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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 11-K

 

 

FOR ANNUAL REPORTS OF EMPLOYEE STOCK

PURCHASE SAVINGS AND SIMILAR PLANS

PURSUANT TO SECTION 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

x ANNUAL REPORT PURSUANT TO SECTION 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE YEAR ENDED APRIL 6, 2009

OR

 

¨ TRANSITION REPORT PURSUANT TO SECTION 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Commission file number 1-6523

 

 

 

A. Full title of the plan and the address of the plan, if different from that of the issuer named below:

Countrywide Financial Corporation 401(k) Savings and Investment Plan

 

B. Name of issuer of the securities held pursuant to the plan and the address of its principal executive office:

 

Bank of America Corporation

Bank of America Corporate Center

Charlotte, NC 28255

 

 

 


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Financial Statements and Report of

Independent Registered Public Accounting Firm

Countrywide Financial Corporation 401(k) Savings and Investment Plan

April 6, 2009 and December 31, 2008

TABLE OF CONTENTS

 

     Page

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

   2

FINANCIAL STATEMENTS:

  

STATEMENTS OF NET ASSETS AVAILABLE FOR BENEFITS—AS OF APRIL 6, 2009

   3

STATEMENT OF CHANGES IN NET ASSETS AVAILABLE FOR BENEFITS—FOR THE YEAR ENDED APRIL 6, 2009

   4

NOTES TO FINANCIAL STATEMENTS

   5-10

SIGNATURE

   11

EXHIBIT INDEX

   12

EXHIBIT 23.1

   13

 


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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

Plan Participants and the Corporate Benefits Committee of

Countrywide Financial Corporation 401(k) Savings and Investment Plan:

We have audited the accompanying statements of net assets available for benefits of Countrywide Financial Corporation 401(k) Savings and Investment Plan (the Plan) as of April 6, 2009 and December 31, 2008 and the related statement of changes in net assets available for benefits for the period from January 1, 2009 through April 6, 2009. These financial statements are the responsibility of the Plan’s management. Our responsibility is to express an opinion on these financial statements based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Plan’s internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.

In our opinion, the financial statements referred to above present fairly, in all material respects, the net assets available for benefits of the Plan as of April 6, 2009 and December 31, 2008, and the changes in net assets available for benefits for the period from January 1, 2009 through April 6, 2009 in conformity with U.S. generally accepted accounting principles.

/s/ Morris, Davis & Chan LLP

Charlotte, North Carolina

September 28, 2009

 

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Countrywide Financial Corporation

401(k) Savings and Investment Plan

STATEMENTS OF NET ASSETS AVAILABLE FOR BENEFITS

 

     April 6,
2009
   December 31,
2008

ASSETS

     

Investments, at fair value:

     

Money market and interest bearing cash

   $ —      $ 90,365,097

Mutual funds

     —        434,182,617

Common Stocks

     —        40,374,235

Participant loans

     —        37,252,707
             

Total investments

     —        602,174,656
             

Contributions receivable:

     

Employer

     —        16,092,432

Employee

     —        2,590,277
             

Total contributions receivable

     —        18,682,709
             

Total assets

     —        620,857,365
             

LIABILITIES

     

Liabilities

     —        —  
             

Net assets available for benefits

   $ —      $ 620,857,365
             

The accompanying notes are an integral part of these financial statements.

 

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Countrywide Financial Corporation

401(k) Savings and Investment Plan

STATEMENT OF CHANGES IN NET ASSETS AVAILABLE FOR BENEFITS

 

     Period from
January 1, 2009
through April 6,
2009
 

Investment loss:

  

Net depreciation in fair value of investments (Note 6)

   $ (27,393,118

Interest

     720,367   

Dividends

     294,251   

Income from registered investment companies

     1,630,424   
        

Total investment loss

     (24,748,076
        

Contributions:

  

Employees

     23,838,105   

Employer

     8,668,965   
        

Total contributions

     32,507,070   
        

Benefits paid to participants

     (35,621,193
        

Trustee and administrative expenses (Note 2)

     (274,586
        

Net decrease before mergers and transfers

     (28,136,785

Transfer to The Bank of America 401(k) Plan for Legacy Companies

     (592,720,580
        

Net decrease after mergers and transfers

     (620,857,365

Net assets available for benefits:

  

Beginning of period

     620,857,365   
        

End of period

   $ —     
        

The accompanying notes are an integral part of these financial statements.

 

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NOTE 1—DESCRIPTION OF PLAN

The following description of the Countrywide Financial Corporation 401(k) Savings and Investment Plan (the Plan) provides only general information. Participants should refer to the Plan document and summary plan description for a more complete description of the Plan’s provisions.

 

A. Countrywide Financial Corporation Acquisition and Plan Merger

On July 1, 2008, Countrywide Financial Corporation merged with and into a wholly-owned merger subsidiary of Bank of America Corporation. The Countrywide Financial Corporation shares were converted into Bank of America Corporation shares at a rate of 0.1822 shares of Bank of America Corporation common stock for every share of Countrywide Financial Corporation common stock. Countrywide Financial Corporation continues as a surviving Bank of America Corporation subsidiary.

Effective April 6, 2009, the Plan was merged into The Bank of America 401(k) Plan for Legacy Companies. Total Plan assets, including loans, transferred to the Bank of America 401(k) Plan for Legacy Companies (Legacy Companies 401(k) Plan) were $592,720,580.

 

B. Plan Sponsor and Administration

Countrywide Financial Corporation (the Corporation) is the Plan sponsor. Effective July 1, 2008, the Plan is administered by the Bank of America Corporation Corporate Benefits Committee (the Corporate Benefits Committee). Prior to July 1, 2008 the Plan was administered by the Countrywide Financial Corporation Administrative Committee for Employee Benefits Plan. The Board of Directors of Bank of America Corporation has the right at any time to remove any member of the Corporate Benefits Committee. Members of the Corporate Benefits Committee serve without compensation and act by majority vote. The Corporate Benefits Committee has overall responsibility for the operation and administration of the Plan including the power to construe and interpret the Plan, decide all questions that arise thereunder, and to delegate responsibilities.

 

C. Trustee

Fidelity Management Trust Company is the Plan trustee.

 

D. General

The Plan is a defined contribution plan covering all employees of the Corporation immediately upon their hire date if they are age 21 or older. The Plan is subject to the provisions of the Employee Retirement Income Security Act of 1974 (ERISA).

 

E. Contributions

Each year, participants may contribute up to 40 percent of pretax annual compensation, as defined in the Plan document. Participants who have attained age 50 before the end of the Plan year, are eligible to make catch-up contributions. Participants may also contribute amounts representing eligible rollover distributions from other qualified defined benefit or defined contribution plans. Highly compensated employees are limited to contributions equal to six percent of pretax annual compensation. Participant contributions are subject to Internal Revenue Code limitations.

Participants direct the investment of their contributions into various investment options offered by the Plan. The Plan offers 19 mutual funds, a money market mutual fund and an employer common stock fund as investment options for participants.

The Corporation makes quarterly, discretionary matching contributions equal to 50 percent of the first six percent of eligible earnings, as defined in the Plan, that the participant contributes. The Corporation’s discretionary matching contributions were made in cash and were directed to the same investment choices as their pre-tax contributions.

The Plan also provides for a discretionary, non-matching employer contribution to eligible participants who are not eligible to participate in the Countrywide Financial Corporation Defined Benefit Pension Plan and meet other contribution eligibility requirements. The non-matching contribution is invested in the Plan’s investment options according to participant investment elections. There was no non-matching contribution made for the period from January 1, 2009 through April 6, 2009.

 

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NOTE 1—DESCRIPTION OF PLAN (Continued)

 

F. Participant Accounts

Each participant’s account is credited with the participant’s contribution, discretionary matching contribution, non-matching contribution (if eligible), and an allocation of earnings or losses. Allocations of Plan earnings or losses are based on account balances. The benefit to which a participant is entitled is the benefit that can be provided from the participant’s vested account.

 

G. Vesting of Benefits

Participants are immediately vested in their voluntary contributions plus actual earnings or losses thereon. Vesting in the Corporation’s discretionary matching and non-matching employer contribution portions of their accounts (as adjusted for investment) earnings or losses thereon is based on years of service. Participants begin vesting in Corporation contributions after one year of service under a graduated vesting schedule and are fully vested after five years of service.

 

H. Loans to Participants

Participants may borrow from their accounts a minimum of $1,000 up to a maximum equal to the lesser of $50,000 or 50 percent of their total vested account balances. Loan terms may range up to 15 years for the purpose of purchasing a primary residence, and up to five years for all other purposes. The loans earn interest at rates established by the Plan administrator.

 

I. Payment of Benefits

On termination of service before the normal retirement age of 65, distribution of the vested benefits is determined based on a participant’s account balance:

 

   

If a participant’s total vested benefit value is greater than $5,000, a participant may elect to defer distribution until normal retirement age or receive a lump sum payment equal to the vested share of the participant’s account.

 

   

If a participant’s total vested benefit value is between $1,000 and $5,000 and the participant does not elect to rollover or receive distribution of their vested benefits the Plan requires the administrator to direct the trustee to pay the entire vested benefit to the participant in a direct rollover to an individual retirement plan designated by the administrator.

 

   

If a participant’s total vested benefit value is $1,000 or less and the participant does not elect to rollover or receive the distribution, the Plan requires the administrator to direct the trustee to pay the entire vested benefit to the participant in a lump sum.

On termination of service due to death, disability or normal retirement, participants or their beneficiaries may elect to receive a lump sum amount equal to the value of the participant’s vested interest in his or her account.

 

J. Forfeited Matching Contributions

Activity in forfeited non-vested accounts for the period from January 1, 2009 through April 6, 2009 is summarized below:

 

Balance, beginning of period

   $ 2,312,015   

Additions

     344,551   

Investment (losses) gains

     (107,487

Administrative expenses

     (163,561

Forfeitures used to fund employer contributions

     (2,385,518
        

Balance, end of period

   $ —     
        

 

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NOTE 2—SUMMARY OF ACCOUNTING POLICIES

 

A. Basis of Accounting

The financial statements are prepared on the accrual basis of accounting in accordance with U.S. generally accepted accounting principles (GAAP). Revenues are recognized as earned. Benefits paid to plan participants are recorded when paid. All other expenses are recorded as incurred.

 

B. Management Estimates

The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that materially affect the reported amounts of assets and liabilities and changes therein, and disclosure of contingent assets and liabilities. Actual results could differ from those estimates.

 

C. Valuation of Investments and Income Recognition

As of January 1, 2008, the Plan adopted the provisions of Statement on Financial Accounting Standards No. 157 (SFAS 157), Fair Value Measurements. SFAS 157 is effective for financial statements issued for fiscal years beginning after November 15, 2007. SFAS 157 establishes a single authoritative definition of fair value, establishes a framework for measuring fair value under GAAP, and enhances disclosures about fair value measurements. The effect of the adoption of SFAS 157 did not have a material impact on the Plan’s financial statements (see Note 5: Fair Value Measurements).

In October 2008, the FASB issued FSP FAS 157-3, Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active (FSP FAS 157-3). FSP FAS 157-3 clarifies the application of SFAS 157 in a market that is not active and provides an example to illustrate key considerations in determining the fair value of a financial instrument when the market for that financial asset is not active. The FSP FAS 157-3 was effective upon issuance, including prior periods for which financial statements have not been issued. The adoption of FSP FAS 157-3 did not have a material impact on the Plan’s financial statements.

In April 2009, the FASB issued FSP FAS 157-4, Determining Fair Value When the Volume and Level of Activity for the Asset or Liability Have Significantly Decreased and Identifying Transactions That Are Not Orderly (FSP FAS 157-4). FSP FAS 157-4 provides additional application guidance in determining fair values when there is no active market or where the price inputs being used represent distressed sales. It reaffirms what SFAS No. 157 states is the objective of fair value measurement—to reflect how much an asset would be sold for in an orderly transaction (as opposed to a distressed or forced transaction) at the date of the financial statements under current market conditions. Specifically, it reaffirms the need to use judgment to ascertain if a formerly active market has become inactive and in determining fair values when markets have become inactive. The FSP FAS 157-4 is effective for periods ending after June 15, 2009. The adoption of FSP FAS 157–4 is not expected to have a material impact on the Plan’s financial statements.

 

D. Investment Transactions

Realized gains or losses on investment transactions are recorded as the difference between proceeds received and cost. Cost is determined on the average cost basis, except for Bank of America Corporation common stock (prior to July 1, 2008 Countrywide Financial Corporation common stock), which is determined based on the aggregate participant level average cost basis. Purchases and sales of securities are recorded on the trade-date basis. Dividends are recorded on the ex-dividend date.

 

E. Plan Expenses

Trustee direct expenses, some professional fees and certain administrative fees for associate communication and services, recordkeeping and benefit payment services are paid by the Plan. Other administrative expenses and some professional fees are paid by the Corporation.

 

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NOTE 3—CONCENTRATIONS OF INVESTMENT RISK

The fair values of investments that represented 5% or more of the Plan’s net assets consisted of the following:

 

Investment Name

  

Investment Description

   April 6, 2009
Fair Value
   December 31, 2008
Fair Value

Fidelity Retirement Money Market Portfolio

   Money market fund    $ —      $ 90,365,097

PIMCO Total Return Fund

   Mutual fund      —        80,478,630

Fidelity Diversified International Fund

   Mutual fund      —        59,778,220

LSV Value Equity Fund

   Mutual fund      —        53,257,243

Fidelity Spartan U.S. Equity Index Fund

   Mutual fund      —        46,348,397

Loomis Sayles Growth Fund

   Mutual fund      —        34,168,511

Bank of America Corporation Common Stock Fund

   Common stock      —        40,374,235

NOTE 4—RISKS AND UNCERTAINTIES

The Plan invests in various types of investment securities, including mutual funds and Bank of America Corporation common stock. Investment securities are exposed to various risks, such as interest rate, market and credit risks.

Due to the level of risk associated with certain investment securities, it is at least reasonably possible that changes in the values of investment securities will occur in the near term and that such changes could materially affect the amounts reported in the statements of net assets available for benefits.

Certain mutual funds offered by the Plan invest in the securities of foreign companies, which involve additional risks and considerations not typically associated with investing in U.S. companies. These risks include devaluation of currencies, less reliable information about issuers, different securities transaction clearance and settlement practices, and possible adverse political and economic developments. Moreover, securities of many foreign companies and their markets may be less liquid and their prices more volatile than similar types of securities of comparable U.S. companies.

NOTE 5—FAIR VALUE MEASUREMENTS

On January 1, 2008, the Plan adopted the provisions of SFAS 157 which establishes a framework for measuring fair value. That framework provides a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (level 1 measurements) and the lowest priority to unobservable inputs (level 3 measurements). The three levels of the fair value hierarchy under SFAS 157 are described below:

 

Level 1 Inputs to the valuation methodology are unadjusted quoted prices for identical assets or liabilities in active markets that the Plan has the ability to access.

 

Level 2 Inputs to the valuation methodology include:

 

   

Quoted prices for similar assets or liabilities in active markets;

 

   

Quoted prices for identical or similar assets or liabilities in inactive markets;

 

   

Inputs other than quoted prices that are observable for the asset or liability; and

 

   

Inputs that are derived principally from or corroborated by observable market data by correlation or other means.

 

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NOTE 5—FAIR VALUE MEASUREMENTS (Continued)

If the asset or liability has a specified (contractual) term, the Level 2 input must be observable for substantially the full term of the asset or liability.

 

Level 3 Inputs to the valuation methodology are unobservable and significant to the fair value measurement.

The asset’s or liability’s fair value measurement level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value measurement. Valuation techniques used need to maximize the use of observable inputs and minimize the use of unobservable inputs.

The following is a description of the valuation methodologies used for assets measured at fair value.

Mutual funds are valued at the net asset value of shares held by the Plan at year end.

Common stocks are valued at closing market price reported on the active market on which the securities are traded.

Participant loans, money market funds and interest bearing cash are valued at cost, which approximates fair value.

The methods described above may produce a fair value calculation that may not be indicative of net realizable value or reflective of future fair values. Furthermore, while the Plan believes its valuation methods are appropriate and consistent with other market participants, the use of different methodologies or assumptions to determine the fair value of certain financial instruments could result in a different fair value measurement at the reporting date.

As mentioned in Note 1A, all of the Plan’s investments were transferred to the Legacy Companies 401(k) Plan effective April 6, 2009. The following table sets forth by level, within the fair value hierarchy, the Plan’s investments at fair value as of December 31, 2008.

 

     Level 1    Level 2    Level 3    Total

Money market and interest bearing cash

   $ 90,365,097    $ —      $ —      $ 90,365,097

Mutual funds

     434,182,617      —        —        434,182,617

Common stocks

     40,374,235      —        —        40,374,235

Participant Loans

     —        —        37,252,707      37,252,707
                           

Total

   $ 564,921,949    $ —      $ 37,252,707    $ 602,174,656
                           

The table below sets forth a summary of changes in the fair value of the Plan’s level 3 investments for the period from January 1, 2009 through April 6, 2009:

 

     Participant Loans  

Balance, beginning of period

   $ 37,252,707   

Realized gains (losses)

     —     

Unrealized gains (losses)

     —     

Transfer to Bank of America 401(k) Plan for Legacy Companies

     (34,161,669

Purchases, sales, issuances and settlements (net)

     (3,091,038
        

Balance, end of period

   $ —     
        

 

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NOTE 6—NET DEPRECIATION IN FAIR VALUE OF INVESTMENTS

The net depreciation in fair value of the Plan’s investments for the period from January 1, 2009 through April 6, 2009 was as follows:

 

Mutual Funds

   $ (13,616,779

Common Stocks

     (13,776,339
        

Net depreciation in fair value of investments

   $ (27,393,118
        

NOTE 7—RELATED PARTY TRANSACTIONS

Certain Plan investments consist of shares of mutual funds managed by Fidelity Management Trust Company and shares of common stock of Bank of America Corporation (prior to July 1, 2008 Countrywide Financial Corporation common stock). Fidelity Management Trust Company is the trustee and Bank of America Corporation is the parent of the Plan sponsor. Therefore, these transactions qualify as party-in-interest transactions.

NOTE 8—FEDERAL INCOME TAX STATUS

The Internal Revenue Service (IRS) has determined and informed the Corporation by a letter dated June 5, 2002, that the Plan and related trust are designed in accordance with applicable sections of the Internal Revenue Code (Code). Amendments to the Plan have been made subsequent to the date of the IRS determination letter. However, the Corporation believes that the Plan, as amended, is designed and is being operated in compliance with the requirements of the Code.

During 2008, certain operational errors were identified and corrected. These errors did not have a material effect on the Plan’s financial position or an adverse effect on the Plan’s qualified status.

 

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SIGNATURE

The Plan. Pursuant to the requirements of the Securities Exchange Act of 1934, the trustees (or other persons who administer the employee benefit plan) have duly caused this annual report to be signed on its behalf by the undersigned hereunto duly authorized.

 

      COUNTRYWIDE FINANCIAL CORPORATION 401K SAVINGS AND INVESTMENT PLAN

Date: October 2, 2009

      /s/ STEPHEN D. TERRY
       

Senior Vice President

Benefits Executive

Bank of America Corporation

 

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Exhibit Index

 

Exhibit No.

  

Description

   Page No.
23.1    Consent of Morris, Davis & Chan LLP, Independent Registered Public Accounting Firm.    13

 

 

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