of a Certificate or Certificates for exchange
and cancellation to the Exchange Agent, together with such properly completed
letter of transmittal, duly executed, the holder of such Certificate or
Certificates shall be entitled to receive in exchange therefor, as applicable,
(i) a certificate representing the number of whole shares of Bank of America
Common Stock to which such holder of FleetBoston Common Stock shall have become
entitled pursuant to the provisions of Article I, (ii) a check representing the
amount of any cash in lieu of fractional shares which such holder has the right
to receive in respect of the Certificate or Certificates surrendered pursuant to
the provisions of this Article II, and (iii) a check representing the amount of
any dividends or distributions then payable pursuant to Section 2.2(b)(i), and
the Certificate or Certificates so surrendered shall forthwith be cancelled. No
interest will be paid or accrued on any cash in lieu of fractional shares or on
any unpaid dividends and distributions payable to holders of Certificates.
(b) No dividends or other distributions declared with respect to Bank
of America Common Stock shall be paid to the holder of any unsurrendered
Certificate until the holder thereof shall surrender such Certificate in
accordance with this Article II. After the surrender of a Certificate in
accordance with this Article II, the record holder thereof shall be entitled to
receive (i) the amount of dividends or other distributions with a record date
after the Effective Time theretofore paid, without any interest thereon, with
respect to the whole shares of Bank of America Common Stock represented by such
Certificate and (ii), at the appropriate payment date, the amount of dividends
or other distributions with a record date after the Effective Time but prior to
surrender and a payment date subsequent to surrender, with respect to shares of
Bank of America Common Stock represented by such Certificate.
(c) If any certificate representing shares of Bank of America Common
Stock is to be issued in a name other than that in which the Certificate or
Certificates surrendered in exchange therefor is or are registered, it shall be
a condition to the issuance thereof that the Certificate or Certificates so
surrendered shall be properly endorsed (or accompanied by an appropriate
instrument of transfer) and otherwise in proper form for transfer, and that the
person requesting such exchange shall pay to the Exchange Agent in advance any
transfer or other Taxes required by reason of the issuance of a certificate
representing shares of Bank of America Common Stock in any name other than that
of the registered holder of the Certificate or Certificates surrendered, or
required for any other reason, or shall establish to the satisfaction of the
Exchange Agent that such Tax has been paid or is not payable.
(d) After the Effective Time, there shall be no transfers on the stock
transfer books of FleetBoston of the shares of FleetBoston Capital Stock that
were issued and outstanding immediately prior to the Effective Time other than
to settle transfers of FleetBoston Common Stock that occurred prior to the
Effective Time. If, after the Effective Time, Certificates representing such
shares are presented for transfer to the Exchange Agent, they shall be cancelled
and exchanged for certificates representing shares of Bank of America Common
Stock as provided in this Article II.
(e) Notwithstanding anything to the contrary contained in this
Agreement, no certificates or scrip representing fractional shares of Bank of
America Common Stock shall be issued upon the surrender of Certificates for
exchange, no dividend or distribution with respect to Bank of America Common
Stock shall be payable on or with respect to any fractional share, and such
fractional share interests shall not entitle the owner thereof to vote or to any
other rights of a stockholder of Bank of America. In lieu of the issuance of any
such fractional share, Bank of America shall pay to each former stockholder of
FleetBoston who otherwise would be entitled to receive such fractional share an
amount in cash (rounded to the nearest cent) determined by multiplying (i) the
average of the closing-sale prices of Bank of America Common Stock on the New
York Stock Exchange, Inc. (the "NYSE") Composite Transactions Tape as reported
by The Wall Street Journal for the five full NYSE trading days immediately
preceding the date of the Effective Time by (ii) the fraction of a share
(rounded to the nearest thousandth when expressed in decimal form) of Bank of
America Common Stock to which such holder would otherwise be entitled to receive
pursuant to Section 1.4.
(f) Any portion of the Exchange Fund that remains unclaimed by the
stockholders of FleetBoston as of the first anniversary of the Effective Time
shall be paid to Bank of America. Any former stockholders of FleetBoston who
have not theretofore complied with this Article II shall thereafter look only to
Bank of America for payment of the shares of Bank of America Common Stock, cash
in lieu of any fractional shares and any unpaid dividends and distributions on
the Bank of America Common Stock deliverable in respect of each share of
FleetBoston Common Stock, as the case may be, such stockholder holds as
determined pursuant to this Agreement, in each case, without any interest
thereon. Notwithstanding the foregoing, none of Bank of America, FleetBoston,
the Exchange Agent or any other person shall be liable to any former holder of
shares of FleetBoston Common Stock for any amount delivered in good faith to a
public official pursuant to applicable abandoned property, escheat or similar
laws.
(g) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed and, if reasonably required by
Bank of America, the posting by such person of a bond in such amount as Bank of
America may determine is reasonably necessary as indemnity against any claim
that may be made against it with respect to such Certificate, the Exchange Agent
will issue in exchange for such lost, stolen or destroyed Certificate the shares
of Bank of America Common Stock and any cash in lieu of fractional shares
deliverable in respect thereof pursuant to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF FLEETBOSTON
Except as disclosed in (x) the FleetBoston Reports (as defined in
Section 3.12) filed prior to the date hereof or (y) the disclosure schedule (the
"FleetBoston Disclosure Schedule") delivered by FleetBoston to Bank of America
prior to the execution of this Agreement (which schedule sets forth, among other
things, items the disclosure of which is necessary or appropriate either in
response to an express disclosure requirement contained in a provision hereof or
as an exception to one or more representations or warranties contained in this
Article III, or to one or more of FleetBoston's covenants contained in Article
V, provided, however, that, notwithstanding anything in this Agreement to the
contrary, (i) no such item is required to be set forth in such schedule as an
exception to a representation or warranty if its absence would not result in the
related representation or warranty being deemed untrue or incorrect under the
standard established by Section 9.2, and (ii) the mere inclusion of an item in
such schedule as an exception to a representation or warranty shall not be
deemed an admission that such item represents a material exception or material
fact, event or circumstance or that such item has had or would be reasonably
likely to have a Material Adverse Effect (as defined in Section 3.1) on
FleetBoston), FleetBoston hereby represents and warrants to Bank of America as
follows:
3.1 Corporate Organization.
(a) FleetBoston is a corporation duly organized, validly existing and
in good standing under the laws of the State of Rhode Island. FleetBoston has
the corporate power and authority to own or lease all of its properties and
assets and to carry on its business as it is now being conducted, and is duly
licensed or qualified to do business in each jurisdiction in which the nature of
the business conducted by it or the character or location of the properties and
assets owned or leased by it makes such licensing or qualification necessary,
except where the failure to be so licensed or qualified would not, either
individually or in the aggregate, have a Material Adverse Effect on FleetBoston.
As used in this Agreement, the term "Material Adverse Effect" means, with
respect to Bank of America, FleetBoston or the Surviving Corporation, as the
case may be, a material adverse effect on (i) the business, results of
operations or financial condition of such party and its Subsidiaries (as defined
below) taken as a whole (provided, however, that, with respect to this clause
(i), Material Adverse Effect shall not be deemed to include effects to the
extent resulting from (a) changes, after the date hereof, in generally accepted
accounting principles or regulatory accounting requirements applicable to banks
or savings associations and their holding companies generally, (b) changes,
after the date hereof, in laws, rules or regulations of general applicability or
interpretations thereof by courts or Governmental Entities (as defined in
Section 3.4), (c) actions or omissions of Bank of America or FleetBoston taken
with the prior written consent of the other or required hereunder, (d) changes,
after the date hereof, in general economic or market conditions affecting banks
or their holding companies generally or (e) public disclosure of the
transactions contemplated hereby), or (ii) the ability of such party to timely
consummate the transactions contemplated by this Agreement.
(b) FleetBoston is duly registered as a financial holding company under
the Bank Holding Company Act of 1956, as amended (the "BHC Act"). True and
complete copies of the Restated Articles of Incorporation of FleetBoston (the
"FleetBoston Articles") and the Bylaws of FleetBoston (the "FleetBoston
Bylaws"), as in effect as of the date of this Agreement, have previously been
made available to Bank of America.
(c) Each of FleetBoston's Subsidiaries (i) is duly organized and
validly existing under the laws of its jurisdiction of organization, (ii) is
duly qualified to do business and in good standing in all jurisdictions (whether
federal, state, local or foreign) where its ownership or leasing of property or
the conduct of its business requires it to be so qualified and (iii) has all
requisite corporate power and authority to own or lease its properties and
assets and to carry on its business as now conducted, except in each of (i) -
(iii) as would not be reasonably likely to have, either individually or in the
aggregate, a Material Adverse Effect on FleetBoston. As used in this Agreement,
the word "Subsidiary" when used with respect to either party, means any bank,
corporation, partnership, limited liability company or other organization,
whether incorporated or unincorporated, that is consolidated with such party for
financial reporting purposes under U.S. generally accepted accounting principles
("GAAP"), and the terms "FleetBoston Subsidiary" and "Bank of America
Subsidiary" shall mean any direct or indirect Subsidiary of FleetBoston or Bank
of America, respectively.
3.2 Capitalization. (a) The authorized capital stock of FleetBoston
consists of 2,000,000,000 shares of FleetBoston Common Stock, of which, as of
October 24, 2003, 1,052,745,101 shares were issued and outstanding, and
16,000,000 shares of preferred stock, $1.00 par value ("FleetBoston Preferred
Stock"), of which, as of October 24, 2003, (i) 690,000 shares were authorized
and 382,450 shares were issued and outstanding as FleetBoston Series VI 6.75%
Perpetual Preferred Stock, and (ii) 805,000 shares were authorized and 700,000
shares were issued and outstanding as Series VII 6.60% Cumulative Preferred
Stock. As of October 24, 2003, no more than 34,196,003 shares of FleetBoston
Common Stock were held in FleetBoston's treasury. As of the date hereof, no
shares of FleetBoston Capital Stock were reserved for issuance except for (i)
shares of FleetBoston Common Stock reserved for issuance upon the exercise of
FleetBoston Stock Options or FleetBoston SARs issued pursuant to the FleetBoston
Stock Plans, (ii) 186,336 shares reserved for issuance pursuant to a convertible
note agreement (the "Convertible Note Agreement"), (iii) 500,000 shares of
Cumulative Participating Junior Preferred Stock, $1.00 par value, reserved for
issuance pursuant to the FleetBoston Rights Agreement and (iv) 209,496,275
shares of FleetBoston Common Stock reserved for issuance pursuant to the
FleetBoston Stock Option Agreement. All of the issued and outstanding shares of
FleetBoston Capital Stock have been duly authorized and validly issued and are
fully paid, nonassessable and free of preemptive rights, with no personal
liability attaching to the ownership thereof. As of the date of this Agreement,
except pursuant to this Agreement, the FleetBoston Stock Option Agreement, the
FleetBoston Stock Plans, the FleetBoston Rights Agreements and the Convertible
Note Agreement, FleetBoston does not have and is not bound by any outstanding
subscriptions, options, warrants, calls, commitments or agreements of any
character calling for the purchase or issuance of any shares of FleetBoston
Capital Stock or any other equity securities of FleetBoston or any securities
representing the right to purchase or otherwise receive any shares of
FleetBoston Capital Stock. FleetBoston has provided Bank of America with a list
of (i) the aggregate number of options outstanding under the FleetBoston Stock
Plans as of October 21, 2003 and the exercise price for such FleetBoston Stock
Options and FleetBoston SARs, (ii) the aggregate number of cash-settled SARs and
stock-settled SARs outstanding under the FleetBoston Stock Plans as of October
21, 2003 and (iii) the aggregate number of all FleetBoston Stock-Based Awards
outstanding as of October 21, 2003; since October 21, 2003 through the date
hereof, FleetBoston has not issued or awarded any options, restricted stock,
restricted stock units or SARs under the FleetBoston Stock Plans.
(b) All of the issued and outstanding shares of capital stock or other
equity ownership interests of each "significant subsidiary" (as such term is
defined under Regulation S-X of the SEC (as defined in Section 3.4)) of
FleetBoston are owned by FleetBoston, directly or indirectly, free and clear of
any material liens, pledges, charges and security interests and similar
encumbrances ("Liens"), and all of such shares or equity ownership interests are
duly authorized and validly issued and are fully paid, nonassessable (subject to
12 U.S.C. ▇▇.▇▇. 55) and free of preemptive rights. No such significant
subsidiary has or is bound by any outstanding subscriptions, options, warrants,
calls, commitments or agreements of any character calling for the purchase or
issuance of any shares of capital stock or any other equity security of such
subsidiary or any securities representing the right to purchase or otherwise
receive any shares of capital stock or any other equity security of such
subsidiary.
3.3 Authority; No Violation. (a) FleetBoston has full corporate power
and authority to execute and deliver this Agreement and the Stock Option
Agreements and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and the Stock Option Agreements and
the consummation of the transactions contemplated hereby and thereby have been
duly and validly approved by the Board of Directors of FleetBoston. The Board of
Directors of FleetBoston has determined that this Agreement and the transactions
contemplated hereby are in the best interests of FleetBoston and its
shareholders and has directed that this Agreement and the transactions
contemplated by this Agreement be submitted to FleetBoston's stockholders for
adoption at a duly held meeting of such shareholders and, except for the
approval of this Agreement and the transactions contemplated by this Agreement
by the affirmative vote of the holders of a majority of the outstanding shares
of FleetBoston Common Stock entitled to vote at such meeting, no other corporate
proceedings on the part of FleetBoston are necessary to approve this Agreement
or the Stock Option Agreements or to consummate the transactions contemplated
hereby or thereby. This Agreement and the Stock Option Agreements have been duly
and validly executed and delivered by FleetBoston and (assuming due
authorization, execution and delivery by Bank of America) constitute the valid
and binding obligations of FleetBoston, enforceable against FleetBoston in
accordance with their terms (except as may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws affecting the rights of creditors
generally and the availability of equitable remedies).
(b) Neither the execution and delivery of this Agreement or the Stock
Option Agreements by FleetBoston nor the consummation by FleetBoston of the
transactions contemplated hereby or thereby, nor compliance by FleetBoston with
any of the terms or provisions of this Agreement or the Stock Option Agreements,
will (i) violate any provision of the FleetBoston Articles or the FleetBoston
Bylaws or (ii) assuming that the consents, approvals and filings referred to in
Section 3.4 are duly obtained and/or made, (A) violate any statute, code,
ordinance, rule, regulation, judgment, order, writ, decree or Injunction (as
defined in 7.1(e)) applicable to FleetBoston, any of its Subsidiaries or any of
their respective properties or assets or (B) violate, conflict with, result in a
breach of any provision of or the loss of any benefit under, constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, result in the termination of or a right of
termination or cancellation under, accelerate the performance required by, or
result in the creation of any Lien upon any of the respective properties or
assets of FleetBoston or any of its Subsidiaries under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument or obligation to which FleetBoston
or any of its Subsidiaries is a party, or by which they or any of their
respective properties or assets may be bound or affected, except for such
violations, conflicts, breaches or defaults that are not reasonably likely to
have, either individually or in the aggregate, a Material Adverse Effect on
FleetBoston.
3.4 Consents and Approvals. Except for (i) the filing of applications
and notices, as applicable, with the Board of Governors of the Federal Reserve
System (the "Federal Reserve Board") under the BHC Act and the Federal Reserve
Act, as amended, and approval of such applications and notices, (ii) the filing
of any required applications or notices with any foreign or state banking,
insurance or other regulatory authorities and approval of such applications and
notices (the "Other Regulatory Approvals"), (iii) the filing with the Securities
and Exchange Commission (the "SEC") of a Joint Proxy Statement in definitive
form relating to the meetings of FleetBoston's and Bank of America's
shareholders to be held in connection with this Agreement and the transactions
contemplated by this Agreement (the "Joint Proxy Statement") and of a
registration statement on Form S-4 (the "Form S-4") in which the Joint Proxy
Statement will be included as a prospectus, and declaration of effectiveness of
the Form S-4, (iv) the filing of the Articles of Merger with the Rhode Island
Secretary pursuant to the RIBCA and the issuance by the Rhode Island Secretary
of a Certificate of Merger and the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware pursuant to the DGCL, (v) any
notices to or filings with the Small Business Administration (the "SBA"), (vi)
any notices or filings under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended (the "HSR Act"), (vii) any consents, authorizations, approvals,
filings or exemptions in connection with compliance with the applicable
provisions of federal and state securities laws relating to the regulation of
broker-dealers, investment advisers or transfer agents and federal commodities
laws relating to the regulation of futures commission merchants and the rules
and regulations thereunder and of any applicable industry self-regulatory
organization ("SRO"), and the rules of the NYSE, or that are required under
consumer finance, mortgage banking and other similar laws, (viii) such filings
and approvals as are required to be made or obtained under the securities or
"Blue Sky" laws of various states in connection with the issuance of the shares
of Bank of America Capital Stock pursuant to this Agreement, (ix) the approval
of this Agreement by the requisite vote of stockholders of FleetBoston and (x)
filings, if any, required as a result of the particular status of Bank of
America, no consents or approvals of or filings or registrations with any court,
administrative agency or commission or other governmental authority or
instrumentality (each a "Governmental Entity") are necessary in connection with
(A) the execution and delivery by FleetBoston of this Agreement or the Stock
Option Agreements and (B) the consummation by FleetBoston of the Merger and the
other transactions contemplated by this Agreement and the Stock Option
Agreements.
3.5 Reports. FleetBoston and each of its Subsidiaries have timely filed
all reports, registrations and statements, together with any amendments required
to be made with respect thereto, that they were required to file since January
1, 2000 with (i) the Federal Reserve Board, (ii) the Federal Deposit Insurance
Corporation, (iii) any state regulatory authority, (iv) the SEC, (v) any foreign
regulatory authority and (vi) any SRO (collectively, "Regulatory Agencies"), and
all other reports and statements required to be filed by them since January 1,
2000, including any report or statement required to be filed pursuant to the
laws, rules or regulations of the United States, any state, any foreign entity,
or any Regulatory Agency, and have paid all fees and assessments due and payable
in connection therewith, except where the failure to file such report,
registration or statement or to pay such fees and assessments is not reasonably
likely to have, either individually or in the aggregate, a Material Adverse
Effect on FleetBoston. Except for normal examinations conducted by a Regulatory
Agency in the ordinary course of the business of FleetBoston and its
Subsidiaries, no Regulatory Agency has initiated or has pending any proceeding
or, to the knowledge of FleetBoston, investigation into the business or
operations of FleetBoston or any of its Subsidiaries since January 1, 2000,
except where such proceedings or investigation are not reasonably likely to
have, either individually or in the aggregate, a Material Adverse Effect on
FleetBoston. There (i) is no unresolved violation, criticism, or exception by
any Regulatory Agency with respect to any report or statement relating to any
examinations or inspections of FleetBoston or any of its Subsidiaries and (ii)
has been no formal or informal inquiries by, or disagreements or disputes with,
any Regulatory Agency with respect to the business, operations, policies or
procedures of FleetBoston since January 1, 2000, that are reasonably likely to
have, either individually or in the aggregate, a Material Adverse Effect on
FleetBoston.
3.6 Financial Statements. FleetBoston has previously made available to
Bank of America copies of (i) the consolidated balance sheet of FleetBoston and
its Subsidiaries as of December 31, 2000, 2001 and 2002, and the related
consolidated statements of income, changes in stockholders' equity and cash
flows for the years then ended as reported in FleetBoston's Annual Report on
Form 10-K for the fiscal year ended December 31, 2002 (the "FleetBoston 2002
10-K") filed with the SEC under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), accompanied by the audit report of PricewaterhouseCoopers
LLP, independent public accountants with respect to FleetBoston, and (ii) the
unaudited consolidated balance sheet of FleetBoston and its Subsidiaries as of
June 30, 2002 and 2003, and the related consolidated statements of income,
changes in stockholders' equity and cash flows of the six month periods then
ended, as reported in FleetBoston's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2003 (the "FleetBoston 10-Q"). The December 31,
2002 consolidated balance sheet of FleetBoston (including the related notes,
where applicable) fairly presents in all material respects the consolidated
financial position of FleetBoston and its Subsidiaries as of the date thereof,
and the other financial statements referred to in this Section 3.6 (including
the related notes, where applicable) fairly present in all material respects the
results of the consolidated operations and changes in stockholders' equity and
consolidated financial position of FleetBoston and its Subsidiaries for the
respective fiscal periods or as of the respective dates therein set forth,
subject to normal year-end audit adjustments in amounts consistent with past
experience in the case of unaudited statements; each of such statements
(including the related notes, where applicable) complies in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto; and each of such statements
(including the related notes, where applicable) has been prepared in all
material respects in accordance with GAAP consistently applied during the
periods involved, except, in each case, as indicated in such statements or in
the notes thereto. The books and records of FleetBoston and its Subsidiaries
have been, and are being, maintained in all material respects in accordance with
GAAP and any other applicable legal and accounting requirements and reflect only
actual transactions.
3.7 Broker's Fees. Neither FleetBoston nor any FleetBoston Subsidiary
nor any of their respective officers or directors has employed any broker or
finder or incurred any liability for any broker's fees, commissions or finder's
fees in connection with the Merger or related transactions contemplated by this
Agreement, other than ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc., the material terms of whose
engagement have been disclosed to Bank of America.
3.8 Absence of Certain Changes or Events. (a) Except as publicly
disclosed in the FleetBoston Reports filed prior to the date of this Agreement,
since December 31, 2002, no event or events have occurred that have had or are
reasonably likely to have, either individually or in the aggregate, a Material
Adverse Effect on FleetBoston.
(b) Except as publicly disclosed in the FleetBoston Reports filed prior
to the date of this Agreement, since December 31, 2002 through and including the
date of this Agreement, FleetBoston and its Subsidiaries have carried on their
respective businesses in all material respects in the ordinary course.
3.9 Legal Proceedings. (a) None of FleetBoston or any of its
Subsidiaries is a party to any, and there are no pending or, to the best of
FleetBoston's knowledge, threatened, legal, administrative, arbitral or other
proceedings, claims, actions or governmental or regulatory investigations of any
nature against FleetBoston or any of its Subsidiaries except as would not be
reasonably likely to have, either individually or in the aggregate, a Material
Adverse Effect on FleetBoston.
(b) There is no Injunction, judgment, or regulatory restriction (other
than those of general application that apply to similarly situated financial or
bank holding companies or their Subsidiaries) imposed upon FleetBoston, any of
its Subsidiaries or the assets of FleetBoston or any of its Subsidiaries that
has had or is reasonably likely to have, either individually or in the
aggregate, a Material Adverse Effect on FleetBoston or the Surviving
Corporation.
3.10 Taxes and Tax Returns. (a) Each of FleetBoston and its
Subsidiaries has duly filed all federal, state, foreign and local information
returns and Tax returns required to be filed by it on or prior to the date of
this Agreement (all such returns being accurate and complete in all material
respects) and has duly paid or made provision for the payment of all Taxes that
have been incurred or are due or claimed to be due from it by federal, state,
foreign or local taxing authorities other than (i) Taxes that are not yet
delinquent or are being contested in good faith, have not been finally
determined and have been adequately reserved against or (ii) information
returns, Tax returns or Taxes as to which the failure to file, pay or make
provision for is not reasonably likely to have, either individually or in the
aggregate, a Material Adverse Effect on FleetBoston. The federal income Tax
returns of FleetBoston and its Subsidiaries have been examined by the Internal
Revenue Service (the "IRS") for all years to and including 1997 and any
liability with respect thereto has been satisfied or any liability with respect
to deficiencies asserted as a result of such examination is covered by adequate
reserves. There are no material disputes pending, or claims asserted, for Taxes
or assessments upon FleetBoston or any of its Subsidiaries for which FleetBoston
does not have adequate reserves. Neither FleetBoston nor any of its Subsidiaries
is a party to or is bound by any Tax sharing, allocation or indemnification
agreement or arrangement (other than such an agreement or arrangement
exclusively between or among FleetBoston and its Subsidiaries). Within the past
five years, neither FleetBoston nor any of its Subsidiaries has been a
"distributing corporation" or a "controlled corporation" in a distribution
intended to qualify under Section 355(a) of the Code. No disallowance of a
deduction under Section 162(m) of the Code for employee remuneration of any
amount paid or payable by FleetBoston or any of its Subsidiaries under any
contract, plan, program or arrangement or understanding would be reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
FleetBoston.
(b) As used in this Agreement, the term "Tax" or "Taxes" means (i) all
federal, state, local, and foreign income, excise, gross receipts, gross income,
ad valorem, profits, gains, property, capital, sales, transfer, use, payroll,
employment, severance, withholding, duties, intangibles, franchise, backup
withholding, and other taxes, charges, levies or like assessments together with
all penalties and additions to tax and interest thereon and (ii) any liability
for Taxes described in clause (i) under Treasury Regulation Section 1.1502-6 (or
any similar provision of state, local or foreign law).
3.11 Employees. (a) The FleetBoston Disclosure Schedule sets forth a
true and complete list of each material benefit or compensation plan,
arrangement or agreement, and any material bonus, incentive, deferred
compensation, vacation, stock purchase, stock option, severance, employment,
change of control or fringe benefit plan, program or agreement that is
maintained, or contributed to, for the benefit of current or former directors or
employees of FleetBoston and its Subsidiaries or with respect to which
FleetBoston or its Subsidiaries may, directly or indirectly, have any liability,
as of the date of this Agreement (the "FleetBoston Benefit Plans").
(b) FleetBoston has heretofore made available to Bank of America true
and complete copies of each of the FleetBoston Benefit Plans and certain related
documents, including (i) the actuarial report for such FleetBoston Benefit Plan
(if applicable) for each of the last two years and (ii) the most recent
determination letter from the IRS (if applicable) for such FleetBoston Benefit
Plan.
(c) Except as would not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect on FleetBoston, (i)
each of the FleetBoston Benefit Plans has been operated and administered in all
material respects in compliance with its terms and applicable laws, including
the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and
the Code, (ii) each of the FleetBoston Benefit Plans intended to be "qualified"
within the meaning of Section 401(a) of the Code is so qualified, and there are
no existing circumstances or any events that have occurred that will adversely
affect the qualified status of any such FleetBoston Benefit Plan, (iii) with
respect to each FleetBoston Benefit Plan that is subject to Title IV of ERISA,
the present value (as defined under Section 3(26) of ERISA) of accumulated
benefit obligations under such FleetBoston Benefit Plan, based upon the
actuarial assumptions used for funding purposes in the most recent actuarial
report prepared by such FleetBoston Benefit Plan's actuary with respect to such
FleetBoston Benefit Plan, did not, as of its latest valuation date, exceed the
then current value (as defined under Section 3(26) of ERISA) of the assets of
such FleetBoston Benefit Plan allocable to such accrued benefits, (iv) no
FleetBoston Benefit Plan provides benefits coverage, including death or medical
benefits coverage (whether or not insured), with respect to current or former
employees or directors of FleetBoston or its Subsidiaries beyond their
retirement or other termination of service, other than (A) coverage mandated by
applicable law, (B) death benefits or retirement benefits under any "employee
pension plan" (as such term is defined in Section 3(2) of ERISA), (C) deferred
compensation benefits accrued as liabilities on the books of FleetBoston or its
Subsidiaries, (D) benefits the full cost of which is borne by the current or
former employee or director (or his beneficiary), (E) coverage through the last
day of the calendar month in which retirement or other termination of service
occurs, or (F) medical expense reimbursement accounts, (v) no liability under
Title IV of ERISA has been incurred by FleetBoston, its Subsidiaries or any
trade or business, whether or not incorporated, all of which together with
FleetBoston would be deemed a "single employer" within the meaning of Section
4001 of ERISA (a "FleetBoston ERISA Affiliate"), that has not been satisfied in
full, and no condition exists that presents a material risk to FleetBoston, its
Subsidiaries or any FleetBoston ERISA Affiliate of incurring a liability
thereunder, (vi) no FleetBoston Benefit Plan is a "multiemployer pension plan"
(as such term is defined in Section 3(37) of ERISA), (vii) none of FleetBoston
or its Subsidiaries or, to the knowledge of FleetBoston, any other person,
including any fiduciary, has engaged in a transaction in connection with which
FleetBoston, its Subsidiaries or any FleetBoston Benefit Plan will be subject to
either a material civil penalty assessed pursuant to Section 409 or 502(i) of
ERISA or a material Tax imposed pursuant to Section 4975 or 4976 of the Code,
(viii) to the knowledge of FleetBoston there are no pending, threatened or
anticipated claims (other than routine claims for benefits) by, on behalf of or
against any of the FleetBoston Benefit Plans or any trusts related thereto and
(ix) all contributions or other amounts payable by FleetBoston or its
Subsidiaries as of the Effective Time with respect to each FleetBoston Benefit
Plan in respect of current or former plan years have been paid or accrued in
accordance with GAAP and Section 412 of the Code.
(d) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated by this Agreement will (either
alone or in conjunction with any other event) (i) result in any payment
(including severance, unemployment compensation, "excess parachute payment"
(within the meaning of Section 280G of the Code), forgiveness of indebtedness or
otherwise) becoming due to any director or any employee of FleetBoston or any of
its Subsidiaries from FleetBoston or any of its Subsidiaries under any
FleetBoston Benefit Plan or otherwise, (ii) increase any benefits otherwise
payable under any FleetBoston Benefit Plan or (iii) result in any acceleration
of the time of payment or vesting of any such benefits.
3.12 SEC Reports. FleetBoston has previously made available to Bank of
America an accurate and complete copy of each (a) final registration statement,
prospectus, report, schedule and definitive proxy statement filed since January
1, 2000 by FleetBoston with the SEC pursuant to the Securities Act of 1933, as
amended (the "Securities Act"), or the Exchange Act (the "FleetBoston Reports"),
and prior to the date of this Agreement and (b) communication mailed by
FleetBoston to its shareholders since January 1, 2000 and prior to the date of
this Agreement, and no such FleetBoston Report or communication, as of the date
of such FleetBoston Report or communication, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements made therein, in light of
the circumstances in which they were made, not misleading, except that
information as of a later date (but before the date of this Agreement) shall be
deemed to modify information as of an earlier date. Since January 1, 2000, as of
their respective dates, all FleetBoston Reports filed under the Securities Act
and the Exchange Act complied as to form in all material respects with the
published rules and regulations of the SEC with respect thereto.
3.13 Compliance with Applicable Law. (a) FleetBoston and each of its
Subsidiaries hold all licenses, franchises, permits and authorizations necessary
for the lawful conduct of their respective businesses under and pursuant to
each, and have complied in all respects with and are not in default in any
respect under any, applicable law, statute, order, rule, regulation, policy or
guideline of any Governmental Entity relating to FleetBoston or any of its
Subsidiaries, except where the failure to hold such license, franchise, permit
or authorization or such noncompliance or default is not reasonably likely to
have, either individually or in the aggregate, a Material Adverse Effect on
FleetBoston.
(b) Except as is not reasonably likely to have, either individually or
in the aggregate, a Material Adverse Effect on FleetBoston, FleetBoston and each
FleetBoston Subsidiary have properly administered all accounts for which it acts
as a fiduciary, including accounts for which it serves as a trustee, agent,
custodian, personal representative, guardian, conservator or investment advisor,
in accordance with the terms of the governing documents, applicable state and
federal law and regulation and common law. None of FleetBoston, any FleetBoston
Subsidiary, or any director, officer or employee of FleetBoston or of any
FleetBoston Subsidiary, has committed any breach of trust or fiduciary duty with
respect to any such fiduciary account that is reasonably likely to have, either
individually or in the aggregate, a Material Adverse Effect on FleetBoston, and,
except as would not be reasonably likely to have, either individually or in the
aggregate, a Material Adverse Effect on FleetBoston, and the accountings for
each such fiduciary account are true and correct and accurately reflect the
assets of such fiduciary account.
3.14 Certain Contracts. (a) Neither FleetBoston nor any of its
Subsidiaries is a party to or bound by any contract, arrangement, commitment or
understanding (whether written or oral) (i) that is a "material contract" (as
such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to be
performed after the date of this Agreement that has not been filed or
incorporated by reference in the FleetBoston Reports filed prior to the date
hereof, (ii) that materially restricts the conduct of any material line of
business by FleetBoston or upon consummation of the Merger will materially
restrict the ability of the Surviving Corporation to engage in any line of
business material to Bank of America or FleetBoston in which a financial holding
company may lawfully engage, (iii) with or to a labor union or guild (including
any collective bargaining agreement) or (iv) including any stock option plan,
stock appreciation rights plan, restricted stock plan or stock purchase plan,
any of the benefits of which will be increased, or the vesting of the benefits
of which will be accelerated, by the execution of this Agreement, the occurrence
of any shareholder approval or the consummation of any of the transactions
contemplated by this Agreement, or the value of any of the benefits of which
will be calculated on the basis of or affected by any of the transactions
contemplated by this Agreement. Each contract, arrangement, commitment or
understanding of the type described in this Section 3.14(a), whether or not set
forth in the FleetBoston Disclosure Schedule, is referred to as a "FleetBoston
Contract," and neither FleetBoston nor any of its Subsidiaries knows of, or has
received notice of, any violation of the above by any of the other parties
thereto that is reasonably likely to have, either individually or in the
aggregate, a Material Adverse Effect on FleetBoston.
(b) With such exceptions that are not reasonably likely to have, either
individually or in the aggregate, a Material Adverse Effect on FleetBoston, (i)
each FleetBoston Contract is valid and binding on FleetBoston or any of its
Subsidiaries, as applicable, and is in full force and effect, (ii) FleetBoston
and each of its Subsidiaries has in all material respects performed all
obligations required to be performed by it to date under each FleetBoston
Contract, and (iii) no event or condition exists that constitutes or, after
notice or lapse of time or both, will constitute, a material default on the part
of FleetBoston or any of its Subsidiaries under any such FleetBoston Contract.
3.15 Agreements with Regulatory Agencies. Neither FleetBoston nor any
of its Subsidiaries is subject to any cease-and-desist or other order or
enforcement action issued by, or is a party to any written agreement, consent
agreement or memorandum of understanding with, or is a party to any commitment
letter or similar undertaking to, or is subject to any order or directive by, or
has been ordered to pay any civil money penalty by, or has been since January 1,
2000, a recipient of any supervisory letter from, or since January 1, 2000, has
adopted any policies, procedures or board resolutions at the request or
suggestion of any Regulatory Agency or other Governmental Entity that currently
restricts in any material respect the conduct of its business or that in any
material manner relates to its capital adequacy, its ability to pay dividends,
its credit or risk management policies, its management or its business, other
than those of general application that apply to similarly situated financial
holding companies or their Subsidiaries (each item in this sentence, whether or
not set forth in the FleetBoston Disclosure Schedule, a "FleetBoston Regulatory
Agreement"), nor has FleetBoston or any of its Subsidiaries been advised since
January 1, 2000 by any Regulatory Agency or other Governmental Entity that it is
considering issuing, initiating, ordering, or requesting any such FleetBoston
Regulatory Agreement.
3.16 Interest Rate Risk Management Instruments. Except as would not be
reasonably likely to have, either individually or in the aggregate, a Material
Adverse Effect on FleetBoston, (1) all interest rate swaps, caps, floors and
option agreements and other interest rate risk management arrangements, whether
entered into for the account of FleetBoston or for the account of a customer of
FleetBoston or any of its Subsidiaries, were entered into in the ordinary course
of business consistent with past practice and in accordance with prudent banking
practice and applicable rules, regulations and policies of any Regulatory
Authority and with counterparties believed to be financially responsible at the
time and are legal, valid and binding obligations of FleetBoston or one of its
Subsidiaries enforceable against it in accordance with their terms (except as
may be limited by bankruptcy, insolvency, moratorium, reorganization or similar
laws affecting the rights of creditors generally and the availability of
equitable remedies), and are in full force and effect, (2) its Subsidiaries have
duly performed their obligations thereunder to the extent that such obligations
to perform have accrued, and, (3) to FleetBoston's knowledge, there are no
breaches, violations or defaults or allegations or assertions of such by any
party thereunder.
3.17 Undisclosed Liabilities. Except for those liabilities that are
reflected or reserved against on the consolidated balance sheet of FleetBoston
included in the FleetBoston 10-Q (including any notes thereto) and for
liabilities incurred in the ordinary course of business consistent with past
practice since June 30, 2003, since such date, neither FleetBoston nor any of
its Subsidiaries has incurred any liability of any nature whatsoever (whether
absolute, accrued, contingent or otherwise and whether due or to become due)
that has had or is reasonably likely to have, either individually or in the
aggregate, a Material Adverse Effect on FleetBoston.
3.18 Environmental Liability. There are no legal, administrative,
arbitral or other proceedings, claims, actions, causes of action, private
environmental investigations or remediation activities or governmental
investigations of any nature seeking to impose, or that are reasonably likely to
result in the imposition, on FleetBoston of any liability or obligation arising
under common law or under any local, state or federal environmental statute,
regulation or ordinance including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, pending or threatened
against FleetBoston, which liability or obligation is reasonably likely to have,
either individually or in the aggregate, a Material Adverse Effect on
FleetBoston. To the knowledge of FleetBoston, there is no reasonable basis for
any such proceeding, claim, action or governmental investigation that would
impose any liability or obligation that would be reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on FleetBoston.
FleetBoston is not subject to any agreement, order, judgment, decree, letter or
memorandum by or with any Governmental Entity or third party imposing any
liability or obligation with respect to the foregoing that is reasonably likely
to have, either individually or in the aggregate, a Material Adverse Effect on
FleetBoston.
3.19 State Takeover Laws; FleetBoston Rights Agreement. (a) The Board
of Directors of FleetBoston has approved this Agreement and the FleetBoston
Stock Option Agreement and the transactions contemplated hereby and thereby as
required to render inapplicable to such agreements and transactions the Rhode
Island Business Combination Act of 1990, as amended, Article Ninth of the
FleetBoston Articles, the FleetBoston Rights Agreement and, to the knowledge of
FleetBoston, any similar "takeover" or "interested stockholder" law (any such
laws, "Takeover Statutes").
(b) FleetBoston has taken all action, if any, necessary or appropriate
so that the entering into of this Agreement and the FleetBoston Stock Option
Agreement, and the consummation of the transactions contemplated hereby and
thereby do not and will not result in the ability of any person to exercise any
Rights (as defined in the FleetBoston Rights Agreement) under the FleetBoston
Rights Agreement or enable or require any Rights to separate from the shares of
FleetBoston Common Stock to which they are attached or to be triggered or become
exercisable. No "Distribution Date" or "Stock Acquisition Date" (as such terms
are defined in the FleetBoston Rights Agreement) has occurred.
3.20 Reorganization. As of the date of this Agreement, FleetBoston is
not aware of any fact or circumstance that could reasonably be expected to
prevent the Merger from qualifying as a "reorganization" within the meaning of
Section 368(a) of the Code.
3.21 Opinions. Prior to the execution of this Agreement, FleetBoston
has received an opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc. to the effect that as of
the date thereof and based upon and subject to the matters set forth therein,
the Exchange Ratio is fair to the stockholders of FleetBoston from a financial
point of view. Such opinion has not been amended or rescinded as of the date of
this Agreement.
3.22 FleetBoston Information. The information relating to FleetBoston
and its Subsidiaries that is provided by FleetBoston or its representatives for
inclusion in the Joint Proxy Statement and the Form S-4, or in any other
document filed with any other Regulatory Agency in connection with the
transactions contemplated by this Agreement, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances in which they are made,
not misleading. The Joint Proxy Statement (except for such portions thereof that
relate only to Bank of America or any of its Subsidiaries) will comply in all
material respects with the provisions of the Exchange Act and the rules and
regulations thereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BANK OF AMERICA
Except as disclosed in (x) the Bank of America Reports (as defined in
Section 4.11) filed prior to the date hereof or (y) the disclosure schedule (the
"Bank of America Disclosure Schedule") delivered by Bank of America to
FleetBoston prior to the execution of this Agreement (which schedule sets forth,
among other things, items the disclosure of which is necessary or appropriate
either in response to an express disclosure requirement contained in a provision
hereof or as an exception to one or more representations or warranties contained
in this Article IV, or to one or more of Bank of America's covenants contained
in Article V, provided, however, that, notwithstanding anything in this
Agreement to the contrary, (i) no such item is required to be set forth in such
schedule as an exception to a representation or warranty if its absence would
not result in the related representation or warranty being deemed untrue or
incorrect under the standard established by Section 9.2, and (ii) the mere
inclusion of an item in such schedule as an exception to a representation or
warranty shall not be deemed an admission that such item represents a material
exception or material fact, event or circumstance or that such item has had or
would be reasonably likely to have a Material Adverse Effect on Bank of
America), Bank of America hereby represents and warrants to FleetBoston as
follows:
4.1 Corporate Organization. (a) Bank of America is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Bank of America has the corporate power and authority to own or lease
all of its properties and assets and to carry on its business as it is now being
conducted, and is duly licensed or qualified to do business in each jurisdiction
in which the nature of the business conducted by it or the character or location
of the properties and assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so licensed or qualified
would not be reasonably likely to have, either individually or in the aggregate,
a Material Adverse Effect on Bank of America. Bank of America is duly registered
as a financial holding company under the BHC Act. True and complete copies of
the Amended and Restated Certificate of Incorporation (the "Bank of America
Certificate") and Bylaws of Bank of America, as in effect as of the date of this
Agreement, have previously been made available to FleetBoston.
(b) Each Bank of America Subsidiary (i) is duly organized and validly
existing under the laws of its jurisdiction of organization, (ii) is duly
qualified to do business and in good standing in all jurisdictions (whether
Federal, state, local or foreign) where its ownership or leasing of property or
the conduct of its business requires it to be so qualified, and (iii) has all
requisite corporate power and authority to own or lease its properties and
assets and to carry on its business as now conducted, except in each of (i) -
(iii) as would not be reasonably likely to have, either individually or in the
aggregate, a Material Adverse Effect on Bank of America.
4.2 Capitalization. (a) The authorized capital stock of Bank of America
consists of 5,000,000,000 shares of Bank of America Common Stock, of which, as
of October 24, 2003, 1,494,346,458 shares were issued and outstanding, and
100,000,000 shares of preferred stock, $0.01 par value (the "Bank of America
Preferred Stock"), of which, as of October 24, 2003, 1,274,600 shares were
issued and outstanding. As of October 24, 2003, no more than 2,000,000 shares of
Bank of America Common Stock were held in Bank of America's treasury. As October
24, 2003, no shares of Bank of America Common Stock or Bank of America Preferred
Stock were reserved for issuance, except for (A) 329,460,493 shares reserved for
issuance upon exercise of options issued pursuant to employee and director stock
plans of Bank of America in effect as of the date of this Agreement (the "Bank
of America Stock Plans") and shares reserved for issuance pursuant to Bank of
America's ESOP Convertible Preferred Stock, Series C (the "Bank of America
Convertible Preferred") and (B) 297,374,945 shares reserved for issuance
pursuant to the Bank of America Stock Option Agreement. All of the issued and
outstanding shares of Bank of America Capital Stock have been duly authorized
and validly issued and are fully paid, nonassessable and free of preemptive
rights, with no personal liability attaching to the ownership thereof. As of
October 24, 2003, except pursuant to this Agreement, the Bank of America Stock
Option Agreement, the Bank of America Stock Plans, the Bank of America
Convertible Preferred, stock repurchase plans entered into by Bank of America
from time to time and put options sold by Bank of America on Bank of America
Common Stock pursuant to a program designed to partially offset the cost of Bank
of America share repurchases, Bank of America does not have and is not bound by
any outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the purchase or issuance of any shares
of Bank of America Capital Stock or any other equity securities of Bank of
America or any securities representing the right to purchase or otherwise
receive any shares of Bank of America Capital Stock. The shares of Bank of
America Common Stock to be issued pursuant to the Merger will be duly authorized
and validly issued and, at the Effective Time, all such shares will be fully
paid, nonassessable and free of preemptive rights, with no personal liability
attaching to the ownership thereof.
(b) All of the issued and outstanding shares of capital stock or other
equity ownership interests of each "significant subsidiary" (as such term is
defined under Regulation S-X of the SEC (as defined in Section 3.4)) of Bank of
America are owned by Bank of America, directly or indirectly, free and clear of
any Liens, and all of such shares or equity ownership interests are duly
authorized and validly issued and are fully paid, nonassessable (subject to 12
U.S.C. ▇▇.▇▇. 55) and free of preemptive rights. No such significant subsidiary
has or is bound by any outstanding subscriptions, options, warrants, calls,
commitments or agreements of any character calling for the purchase or issuance
of any shares of capital stock or any other equity security of such subsidiary
or any securities representing the right to purchase or otherwise receive any
shares of capital stock or any other equity security of such subsidiary.
4.3 Authority; No Violation. (a) Bank of America has full corporate
power and authority to execute and deliver this Agreement and the Stock Option
Agreements and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and the Stock Option Agreements and
the consummation of the transactions contemplated hereby and thereby have been
duly and validly approved by the Board of Directors of Bank of America. The
Board of Directors of Bank of America has determined that this Agreement and the
transactions contemplated hereby are in the best interests of Bank of America
and its stockholders and has directed that this Agreement and the transactions
contemplated by this Agreement be submitted to Bank of America's stockholders
for adoption at a duly held meeting of such stockholders and, except for the
approval of this Agreement and the transactions contemplated by this Agreement
by the affirmative vote of the holders of a majority of the outstanding shares
of FleetBoston Common Stock entitled to vote at such meeting, no other corporate
proceedings on the part of Bank of America are necessary to approve this
Agreement or the Stock Option Agreements to consummate the transactions
contemplated hereby or thereby. This Agreement and the Stock Option Agreements
have been duly and validly executed and delivered by Bank of America and
(assuming due authorization, execution and delivery by FleetBoston) constitute
the valid and binding obligations of Bank of America, enforceable against Bank
of America in accordance with their terms (except as may be limited by
bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the
rights of creditors generally and the availability of equitable remedies).
(b) Neither the execution and delivery of this Agreement or the Stock
Option Agreements by Bank of America, nor the consummation by Bank of America of
the transactions contemplated hereby or thereby, nor compliance by Bank of
America with any of the terms or provisions of this Agreement or the Stock
Option Agreements, will (i) violate any provision of the Bank of America
Certificate or the Bank of America Bylaws, or (ii) assuming that the consents,
approvals and filings referred to in Section 4.4 are duly obtained and/or made,
(A) violate any statute, code, ordinance, rule, regulation, judgment, order,
writ, decree or Injunction applicable to Bank of America, any of its
Subsidiaries or any of their respective properties or assets or (B) violate,
conflict with, result in a breach of any provision of or the loss of any benefit
under, constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, result in the termination of or a right
of termination or cancellation under, accelerate the performance required by, or
result in the creation of any Lien upon any of the respective properties or
assets of Bank of America or any of its Subsidiaries under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument or obligation to which Bank of
America or any of its Subsidiaries is a party, or by which they or any of their
respective properties or assets may be bound or affected, except for such
violations, conflicts, breaches or defaults that are not reasonably likely to
have, either individually or in the aggregate, a Material Adverse Effect on Bank
of America.
4.4 Consents and Approvals. Except for (i) the filing of applications
and notices, as applicable, with the Federal Reserve Board under the BHC Act and
the Federal Reserve Act, as amended, and approval of such applications and
notices, (ii) the Other Regulatory Approvals, (iii) the filing with the SEC of
the Joint Proxy Statement and the filing and declaration of effectiveness of the
Form S-4, (iv) the filing of the Articles of Merger with the Rhode Island
Secretary pursuant to the RIBCA and the issuance by the Rhode Island Secretary
of a Certificate of Merger and the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware pursuant to the DGCL, (v) any
notices to or filings with the SBA, (vi) any notices or filings under the HSR
Act, (vii) any consents, authorizations, approvals, filings or exemptions in
connection with compliance with the applicable provisions of federal and state
securities laws relating to the regulation of broker-dealers, investment
advisers or transfer agents, and federal commodities laws relating to the
regulation of futures commission merchants and the rules and regulations
thereunder and of any applicable SRO, and the rules of the NYSE, or that are
required under consumer finance, mortgage banking and other similar laws, (viii)
such filings and approvals as are required to be made or obtained under the
securities or "Blue Sky" laws of various states in connection with the issuance
of the shares of Bank of America Capital Stock pursuant to this Agreement, (ix)
the approval of this Agreement by the requisite vote of stockholders of Bank of
America and (x) filings, if any, required as a result of the particular status
of FleetBoston, no consents or approvals of or filings or registrations with any
Governmental Entity are necessary in connection with (A) the execution and
delivery by Bank of America of this Agreement or the Stock Option Agreements and
(B) the consummation by Bank of America of the Merger and the other transactions
contemplated by this Agreement and the Stock Option Agreements.
4.5 Reports. Bank of America and each of its Subsidiaries have timely
filed all reports, registrations and statements, together with any amendments
required to be made with respect thereto, that they were required to file since
January 1, 2000 with the Regulatory Agencies, and all other reports and
statements required to be filed by them since January 1, 2000, including any
report or statement required to be filed pursuant to the laws, rules or
regulations of the United States, any state, any foreign entity, or any
Regulatory Agency, and have paid all fees and assessments due and payable in
connection therewith, except where the failure to file such report, registration
or statement or to pay such fees and assessments is not reasonably likely to
have, either individually or in the aggregate, a Material Adverse Effect on Bank
of America. Except for normal examinations conducted by a Regulatory Agency in
the ordinary course of the business of Bank of America and its Subsidiaries, no
Regulatory Agency has initiated or has pending any proceeding or, to the
knowledge of Bank of America, investigation into the business or operations of
Bank of America or any of its Subsidiaries since January 1, 2000, except where
such proceedings or investigation are not reasonably likely to have, either
individually or in the aggregate, a Material Adverse Effect on Bank of America.
There (i) is no unresolved violation, criticism, or exception by any Regulatory
Agency with respect to any report or statement relating to any examinations or
inspections of Bank of America or any of its Subsidiaries, and (ii) has been no
formal or informal inquiries by, or disagreements or disputes with, any
Regulatory Agency with respect to the business, operations, policies or
procedures of Bank of America since January 1, 2000, that are reasonably likely
to have, either individually or in the aggregate, a Material Adverse Effect on
Bank of America.
4.6 Financial Statements. Bank of America has previously made available
to FleetBoston copies of (i) the consolidated balance sheet of Bank of America
and its Subsidiaries as of December 31, 2000, 2001 and 2002, and the related
consolidated statements of income, changes in shareholders' equity and cash
flows for the years then ended as reported in Bank of America's Annual Report on
Form 10-K for the fiscal year ended December 31, 2002 (the "Bank of America 2002
10-K") filed with the SEC under the Exchange Act, accompanied by the audit
report of PricewaterhouseCoopers LLP, independent public accountants with
respect to Bank of America, and (ii) the unaudited consolidated balance sheet of
Bank of America and its Subsidiaries as of June 30, 2002 and 2003, and the
related consolidated statements of income, changes in shareholders' equity and
cash flows of the six month periods then ended, as reported in Bank of America's
Quarterly Report on Form 10-Q for the quarterly period ended June 30, ▇▇▇▇ (▇▇▇
"▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇-▇"). The December 31, 2002 consolidated balance sheet of
Bank of America (including the related notes, where applicable) fairly presents
in all material respects the consolidated financial position of Bank of America
and its Subsidiaries as of the date thereof, and the other financial statements
referred to in this Section 4.6 (including the related notes, where applicable)
fairly present in all material respects the results of the consolidated
operations and changes in shareholders' equity and consolidated financial
position of Bank of America and its Subsidiaries for the respective fiscal
periods or as of the respective dates therein set forth, subject to normal
year-end audit adjustments in amounts consistent with past experience in the
case of unaudited statements; each of such statements (including the related
notes, where applicable) complies in all material respects with applicable
accounting requirements and with the published rules and regulations of the SEC
with respect thereto; and each of such statements (including the related notes,
where applicable) has been prepared in all material respects in accordance with
GAAP consistently applied during the periods involved, except, in each case, as
indicated in such statements or in the notes thereto. The books and records of
Bank of America and its Subsidiaries have been, and are being, maintained in all
material respects in accordance with GAAP and any other applicable legal and
accounting requirements and reflect only actual transactions.
4.7 Broker's Fees. Neither Bank of America nor any Bank of America
Subsidiary nor any of their respective officers or directors has employed any
broker or finder or incurred any liability for any brokers fees, commissions or
finder's fees in connection with the Merger or related transactions contemplated
by this Agreement, other than ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and Banc of America
Securities, the material terms of whose engagement have been disclosed to
FleetBoston.
4.8 Absence of Certain Changes or Events. (a) Except as publicly
disclosed in the Bank of America Reports (as defined in Section 4.11) filed
prior to the date of this Agreement, since December 31, 2002, no event or events
have occurred that have had or are reasonably likely to have a Material Adverse
Effect on Bank of America.
(b) Except as publicly disclosed in Bank of America Reports filed prior
to the date of this Agreement, from December 31, 2002 through and including the
date of this Agreement, Bank of America and the Bank of America Subsidiaries
have carried on their respective businesses in all material respects in the
ordinary course.
4.9 Legal Proceedings. (a) None of Bank of America or any of its
Subsidiaries is a party to any, and there are no pending or, to the best of Bank
of America's knowledge, threatened, legal, administrative, arbitral or other
proceedings, claims, actions or governmental or regulatory investigations of any
nature against Bank of America or any of its Subsidiaries except as would not be
reasonably likely to have, either individually or in the aggregate, a Material
Adverse Effect on Bank of America.
(b) There is no Injunction, judgment, or regulatory restriction (other
than those of general application that apply to similarly situated financial or
bank holding companies or their Subsidiaries) imposed upon Bank of America, any
of its Subsidiaries or the assets of Bank of America or any of its Subsidiaries
that has had or is reasonably likely to have, either individually or in the
aggregate, a Material Adverse Effect on Bank of America or the Surviving
Corporation.
4.10 Taxes and Tax Returns. Each of Bank of America and its
Subsidiaries has duly filed all federal, state, foreign and local information
returns and Tax returns required to be filed by it on or prior to the date of
this Agreement (all such returns being accurate and complete in all material
respects) and has duly paid or made provision for the payment of all Taxes that
have been incurred or are due or claimed to be due from it by federal, state,
foreign or local taxing authorities other than (i) Taxes or other governmental
charges that are not yet delinquent or are being contested in good faith, have
not been finally determined and have been adequately reserved against, or (ii)
information returns, Tax returns or Taxes as to which the failure to file, pay
or make provision for is not reasonably likely to have, either individually or
in the aggregate, a Material Adverse Effect on Bank of America. The federal
income Tax returns of Bank of America and its Subsidiaries have been examined by
the IRS for all years to and including 1999 and any liability with respect
thereto has been satisfied or any liability with respect to deficiencies
asserted as a result of such examination is covered by adequate reserves. There
are no material disputes pending, or claims asserted, for Taxes or assessments
upon Bank of America or any of its Subsidiaries for which Bank of America does
not have adequate reserves. Neither Bank of America nor any of its Subsidiaries
is a party to or is bound by any Tax sharing, allocation or indemnification
agreement or arrangement (other than such an agreement or arrangement
exclusively between or among Bank of America and its Subsidiaries). Within the
past five years, neither Bank of America nor any of its Subsidiaries has been a
"distributing corporation" or a "controlled corporation" in a distribution
intended to qualify under Section 355(a) of the Code. No disallowance of a
deduction under Section 162(m) of the Code for employee remuneration of any
amount paid or payable by Bank of America or any of its Subsidiaries under any
contract, plan, program or arrangement or understanding would be reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
Bank of America.
4.11 SEC Reports. Bank of America has previously made available to
FleetBoston an accurate and complete copy of each (a) final registration
statement, prospectus, report, schedule and definitive Joint Proxy Statement
filed since January 1, 2000 by Bank of America with the SEC pursuant to the
Securities Act or the Exchange Act (the "Bank of America Reports") and prior to
the date of this Agreement and (b) communication mailed by Bank of America to
its stockholders since January 1, 2000 and prior to the date of this Agreement,
and no such Bank of America Report or communication, as of the date of such Bank
of America Report or communication, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in light of the
circumstances in which they were made, not misleading, except that information
as of a later date (but before the date of this Agreement) shall be deemed to
modify information as of an earlier date. Since January 1, 2000, as of their
respective dates, all Bank of America Reports filed under the Securities Act and
the Exchange Act complied as to form in all material respects with the published
rules and regulations of the SEC with respect thereto.
4.12 Compliance with Applicable Law. (a) Bank of America and each of
its Subsidiaries hold all licenses, franchises, permits and authorizations
necessary for the lawful conduct of their respective businesses under and
pursuant to each, and have complied in all respects with and are not in default
in any respect under any, applicable law, statute, order, rule, regulation,
policy or guideline of any Governmental Entity relating to Bank of America or
any of its Subsidiaries, except where the failure to hold such license,
franchise, permit or authorization or such noncompliance or default is not
reasonably likely to, either individually or in the aggregate, have a Material
Adverse Effect on Bank of America.
(b) Except as is not reasonably likely to have, either individually or
in the aggregate, a Material Adverse Effect on Bank of America, Bank of America
and each Bank of America Subsidiary have properly administered all accounts for
which it acts as a fiduciary, including accounts for which it serves as a
trustee, agent, custodian, personal representative, guardian, conservator or
investment advisor, in accordance with the terms of the governing documents,
applicable state and federal law and regulation and common law. None of Bank of
America, any Bank of America Subsidiary, or any director, officer or employee of
Bank of America or of any Bank of America Subsidiary, has committed any breach
of trust or fiduciary duty with respect to any such fiduciary account that is
reasonably likely to have, either individually or in the aggregate, a Material
Adverse Effect on Bank of America, and, except as would not be reasonably likely
to have, either individually or in the aggregate, a Material Adverse Effect on
Bank of America and the accountings for each such fiduciary account are true and
correct and accurately reflect the assets of such fiduciary account.
4.13 Agreements with Regulatory Agencies. Neither Bank of America nor
any of its Subsidiaries is subject to any cease-and-desist or other order or
enforcement action issued by, or is a party to any written agreement, consent
agreement or memorandum of understanding with, or is a party to any commitment
letter or similar undertaking to, or is subject to any order or directive by, or
has been since January 1, 2000, a recipient of any supervisory letter from, or
has been ordered to pay any civil money penalty by, or since January 1, 2000,
has adopted any policies, procedures or board resolutions at the request or
suggestion of any Regulatory Agency or other Governmental Entity that currently
restricts in any material respect the conduct of its business or that in any
material manner relates to its capital adequacy, its ability to pay dividends,
its credit or risk management policies, its management or its business, other
than those of general application that apply to similarly situated financial
holding companies or their Subsidiaries (each, whether or not set forth in the
Bank of America Disclosure Schedule, a "Bank of America Regulatory Agreement"),
nor has Bank of America or any of its Subsidiaries been advised since January 1,
2000, by any Regulatory Agency or other Governmental Entity that it is
considering issuing, initiating, ordering or requesting any such Bank of America
Regulatory Agreement.
4.14 Interest Rate Risk Management Instruments. Except as would not be
reasonably likely to have, either individually or in the aggregate, a Material
Adverse Effect on Bank of America, (1) all interest rate swaps, caps, floors and
option agreements and other interest rate risk management arrangements, whether
entered into for the account of Bank of America or for the account of a customer
of Bank of America or one of its Subsidiaries, were entered into in the ordinary
course of business consistent with past practice and in accordance with prudent
banking practice and applicable rules, regulations and policies of any
Regulatory Authority and with counterparties believed to be financially
responsible at the time and are legal, valid and binding obligations of Bank of
America or one of its Subsidiaries enforceable against it in accordance with
their terms (except as may be limited by bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting the rights of creditors generally and
the availability of equitable remedies), and are in full force and effect, (2)
each of its Subsidiaries have duly performed their obligations thereunder to the
extent that such obligations to perform have accrued, and (3) to Bank of
America's knowledge, there are no breaches, violations or defaults or
allegations or assertions of such by any party thereunder.
4.15 Undisclosed Liabilities. Except for those liabilities that are
reflected or reserved against on the consolidated balance sheet of Bank of
America included in the Bank of America 10-Q (including any notes thereto) and
for liabilities incurred in the ordinary course of business consistent with past
practice since June 30, 2003, since such date, neither Bank of America nor any
of its Subsidiaries has incurred any liability of any nature whatsoever (whether
absolute, accrued, contingent or otherwise and whether due or to become due)
that, either individually or in the aggregate, has had or is reasonably likely
to have, a Material Adverse Effect on Bank of America.
4.16 Environmental Liability. There are no legal, administrative,
arbitral or other proceedings, claims, actions, causes of action, private
environmental investigations or remediation activities or governmental
investigations of any nature seeking to impose, or that are reasonably likely to
result in the imposition, on Bank of America of any liability or obligation
arising under common law or under any local, state or federal environmental
statute, regulation or ordinance including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, pending or
threatened against Bank of America, which liability or obligation is reasonably
likely to have, either individually or in the aggregate, a Material Adverse
Effect on Bank of America. To the knowledge of Bank of America, there is no
reasonable basis for any such proceeding, claim, action or governmental
investigation that would impose any liability or obligation that would be
reasonably likely to have, individually or in the aggregate, a Material Adverse
Effect on Bank of America. Bank of America is not subject to any agreement,
order, judgment, decree, letter or memorandum by or with any Governmental Entity
or third party imposing any liability or obligation with respect to the
foregoing that is reasonably likely to have, either individually or in the
aggregate, a Material Adverse Effect on Bank of America.
4.17 State Takeover Laws. The Board of Directors of Bank of America has
approved this Agreement and the Bank of America Stock Option Agreement and the
transactions contemplated hereby and thereby as required to render inapplicable
to such agreements and transactions Section 203 of the DGCL and, to the
knowledge of Bank of America, any Takeover Statutes.
4.18 Reorganization. As of the date of this Agreement, Bank of America
is not aware of any fact or circumstance that could reasonably be expected to
prevent the Merger from qualifying as a "reorganization" within the meaning of
Section 368(a) of the Code.
4.19 Opinions. Prior to the execution of this Agreement, Bank of
America has received an opinion from ▇▇▇▇▇▇▇, Sachs & Co. to the effect that as
of the date thereof and based upon and subject to the matters set forth therein,
the Exchange Ratio is fair to Bank of America from a financial point of view.
Such opinion has not been amended or rescinded as of the date of this Agreement.
4.20 Bank of America Information. The information relating to Bank of
America and its Subsidiaries to be contained in the Joint Proxy Statement and
the Form S-4, or the information relating to Bank of America and its
Subsidiaries that is provided by Bank of America or its representatives for
inclusion in any other document filed with any other Regulatory Agency in
connection with the transactions contemplated by this Agreement, will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances in which
they are made, not misleading. The Joint Proxy Statement (except for such
portions thereof that relate only to FleetBoston or any of its Subsidiaries)
will comply with the provisions of the Exchange Act and the rules and
regulations thereunder in all material respects. The Form S-4 will comply with
the provisions of the Securities Act and the rules and regulations thereunder in
all material respects.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1 Conduct of Businesses Prior to the Effective Time. During the
period from the date of this Agreement to the Effective Time, except as
expressly contemplated or permitted by this Agreement (including the FleetBoston
Disclosure Schedule and the Bank of America Disclosure Schedule), each of
FleetBoston and Bank of America shall, and shall cause each of its respective
Subsidiaries to (a) conduct its business in the ordinary course in all material
respects, (b) use reasonable best efforts to maintain and preserve intact its
business organization, employees and advantageous business relationships and
retain the services of its key officers and key employees and (c) take no action
that would adversely affect or materially delay the ability of either
FleetBoston or Bank of America to obtain any necessary approvals of any
Regulatory Agency or other Governmental Entity required for the transactions
contemplated hereby or to perform its covenants and agreements under this
Agreement or to consummate the transactions contemplated hereby or thereby.
5.2 FleetBoston Forbearances. During the period from the date of this
Agreement to the Effective Time, except as set forth in the FleetBoston
Disclosure Schedule and except as expressly contemplated or permitted by this
Agreement, FleetBoston shall not, and shall not permit any of its Subsidiaries
to, without the prior written consent of Bank of America (which consent shall
not be unreasonably withheld):
(a) other than in the ordinary course of business consistent with past
practice, incur any indebtedness for borrowed money (other than short-term
indebtedness incurred to refinance short-term indebtedness and indebtedness of
FleetBoston or any of its wholly-owned Subsidiaries to FleetBoston or any of its
Subsidiaries), assume, guarantee, endorse or otherwise as an accommodation
become responsible for the obligations of any other individual, corporation or
other entity, or make any loan or advance (it being understood and agreed that
incurrence of indebtedness in the ordinary course of business consistent with
past practice shall include the creation of deposit liabilities, purchases of
Federal funds, sales of certificates of deposit and entering into repurchase
agreements);
(b) (i) adjust, split, combine or reclassify any of its capital stock;
(ii) make, declare or pay any dividend, or make any other distribution
on, or directly or indirectly redeem, purchase or otherwise acquire, any shares
of its capital stock or any securities or obligations convertible (whether
currently convertible or convertible only after the passage of time or the
occurrence of certain events) into or exchangeable for any shares of its capital
stock (except (A) for regular quarterly cash dividends at a rate not in excess
of $0.35 per share of FleetBoston Common Stock, subject to Section 6.11, (B)
dividends paid by any of the Subsidiaries of FleetBoston to FleetBoston or to
any of its wholly-owned Subsidiaries, (C) dividends paid on FleetBoston
Preferred Stock outstanding on the date hereof in accordance with the
certificate of designation for such FleetBoston Preferred Stock, and (D) the
acceptance of shares of FleetBoston Common Stock as payment of the exercise
price of stock options or for withholding taxes incurred in connection with the
exercise of FleetBoston Stock Options, FleetBoston SARs or the vesting of
restricted stock or other FleetBoston Stock-Based Awards, in each case in
accordance with past practice and the terms of the applicable award agreements);
(iii) grant any stock appreciation rights or grant any individual,
corporation or other entity any right to acquire any shares of its capital
stock, other than (A) pursuant to the FleetBoston Rights Agreement or any
renewal or replacement thereof and (B) grants to newly-hired employees of
FleetBoston made in the ordinary course of business consistent with past
practice under the FleetBoston Stock Plans subject to the terms set forth on
Schedule 5.2(b); or
(iv) issue any additional shares of capital stock except (A) pursuant
to the exercise of FleetBoston Stock Options or FleetBoston SARs or the
satisfaction of any FleetBoston Stock-Based Awards, in each case, outstanding as
of the date of this Agreement or issued thereafter in compliance with this
Agreement, (B) pursuant to the Convertible Note Agreement, (C) pursuant to the
FleetBoston Stock Option Agreement, (D) pursuant to the FleetBoston Rights
Agreement or any renewal or replacement thereof or (E) pursuant to the
FleetBoston Stock Purchase Plans;
(c) (i) except for normal increases made in the ordinary course of
business consistent with past practice, or as required by applicable law or an
existing agreement, increase the wages, salaries, compensation, pension, or
other fringe benefits or perquisites payable to any officer, employee, or
director, (ii) pay any pension or retirement allowance not required by any
existing plan or agreement or by applicable law, (iii) pay any bonus other than
customary year-end bonuses for fiscal 2003 determined in the ordinary course
consistent with past practice or as required by an existing agreement, (iv)
become a party to, amend or commit itself to, any pension, retirement,
profit-sharing or welfare benefit plan or agreement or employment agreement with
or for the benefit of any employee, other than in the ordinary course of
business consistent with past practice or as required by applicable law or any
existing agreement, or (v) except as required under any existing plan, grant, or
agreement, accelerate the vesting of, or the lapsing of restrictions with
respect to, any FleetBoston Stock Options, FleetBoston SARs or other FleetBoston
Stock-Based Awards;
(d) sell, transfer, mortgage, encumber or otherwise dispose of any of
its properties or assets that are material to FleetBoston and its Subsidiaries,
taken as a whole, to any individual, corporation or other entity other than a
Subsidiary or cancel, release or assign any indebtedness that is material to
FleetBoston and its Subsidiaries, taken as a whole, to any such person or any
claims held by any such person that are material to FleetBoston and its
Subsidiaries, taken as a whole, in each case other than in the ordinary course
of business consistent with past practice or pursuant to contracts in force at
the date of this Agreement;
(e) enter into any new line of business that is material to FleetBoston
and its Subsidiaries, taken as a whole, or change its lending, investment,
underwriting, risk and asset liability management and other banking and
operating policies that are material to FleetBoston and its Subsidiaries, taken
as a whole, except as required by applicable law, regulation or policies imposed
by any Governmental Entity;
(f) except for transactions in the ordinary course of business
consistent with past practice, make any material investment either by purchase
of stock or securities, contributions to capital, property transfers, or
purchase of any property or assets of any other individual, corporation or other
entity, provided that nothing contained in this Section 5.2(f) shall be deemed
to limit FleetBoston's ability to exercise its rights under the Bank of America
Stock Option Agreement;
(g) knowingly take any action, or knowingly fail to take any action,
which action or failure to act is reasonably likely to prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of the Code;
(h) amend its articles or certificate of incorporation or bylaws, or
amend, or redeem the rights issued under, the FleetBoston Rights Agreement
(except in connection with entering into the FleetBoston Stock Option
Agreement), or otherwise take any action to exempt any person or entity (other
than Bank of America or its Subsidiaries) or any action taken by any person or
entity from the FleetBoston Rights Agreement or any Takeover Statute or
similarly restrictive provisions of its organizational documents or terminate,
amend or waive any provisions of any confidentiality or standstill agreements in
place with any third parties;
(i) other than in prior consultation with Bank of America, restructure
or materially change its investment securities portfolio or its gap position,
through purchases, sales or otherwise, or the manner in which the portfolio is
classified or reported;
(j) settle any material claim, action or proceeding, except in the
ordinary course of business consistent with past practice;
(k) take any action that is intended or is reasonably likely to result
in any of its representations or warranties set forth in this Agreement being or
becoming untrue in any material respect at any time prior to the Effective Time,
or in any of the conditions to the Merger set forth in Article VII not being
satisfied or in a violation of any provision of this Agreement, except, in every
case, as may be required by applicable law;
(l) implement or adopt any change in its tax accounting or financial
accounting principles, practices or methods, other than as may be required by
applicable law, GAAP or regulatory guidelines;
(m) take any action that would materially impede or delay the ability
of the parties to obtain any necessary approvals of any Regulatory Agency or
Governmental Entity required for the transactions contemplated by this
Agreement; or
(n) agree to take, make any commitment to take, or adopt any
resolutions of its board of directors in support of, any of the actions
prohibited by this Section 5.2.
5.3 Bank of America Forbearances. During the period from the date of
this Agreement to the Effective Time, except as expressly contemplated or
permitted by this Agreement, Bank of America shall not, and shall not permit any
of its Subsidiaries to, without the prior written consent of FleetBoston (which
consent shall not be unreasonably withheld), (i) amend, repeal or otherwise
modify any provision of the Bank of America Articles or the Bank of America
Bylaws, (ii) knowingly take any action, or knowingly fail to take any action,
which action or failure to act is reasonably likely to prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of the Code,
(iii) take any action that would materially impede or delay the ability of the
parties to obtain any necessary approvals of any Regulatory Agency or other
Governmental Entity required for the transactions contemplated hereby, (iv) take
any action that is intended or is reasonably likely to result in any of its
representations or warranties set forth in this Agreement being or becoming
untrue in any material respect at any time prior to the Effective Time, or in
any of the conditions to the Merger set forth in Article VII not being satisfied
or in a violation of any provision of this Agreement, except, in every case, as
may be required by applicable law or (v) agree to take, make any commitment to
take, or adopt any resolutions of its board of directors in support of, any of
the actions prohibited by this Section 5.3.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Regulatory Matters. (a) Bank of America and FleetBoston shall
promptly prepare and file with the SEC the Joint Proxy Statement and Bank of
America shall promptly prepare and file with the SEC the Form S-4, in which the
Joint Proxy Statement will be included as a prospectus. Each of Bank of America
and FleetBoston shall use their reasonable best efforts to have the Form S-4
declared effective under the Securities Act as promptly as practicable after
such filing, and FleetBoston and Bank of America shall thereafter mail or
deliver the Joint Proxy Statement to its respective shareholders. Bank of
America shall also use its reasonable best efforts to obtain all necessary state
securities law or "Blue Sky" permits and approvals required to carry out the
transactions contemplated by this Agreement, and FleetBoston shall furnish all
information concerning FleetBoston and the holders of FleetBoston Capital Stock
as may be reasonably requested in connection with any such action.
(b) The parties shall cooperate with each other and use their
respective reasonable best efforts to promptly prepare and file all necessary
documentation, to effect all applications, notices, petitions and filings, to
obtain as promptly as practicable all permits, consents, approvals and
authorizations of all third parties and Governmental Entities that are necessary
or advisable to consummate the transactions contemplated by this Agreement
(including the Merger), and to comply with the terms and conditions of all such
permits, consents, approvals and authorizations of all such Governmental
Entities. FleetBoston and Bank of America shall have the right to review in
advance, and, to the extent practicable, each will consult the other on, in each
case subject to applicable laws relating to the exchange of information, all the
information relating to FleetBoston or Bank of America, as the case may be, and
any of their respective Subsidiaries, which appear in any filing made with, or
written materials submitted to, any third party or any Governmental Entity in
connection with the transactions contemplated by this Agreement. In exercising
the foregoing right, each of the parties shall act reasonably and as promptly as
practicable. The parties shall consult with each other with respect to the
obtaining of all permits, consents, approvals and authorizations of all third
parties and Governmental Entities necessary or advisable to consummate the
transactions contemplated by this Agreement and each party will keep the other
apprised of the status of matters relating to completion of the transactions
contemplated by this Agreement.
(c) Each of Bank of America and FleetBoston shall, upon request,
furnish to the other all information concerning itself, its Subsidiaries,
directors, officers and shareholders and such other matters as may be reasonably
necessary or advisable in connection with the Joint Proxy Statement, the Form
S-4 or any other statement, filing, notice or application made by or on behalf
of Bank of America, FleetBoston or any of their respective Subsidiaries to any
Governmental Entity in connection with the Merger and the other transactions
contemplated by this Agreement.
(d) Each of Bank of America and FleetBoston shall promptly advise the
other upon receiving any communication from any Governmental Entity consent or
approval of which is required for consummation of the transactions contemplated
by this Agreement that causes such party to believe that there is a reasonable
likelihood that any Requisite Regulatory Approval will not be obtained or that
the receipt of any such approval may be materially delayed.
6.2 Access to Information. (a) Upon reasonable notice and subject to
applicable laws relating to the exchange of information, each of FleetBoston and
Bank of America shall, and shall cause each of its Subsidiaries to, afford to
the officers, employees, accountants, counsel and other representatives of the
other, reasonable access, during normal business hours during the period prior
to the Effective Time, to all its properties, books, contracts, commitments and
records, and, during such period, the parties shall, and shall cause its
Subsidiaries to, make available to the other party (i) a copy of each report,
schedule, registration statement and other document filed or received by it
during such period pursuant to the requirements of federal securities laws or
federal or state banking laws (other than reports or documents that such party
is not permitted to disclose under applicable law) and (ii) all other
information concerning its business, properties and personnel as the other may
reasonably request. Neither FleetBoston nor Bank of America nor any of their
Subsidiaries shall be required to provide access to or to disclose information
where such access or disclosure would jeopardize the attorney-client privilege
of such party or its Subsidiaries or contravene any law, rule, regulation,
order, judgment, decree, fiduciary duty or binding agreement entered into prior
to the date of this Agreement. The parties shall make appropriate substitute
disclosure arrangements under circumstances in which the restrictions of the
preceding sentence apply.
(b) All information and materials provided pursuant to this Agreement
shall be subject to the provisions of the Confidentiality Agreement entered into
between the parties as of October 23, 2003 (the "Confidentiality Agreement").
Nothing in this Agreement shall prohibit the disclosure of the tax treatment and
tax structure, as those terms are used in Treasury Regulation Section 1.6011-4,
of the transactions contemplated by this Agreement (but no other details about
the matters covered by this Agreement, including without limitation the
identities of the parties) from and after the date of the public announcement by
the parties of this Agreement and the Merger.
(c) No investigation by either of the parties or their respective
representatives shall affect the representations and warranties of the other set
forth in this Agreement.
6.3 Shareholder Approvals. Each of FleetBoston and Bank of America
shall call a meeting of its shareholders to be held as soon as reasonably
practicable for the purpose of obtaining the requisite shareholder approvals
required in connection with this Agreement and the Merger, and each shall use
its reasonable best efforts to cause such meetings to occur as soon as
reasonably practicable and on the same date. The Board of Directors of each of
FleetBoston and Bank of America shall use its reasonable best efforts to obtain
from its respective shareholders the shareholder vote in favor of the approval
and adoption of this Agreement required to consummate the transactions
contemplated by this Agreement.
6.4 Legal Conditions to Merger. Each of Bank of America and FleetBoston
shall, and shall cause its Subsidiaries to, use their reasonable best efforts
(i) to take, or cause to be taken, all actions necessary, proper or advisable to
comply promptly with all legal requirements that may be imposed on such party or
its Subsidiaries with respect to the Merger and, subject to the conditions set
forth in Article VII, to consummate the transactions contemplated by this
Agreement, and (ii) to obtain (and to cooperate with the other party to obtain)
any material consent, authorization, order or approval of, or any exemption by,
any Governmental Entity and any other third party that is required to be
obtained by FleetBoston or Bank of America or any of their respective
Subsidiaries in connection with the Merger and the other transactions
contemplated by this Agreement.
6.5 Affiliates. FleetBoston shall use its reasonable best efforts to
cause each director, executive officer and other person who is an "affiliate"
(for purposes of Rule 145 under the Securities Act) of FleetBoston to deliver to
the other, as soon as practicable after the date of this Agreement, and prior to
the date of the meeting of the FleetBoston shareholders to be held pursuant to
Section 6.3, a written agreement, in the form of Exhibit C.
6.6 NYSE Listing. Bank of America shall cause the shares of Bank of
America Common Stock and the Bank of America Mirror Preferred Stock to be issued
in the Merger to be approved for listing on the NYSE, subject to official notice
of issuance, prior to the Effective Time.
6.7 Employee Matters. (a) From the Effective Time through December 31,
2004 or such later date to the extent December 31, 2004 is not practicable based
on the occurrence of the Effective Time (such date being referred to herein as
the "Benefits Transition Date"), Bank of America shall provide the employees of
FleetBoston and its Subsidiaries as of the Effective Time (the "Covered
Employees") with employee benefits and compensation plans, programs and
arrangements that are substantially similar, in the aggregate, to the employee
benefits and compensation plans, programs and arrangements provided by
FleetBoston or its Subsidiaries, as the case may be, to such employees
immediately prior to the Effective Time. From and after the Benefits Transition
Date, Bank of America shall provide the Covered Employees with employee benefits
and compensation plans, programs and arrangements that are equivalent to those
provided to similarly situated employees of Bank of America and its
Subsidiaries. Notwithstanding anything contained herein to the contrary, from
and after the Effective Time, a Covered Employee who is terminated during the
period commencing at the Effective Time and ending on the second anniversary
thereof shall be entitled to receive the severance payments and benefits under
the applicable FleetBoston severance plan or policy as in effect immediately
prior to the Effective Time (without amendment during such two year period
following the Effective Time).
(b) From and after the Effective Time, Bank of America shall (i)
provide all Covered Employees with service credit for purposes of eligibility,
participation, vesting and levels of benefits (but not for benefit accruals
under any defined benefit pension plan except as otherwise provided in this
Section 6.7(b)), under any employee benefit or compensation plan, program or
arrangement adopted, maintained or contributed to by Bank of America or any of
its Subsidiaries in which Covered Employees are eligible to participate, for all
periods of employment with FleetBoston or any of its Subsidiaries (or their
predecessor entities) prior to the Effective Time, (ii) cause any pre-existing
conditions or limitations, eligibility waiting periods or required physical
examinations under any welfare benefit plans of Bank of America or any of its
Subsidiaries to be waived with respect to the Covered Employees and their
eligible dependents, to the extent waived under the corresponding plan in which
the applicable Covered Employee participated immediately prior to the Effective
Time and, with respect to life insurance coverage, up to the Covered Employee's
current level of insurability, and (iii) give the Covered Employees and their
eligible dependents credit for the plan year in which the Effective Time (or
commencement of participation in a plan of Bank of America or any of its
Subsidiaries) occurs towards applicable deductibles and annual out-of-pocket
limits for expenses incurred prior to the Effective Time (or the date of
commencement of participation in a plan of Bank of America or any of its
Subsidiaries). For purposes of any cash balance pension plan maintained or
contributed to by Bank of America or any of its Subsidiaries in which Covered
Employees become eligible to participate following the Effective Time (excluding
the cash balance pension plans maintained or sponsored by FleetBoston
immediately prior to the Effective Time), the Covered Employees' level of
benefit accruals under any such plans (for periods of service following the date
on which the Covered Employees commence participation in such plans) shall be
determined based on the Covered Employees' credited service prior to the
Effective Time (as recognized for the same purpose by FleetBoston for purposes
of the cash balance pension plans maintained or sponsored by FleetBoston
immediately prior to the Effective Time) and with the Surviving Corporation
following the Effective Time.
(c) From and after the Effective Time, Bank of America shall honor all
accrued and vested benefit obligations to and contractual rights of current and
former employees of FleetBoston and its Subsidiaries under the FleetBoston
Benefit Plans. Bank of America agrees to take all action necessary to effectuate
and satisfy the agreements and obligations set forth in Section 6.7(c) of the
FleetBoston Disclosure Schedule.
(d) Concurrently with the execution of this Agreement, Bank of America
is entering into employment agreements with each of the FleetBoston employees
whose names are set forth in Section 6.7(d) of the FleetBoston Disclosure
Schedule.
6.8 Indemnification; Directors' and Officers' Insurance. (a) In the
event of any threatened or actual claim, action, suit, proceeding or
investigation, whether civil, criminal or administrative, including any such
claim, action, suit, proceeding or investigation in which any individual who is
now, or has been at any time prior to the date of this Agreement, or who becomes
prior to the Effective Time, a director, officer or employee of FleetBoston or
any of its Subsidiaries or who is or was serving at the request of FleetBoston
or any of its Subsidiaries as a director, officer, employee or agent of another
person (the "Indemnified Parties"), is, or is threatened to be, made a party
based in whole or in part on, or arising in whole or in part out of, or
pertaining to (i) the fact that he is or was a director, officer or employee of
FleetBoston or any of its Subsidiaries or (ii) this Agreement or any of the
transactions contemplated by this Agreement, whether asserted or arising before
or after the Effective Time, the parties shall cooperate and use their best
efforts to defend against and respond thereto. From and after the Effective
Time, Bank of America shall indemnify and hold harmless, as and to the fullest
extent provided by applicable law, the FleetBoston Certificate, the FleetBoston
Bylaws and any agreement set forth in Section 6.8 of the FleetBoston Disclosure
Schedule, each such Indemnified Party against any losses, claims, damages,
liabilities, costs, expenses (including reimbursement for reasonable fees and
expenses incurred in advance of the final disposition of any claim, suit,
proceeding or investigation to each Indemnified Party as provided by the
FleetBoston Certificate, the FleetBoston Bylaws and any agreement set forth in
Section 6.8 of the FleetBoston Disclosure Schedule), judgments, fines and
amounts paid in settlement in connection with any such threatened or actual
claim, action, suit, proceeding or investigation.
(b) Bank of America shall use its reasonable best efforts to cause the
individuals serving as officers and directors of FleetBoston or any of its
Subsidiaries immediately prior to the Effective Time to be covered for a period
of six years from the Effective Time by the directors' and officers' liability
insurance policy maintained by FleetBoston (provided that Bank of America may
substitute therefor policies of at least the same coverage and amounts
containing terms and conditions that are not less advantageous than such policy)
with respect to acts or omissions occurring prior to the Effective Time that
were committed by such officers and directors in their capacity as such.
(c) The provisions of this Section 6.8 shall survive the Effective Time
and are intended to be for the benefit of, and shall be enforceable by, each
Indemnified Party and his or her heirs and representatives.
6.9 Additional Agreements. In case at any time after the Effective Time
any further action is necessary or desirable to carry out the purposes of this
Agreement (including any merger between a Subsidiary of Bank of America, on the
one hand, and a Subsidiary of FleetBoston, on the other) or to vest the
Surviving Corporation with full title to all properties, assets, rights,
approvals, immunities and franchises of either party to the Merger, the proper
officers and directors of each party and their respective Subsidiaries shall
take all such necessary action as may be reasonably requested by, and at the
sole expense of, Bank of America.
6.10 Advice of Changes. Each of Bank of America and FleetBoston shall
promptly advise the other of any change or event (i) having or reasonably likely
to have a Material Adverse Effect on it or (ii) that it believes would or would
be reasonably likely to cause or constitute a material breach of any of its
representations, warranties or covenants contained in this Agreement; provided,
however, that no such notification shall affect the representations, warranties,
covenants or agreements of the parties (or remedies with respect thereto) or the
conditions to the obligations of the parties under this Agreement; provided
further that a failure to comply with this Section 6.10 shall not constitute the
failure of any condition set forth in Article VII to be satisfied unless the
underlying Material Adverse Effect or material breach would independently result
in the failure of a condition set forth in Article VI to be satisfied.
6.11 Dividends. After the date of this Agreement, each of Bank of
America and FleetBoston shall coordinate with the other the declaration of any
dividends in respect of Bank of America Common Stock and FleetBoston Common
Stock and the record dates and payment dates relating thereto, it being the
intention of the parties that holders of FleetBoston Common Stock shall not
receive two dividends, or fail to receive one dividend, for any quarter with
respect to their shares of FleetBoston Common Stock and any shares of Bank of
America Common Stock any such holder receives in exchange therefor in the
Merger.
6.12 Exemption from Liability Under Section 16(b). Bank of America and
FleetBoston agree that, in order to most effectively compensate and retain
FleetBoston Insiders (as defined below) in connection with the Merger, both
prior to and after the Effective Time, it is desirable that FleetBoston Insiders
not be subject to a risk of liability under Section 16(b) of the Exchange Act to
the fullest extent permitted by applicable law in connection with the conversion
of shares of FleetBoston Common Stock and FleetBoston Stock Options into shares
of Bank of America Common Stock in the Merger, and for that compensatory and
retentive purpose agree to the provisions of this Section 6.12. Assuming that
FleetBoston delivers to Bank of America the Section 16 Information (as defined
below) in a timely fashion, the Board of Directors of Bank of America, or a
committee of Non-Employee Directors thereof (as such term is defined for
purposes of Rule 16b-3(d) under the Exchange Act), shall adopt a resolution
providing that the receipt by FleetBoston Insiders of Bank of America Common
Stock in exchange for shares of FleetBoston Common Stock, and of options on Bank
of America Common Stock upon conversion of options on FleetBoston Common Stock,
in each case pursuant to the transactions contemplated by this Agreement and to
the extent such securities are listed in the Section 16 Information, are
intended to be exempt from liability pursuant to Section 16(b) under the
Exchange Act. "Section 16 Information" shall mean information accurate in all
material respects regarding FleetBoston Insiders, the number of shares of
FleetBoston Common Stock held by each such FleetBoston Insider and expected to
be exchanged for Bank of America Common Stock in the Merger, and the number and
description of the options on FleetBoston Common Stock held by each such
FleetBoston Insider and expected to be converted into options on Bank of America
Common Stock in connection with the Merger; provided that the requirement for a
description of any FleetBoston Stock Options shall be deemed to be satisfied if
copies of all FleetBoston Stock Plans, and forms of agreements evidencing grants
thereunder, under which such FleetBoston Stock Options have been granted, have
been made available to Bank of America. "FleetBoston Insiders" shall mean those
officers and directors of FleetBoston who are subject to the reporting
requirements of Section 16(a) of the Exchange Act and who are listed in the
Section 16 Information.
6.13 No Solicitation.
(a) None of FleetBoston, its Subsidiaries or any officer, director,
employee, agent or representative (including any investment banker, financial
advisor, attorney, accountant or other retained representative) of FleetBoston
or any of its Subsidiaries shall directly or indirectly (i) solicit, initiate or
encourage or facilitate (including by way of furnishing information) or take any
other action designed to facilitate any inquiries or proposals regarding any
merger, share exchange, consolidation, sale of assets, sale of shares of capital
stock (including, without limitation, by way of a tender offer) or similar
transactions involving FleetBoston or any of its Subsidiaries that, if
consummated, would constitute an Alternative Transaction (any of the foregoing
inquiries or proposals being referred to herein as an "Acquisition Proposal"),
(ii) participate in any discussions or negotiations regarding an Alternative
Transaction or (iii) enter into any agreement regarding any Alternative
Transaction. Notwithstanding the foregoing, the Board of Directors of
FleetBoston shall be permitted, prior to the meeting of FleetBoston shareholders
to be held pursuant to Section 6.3, and subject to compliance with the other
terms of this Section 6.13 and to first entering into a confidentiality
agreement with the person proposing such Acquisition Proposal on terms
substantially similar to, and no less favorable to FleetBoston than, those
contained in the Confidentiality Agreement, to consider and participate in
discussions and negotiations with respect to a bona fide Acquisition Proposal
received by FleetBoston that the Board of Directors of FleetBoston, if and only
to the extent that the Board of Directors of FleetBoston reasonably determines
in good faith (after consultation with outside legal counsel) that failure to do
so would cause it to violate its fiduciary duties.
As used in this Agreement, "Alternative Transaction" means any of (i) a
transaction pursuant to which any person (or group of persons) other than Bank
of America or its affiliates, directly or indirectly, acquires or would acquire
more than 25 percent of the outstanding shares of FleetBoston Common Stock or
outstanding voting power or of any new series or new class of preferred stock
that would be entitled to a class or series vote with respect to the Merger,
whether from FleetBoston or pursuant to a tender offer or exchange offer or
otherwise, (ii) a merger, share exchange, consolidation or other business
combination involving FleetBoston (other than the Merger), (iii) any transaction
pursuant to which any person (or group of persons) other than Bank of America or
its affiliates acquires or would acquire control of assets (including for this
purpose the outstanding equity securities of subsidiaries of FleetBoston and
securities of the entity surviving any merger or business combination including
any of FleetBoston's Subsidiaries) of FleetBoston, or any of its subsidiaries
representing more than 25 percent of the fair market value of all the assets,
net revenues or net income of FleetBoston and its subsidiaries, taken as a
whole, immediately prior to such transaction, or (iv) any other consolidation,
business combination, recapitalization or similar transaction involving
FleetBoston or any of its subsidiaries, other than the transactions contemplated
by this Agreement, as a result of which the holders of shares of FleetBoston
Common Stock immediately prior to such transaction do not, in the aggregate, own
at least 75 percent of each of the outstanding shares of common stock and the
outstanding voting power of the surviving or resulting entity in such
transaction immediately after the consummation thereof in substantially the same
proportion as such holders held the shares of FleetBoston Common Stock
immediately prior to the consummation thereof.
(b) FleetBoston shall notify Bank of America promptly (but in no event
later than 24 hours) after receipt of any Acquisition Proposal, or any material
modification of or material amendment to any Acquisition Proposal, or any
request for nonpublic information relating to FleetBoston or any of its
Subsidiaries or for access to the properties, books or records of FleetBoston or
any Subsidiary by any Person or entity that informs the Board of Directors of
FleetBoston or any Subsidiary that it is considering making, or has made, an
Acquisition Proposal. Such notice to Bank of America shall be made orally and in
writing, and shall indicate the identity of the Person making the Acquisition
Proposal or intending to make or considering making an Acquisition Proposal or
requesting non-public information or access to the books and records of
FleetBoston or any Subsidiary, and the material terms of any such Acquisition
Proposal or modification or amendment to an Acquisition Proposal. FleetBoston
shall keep Bank of America fully informed, on a current basis, of any material
changes in the status and any material changes or modifications in the terms of
any such Acquisition Proposal, indication or request. FleetBoston shall also
promptly, and in any event within 24 hours, notify Bank of America, orally and
in writing, if it enters into discussions or negotiations concerning any
Acquisition Proposal in accordance with Section 6.13(a).
(c) Nothing contained in this Section 6.13 shall prohibit FleetBoston
or its Subsidiaries from taking and disclosing to its shareholders a position
required by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act.
(d) FleetBoston and its Subsidiaries shall immediately cease and cause
to be terminated any existing discussions or negotiations with any Persons
(other than Bank of America) conducted heretofore with respect to any of the
foregoing, and shall use reasonable best efforts to cause all Persons other than
Bank of America who have been furnished confidential information regarding
FleetBoston in connection with the solicitation of or discussions regarding an
Acquisition Proposal within the 12 months prior to the date hereof promptly to
return or destroy such information. FleetBoston agrees not to, and to cause its
Subsidiaries not to, release any third party from the confidentiality and
standstill provisions of any agreement to which FleetBoston or its Subsidiaries
is or may become a party, and shall immediately take all steps necessary to
terminate any approval that may have been heretofore given under any such
provisions authorizing any person to make an Acquisition Proposal.
(e) FleetBoston shall ensure that the officers, directors and all
employees, agents and representatives (including any investment bankers,
financial advisors, attorneys, accountants or other retained representatives) of
FleetBoston or its Subsidiaries are aware of the restrictions described in this
Section 6.13 as reasonably necessary to avoid violations thereof. It is
understood that any violation of the restrictions set forth in this Section 6.13
by any officer, director, employee, agent or representative (including any
investment banker, financial advisor, attorney, accountant or other retained
representative) of FleetBoston or its Subsidiaries, at the direction or with the
consent of FleetBoston or its Subsidiaries, shall be deemed to be a breach of
this Section 6.13 by FleetBoston.
6.14 Restructuring Efforts. If either Bank of America or FleetBoston
shall have failed to obtain the requisite vote or votes of its shareholders for
the consummation of the transactions contemplated by this Agreement at a duly
held meeting of its shareholders or at any adjournment or postponement thereof,
each of the parties shall in good faith use its reasonable best efforts to
negotiate a restructuring of the transaction provided for herein (it being
understood that neither party shall have any obligation to alter or change the
amount or kind of the Merger Consideration in a manner adverse to such party or
its shareholders) and to resubmit the transaction to their respective
shareholders for approval.
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions to Each Party's Obligation To Effect the Merger. The
respective obligations of the parties to effect the Merger shall be subject to
the satisfaction at or prior to the Effective Time of the following conditions:
(a) Stockholder Approval. This Agreement shall have been approved and
adopted by the requisite affirmative vote of the holders of FleetBoston Common
Stock entitled to vote thereon and by the requisite affirmative vote of the
holders of Bank of America Common Stock entitled to vote thereon.
(b) NYSE Listing. The shares of Bank of America Common Stock and Bank
of America Mirror Preferred Stock to be issued to the holders of FleetBoston
Capital Stock upon consummation of the Merger shall have been authorized for
listing on the NYSE, subject to official notice of issuance.
(c) Regulatory Approvals. All regulatory approvals set forth in
Sections 3.4 and 4.4 required to consummate the transactions contemplated by
this Agreement, including the Merger, shall have been obtained and shall remain
in full force and effect and all statutory waiting periods in respect thereof
shall have expired (all such approvals and the expiration of all such waiting
periods being referred as the "Requisite Regulatory Approvals").
(d) Form S-4. The Form S-4 shall have become effective under the
Securities Act and no stop order suspending the effectiveness of the Form S-4
shall have been issued and no proceedings for that purpose shall have been
initiated or threatened by the SEC.
(e) No Injunctions or Restraints; Illegality. No order, injunction or
decree issued by any court or agency of competent jurisdiction or other legal
restraint or prohibition (an "Injunction") preventing the consummation of the
Merger or any of the other transactions contemplated by this Agreement shall be
in effect. No statute, rule, regulation, order, Injunction or decree shall have
been enacted, entered, promulgated or enforced by any Governmental Entity that
prohibits or makes illegal consummation of the Merger.
7.2 Conditions to Obligations of Bank of America. The obligation of
Bank of America to effect the Merger is also subject to the satisfaction, or
waiver by Bank of America, at or prior to the Effective Time, of the following
conditions:
(a) Representations and Warranties. Subject to the standard set forth
in Section 9.2, the representations and warranties of FleetBoston set forth in
this Agreement shall be true and correct as of the date of this Agreement and as
of the Effective Time as though made on and as of the Effective Time (except
that representations and warranties that by their terms speak specifically as of
the date of this Agreement or another date shall be true and correct as of such
date); and Bank of America shall have received a certificate signed on behalf of
FleetBoston by the Chief Executive Officer or the Chief Financial Officer of
FleetBoston to the foregoing effect.
(b) Performance of Obligations of FleetBoston. FleetBoston shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date; and Bank of America
shall have received a certificate signed on behalf of FleetBoston by the Chief
Executive Officer or the Chief Financial Officer of FleetBoston to such effect.
(c) Federal Tax Opinion. Bank of America shall have received the
opinion of its counsel, Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, in form and
substance reasonably satisfactory to Bank of America, dated the Closing Date,
substantially to the effect that, on the basis of facts, representations and
assumptions set forth in such opinion that are consistent with the state of
facts existing at the Effective Time, the Merger will be treated as a
reorganization within the meaning of Section 368(a) of the Code. In rendering
such opinion, counsel may require and rely upon representations contained in
certificates of officers of FleetBoston and Bank of America, reasonably
satisfactory in form and substance to it.
7.3 Conditions to Obligations of FleetBoston. The obligation of
FleetBoston to effect the Merger is also subject to the satisfaction or waiver
by FleetBoston at or prior to the Effective Time of the following conditions:
(a) Representations and Warranties. Subject to the standard set forth
in Section 9.2, the representations and warranties of Bank of America set forth
in this Agreement shall be true and correct as of the date of this Agreement and
as of the Effective Time as though made on and as of the Effective Time (except
that representations and warranties that by their terms speak specifically as of
the date of this Agreement or another date shall be true and correct as of such
date); and FleetBoston shall have received a certificate signed on behalf of
Bank of America by the Chief Executive Officer or the Chief Financial Officer of
Bank of America to the foregoing effect.
(b) Performance of Obligations of Bank of America. Bank of America
shall have performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing Date, and
FleetBoston shall have received a certificate signed on behalf of Bank of
America by the Chief Executive Officer or the Chief Financial Officer of Bank of
America to such effect.
(c) Federal Tax Opinion. FleetBoston shall have received the opinion of
its counsel, Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, in form and substance reasonably
satisfactory to FleetBoston, dated the Closing Date, substantially to the effect
that, on the basis of facts, representations and assumptions set forth in such
opinion that are consistent with the state of facts existing at the Effective
Time, the Merger will be treated as a reorganization within the meaning of
Section 368(a) of the Code. In rendering such opinion, counsel may require and
rely upon representations contained in certificates of officers of FleetBoston
and Bank of America, reasonably satisfactory in form and substance to it.
ARTICLE VIII
TERMINATION AND AMENDMENT
8.1 Termination. This Agreement may be terminated at any time prior to
the Effective Time, whether before or after approval of the matters presented in
connection with the Merger by the shareholders of FleetBoston or Bank of
America:
(a) by mutual consent of FleetBoston and Bank of America in a written
instrument, if the Board of Directors of each so determines by a vote of a
majority of the members of its respective entire Board of Directors;
(b) by either the Board of Directors of FleetBoston or the Board of
Directors of Bank of America if any Governmental Entity that must grant a
Requisite Regulatory Approval has denied approval of the Merger and such denial
has become final and nonappealable or any Governmental Entity of competent
jurisdiction shall have issued a final and nonappealable order permanently
enjoining or otherwise prohibiting the consummation of the transactions
contemplated by this Agreement;
(c) by either the Board of Directors of FleetBoston or the Board of
Directors of Bank of America if the Merger shall not have been consummated on or
before the first anniversary of the date of this Agreement unless the failure of
the Closing to occur by such date shall be due to the failure of the party
seeking to terminate this Agreement to perform or observe the covenants and
agreements of such party set forth in this Agreement;
(d) by either the Board of Directors of Bank of America or the Board of
Directors of FleetBoston if there shall have been a breach of any of the
covenants or agreements or any of the representations or warranties set forth in
this Agreement on the part of FleetBoston, in the case of a termination by Bank
of America, or Bank of America, in the case of a termination by FleetBoston,
which breach, either individually or in the aggregate, would result in, if
occurring or continuing on the Closing Date, the failure of the conditions set
forth in Section 7.2 or 7.3, as the case may be, and which is not cured within
45 days following written notice to the party committing such breach or by its
nature or timing cannot be cured within such time period; or
(e) by either Bank of America or FleetBoston, if its Board of Directors
determines in good faith by a majority vote that the other party has
substantially engaged in bad faith in breach of its obligations under Section
6.14 of this Agreement.
8.2 Effect of Termination. In the event of termination of this
Agreement by either FleetBoston or Bank of America as provided in Section 8.1,
this Agreement shall forthwith become void and have no effect, and none of
FleetBoston, Bank of America, any of their respective Subsidiaries or any of the
officers or directors of any of them shall have any liability of any nature
whatsoever under this Agreement, or in connection with the transactions
contemplated by this Agreement, except that (i) Sections 6.2(b), 8.2, 9.3, 9.4,
9.9 and 9.10 shall survive any termination of this Agreement, and (ii)
notwithstanding anything to the contrary contained in this Agreement, neither
FleetBoston nor Bank of America shall be relieved or released from any
liabilities or damages arising out of its willful breach of any provision of
this Agreement. Notwithstanding the foregoing, in the event of any termination
of this Agreement, the Stock Option Agreements shall remain in full force and
effect in accordance with their respective terms.
8.3 Amendment. Subject to compliance with applicable law and Section
1.1(b), this Agreement may be amended by the parties, by action taken or
authorized by their respective Boards of Directors, at any time before or after
approval of the matters presented in connection with Merger by the shareholders
of FleetBoston or Bank of America; provided, however, that after any approval of
the transactions contemplated by this Agreement by the shareholders of
FleetBoston and Bank of America, there may not be, without further approval of
such shareholders, any amendment of this Agreement that changes the amount or
the form of the consideration to be delivered under this Agreement to the
holders of FleetBoston Common Stock, other than as contemplated by this
Agreement. This Agreement may not be amended except by an instrument in writing
signed on behalf of each of the parties.
8.4 Extension; Waiver. At any time prior to the Effective Time, the
parties, by action taken or authorized by their respective Board of Directors,
may, to the extent legally allowed, (a) extend the time for the performance of
any of the obligations or other acts of the other party, (b) waive any
inaccuracies in the representations and warranties contained in this Agreement
and (c) waive compliance with any of the agreements or conditions contained in
this Agreement; provided, however, that after any approval of the transactions
contemplated by this Agreement by the shareholders of FleetBoston and Bank of
America, there may not be, without further approval of such shareholders, any
extension or waiver of this Agreement or any portion hereof that reduces the
amount or changes the form of the consideration to be delivered to the holders
of FleetBoston Common Stock under this Agreement, other than as contemplated by
this Agreement. Any agreement on the part of a party to any such extension or
waiver shall be valid only if set forth in a written instrument signed on behalf
of such party, but such extension or waiver or failure to insist on strict
compliance with an obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.
ARTICLE IX
GENERAL PROVISIONS
9.1 Closing. On the terms and subject to conditions set forth in this
Agreement, the closing of the Merger (the "Closing") shall take place at 10:00
a.m. on a date and at a place to be specified by the parties, which date shall
be no later than five business days after the satisfaction or waiver (subject to
applicable law) of the latest to occur of the conditions set forth in Article
VII (other than those conditions that by their nature are to be satisfied or
waived at the Closing), unless extended by mutual agreement of the parties (the
"Closing Date").
9.2 Standard. No representation or warranty of FleetBoston contained in
Article III or of Bank of America contained in Article IV shall be deemed untrue
or incorrect for any purpose under this Agreement, and no party hereto shall be
deemed to have breached a representation or warranty for any purpose under this
Agreement, in any case as a consequence of the existence or absence of any fact,
circumstance or event unless such fact, circumstance or event, individually or
when taken together with all other facts, circumstances or events inconsistent
with any representations or warranties contained in Article III, in the case of
FleetBoston, or Article IV, in the case of Bank of America, has had or would be
reasonably likely to have a Material Adverse Effect with respect to FleetBoston
or Bank of America, respectively (disregarding for purposes of this Section 9.2
any materiality or Material Adverse Effect qualification contained in any
representations or warranties). Notwithstanding the immediately preceding
sentence, the representations and warranties contained in Section 3.2(a), in the
case of FleetBoston, and Section 4.2(a), in the case of Bank of America, shall
be deemed untrue and incorrect if not true and correct in all material respects.
9.3 Nonsurvival of Representations, Warranties and Agreements. None of
the representations, warranties, covenants and agreements set forth in this
Agreement or in any instrument delivered pursuant to this Agreement shall
survive the Effective Time, except for Section 6.8 and for those other covenants
and agreements contained in this Agreement that by their terms apply or are to
be performed in whole or in part after the Effective Time. After the Effective
Time, the provisions of Section 1.11(a) may be amended by a vote of 75% of the
Board of Directors of the Surviving Corporation. The provisions of Section
1.11(b) shall be subject to the continuing interpretation of the Board of
Directors of the Surviving Corporation, which shall have the sole authority for
interpreting such provisions consistent with the purposes reflected therein.
9.4 Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated by this Agreement shall be paid by
the party incurring such expense; provided, however, that the costs and expenses
of printing and mailing the Joint Proxy Statement, and all filing and other fees
paid to the SEC in connection with the Merger, shall be borne equally by
FleetBoston and Bank of America.
9.5 Notices. All notices and other communications in connection with
this Agreement shall be in writing and shall be deemed given if delivered
personally, sent via facsimile (with confirmation), mailed by registered or
certified mail (return receipt requested) or delivered by an express courier
(with confirmation) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) if to FleetBoston, to:
FleetBoston Financial Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
(b) if to Bank of America, to:
Bank of America Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
9.6 Interpretation. When a reference is made in this Agreement to
Articles, Sections, Exhibits or Schedules, such reference shall be to a Article
or Section of or Exhibit or Schedule to this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." The FleetBoston Disclosure Schedule and the Bank
of America Disclosure Schedule, as well as all other schedules and all exhibits
hereto, shall be deemed part of this Agreement and included in any reference to
this Agreement. This Agreement shall not be interpreted or construed to require
any person to take any action, or fail to take any action, if to do so would
violate any applicable law.
9.7 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each of the parties
and delivered to the other party, it being understood that each party need not
sign the same counterpart.
9.8 Entire Agreement. This Agreement (including the documents and the
instruments referred to in this Agreement), together with the Confidentiality
Agreement and the Stock Option Agreements, constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter of this Agreement, other
than the Confidentiality Agreement and the Stock Option Agreements.
9.9 Governing Law. This Agreement shall be governed and construed in
accordance with the internal laws of the State of New York applicable to
contracts made and wholly-performed within such state, without regard to any
applicable conflicts of law principles.
9.10 Publicity. Neither FleetBoston nor Bank of America shall, and
neither FleetBoston nor Bank of America shall permit any of its Subsidiaries to,
issue or cause the publication of any press release or other public announcement
with respect to, or otherwise make any public statement concerning, the
transactions contemplated by this Agreement without the prior consent (which
consent shall not be unreasonably withheld) of Bank of America, in the case of a
proposed announcement or statement by FleetBoston, or FleetBoston, in the case
of a proposed announcement or statement by Bank of America; provided, however,
that either party may, without the prior consent of the other party (but after
prior consultation with the other party to the extent practicable under the
circumstances) issue or cause the publication of any press release or other
public announcement to the extent required by law or by the rules and
regulations of the NYSE.
9.11 Assignment; Third Party Beneficiaries. Neither this Agreement nor
any of the rights, interests or obligations under this Agreement shall be
assigned by either of the parties (whether by operation of law or otherwise)
without the prior written consent of the other party. Subject to the preceding
sentence, this Agreement shall be binding upon, inure to the benefit of and be
enforceable by each of the parties and their respective successors and assigns.
Except as otherwise specifically provided in Section 6.8, this Agreement
(including the documents and instruments referred to in this Agreement) is not
intended to and does not confer upon any person other than the parties hereto
any rights or remedies under this Agreement.
Remainder of Page Intentionally Left Blank
IN WITNESS WHEREOF, FleetBoston and Bank of America have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date first above written.
FLEETBOSTON FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
BANK OF AMERICA CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
Signature Page to Agreement and Plan of Merger
Form of Affiliate Letter
Bank of America Corporation
-------------------------
-------------------------
Ladies and Gentlemen:
I have been advised that as of the date hereof I may be deemed to be an
"affiliate" of FleetBoston Financial Corporation, a Rhode Island corporation
("FleetBoston"), as the term "affiliate" is defined for purposes of paragraphs
(c) and (d) of Rule 145 of the Rules and Regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act"). I have been further advised
that pursuant to the terms of the Agreement and Plan of Merger dated as of
October 27, 2003 (the "Merger Agreement"), by and between Bank of America
Corporation, a Delaware corporation ("Bank of America"), and FleetBoston,
FleetBoston shall be merged with and into Bank of America (the "Merger") and
each share of the common stock, par value $0.01 per share, of FleetBoston
("FleetBoston Common Stock") shall be converted into the right to receive 0.5553
of a share of common stock, par value $0.01 per share, of Bank of America ("Bank
of America Common Stock"). All terms used in this letter but not defined herein
shall have the meanings ascribed thereto in the Merger Agreement.
I represent, warrant and covenant to Bank of America that in the event
I receive any Bank of America Common Stock as a result of the Merger:
(a) I shall not make any sale, transfer or other disposition of Bank of
America Common Stock in violation of the Act or the Rules and Regulations.
(b) I have carefully read this letter and the Merger Agreement and
discussed its requirements and other applicable limitations upon my ability to
sell, transfer or otherwise dispose of Bank of America Common Stock to the
extent I believed necessary with my counsel or counsel for FleetBoston.
(c) I have been advised that the issuance of Bank of America Common
Stock to me pursuant to the Merger will be registered with the Commission under
the Act on a Registration Statement on Form S-4. However, I have also been
advised that, since at the time the Merger will be submitted for a vote of the
stockholders of FleetBoston I may be deemed to have been an affiliate of
FleetBoston and the distribution by me of Bank of America Common Stock has not
been registered under the Act, I may not sell, transfer or otherwise dispose of
Bank of America Common Stock issued to me in the Merger unless (i) such sale,
transfer or other disposition has been registered under the Act, (ii) such sale,
transfer or other disposition is made in conformity with the volume and other
limitations of Rule 145 promulgated by the Commission under the Act, or (iii) in
the opinion of counsel reasonably acceptable to Bank of America, such sale,
transfer or other disposition is otherwise exempt from registration under the
Act.
(d) I understand that Bank of America is under no obligation to
register the sale, transfer or other disposition of Bank of America Common Stock
by me or on my behalf under the Act or to take any other action necessary in
order to make compliance with an exemption from such registration available.
(e) I also understand that stop transfer instructions will be given to
Bank of America's transfer agents with respect to Bank of America Common Stock
and that there will be placed on the certificates for Bank of America Common
Stock issued to me, or any substitutions therefor, a legend stating in
substance:
"The securities represented by this certificate have been issued in a
transaction to which Rule 145 promulgated under the Securities Act of
1933 applies and may only be sold or otherwise transferred in
compliance with the requirements of Rule 145 or pursuant to a
registration statement under said act or an exemption from such
registration."
(f) I also understand that unless the transfer by me of my Bank of
America Common Stock has been registered under the Act or is a sale made in
conformity with the provisions of Rule 145, Bank of America reserves the right
to put the following legend on the certificates issued to my transferee:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933 and were acquired from a person who
received such shares in a transaction to which Rule 145 promulgated
under the Securities Act of 1933 applies. The shares have been
acquired by the holder not with a view to, or for resale in connection
with, any distribution thereof within the meaning of the Securities
Act of 1933 and may not be sold, pledged or otherwise transferred
except in accordance with an exemption from the registration
requirements of the Securities Act of 1933."
It is understood and agreed that the legends set forth above shall be
removed by delivery of substitute certificates without such legend, and/or the
issuance of a letter to Bank of America's transfer agent removing such stop
transfer instructions, and the above restrictions on sale will cease to apply,
if (A) one year (or such other period as may be required by Rule 145(d)(2) under
the Securities Act or any successor thereto) shall have elapsed from the Closing
Date and the provisions of such Rule are then available to me; or (B) if two
years (or such other period as may be required by Rule 145(d)(3) under the
Securities Act or any successor thereto) shall have elapsed from the Effective
Date and the provisions of such Rule are then available to me; or (C) I shall
have delivered to Bank of America (i) a copy of a letter from the staff of the
Commission, or an opinion of counsel in form and substance reasonably
satisfactory to Bank of America, or other evidence reasonably satisfactory to
Bank of America, to the effect that such legend and/or stop transfer
instructions are not required for purposes of the Securities Act or (ii)
reasonably satisfactory evidence or representations that the securities
represented by such certificates are being or have been transferred in a
transaction made in conformity with the provisions of Rule 145 under the
Securities Act or pursuant to an effective registration under the Securities
Act.
I recognize and agree that the foregoing provisions also apply to (i)
my spouse, (ii) any relative of mine or my spouse occupying my home, (iii) any
trust or estate in which I, my spouse or any such relative owns at least 10%
beneficial interest or of which any of us serves as trustee, executor or in any
similar capacity and (iv) any corporate or other organization in which I, my
spouse or any such relative owns at least 10% of any class of equity securities
or of the equity interest.
It is understood and agreed that this Letter Agreement shall terminate
and be of no further force and effect if the Merger Agreement is terminated in
accordance with its terms.
Execution of this letter should not be construed as an admission on my
part that I am an "affiliate" of FleetBoston as described in the first paragraph
of this letter or as a waiver of any rights I may have to object to any claim
that I am such an affiliate on or after the date of this letter.
Very truly yours,
By:
-------------------------
Name:
Accepted this [ ] day of
[ ], 2003
Bank of America Corporation
By:
-------------------------
Name:
Title:
