As filed with the Securities and Exchange Commission on July 1, 2008
Registration No. 333-149204
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-8
TO REGISTRATION STATEMENT ON FORM S-4
UNDER THE SECURITIES ACT OF 1933
Bank of America Corporation
(Exact name of registrant as specified in its charter)
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Bank of America Corporate Center |
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100 North Tryon Street |
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Charlotte, North Carolina 28255
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56-0906609 |
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(Address of principal executive offices,
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(I.R.S. Employer |
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including zip code)
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Identification No.) |
Countrywide Financial Corporation 401(k) Savings and Investment Plan (as amended and restated effective January 1, 2007)
Countrywide Financial Corporation 2006 Equity Incentive Plan
Countrywide Financial Corporation 2000 Equity Incentive Plan
Countrywide Credit Industries, Inc. 1993 Stock Option Plan (as amended and restated as of March 27, 1996)
(Full title of the plans)
TIMOTHY J. MAYOPOULOS
Executive Vice President and General Counsel
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
(704) 386-7484
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
BOYD C. CAMPBELL, JR.
McGuireWoods LLP
201 North Tryon Street
Charlotte, North Carolina 28202
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large
accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
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This Post-Effective Amendment No. 1 on Form S-8 covers shares of the Registrant’s Common Stock
originally registered on the Registration Statement on Form S-4 to which this is an amendment. The
registration fees in respect of such shares of Common Stock were paid at the time of the original
filing of the Registration Statement on Form S-4 relating to such Common Stock. In addition,
pursuant to Rule 416(c) under the Securities Act of 1933, this Post-Effective Amendment No. 1 on
Form S-8 also covers an indeterminate amount of interests to be offered or sold pursuant to the
Countrywide Financial Corporation 401(k) Savings and Investment Plan described herein.
TABLE OF CONTENTS
EXPLANATORY NOTE
Bank
of America Corporation, a Delaware corporation (“Bank of America” or the “Registrant”),
hereby amends its Registration Statement on Form S-4, Registration No. 333-149204, as amended by
pre-effective amendment nos. 1 through 4 (the “Form S-4”), by filing this Post-Effective Amendment
No. 1 on Form S-8 (the “Post-Effective Amendment No. 1 on Form S-8”). The Form S-4, as amended by
this Post-Effective Amendment No. 1 on Form S-8, is referred to as the “Registration Statement.”
Bank of America filed the Form S-4 in connection with the merger (the “Merger”) of Countrywide
Financial Corporation, a Delaware corporation (“Countrywide”), with and into a wholly owned
subsidiary of Bank of America on July 1, 2008. In connection with the filing of the Form S-4, Bank
of America registered 132,745,471 shares of its common stock, par value $0.01 per share (the
“Common Stock”), with the Securities and Exchange Commission (the “SEC”) and the applicable filing
fee was paid. This number of shares represents those shares which were expected to be distributed
to the holders of the common stock of Countrywide at the time of the Merger and those shares
necessary to be distributed, or reserved for issuance, to Countrywide employees or former employees
in connection with certain Countrywide employee benefit plans in effect at the time of the Merger,
as listed on the cover of this Post-Effective Amendment No. 1 on Form S-8 (the “Plans”). Pursuant
to the terms of the Merger, all Countrywide stock options, stock appreciation rights, restricted
share units and deferred equity units outstanding at the effective time of the Merger became stock
options, stock appreciation rights, restricted share units and deferred equity units on shares of
Bank of America Common Stock after the effective time of the Merger, based on a formula described
in the Form S-4. The purpose of this Post-Effective Amendment No. 1 on Form S-8 is to allocate
11,100,000 shares of Common Stock covered by the Registration Statement to the Plans. This
Post-Effective Amendment No. 1 on Form S-8 also covers an indeterminate number of participation
interests in the Countrywide Financial Corporation 401(k) Savings and Investment Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Bank of America with the Securities and Exchange Commission
(the “SEC”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are
incorporated by reference herein and in the Prospectus constituting a part of this Registration
Statement:
(a) The Registrant’s Annual Report on Form 10-K for the year ended
December 31, 2007;
(b) The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31,
2008;
(c) The Registrant’s Current Reports on Form 8-K filed January 11, 2008, January 22,
2008, January 29, 2008, January 30, 2008, April 15, 2008, April 21, 2008, May 1, 2008, May
23, 2008, May 29, 2008 and July 1, 2008 (in each case, other than information that is
furnished but that is deemed not to have been filed); and
(d) The description of the Registrant’s Common Stock that is contained in the
Registrant’s registration statement filed pursuant to Section 12 of the Exchange Act, as
modified by the Registrant’s Current Reports on Form 8-K filed March 7, 2007, September 26,
2007, November 20, 2007, January 29, 2008, January 30, 2008, May 1, 2008 and May 23, 2008
and any other amendment or report filed for the purpose of updating such description.
In addition, the Annual Report on Form 11-K for the fiscal year ended December 31, 2007, as
filed by the Countrywide Financial Corporation 401(k) Savings and Investment Plan with the SEC, is
incorporated by reference in this Registration Statement and made a part hereof.
All documents filed by the Registrant or the Countrywide Financial Corporation 401(k) Savings
and Investment Plan with the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act (other than any information that is furnished but that is deemed not to have been filed) prior
to the filing of a post-effective amendment hereto that either indicates that all securities
offered hereby have been sold or deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference in this Registration Statement and the Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement and the Prospectus to the extent that a
statement contained herein or in any other subsequently filed document that also is or is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement.
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Item 6. Indemnification of Directors and Officers.
Section 145(a) of the General Corporation Law of the State of Delaware (“Delaware Corporation
Law”) provides, in general, that a corporation shall have the power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), because the person is or was a director, officer, employee
or agent of the corporation or is or was serving at the request of the corporation as a director,
officer, employee or agent of any other enterprise. Such indemnity may be against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action, suit or proceeding, if the person
acted in good faith and in a manner the person reasonably believed to be in or not opposed to the
best interests of the corporation and if, with respect to any criminal action or proceeding, the
person did not have reasonable cause to believe the person’s conduct was unlawful.
Section 145(b) of the Delaware Corporation Law provides, in general, that a corporation shall
have the power to indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor because the person is or was a director, officer, employee or agent
of the corporation or is or was serving at the request of the corporation as a director, officer,
employee or agent of any other enterprise, against any expenses (including attorneys’ fees)
actually and reasonably incurred by the person in connection with the defense or settlement of such
action or suit if the person acted in good faith and in a manner the person reasonably believed to
be in or not opposed to the best interests of the corporation, except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall have been adjudged
to be liable to the corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other
court shall deem proper.
Section 145(g) of the Delaware Corporation Law provides, in general, that a corporation shall
have the power to purchase and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of any other enterprise, against any
liability asserted against the person in any such capacity, or arising out of the person’s status
as such, regardless of whether the corporation would have the power to indemnify the person against
such liability under the provisions of the law.
Article VIII of the Registrant’s bylaws provides for indemnification to the fullest extent
authorized by Delaware law for any person who is or was a director or officer of the Registrant who
is or was involved or threatened to be made involved in any proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person is or was serving as a
director, officer, manager or employee of the Registrant or was serving at the request of the
Registrant as a director, officer, manager or employee of any other enterprise. Such
indemnification is provided only if the director, officer, manager or employee acted in good faith
and in a manner that the director, officer, manager or employee reasonably believed to be in, or
not opposed to, the best
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interests of the Registrant, and with respect to any criminal proceeding, had no reasonable
cause to believe that the conduct was unlawful.
The foregoing is only a general summary of certain aspects of Delaware law and the
Registrant’s bylaws dealing with indemnification of directors and officers, and does not purport to
be complete. It is qualified in its entirety by reference to the detailed provisions of Section 145
of the Delaware Corporation Law and Article VIII of the bylaws of the Registrant.
Pursuant to the Registrant’s bylaws, the Registrant also maintains a directors’ and officers’
insurance policy which insures the directors and officers of the Registrant against liability
asserted against such persons in such capacity whether or not such directors or officers have the
right to indemnification pursuant to the bylaws or otherwise.
Item 8. Exhibits.
The following exhibits are filed with or incorporated by reference in this Registration
Statement.
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| Exhibit No. |
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Description of Exhibit |
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| 4(a) |
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Specimen Certificate of Registrant’s common stock* |
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| 5(a) |
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Opinion of Timothy J. Mayopoulos, Executive Vice President and General Counsel
of Bank of America, as to the validity of the shares of Bank of America common stock* |
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The Registrant undertakes that the Countrywide Financial
Corporation 401(k) Savings and Investment Plan and any
amendment thereto have been or will be submitted to the
Internal Revenue Service in a timely manner and all changes
required by the Internal Revenue Service for the Countrywide
Financial Corporation 401(k) Savings and Investment Plan to be
qualified under Section 401 of the Internal Revenue Code have
been or will be made. |
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| 23(a) |
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Consent of Timothy J. Mayopoulos, Executive Vice President and General Counsel
of Bank of America (included in Exhibit 5(a))* |
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| 23(b) |
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Consent of PricewaterhouseCoopers LLP as to Bank of America Corporation |
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| 23(c) |
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Consent of KPMG LLP as to Countrywide Financial Corporation 401(k) Savings and
Investment Plan |
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| 24(a) |
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Power of Attorney* |
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Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-4 to
which this is Post-Effective Amendment No. 1 on Form S-8. |
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Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended
(the “Securities Act”); (ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration statement
(notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective registration
statement); and (iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any material
change to such information in the registration statement; provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration
statement is on Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934, as amended, that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant’s annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended (and,
where applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934, as amended) that is incorporated by
reference in this registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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(c) Insofar as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
The Registrant
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Post-Effective Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of
Charlotte, State of North Carolina, on this 1st day of July, 2008.
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BANK OF AMERICA CORPORATION
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By: |
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Kenneth D. Lewis |
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President and Chief Executive Officer |
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Post-Effective
Amendment No. 1 to the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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| Signature |
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Title |
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Date |
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Kenneth D. Lewis |
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Chairman, President, Chief
Executive Officer and
Director
(Principal
Executive Officer)
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July 1, 2008 |
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Joe L. Price |
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Chief Financial Officer
(Principal Financial
Officer)
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July 1, 2008 |
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Neil A. Cotty |
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Senior Vice President and
Chief Accounting Officer
(Principal Accounting
Officer)
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July 1, 2008 |
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William Barnet, III |
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Director
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July 1, 2008 |
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Frank P. Bramble, Sr. |
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Director
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July 1, 2008 |
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John T. Collins |
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Director
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July 1, 2008 |
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Gary L. Countryman |
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Director
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July 1, 2008 |
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Tommy R. Franks |
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Director
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July 1, 2008 |
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Charles K. Gifford |
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Director
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July 1, 2008 |
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W. Steven Jones |
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Director
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July 1, 2008 |
Signature Page
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| Signature |
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Title |
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Date |
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Monica C. Lozano |
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Director
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July 1, 2008 |
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Walter E. Massey |
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Director
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July 1, 2008 |
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Thomas J. May |
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Director
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July 1, 2008 |
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Patricia E. Mitchell |
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Director
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July 1, 2008 |
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Thomas M. Ryan |
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Director
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July 1, 2008 |
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O. Temple Sloan, Jr. |
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Director
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July 1, 2008 |
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Meredith R. Spangler |
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Director
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July 1, 2008 |
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Robert L. Tillman |
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Director
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July 1, 2008 |
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Jackie M. Ward |
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Director
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July 1, 2008 |
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*By:
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/s/ Teresa M. Brenner
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July 1, 2008 |
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Teresa M. Brenner
Attorney-in-Fact |
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Signature Page
Countrywide Financial Corporation 401(k) Savings and Investment Plan
Pursuant to the requirements of the Securities Act of 1933, as amended, the trustees (or other
persons who administer the employee benefit plan) have duly caused this Post-Effective Amendment
No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Charlotte, State of North Carolina, on July 1, 2008.
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COUNTRYWIDE FINANCIAL CORPORATION 401(K)
SAVINGS AND INVESTMENT PLAN |
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By:
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/s/ Stephen D. Terry |
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Name:
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Stephen D. Terry |
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Title:
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Senior Vice President |
Signature Page
INDEX TO EXHIBITS
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| Exhibit No. |
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Description of Exhibit |
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| 4(a) |
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Specimen Certificate of Registrant’s common stock* |
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| 5(a) |
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Opinion of Timothy J. Mayopoulos, Executive Vice President and General Counsel
of Bank of America, as to the validity of the shares of Bank of America common stock* |
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| 23(a) |
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Consent of Timothy J. Mayopoulos, Executive Vice President and General Counsel
of Bank of America (included in Exhibit 5(a))* |
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| 23(b) |
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Consent of PricewaterhouseCoopers LLP as to Bank of America Corporation |
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| 23(c) |
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Consent of KPMG LLP as to Countrywide Financial Corporation 401(k) Savings and
Investment Plan |
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| 24(a) |
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Power of Attorney* |
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| * |
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Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-4 to
which this is Post-Effective Amendment No. 1 on Form S-8. |