SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
__________________
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
(Amendment No. __)*
Metaldyne Corporation
(Name of Issuer)
Common Stock, par value $1.00 per share
(Title of class of securities)
574670105
(CUSIP number)
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
Charlotte, NC 28255
Attention: Charles F. Bowman
(704) 387-1297
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 31, 2006
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because ofss.ss.
240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.
[ ]
Note: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits.
Seess.240.13d-7 for other parties to whom copies are to be sent.
___________________________
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a
prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section
18 of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP No 13D Page 7 of 12
574670105 Pages
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CUSIP NO. 13D
574670105
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
(ENTITIES ONLY):
Bank of America Corporation
56-0906609
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
- ---------------------------------------------------------
- ---------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------
- ---------------------------------------------------------
4 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------
- ---------------------------------------------------------
887,574
5 SOLE VOTING POWER
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING
PERSON WITH
- ---------------------------------------------------------
- ---------------------------------------------------------
6 SHARED VOTING POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
7 SOLE DISPOSITIVE 887,574
POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
8 SHARED DISPOSITIVE
POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
887,574
- ---------------------------------------------------------
- ---------------------------------------------------------
10 CHECK IF THE AGGREGATE AMOUNT IN ROW (9)
EXCLUDES CERTAIN SHARES*
[ ]
- ---------------------------------------------------------
- ---------------------------------------------------------
11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
2.1%
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- ---------------------------------------------------------
12 TYPE OF REPORTING PERSON*
HC
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CUSIP NO. 13D
574670105
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
(ENTITIES ONLY):
NB Holdings Corporation
56-1857749
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- ---------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X ]
- ---------------------------------------------------------
- ---------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------
- ---------------------------------------------------------
4 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------
- ---------------------------------------------------------
118,313
5 SOLE VOTING POWER
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING
PERSON WITH
- ---------------------------------------------------------
- ---------------------------------------------------------
6 SHARED VOTING POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
7 SOLE DISPOSITIVE 118,313
POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
8 SHARED DISPOSITIVE
POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
118,313
- ---------------------------------------------------------
- ---------------------------------------------------------
10 CHECK IF THE AGGREGATE AMOUNT IN ROW (9)
EXCLUDES CERTAIN SHARES*
[ ]
- ---------------------------------------------------------
- ---------------------------------------------------------
11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
0.3%
- ---------------------------------------------------------
- ---------------------------------------------------------
12 TYPE OF REPORTING PERSON*
HC
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CUSIP NO. 13D
574670105
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
(ENTITIES ONLY):
Bank of America Capital Advisors LLC
36-3009841
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- ---------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
- ---------------------------------------------------------
- ---------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------
- ---------------------------------------------------------
4 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------
- ---------------------------------------------------------
118,313
5 SOLE VOTING POWER
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING
PERSON WITH
- ---------------------------------------------------------
- ---------------------------------------------------------
6 SHARED VOTING POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
7 SOLE DISPOSITIVE 118,313
POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
8 SHARED DISPOSITIVE
POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
118,313
- ---------------------------------------------------------
- ---------------------------------------------------------
10 CHECK IF THE AGGREGATE AMOUNT IN ROW (9)
EXCLUDES CERTAIN SHARES*
[ ]
- ---------------------------------------------------------
- ---------------------------------------------------------
11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
0.3%
- ---------------------------------------------------------
- ---------------------------------------------------------
12 TYPE OF REPORTING PERSON*
IA
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CUSIP NO. 13D
574670105
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- ---------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
(ENTITIES ONLY):
Private Equity Portfolio Fund II, LLC
04-3451340
- ---------------------------------------------------------
- ---------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X ]
- ---------------------------------------------------------
- ---------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------
- ---------------------------------------------------------
4 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------------------------------------------
- ---------------------------------------------------------
118,313
5 SOLE VOTING POWER
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING
PERSON WITH
- ---------------------------------------------------------
- ---------------------------------------------------------
6 SHARED VOTING POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
7 SOLE DISPOSITIVE 118,313
POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
8 SHARED DISPOSITIVE
POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
118,313
- ---------------------------------------------------------
- ---------------------------------------------------------
10 CHECK IF THE AGGREGATE AMOUNT IN ROW (9)
EXCLUDES CERTAIN SHARES*
[ ]
- ---------------------------------------------------------
- ---------------------------------------------------------
11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
0.3%
- ---------------------------------------------------------
- ---------------------------------------------------------
12 TYPE OF REPORTING PERSON*
PN
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CUSIP NO. 13D
574670105
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- ---------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
(ENTITIES ONLY):
BancBoston Capital Inc.
04-2511291
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- ---------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
- ---------------------------------------------------------
- ---------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------
- ---------------------------------------------------------
4 CITIZENSHIP OR PLACE OF ORGANIZATION
Massachusetts
- ---------------------------------------------------------
- ---------------------------------------------------------
769,231
5 SOLE VOTING POWER
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING
PERSON WITH
- ---------------------------------------------------------
- ---------------------------------------------------------
6 SHARED VOTING POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
7 SOLE DISPOSITIVE 769,231
POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
8 SHARED DISPOSITIVE
POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
769,231
- ---------------------------------------------------------
- ---------------------------------------------------------
10 CHECK IF THE AGGREGATE AMOUNT IN ROW (9)
EXCLUDES CERTAIN SHARES*
[ ]
- ---------------------------------------------------------
- ---------------------------------------------------------
11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
1.8%
- ---------------------------------------------------------
- ---------------------------------------------------------
12 TYPE OF REPORTING PERSON*
CO
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CUSIP NO. 13D
574670105
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- ----------------------------------------------------------
- ---------------------------------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
(ENTITIES ONLY):
BancBoston Investments Inc.
04-2784232
- ---------------------------------------------------------
- ---------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [X]
- ---------------------------------------------------------
- ---------------------------------------------------------
3 SEC USE ONLY
- ---------------------------------------------------------
- ---------------------------------------------------------
4 CITIZENSHIP OR PLACE OF ORGANIZATION
Massachusetts
- ---------------------------------------------------------
- ---------------------------------------------------------
769,231
5 SOLE VOTING POWER
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY EACH
REPORTING
PERSON WITH
- ---------------------------------------------------------
- ---------------------------------------------------------
6 SHARED VOTING POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
7 SOLE DISPOSITIVE 769,231
POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
8 SHARED DISPOSITIVE
POWER
- ---------------------------------------------------------
- ---------------------------------------------------------
9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
769,231
- ---------------------------------------------------------
- ---------------------------------------------------------
10 CHECK IF THE AGGREGATE AMOUNT IN ROW (9)
EXCLUDES CERTAIN SHARES*
[ ]
- ---------------------------------------------------------
- ---------------------------------------------------------
11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9)
1.8%
- ---------------------------------------------------------
- ---------------------------------------------------------
12 TYPE OF REPORTING PERSON*
CO
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22 -
Item 1. Security and Issuer.
The class of equity securities to which this statement on
Schedule 13D (this "Statement") relates is the common stock, par
value $1.00 per share (the "Common Stock"), of Metaldyne
Corporation, a Delaware corporation ("Metaldyne" or the "Company").
The principal executive offices of Metaldyne are located at 47659
Halyard Drive, Plymouth, Michigan 48170.
Item 2. Identity and Background.
(a) This Statement is being filed jointly by (i) Bank of
America Corporation ("BAC"), a Delaware corporation, (ii) NB
Holdings Corporation ("NB Holdings"), a Delaware corporation, (iii)
BancBoston Investments Inc. ("BBI"), a Massachusetts corporation,
(iv) BancBoston Capital Inc. ("BBC"), a Massachusetts corporation,
(v) Private Equity Portfolio Fund II, LLC ("PEPII"), a Delaware
limited liability company, and (vi) Bank of America Capital Advisors
LLC ("BACA"), a Delaware limited liability company (collectively,
the "Reporting Persons").
A list of the executive officers and directors of each
Reporting Person is attached as Annex A.
(b) The address of the principal business office of the
Reporting Persons (with the exception of BACA and PEPII) is 100
North Tryon Street, Floor 25, Bank of America Corporate Center,
Charlotte, NC 28255. The address of the principal business office
of BACA and PEPII is Bank of America Capital Advisors LLC, 100
Federal Street, Boston Massachusetts 02110.
(c) BAC is a bank holding company registered under the Bank
Holding Company Act of 1956, as amended, and is engaged in the
general banking and financial services business through its
subsidiaries.
NB Holdings, a wholly-owned subsidiary of BAC, is an
intermediate holding company.
BBI, a wholly-owned subsidiary of BAC, is an intermediate
holding company
BBC, a wholly-owned subsidiary of BBI, makes private equity and
strategic investments.
BACA, a wholly-owned subsidiary of NB Holdings Corporation, is
an investment adviser for fund of funds investment products.
PEPII is managed and controlled by BACA and it makes private
equity investments.
(d) Except as set forth on Annex II, during the last five
years, none of the Reporting Persons, and to the knowledge of each
Reporting Person, none of the executive officers, directors, or
managers, as the case may be, of any such Reporting Person, has been
convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors).
(e) Except as set forth on Annex II, during the last five
years, none of the Reporting Persons, and to the knowledge of each
Reporting Person, none of the executive officers, directors, or
managers, as the case may be, of any such Reporting Person, has been
a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such proceeding was or
is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with
respect to such laws.
To the knowledge of the Reporting Persons, each of the
executive officers and directors set forth on Annex A is a citizen
of the United States. PEPII has no executive officers or directors;
its sole manager, as set forth on Annex A, is a limited liability
company, organized in the State of Delaware.
The Reporting Persons have entered into a Joint Filing
Agreement, dated as of December 19, 2006, a copy of which is
attached hereto as Exhibit D.
Item 3. Source and Amount of Funds or Other Consideration.
All shares of Common Stock held by each Reporting Person were
issued or retained in connection with a recapitalization consummated
on November 28, 2000 (the "Recapitalization") involving the
acquisition of control of Metaldyne, together with other industrial
companies, by certain entities relating to Heartland Industrial
Partners, L.P. ("Heartland"). BBC contributed $13,000,004 in cash
to acquire 769,231 shares of Common Stock of Metaldyne at a price of
$16.90 per share. PEPII contributed $1,999,996.70 in cash to
acquire 118,343 shares of Common Stock of Metaldyne at a price of
$16.90 per share. The source of funds for the acquisition of shares
of Common Stock by BBC and PEPII was working capital.
Item 4. Purpose of Transaction.
In connection with the planned acquisition of Metaldyne by
Asahi Tec Corporation, a Japanese corporation ("Asahi Tec"),
described below, each of BBC and PEPII and certain other parties
(the "Other Entities") entered into stock purchase agreements to
reinvest the cash proceeds in Asahi Tec equity securities as
described below. The signing of the stock purchase agreements may
be deemed to constitute BBC and PEPII and the Other Entities as a
"group" within the meaning of Section 13(d) of the Securities
Exchange Act of 1934, as amended, and, accordingly, the Other
Entities may either jointly or individually file their own Schedule
13D separately and apart from the Reporting Persons. Although not
party to the stock purchase agreements, BACA may be deemed to be a
member of such "group" by virtue of its being the manager of PEPII,
NB Holdings by virtue of its being the parent of BACA, BBI by virtue
of its being the parent of BBC and BAC by virtue of its being the
parent of NB Holdings and BBI. Neither the present filing nor
anything contained herein shall be construed as an admission that
any combination of the Reporting Persons or Other Entities
constitutes a "group" for any purpose.
(a) Agreement and Plan of Merger
Metaldyne had previously announced that it entered into an
Agreement and Plan of Merger, dated as of August 31, 2006 (the
"Original Merger Agreement") by and among Metaldyne, Asahi Tec, and
Argon Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Asahi Tec ("Acquisition Sub"). On November 27, 2006,
these parties entered into an Amended and Restated Agreement and
Plan of Merger (the "Amended Merger Agreement") which supersedes the
Original Merger Agreement. Under the Amended Merger Agreement, it is
contemplated that Acquisition Sub will merge into Metaldyne (the
"Merger"), and that Metaldyne, as the surviving corporation of the
Merger, will become a wholly owned subsidiary of Asahi Tec and will
cease to be a Reporting Company under the Securities and Exchange
Act of 1934.
Under the terms of the Amended Merger Agreement, at the
effective time of the Merger, each share of Common Stock owned by
those of the Company's common stockholders that are currently party
to a Metaldyne shareholders agreement (the "Principal Company
Stockholders"), including BBC and PEPII, will be converted into the
right to receive $1.5243 in cash (as opposed to $2.1833 in cash
under the Original Merger Agreement), in each case without interest.
Each share of Common Stock held by persons that are not Principal
Company Stockholders, (the "3% Minority Stockholders") (other than
shares owned by Asahi Tec, Acquisition Sub, Metaldyne or any of
their respective subsidiaries and shares ("Dissenting Shares") as to
which Common Stockholders have perfected and not withdrawn the right
to appraisal under Section 262 of the General Corporation Law of the
State of Delaware (the "DGCL")), will be converted into the right to
receive $2.57 in cash, without interest. Holders of these shares
will receive a higher price per share if the average closing common
price of the Asahi Tec common stock for a 30 trading day period
prior to closing of the Merger (the "Closing Common Price"), is
higher than $2.9693 (the "Signing Common Price"), as determined
under the Merger Agreement. In addition, in the event that any cash
payment will be due as a result of the Merger on any stock options
of the Company outstanding prior to the Merger, the total cash
merger consideration for Common Stockholders, including BBC and
PEPII, will be correspondingly reduced. The Principal Company
Stockholders have been required by Asahi Tec, and have agreed,
pursuant to a stock purchase agreement described below in Item 4(b),
as such agreement was amended and restated on November 27, 2006 (the
"Amended Stock Purchase Agreement"), to reinvest their Merger
proceeds in common stock of Asahi Tec in a private placement. In
addition, all holders of the Company's preferred stock (the
"Preferred Stockholders"), have been required by Asahi Tec, and have
agreed, to reinvest their Merger proceeds in Asahi Tec convertible
preferred stock or common stock of Asahi Tec to be issued in a
private placement.
The Principal Company Stockholders and the Preferred
Stockholders have agreed to waive their appraisal rights under the
DGCL with respect to the Merger. The obligation of the parties to
consummate the Merger and the related transactions is subject to the
satisfaction of certain conditions, including: obtaining certain
consents and waivers from holders of Metaldyne's 11% Senior
Subordinated Notes due 2012, 10% Senior Notes due 2013 and 10%
Senior Subordinated Notes due 2014; obtaining financing necessary to
consummate the Merger and related transactions; closing of the
private placements of Asahi Tec equity securities to the Principal
Company Stockholders and Preferred Stockholders (in each case
without the amendment, modification or waiver in any material
respect of any material term or condition thereof); the absence of a
material adverse effect on the Company; and U.S., Japanese and other
foreign regulatory approval. Following the Merger and under the new
organizational structure, Tim Leuliette, Metaldyne chairman,
president and CEO and Shoichiro Irimajiri, chairman of Asahi Tec,
will serve as Co-Chairmen of Asahi Tec. Mr. Leuliette is expected
to be appointed as a director of Asahi Tec, subject to shareholder
approval.
In connection with the Merger, a shareholders' agreement was
entered into as of August 31, 2006 by and among Asahi Tec, RHJ
International S.A. ("RHJI") and the Principal Company Stockholders
with reference to Asahi-Tec securities setting forth certain rights
and obligations of the parties in respect of Asahi Tec following the
Merger. Such shareholders' agreement has been amended and restated
as of November 27, 2006. The amended and restated shareholders'
agreement will become effective upon consummation of the Merger and
the other transactions described in the Amended Merger Agreement and
in the Amended Stock Purchase Agreement. Metaldyne has reported that
the Merger has been approved by the boards of directors of
Metaldyne, Asahi Tec and Acquisition Sub. At Asahi Tec's request,
following approval by Metaldyne's board of directors, the required
majority of the Company's stockholders delivered written consents to
approve the Merger. The Preferred Stockholders have also consented
to the Merger in connection with their agreement to reinvest the
cash received in the Merger in Asahi Tec securities. Asahi Tec has
also solicited and obtained the approval of its shareholders to the
transactions contemplated by the private placement agreements with
the reinvesting stockholders; however, this approval, which was
obtained on November 16, 2006, will expire after January 16, 2007 so
that, if the Merger is not closed by that date, Asahi Tec would need
to call another shareholders meeting following a new required notice
period of between eight and ten weeks. The Original Merger Agreement
has been modified to extend its scheduled expiration date to March
15, 2007. There can be no assurance that a new approval could be
timely obtained or that the merger conditions would be satisfied at
the relevant time.
(b) Stock Purchase Agreement
See section (a) of Item 6.
(c) Asahi Tec Stockholders Agreement
See section (b) of Item 6.
(d) Metaldyne Shareholders Agreement
See section (c) of Item 6.
(d) Additional Information
For additional information with respect to the status of
discussions related to the noteholders' consents and waivers and
events that have occurred subsequent to the date of the Merger
Agreement, see Metaldyne's Form 8-K filed with the Securities and
Exchange Commission (the "SEC") on November 28, 2006 and its
Schedule 13E-3/A filed with the SEC on December 15, 2006.
Item 5. Interest in Securities of the Issuer.
(a) The aggregate percentage of shares of Common Stock reported
owned by the Reporting Persons herein is based upon 42,795,963
shares of Common Stock outstanding, as reported in the Information
Statement/Proxy Statement filed by Metaldyne on November 29, 2006.
BBC currently holds 769,231 shares of Common Stock,
representing 1.8% of the Company's outstanding shares of Common
Stock.
BBI may be deemed to indirectly beneficially hold 769,231
shares of Common Stock, representing 1.8% of the Company's
outstanding shares of Common Stock.
PEPII currently holds 118,343 shares of Common Stock,
representing 0.3% of Metaldyne's outstanding shares of Common Stock.
BACA may be deemed to indirectly beneficially hold 118,343
shares of Common Stock, representing 0.3% of Metaldyne's outstanding
shares of Common Stock.
NB Holdings may be deemed to indirectly beneficially hold
118,343 shares of Common Stock, representing 0.3% of Metaldyne's
outstanding shares of Common Stock.
BAC may be deemed to indirectly beneficially hold 887,574
shares of Common Stock, representing 2.1% of Metaldyne's outstanding
shares of Common Stock.
BBC and PEPII and the Other Entities, by virtue of being party
to the stock purchase agreements described more fully in Item 4,
BBI, by virtue of being parent to BBC, BACA, by virtue of being
manager of PEPII, NB Holdings, by virtue of being parent to BACA,
and BAC, by virtue of being parent to BBI and NB Holdings, may be
considered members of a "group" within the meaning of Section 13(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). As a result, each Reporing Person may be deemed, in its
capacity as a member of a "group," to beneficially own shares of
Common Stock attributable to the Other Entities.
Each Reporting Person declares that neither the filing of this
Statement nor anything herein shall be construed as an admission
that such person is, for the purposes of Section 13(d) of the
Exchange Act or any other purpose, the beneficial owner of any
securities held by the Other Entities.
(b) BBC has sole power, and BBI may be deemed to have sole
power, to vote 769,231 shares of Common Stock and to dispose of
769,231 shares of Common Stock. BBC, by virtue of being party to
the stock purchase agreements described more fully in Item 4, and
BBI, by virtue of its being the parent of BBC, may be deemed to have
shared power to vote those shares of Common Stock attributable to
the Other Entities.
PEPII has sole power, and BACA and NB Holdings may be deemed to
have sole power, to vote 118,343 shares of Common Stock and to
dispose of 118,343 shares of Common Stock. PEPII, by virtue of
being party to the stock purchase agreements described more fully in
Item 4, BACA, by virtue of its being the manager of PEPII, and NB
Holdings, by virtue of its being the parent of BACA, may be deemed
to have shared power to vote those shares of Common Stock
attributable to the Other Entities.
BAC may be deemed to have sole power to vote 887,574 shares of
Common Stock and to dispose of 887,574 shares of Common Stock. By
virtue of being parent to NB Holdings and BBI, BAC may be deemed to
have shares power to vote those shares of Common Stock attributable
to the Other Entities.
(c) Except as described in Items 3, 4 and 6 herein, none of the
Reporting Persons and, to the best of the Reporting Person's
knowledge, none of the executive officers and directors set forth on
Annex A has effected any other transaction in shares of Common Stock
during the past 60 days.
(d) No other person is known by the Reporting Persons to have
the right to receive or power to direct the receipt of dividends
from, or the proceeds from the sale of the Common Stock beneficially
owned by, the Reporting Persons.
(e) Not applicable.
Item 6. Contracts, Arrangements Understandings or Relationships
with Respect to Securities of the Issuer.
(a) Stock Purchase Agreement
BBC and PEPII entered into the Amended Stock Purchase Agreement
as of November 27, 2006 pursuant to which the Principal Company
Stockholders, including BBC and PEPII, have agreed to reinvest their
Merger proceeds in common stock of Asahi Tec in a private placement.
In addition, two Preferred Stockholders have entered into preferred
stock purchase agreements, which have been amended and restated as
of November 27, 2006, pursuant to which such holders of the
Company's preferred stock have agreed to reinvest their proceeds in
Asahi Tec convertible preferred stock in a private placement.
The price at which the Principal Company Stockholders and the
Preferred Stockholders will purchase Asahi Tec common stock in the
private placements is based on a discount to the Signing Common
Price. This discount reflects the lesser per share merger
consideration to be received by the Principal Company Stockholders
relative to the 3% Minority Stockholders (without regard to any
potential increase payable to the 3% Minority Stockholders as a
result of improvements in the Closing Common Price relative to the
Signing Common Price). In addition, certain Heartland-related
entities have agreed to purchase $15 million of additional shares of
Asahi Tec for cash on the same basis to finance the Merger and
related transactions. Such entities offered this investment on a pro
rata basis to the other Principal Company Stockholders, and such
offer has expired. None of the other Principal Company Stockholders
will be receiving such additional shares pursuant to the offer.
(b) Asahi Tec Stockholders Agreement
The Principal Company Stockholders, including BBC and PEPII,
have entered into an amended and restated stockholders agreement
(the "Stockholders Agreement") with Asahi Tec and RHJI, dated as of
November 27, 2006, attached hereto as Exhibit C, pursuant to which
the Principal Company Stockholders are subject to limitations on the
transfer of Asahi Tec common stock. The Stockholders Agreement also
provides entitles the Principal Company Stockholders to English
language versions of documents containing financial and business
information. Finally, pursuant to the terms of the Stockholders
Agreement, the Principal Company Stockholders have agreed not to
transfer any Asahi Tec common stock subject to the Stockholders
Agreement without the written consent of RHJI until the earlier of
(i) the consummation of the first private placement of capital
shares by Asahi Tec to institutional investors (the "Institutional
Offering"), or (ii) the expiration of a period of 90 days following
the consummation of the Merger (the "Initial Restricted Period").
Furthermore, for a period of 180 days following the closing of both
of the Institutional Offering and the first primary public offering
of Asahi Tec capital shares (the "Offering"), or such shorter
lock-up period as the applicable underwriters of the Institutional
Offering or the Offering may require, the principal company
stockholders may not transfer any Asahi Tec common stock subject to
the Stockholders Agreement (the "Offering Restricted Period" and,
together with the Initial Restricted Period, the "Restricted
Period"); provided, however, that no Restricted Period shall extend
more than 24 months from the consummation of the Merger.
(c) Metaldyne Shareholders Agreement
On November 28, 2000, in connection with the Recapitalization,
BBC, PEPII and certain other parties entered into a Shareholders
Agreement with Metaldyne and certain other holders of shares of
Common Stock, pursuant to which: (a) BBC and PEPII were granted
preemptive rights with respect to future issuances of equity
securities by the Issuer or subsidiaries of the Issuer (subject to
certain exceptions); (b) BBC and PEPII agreed that its shares of
Common Stock would be subject to certain restrictions on transfer;
(c) BBC and PEPII were granted certain rights to obtain information
regarding the business and operations of Metaldyne; and (d)
Metaldyne granted BBC and PEPII customary demand and piggy-back
registration rights.
Item 7. Exhibits.
(A) Amended and Restated Stock Purchase Agreement, dated as of
November 27, 2006, among Asahi Tec Corporation and the Purchasers
listed on Schedule I thereto (incorporated herein by reference to
Exhibit (d)(3) of the Metaldyne Schedule 13E-3 filed with the SEC on
November 29, 2006 (File No. 005-35355, Accession Nos.
0001047469-06-014589)).
(B) Amended and Restated Shareholder's Agreement, dated as
of November 27, 2006, among RHJI International SA, Asahi Tec
Corporation, and the Principal Company Shareholders listed on
Schedule I thereto (incorporated herein by reference to Exhibit
(d)(2) of the Metaldyne Schedule 13E-3 filed with the SEC on
November 29, 2006 (File No. 005-35355, Accession Nos.
0001047469-06-014589)).
(C) Shareholders Agreement, dated as of November 28, 2000, by
and among Metaldyne and the other parties thereto (incorporated
herein by reference to Exhibit 3 of the Metaldyne Schedule 13D filed
with the SEC on December 8, 2000 (File No. 005-35355, Accession Nos.
0000950172-00-002002)).
(D) Joint Filing Agreement, dated as of December 18, 2006, by
and among the Reporting Persons.
Signature
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true,
complete and correct.
Dated: December 18, 2006
BANK OF AMERICA CORPORATION
NB HOLDINGS CORPORATION
By: /s/ Charles F. Bowman
Name: Charles F. Bowman
Title: Senior Vice President
BANK OF AMERICA CAPITAL ADVISORS LLC
PRIVATE EQUITY PORTFOLIO FUND II, LLC
By: /s/ James D. Bowden
Name: James D. Bowden
Title: Managing Director
BANCBOSTON INVESTMENTS INC.
BANCBOSTON CAPITAL INC.
By: /s/ Matthew G. Frazier
Name: Matthew G. Frazier
Title: Vice President
Exhibit D
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k)(1)(iii) under the Securities
Exchange Act of 1934, as amended, each of the persons named below
agrees to the joint filing of a Statement on Schedule 13D (including
amendments thereto) with respect to the common stock, $1.00 par
value per share, of Metaldyne Corporation, a Delaware corporation,
and further agrees that this Joint Filing Agreement be included as
an exhibit to such filings; provided, that, as contemplated by
Section 13d-1(k)(1)(ii), no person shall be responsible for the
completeness or accuracy of the information concerning the other
persons making the filing, unless such person knows or has reason to
believe that such information is inaccurate.
IN WITNESS WHEREOF, the undersigned has duly executed this
Joint Filing Agreement as of this 18th day of December, 2006.
BANK OF AMERICA CORPORATION
NB HOLDINGS CORPORATION
By: /s/ Charles F. Bowman
Name: Charles F. Bowman
Title: Senior Vice President
BANK OF AMERICA CAPITAL ADVISORS LLC
PRIVATE EQUITY PORTFOLIO FUND II, LLC
By: /s/ James D. Bowden
Name: James D. Bowden
Title: Managing Director
BANCBOSTON INVESTMENTS INC.
BANCBOSTON CAPITAL INC.
By: /s/ Matthew G. Frazier
Name: Matthew G. Frazier
Title: Vice President
Annex A
Bank of America Corporation
Addresses: Each of the following executive officers and directors
can be reached c/o: Bank of America Corporation, 100 Tryon Street,
Floor 25, Bank of America Corporate Center, Charlotte, NC 28255.
The following table sets forth the name, business address, and
present principal occupation of each executive officer and director
of Bank of America Corporation.
- ---------------------------------------------------------
Name Position with Principal Occupation
Bank of America
- ---------------------------------------------------------
- ---------------------------------------------------------
Kenneth D. Chairman, Chief Chairman, Chief
Lewis Executive Executive Officer and
Officer, President of Bank of
President and America Corporation
Director
- ---------------------------------------------------------
- ---------------------------------------------------------
Liam E. McGee President, President, Global
Global Consumer Consumer and Small
and Small Business Banking of
Business Banking Bank of America
Corporation
- ---------------------------------------------------------
- ---------------------------------------------------------
Brian T. President, President, Global
Moynihan Global Wealth Wealth and Investment
and Investment Management of Bank of
Management America Corporation
- ---------------------------------------------------------
- ---------------------------------------------------------
R. Eugene President, Vice Chairman,
Taylor Global Corporate President, Global
and Investment Corporate and
Banking Investment Banking of
Bank of America
Corporation
- ---------------------------------------------------------
- ---------------------------------------------------------
Alvaro G. De Chief Financial Chief Financial
Molina Officer Officer of Bank of
America Corporation
- ---------------------------------------------------------
- ---------------------------------------------------------
Amy Woods Global Risk Global Risk Executive
Brinkley Executive of Bank of America
Corporation
- ---------------------------------------------------------
- ---------------------------------------------------------
Barbara J. Global Global Technology,
Desoer Technology, Service and
Service and Fulfillment Executive
Fulfillment of Bank of America
Executive Corporation
- ---------------------------------------------------------
- ---------------------------------------------------------
William Director Chairman, President
Barnet, III and Chief Executive
Officer of The Barnet
Company
- ---------------------------------------------------------
- ---------------------------------------------------------
Frank P. Director Former Executive
Bramble, Sr. Officer of MBNA
Corporation
- ---------------------------------------------------------
- ---------------------------------------------------------
John T. Director Chief Executive
Collins Officer of The Collins
Group, Inc.
- ---------------------------------------------------------
- ---------------------------------------------------------
Gary L. Director Chairman Emeritus of
Countryman Liberty Mutual Group
- ---------------------------------------------------------
- ---------------------------------------------------------
Tommy R. Director Retired General,
Franks United States Army
- ---------------------------------------------------------
- ---------------------------------------------------------
Paul Fulton Director Chairman of Bassett
Furniture Industries,
Inc.
- ---------------------------------------------------------
- ---------------------------------------------------------
Charles K. Director Former Chairman of
Gifford Bank of America
Corporation
- ---------------------------------------------------------
- ---------------------------------------------------------
W. Steven Director Dean of Kenan-Flagler
Jones Business School,
University of North
Carolina at Chapel Hill
- ---------------------------------------------------------
- ---------------------------------------------------------
Monica Lozano Director Publisher and Chief
Executive Officer of
La Opinion
- ---------------------------------------------------------
- ---------------------------------------------------------
Walter E. Director President of Morehouse
Massey College
- ---------------------------------------------------------
- ---------------------------------------------------------
Thomas J. May Director Chairman of President
and Chief Executive
Officer, NSTAR
- ---------------------------------------------------------
- ---------------------------------------------------------
Patricia E. Director President and Chief
Mitchell Executive Officer of
The Museum of
Television and Radio
- ---------------------------------------------------------
- ---------------------------------------------------------
Thomas M. Ryan Director Chairman, President
and Chief Executive
Officer of CVS
Corporation
- ---------------------------------------------------------
- ---------------------------------------------------------
O. Temple Director Chairman of the
Sloan, Jr. International Group,
Inc.
- ---------------------------------------------------------
- ---------------------------------------------------------
Meredith R. Director Director of C.D.
Spangler Spangler Construction
Company, Chairman of
the Board of C.D.
Spangler Foundation,
Trustee of Wellesley
College Board of
Trustees
- ---------------------------------------------------------
- ---------------------------------------------------------
Robert L. Director Chairman and CEO
Tillman Emeritus of Lowe's
Companies, Inc.
- ---------------------------------------------------------
- ---------------------------------------------------------
Jackie M. Ward Director Retired Chairman/CEO,
Computer Generation
Incorporated
- ---------------------------------------------------------
BancBoston Capital Inc.
Addresses: Each of the following executive officers and directors
can be reached c/o: Bank of America Corporation, 100 Tryon Street,
Floor 25, Bank of America Corporate Center, Charlotte, NC 28255.
The following table sets forth the name, business address, and
present principal occupation of each executive officer and director
of BancBoston Capital Inc.:
- ---------------------------------------------------------
Name Position with Principal Occupation
BancBoston
Capital Inc.:
- ---------------------------------------------------------
- ---------------------------------------------------------
J. Chandler Chairman of the Treasurer, Bank of
Martin Board America Corporation
- ---------------------------------------------------------
- ---------------------------------------------------------
Edward J. President and Executive Vice
McCaffrey Managing Director President, Bank of
America, National
Association
- ---------------------------------------------------------
- ---------------------------------------------------------
Jeffrey M. Managing Director Managing Director,
Atkins Bank of America,
National Association
- ---------------------------------------------------------
- ---------------------------------------------------------
Erick C. Managing Director Managing Director,
Christensen Bank of America,
National Association
- ---------------------------------------------------------
- ---------------------------------------------------------
William B. Managing Director Managing Director,
Franklin Bank of America,
National Association
- ---------------------------------------------------------
- ---------------------------------------------------------
Maia D. Managing Director Managing Director,
Heymann BancBoston Investments
Inc.
- ---------------------------------------------------------
- ---------------------------------------------------------
Roy K. Moyer Managing Director Managing Director,
Bank of America,
National Association
- ---------------------------------------------------------
- ---------------------------------------------------------
Michael J. Managing Director Managing Director,
Hornig Bank of America,
National Association
- ---------------------------------------------------------
- ---------------------------------------------------------
Robert W. Managing Director Managing Director,
Long, Jr. Banc of America
Securities LLC
- ---------------------------------------------------------
- ---------------------------------------------------------
Timothy H. Managing Director Managing Director,
Robinson BancBoston Investments
Inc.
- ---------------------------------------------------------
- ---------------------------------------------------------
Fernando I. Managing Director Managing Director,
Vazquez Bank of America,
National Association
- ---------------------------------------------------------
- ---------------------------------------------------------
Jason C. Principal Principal, Banc of
Cipriani America Securities
LLC, and Chief
Financial Officer,
Banc of America
Strategic Investments
Group
- ---------------------------------------------------------
- ---------------------------------------------------------
M. Ann O'Brien Managing Managing Director,
Director Bank of America,
National Association
- ---------------------------------------------------------
BancBoston Investments Inc.
Addresses: Each of the following executive officers can be reached
c/o: Bank of America Corporation, 100 Tryon Street, Floor 25, Bank
of America Corporate Center, Charlotte, NC 28255.
The following table sets forth the name, business address, and
present principal occupation of each executive officer and director
of BancBoston Investments Inc.:
- ---------------------------------------------------------
Name Position with Principal Occupation
BancBoston
Investments Inc.:
- ---------------------------------------------------------
- ---------------------------------------------------------
J. Chandler Chairman of the Treasurer, Bank of
Martin Board America Corporation
- ---------------------------------------------------------
- ---------------------------------------------------------
Edward J. President and Executive Vice
McCaffrey Managing Director President, Bank of
America, National
Association
- ---------------------------------------------------------
- ---------------------------------------------------------
Jeffrey M. Managing Director Managing Director,
Atkins Bank of America,
National Association
- ---------------------------------------------------------
- ---------------------------------------------------------
Erick C. Managing Director Managing Director,
Christensen Bank of America,
National Association
- ---------------------------------------------------------
- ---------------------------------------------------------
William B. Managing Director Managing Director,
Franklin Bank of America,
National Association
- ---------------------------------------------------------
- ---------------------------------------------------------
Maia D. Managing Director Managing Director,
Heymann BancBoston Investments
Inc.
- ---------------------------------------------------------
- ---------------------------------------------------------
Roy K. Moyer Managing Director Managing Director,
Bank of America,
National Association
- ---------------------------------------------------------
- ---------------------------------------------------------
Michael J. Managing Director Managing Director,
Hornig Bank of America,
National Association
- ---------------------------------------------------------
- ---------------------------------------------------------
Robert W. Managing Director Managing Director,
Long, Jr. Banc of America
Securities LLC
- ---------------------------------------------------------
- ---------------------------------------------------------
Timothy H. Managing Director Managing Director,
Robinson BancBoston Investments
Inc.
- ---------------------------------------------------------
- ---------------------------------------------------------
Fernando I. Managing Director Managing Director,
Vazquez Bank of America,
National Association
- ---------------------------------------------------------
- ---------------------------------------------------------
Jason C. Principal Principal, Banc of
Cipriani America Securities
LLC, and Chief
Financial Officer,
Banc of America
Strategic Investments
Group
- ---------------------------------------------------------
- ---------------------------------------------------------
M. Ann O'Brien Managing Managing Director,
Director Bank of America,
National Association
- ---------------------------------------------------------
Private Equity Portfolio Fund II, LLC
Private Equity Portfolio Fund II, LLC PEPII is managed and
controlled by Bank of America Capital Advisors LLC.
Addresses: Bank of America Capital Advisors LLC can be reached at:
100 Federal Street, Boston Massachusetts 02110.
Bank of America Capital Advisors LLC
Addresses: The following executive officer can be reached c/o: Bank
of America Capital Advisors LLC, 100 Federal Street, Boston
Massachusetts 02110.
The following table sets forth the name, business address, and
present principal occupation of each executive officer and director
of Bank of America Capital Advisors LLC:
- ---------------------------------------------------------
Name Position with Principal Occupation
Bank of America
Capital Advisors
LLC:
- ---------------------------------------------------------
- ---------------------------------------------------------
Daniel S. President Managing Director,
McNamara Bank of America,
National Association
- ---------------------------------------------------------
Annex B
BANK OF AMERICA CORPORATION ("BANK OF AMERICA") ENTERED INTO A CIVIL
SETTLEMENT AGREEMENT WITH THE NEW YORK COUNTY (NEW YORK) DISTRICT
ATTORNEY ON SEPTEMBER 28, 2006. THE AGREEMENT PROVIDES THAT, FROM
ABOUT 2002 TO 2004, BANK OF AMERICA HAD DEFICIENCIES IN CERTAIN
INTERNAL ANTI-MONEY LAUNDERING CONTROLS AND FAILED TO REACT
APPROPRIATELY TO THE RISK PRESENTED BY CERTAIN SOUTH AMERICAN MONEY
SERVICES BUSINESS CUSTOMERS, WHO MOVED FUNDS ILLEGALLY THROUGH BANK
OF AMERICA. THE AGREEMENT REQUIRES BANK OF AMERICA TO MAKE A TOTAL
PAYMENT OF $7.5 MILLION, TO COOPERATE WITH THE DISTRICT ATTORNEY IN
ONGOING INVESTIGATIONS, AND TO ABIDE BY ANTI-MONEY LAUNDERING
CHANGES RECOMMENDED BY BANK OF AMERICA'S REGULATORS.
THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM AND THE RESERVE
BANK REVIEWED CERTAIN ACTIVITIES OF BANK OF AMERICA'S WEALTH AND
INVESTMENT MANAGEMENT GROUP. THE RESERVE BANK RAISED CONCERNS THAT
BANK OF AMERICA AND ITS SUBSIDIARIES DID NOT ADEQUATELY ASSESS THE
LEGAL AND REPUTATIONAL RISKS POSED BY CERTAIN MUTUAL FUND TRADING
ACTIVITIES AND ADDRESS FLAWS IN COMPLIANCE AND RISK MANAGEMENT
PERTAINING TO THE ASSET MANAGEMENT LINES OF BUSINESS. FOLLOWING THAT
REVIEW, THE BANK AND THE RESERVE BANK EXECUTED A WRITTEN AGREEMENT
TO ENSURE THAT THE BANK AND ITS SUBSIDIARIES MAKE PROGRESS IN THEIR
EFFORTS TO ADOPT AND IMPLEMENT NUMEROUS CORRECTIVE ACTIONS AND BEST
PRACTICE RECOMMENDATIONS. BANK OF AMERICA HAS AGREED TO CONTINUE TO
TAKE STEPS TO ADOPT AND IMPLEMENT CORRECTIVE ACTIONS AND BEST
PRACTICE RECOMMENDATIONS OF THE INDEPENDENT CONSULTANTS AND TO
ENHANCE THE ENTERPRISE-WIDE COMPLIANCE PROGRAM TO ENSURE COMPLIANCE
WITH ALL APPLICABLE LAWS AND REGULATIONS, INCLUDING BUT NOT LIMITED
TO SECURITIES LAWS AND REGULATIONS INCLUDING, AMONG OTHER THINGS, A
PROCESS FOR RESOLVING OR ESCALATING COMPLIANCE ISSUES, ONGOING
TRAINING ON POLICIES AND PROCEDURES FOR COMPLIANCE WITH LAWS AND
REGULATIONS FOR CERTAIN STAFF OF BANK OF AMERICA AND ITS
SUBSIDIARIES, ENSURE PROCESSES FOR AN ENHANCED APPROVAL PROCESS FOR
NEW CLIENTS, NEW OR UNIQUE INVESTMENT PRODUCTS, SERVICES OR
TRANSACTIONS, AND MATERIAL CHANGES TO EXISTING PRODUCTS OR SERVICES,
PROCEDURES TO ENSURE THOROUGH ASSESSMENT OF RISKS, POLICIES AND
PROCEDURES TO ENSURE PRODUCTS, SERVICES AND ARRANGEMENTS ARE
CONSISTENT WITH BUSINESS EXPERTISE, STRATEGY AND APPROVED RISK
PROFILE, PROCEDURES FOR INTERNAL AUDIT, MECHANISMS FOR PERIODIC
REVIEWS, MONITORING OF ENTERPRISE-WIDE ADOPTION AND EXECUTION OF NEW
POLICIES AND PROCEDURES AND OTHER RECOMMENDATIONS OF THE INDEPENDENT
CONSULTANTS, AND SUBMISSION OF PROGRESS REPORTS TO RESERVE BANK.
THE SECURITIES AND EXCHANGE COMMISSION (THE "SEC") FOUND THAT IN
1997 AND 1998, BANKAMERICA CORPORATION ("BANKAMERICA"), PREDECESSOR
OF BANK OF AMERICA, VIOLATED VARIOUS EXCHANGE ACT ACCOUNTING AND
REPORTING PROVISIONS WITH RESPECT TO A BUSINESS ALLIANCE BETWEEN
BANKAMERICA AND D.E. SHAW SECURITIES GROUP, L.P. AND RELATED
ENTITIES. ON JULY 30, 2001, WITHOUT ADMITTING OR DENYING THE
ALLEGATIONS, CHARGES OR FINDINGS, BANK OF AMERICA CONSENTED TO ENTRY
OF AN ADMINISTRATIVE ORDER PROVIDING THAT IT CEASE AND DESIST FROM
COMMITTING OR CAUSING ANY FUTURE VIOLATIONS OF THE EXCHANGE ACT
ACCOUNTING AND REPORTING PROVISIONS CITED IN THE SEC'S ALLEGATIONS.
ON JULY 30, 2001, THE SEC FOUND THAT, IN 1997 AND 1998, BANKAMERICA
(I) INCORRECTLY ACCOUNTED FOR A FINANCIAL RELATIONSHIP, AND (II)
MADE INADEQUATE DISCLOSURES RELATED TO RISK IN EXCHANGE ACT REPORT
FILINGS WITH THE SEC, IN CONNECTION WITH A BUSINESS ALLIANCE WITH
D.E. SHAW SECURITIES GROUP, L.P. AND RELATED ENTITIES. ON THE SAME
DATE, WITHOUT ADMITTING OR DENYING THE SEC'S ALLEGATIONS, CHARGES OR
FINDINGS, BANK OF AMERICA CONSENTED TO ENTRY OF AN ADMINISTRATIVE
ORDER PROVIDING THAT IT CEASE AND DESIST FROM COMMITTING OR CAUSING
ANY FUTURE VIOLATIONS OF THE EXCHANGE ACT ACCOUNTING AND REPORTING
PROVISIONS CITED IN THE SEC'S ALLEGATIONS.