Company Name: Bank of America Corp.
Public Availability Date: March 10, 2004

Document Sections:

INQUIRY LETTER
APPENDIX
STAFF REPLY LETTER

[INQUIRY LETTER]

January 30, 2004

BY HAND DELIVERY

Securities and Exchange Commission
Office of Chief Counsel
Division of Corporation Finance
450 Fifth Street, N.W.
Washington, DC 20549

Re: Stockholder Proposal Submitted by Omar Bouhadiba

Ladies and Gentlemen:

Bank of America Corporation (the "Corporation") received three proposals via e-mail on November 17, 2003 from Omar Bouhadiba (the "Proponent") for inclusion in the proxy materials for the Corporation's 2004 Annual Meeting of Stockholders (the "2004 Annual Meeting"). By letter dated November 24, 2003, the Corporation requested that the Proponent reduced the number of proposals submitted to one. On November 29, 2003, the proponent selected one of his original proposals (the "Proposal") for inclusion in the proxy materials for the 2004 Annual Meeting. The Proposal is attached hereto as Exhibit A. As counsel to the Corporation, we hereby request confirmation that the staff of the Division of Corporation Finance (the "Division") will not recommend enforcement action if the Corporation omits the Proposal from its proxy materials for the 2004 Annual Meeting for the reasons set forth herein.

GENERAL

The 2004 Annual Meeting is scheduled to be held on May 26, 2004. The Corporation intends to file its definitive proxy materials with the Securities and Exchange Commission (the "Commission") on or about April 19, 2004 and to commence mailing to its stockholders on or about such date.

Pursuant to Rule 14a-8(j) promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), enclosed are:

1. Six copies of this letter, which includes an explanation of why the Corporation believes that it may exclude the Proposal; and

2. Six copies of the Proposal.

A copy of this letter is also being sent to the Proponent as notice of the Corporation's intent to omit the Proposal from the Corporation's proxy materials for the 2004 Annual Meeting.

SUMMARY OF PROPOSAL

The Proposal mandates that "Bank of America management has no mandate going forward to pursue any merger discussions with any major institution." 1

REASONS FOR EXCLUSION OF PROPOSAL

The Corporation believes that the Proposal may be properly omitted from the proxy materials for the 2004 Annual Meeting pursuant to Rules 14a-8(i)(1), (i)(2), (i)(3) and (i)(7). The Proposal may be excluded pursuant to Rule 14a-8(i)(1) and (i)(2) because it deals with an improper subject for stockholder action under Delaware law and if implemented, it would cause the Corporation to violate Delaware law. The Proposal may be excluded pursuant to Rule 14a-8(i)(3) because it is vague and indefinite, in violation of Rules 14a-9 and 14a-5. Finally, the Proposal may be excluded pursuant to Rule 14a-8(i)(7) because it deals with a matter relating to the ordinary business of the Corporation.

1. The Corporation may omit the Proposal pursuant to Rules 14a-8(i)(1) and (i)(2) because the Proposal is not a proper subject for action by stockholders under Delaware law and, if implemented, it would cause the Corporation to violate Delaware law.

Rule 14a-8(i)(1) provides that shareholder proposals that are "not a proper subject for action by shareholders under the laws of the jurisdiction of the company's organization" are excludable. Rule 14a-8(i)(2) permits a company to exclude from its proxy materials a "proposal that would, if implemented, cause the company to violate any state, federal or foreign law to which it is subject."

The Corporation believes that the Proposal violates these two rules and may be omitted. Attached hereto as Exhibit B is the opinion of Richards, Layton & Finger, P.A. (the "RLF Opinion"), the Corporation's special Delaware counsel, to the effect that the Proposal is contrary to Delaware law. The RLF Opinion is incorporated herein by reference and supplements each of the arguments discussed below.

Based on the RLF Opinion, the Corporation believes that the Proposal is not a proper subject for stockholder action under Delaware law because the Board of Directors of the Corporation, rather than the Corporation's stockholders voting at the 2004 Annual Meeting, has the non-delegable, statutory and attendant fiduciary obligations under Delaware law to initially approve (or disapprove) any merger involving the Corporation, including a merger with a "major institution." Implementation of the Proposal would violate Delaware law because it would preclude the Board of Directors of the Corporation from taking actions which are within its management responsibilities under Delaware law and which it believes are in the best interests of the Corporation's stockholders.

A. Stockholders cannot act on a merger without antecedent board action.

Section 251 of the General Corporation Law of Delaware ("DGCL") confers the power to initially approve (or disapprove) a merger exclusively on a corporation's board of directors. Thus, a corporation's stockholders cannot act with respect to a merger under Section 251 without antecedent board action. The various subsections of Section 251 confirm this result. Subsection 251(b) provides that "the board of directors of each corporation which desires to merge or consolidate shall adopt a resolution approving an agreement of merger or consolidation and declaring its advisability." 8 Del. C. 251(b). Subsection 251(c) then provides that "the agreement required by subsection (b) of this section shall be submitted to the stockholders of each constituent corporation at an annual or special meeting for the purpose of acting on the agreement." 8 Del. C. 251(c) (emphasis added). Since subsection 251(c) of the DGCL also mandates that a merger agreement "shall then be filed" and become effective once adopted by the corporation's stockholders, the board action referred to in Subsection 251(b) necessarily must already have occurred. Id.

The Delaware courts and commentators also confirm that the initial power to approve (or disapprove) a merger is a function specifically assigned to directors by statute and, therefore, antecedent board action is a prerequisite to stockholder action on a merger under Section 251 of the DGCL. In Tansey v. Trade Show New Networks, Inc., C.A. No. 18796 (Del. Ch. Nov. 27, 2001), the Delaware Court of Chancery addressed the validity of a merger that had not been approved by the board of directors of the defendant corporation prior to being submitted to the corporation's stockholders for adoption. The Court noted:

8 Del. C. 251 requires three different actions to occur in a specific sequence to approve and implement a merger. First, the boards of the merging corporations must approve a merger agreement. Second, the agreement so adopted shall be executed and acknowledged in accordance with 103 of [the DGCL]. Third, the executed and acknowledged agreement must be approved by the stockholders of the merging corporations at a stockholder meeting....

Slip op. at 19 (internal citations and quotations omitted). See also Unitrin, Inc. v. Am. Gen. Corp., 651 A.2d 1361, 1142 n.16 (Del. 1995); ("[A] statutory prerequisite (8 Del. C. 251(b)) to a merger transaction is approval by the board before any stockholder action."); 1 R. Franklin Balotti & Jesse A. Finkelstein, The Delaware Law of Corporations & Business Organizations, 9.12, at 9-18 (3d ed. 2002 Supp.) (hereinafter, "Balotti & Finkelstein") ("Section 251(b) now parallels the requirement in Section 242, requiring that a board deem a proposed amendment to the certificate of incorporation to be advisable before it can be submitted for a vote by stockholders.") (emphasis added).

B. The board may not delegate a function assigned to it by statute.

The Delaware courts have repeatedly held that a board may not delegate to a corporation's stockholders a function specifically assigned to directors by statute and, in particular, the power to initially approve (or disapprove) a merger. See, e.g., Krasner v. Moffett, 826 A.2d 277, 280 (Del. 2003) ("As required by statutory law, the full boards of directors of MOXY and FSC retained the authority to approve any merger agreement.") (emphasis added); Paramount Communications, Inc. v. Time, Inc., 571 A.2d 1140, 1142-43 n.2 (Del. 1989) ("In the specific context of a proposed merger of domestic corporations, a director has a duty under 8 Del. C. 251(b), along with his fellow directors, to act in an informed and deliberate manner in determining whether to approve an agreement of merger before submitting the proposal to the stockholders. Certainly in the merger context, a director may not abdicate that duty by leaving to the shareholders alone the decision to approve or disapprove the agreement.") (emphasis added). Initial approval (or disapproval) of a merger is a function specifically conferred on the board of directors of a Delaware corporation by statutei.e., by Section 251 of the General Corporation Law. Accordingly, absent any provision of the certificate of incorporation to the contrary, a board of directors of a Delaware corporation may not delegate to its stockholders the unadvised decision to approve (or disapprove) a merger as required by the Proposal.

C. Delegation of a function conferred by statute is a breach of fiduciary duty.

Delaware courts have confirmed that a board's delegation to a corporation's stockholders of the unadvised decision to approve (or disapprove) a merger states a claim for breach of fiduciary duty under Delaware law. In McMullin v. Beran, 765 A.2d 910 (Del. 2000), the Delaware Supreme Court recently found that a minority stockholder stated a claim that the board of directors of ARCO Chemical Company ("Chemical") breached their statutory and attendant fiduciary duties under Section 251(b) of the DGCL by improperly delegating the negotiations of the sale of Chemical to Chemical's majority stockholder (Atlantic Richfield Company, "ARCO") and by subsequently making an uninformed decision to approve and recommend the merger. Under McMullin, the court noted that a board of directors may not "leave to the shareholders alone the decision to approve or disapprove a [merger] agreement." Id. See also Omnicare, Inc. v. NCS Healthcare, Inc., 818 A.2d 914, 937 (Del. 2003) (finding a board of directors breached its fiduciary duties "by leaving it to the stockholders alone to approve or disapprove the merger agreement" after agreeing to lock-ups that made the outcome of the stockholder vote a forgone conclusion). Thus, an impermissible delegation by a board of directors of a function reserved by statute to its discretion states a claim for breach of fiduciary duty under Delaware law.

The Division has consistently permitted the exclusion of a shareholder proposal if such proposal would cause the board of directors of a company to breach its fiduciary duties under state law. See The Gillette Company (March 10, 2003) and Toys "R" Us, Inc. (April 9, 2002). As noted above and on the RLF Opinion, the business and affairs of every corporation organized in Delaware must be managed by or under the direction of a board of directors. See generally Paramount Communications, Inc. v. Time, Inc., 571 A.2d 1140, 1150 (Del. 1990) ("Delaware law imposes on a board of directors the duty to manage the business and affairs of the corporation."); Smith v. Van Gorkom, 488 A.2d 858, 872 (Del. 1995) ("Under Delaware law, the business judgment rule is the offspring of the fundamental principle, codified in [Section] 141(a), that the business and affairs of a Delaware corporation are managed by or under its board of directors."); Unocal Corp. v Mesa Petroleum Co., 493 A.2d 946, 953 (Del. 1985) ("The board has a large reservoir of authority upon which to draw. Its duties and responsibilities proceed from the inherent powers conferred by 8 Del. C. 141(a), respecting management of the corporation's `business and affairs.'"); Pogostin v. Rice, 480 A.2d. 619, 624 (Del. 1984) ("The bedrock of the General Corporation Law of the State of Delaware is the rule that the business and affairs of a corporation are managed by and under the direction of its board.").

Under Delaware law, the board of the Corporation must be able to consider and discuss potential significant transactions, including mergers. Delaware courts have consistently protected a board's authority to manage the affairs of a corporation and have invalidated efforts by stockholders to encroach upon this authority. See, e.g., Abercrombie v. Davies, 123 A.2d 893 (Del. Ch. 1956) (invalidating agreement between certain board members and stockholders that irrevocably bound directors to vote in a predetermined manner), rev'd on other grounds, 130 A.2d 338 (Del 1957). As the Chancery Court stated in Abercrombie,

[Delaware] corporation law does not permit actions or agreements by stockholders which would take all power from the board to handle matters of substantial management policy ... So long as the corporation form is used as presently provided by our statutes this Court cannot give legal sanction to agreements which have the effect of removing from directors in a very substantial way their duty to use their own best judgment on management matters.

Abercrombie, 123 A.2d at 608, 611; see also Maldonado v. Flynn, 413 A.2d 1251, 1255 (Del. Ch. 1980), rev'd on other grounds sub nom. Zapata Corp. v. Maldonado, 430 A.2d 779 (Del. 1981) ("[Plaintiff's] argument in support of its motion is based on the well settled and salutary doctrine of corporate law that the board of directors of a corporation, as the repository of the power of corporate governance, is empowered to make the business decisions of the corporation. The directors, not the stockholders, are the managers of the business affairs of the corporation.").

The Proposal would tie the directors' hands in managing the Corporation in accordance with their fiduciary duties. The Proposal removes from directors "ultimate responsibility" for managing the corporation and restricts the board's power in an area of "fundamental importance to the shareholders - negotiating a possible sale of the corporation." See Paramount Communications, Inc. v. QVC Network, 637 A.2d 34,51 (Del 1994) (invalidating a "no-shop" provision in the Paramount-QVC merger agreement, stating, "[t]o the extent that a contract, or a provision thereof, purports to require the board to act or not to act in such a fashion as to limit the exercise of fiduciary duties, it is invalid and unenforceable.").

Under Delaware law, in performing their statutory obligation to manage a corporation, directors owe a corporation's stockholders common law fiduciary duty of care. The duty of care requires that a board's decision be based upon all of the material information reasonably available to the board with respect to the contemplated transaction. Directors have an affirmative duty to protect the financial interests of the corporation and its stockholders and must critically assess information relevant to the pending decision. Once an indication of interest or other reasonable merger proposal is presented to the Corporation, the board must make a decision regarding the opportunity. In making such decision, the board must exercise its business judgment in deciding how best to effect the transaction. In that regard, the board must be able to consider and discuss a proposed transaction with management and the counter-party through management.

D. The Proposal is effectively a no-talk agreement and is invalid under Delaware Law.

A board's ability to enter into merger discussions is a fundamental matter of management policy that cannot be substantially limited under Delaware law. The Delaware courts have indicated that agreements that unduly restrict a board's ability to talk to the proponent of an acquisition proposal are an invalid restriction on a board's obligation to exercise its duty of care under Delaware law. In Phelps Dodge v. Cyprus Amax Minerals Co., C.A. No. 17398 (Del. Ch. Sept. 27, 1999), the Delaware Court of Chancery considered the validity of a "no-talk" clause in a merger agreement between Cyprus Amax Minerals Company ("Cyprus") and ASARCO Incorporated ("Asarco") that provided no circumstances under which the board of directors of the target corporation (Cyprus) could enter into discussions or negotiations with a competing bidder. Phelps Dodge, a prospective competitor, sought to preliminarily enjoin the merger on the basis that the Cyprus directors contracted away their duty of care by adopting the no-talk provision. While the Court ultimately denied the injunction in the absence of a finding of irreparable harm, the Court first found that Phelps Dodge had a reasonable likelihood of success on the merits of its case and stated:

No-talk provisions ... are troubling precisely because they prevent a board from meeting its duty to make an informed judgment with respect to even considering whether to negotiate with a third party. Now, here, despite the presence of publicly exchanged information, the no-talk provision has apparently prevented either Cyprus or Asarco from engaging in nonpublic dialogue with Phelps. Now, this should not be understood to suggest that Cyprus or Asarco were legally required to or even should have negotiated, privately or otherwise, with Phelps Dodge. It is to say, rather, that they simply should not have completely foreclosed the opportunity to do so, as this is the legal equivalent of willful blindness, a blindness that may constitute a breach of a board's duty of care; that is, the duty to take care to be informed of all material information reasonably available.

Tr. at 99-100; see also Ace Ltd. v. Capital Re Corp., 747 A.2d 95, 107 (Del. Ch. 1999) (If a no-talk provision in a merger agreement precludes a board from "discussing another offer unless it receives an opinion of counsel stating that such discussions were required," it comes "close to self-disablement by the board."); Paul S. Bird & Andrew L. Bab, Anatomy of the No-Shop Provision, 3 Insights 3 (Aug. 1998) ("[I]f a no-shop provision prevents a target board from even considering the proposal, a court may inquire whether the board has breached its duty of care by reaching an important business decisioneffectively rejecting an offerbefore fully informing itself of the relevant facts."); see also Richard D. Katcher & Andrew J. Nussbaum, Stock-for-Stock Business Combinations, 877 PLI/Corp. 131, 171 (1994) ("A board considering [strict no-shop clauses and other highly restrictive measures] must question the propriety ... of seeking to restrict as totally as possible its ability to learn of and consider third party offers...."). Thus, a board of directors has a fiduciary duty to refrain from completely foreclosing the opportunity to consider acquisition proposals.

As indicated by Phelps Dodge and its progeny, an agreement that precludes a board of directors from making an informed decision in the exercise of its fiduciary duties on whether to consider an acquisition violates Delaware law. Under Delaware law, the Board of Directors of the Corporation could not completely foreclose its ability to consider acquisitions without potentially breaching its fiduciary duties under Delaware law. The Proposal is no different from the no-talk provision found to be likely invalid in Phelps Dodge. The Proposal would completely foreclose the ability of the Board of Directors of the Corporation to "engage in any merger discussions."

As the Delaware Supreme Court recently stated, "to the extent that a contract, or a provision thereof, purports to require a board to act or not act in such a fashion as to limit the exercise of fiduciary duties, it is invalid and unenforceable." Omnicare, 818 A.2d at 936; Quickturn Design Sys v. Shapiro, 721 A.2d 1281, 1292 (Del 1998) (same); Paramount Communications Inc. v. QVC Network Inc., 637 A.2d 34, 51 (Del. 1993) (same); Ace Ltd. v. Capital Re Corp., 747 A.2d at 105 (same); accord Restatement (Second) of Contracts 193 (1981) ("A promise by a fiduciary to violate his fiduciary duty or a promise that tends to induce such a violation is unenforceable on grounds of public policy."). Any commitment purporting to completely eliminate the ability of the Board of Directors of the Corporation to "talk to" a prospective merger partner would significantly limit the ability of the Board of Directors of the Corporation (and the ability of all future boards of directors of the Corporation) to fulfill their fiduciary duties to the Corporation and its stockholders and, therefore, is invalid under Delaware law.

E. The Proposal mandates board action and thus usurps board authority.

The Proposal mandates action that, under state law, falls within the scope of the powers of the Corporation's board of directors. The Corporation is a Delaware corporation. Section 141(a) of the DGCL states that the "business and affairs of every corporation organized under this chapter shall be managed by or under the direction of a board of directors, except as may be otherwise provided in this chapter or in its certificate of incorporation." Authority to engage in merger discussions has not been provided to stockholders under Delaware law or the Corporation's certificate of incorporation or by-laws.

The Division has consistently permitted the exclusion of shareholder proposals mandating or directing a company's board of directors to take certain action inconsistent with the discretionary authority provided to a board of directors under state law. See Phillips Petroleum Company (March 13, 2002); Ford Motor Co. (March 19, 2001); American National Bankshares, Inc. (February 26, 2001); AMERCO (July 21, 2000). Additionally, the note to Rule 14a-8(i)(1) provides that "[d]epending on the subject matter, some proposals are not considered proper under state law if they would be binding on the company if approved by shareholders...." The Proposal was not drafted as a request of or as a recommendation to the Corporation's board of directors. Thus, the Proposal relates to matters for which only the Corporation's board of directors has the power to review, evaluate and make proper determinations.

* * * * * *

Based upon foregoing and the RLF Opinion, the Corporation believes that the Proposal would substantially limit the ability of the Board of Directors of the Corporation (or any future board of directors of the Corporation to exercise its statutory and attendant fiduciary duties under Delaware law and, therefore, the Proposal is not a proper subject for stockholder action under, and its implementation would violate, Delaware law. Accordingly, the Proposal is excludable under Rules 14a-8(i)(1) and (2).

2. The Corporation may omit the Proposal pursuant to Rule 14a-8(i)(3) because it is vague and indefinite, in violation of Rule 14a-9 and Rule 14a-5.

The Division has recognized that a proposal may be excluded under Rule 14a-8(i)(3) if it is so vague and indefinite that shareholders voting on the proposal would not be able to determine with reasonable certainty exactly what action or measures would be required in the event the proposal was adopted. See Philadelphia Electric Co. (July 30, 1992) and IDACORP, Inc. (January 9, 2001). Rule 14a-8(i)(3) allows the exclusion of a proposal if it or its supporting statement is contrary to any of the Commission's proxy rules and regulations, including Rule 14a-9, which prohibits the making of false or misleading statements in proxy soliciting materials or the omission of any material fact necessary to make statements contained therein not false or misleading and Rule 14a-5, which requires that information in a proxy statement be "clearly presented."

The Proposal is vague and indefinite. It does not include enough clear information for the stockholder's of the Corporation to make an informed decision on the matter being presented. Furthermore, it does not include enough clear information for the Corporation to be able to implement without making assumptions regarding what the Proponent actually had in mind. First, what is intended by the phrase "any merger discussions" in the Proposal? Does this include only business combinations structured as mergers under state law? Would this include an acquisition of another entity for cash or the Corporation's stock (whether or not a stockholder vote is required)? Would this include an acquisition of assets of another entity? Does this cover discussions for the sale or merger of the Corporation where the Corporation is not the surviving entity? Does this cover merger discussions among the Corporation's numerous subsidiaries and third parties? If a third party approaches the Corporation with a proposal, must the Corporation ignore the proposal (assuming such action was legal) in order to comply with the Proposal? Most importantly, would stockholders clearly understand that if a third-party offered a substantial premium to current share value, the Corporation could not discuss the offer and the stockholders would have no opportunity to vote on or participate in the transaction.

Second, what is intended by the phrase "any major institution" in the Proposal? How does the Proponent define "major"? Is the term "major" defined in terms of size, such as assets or revenues, or in name recognition? Does the amount of consideration payable in the transaction determine if the counter-party is "major"? Does Regulation S-X determine whether the institution is "major?" Is "major" measured objectively, or subjectively relative to the Corporation. Would it include only a Fortune 500 Company? An NYSE listed company? There is absolutely no way for stockholders or the Corporation to determine what entity is or is not a "major institution."

The Division, in numerous no-action letters, has permitted the exclusion of shareholder proposals "involving vague and indefinite determinations ... that neither the shareholders voting on the proposal nor the Company would be able to determine with reasonable certainty what measures the Company would take if the proposal was approved." See A.H. Belo Corp. (January 29, 1998.) Such proposals were "inherently so vague and indefinite that neither the shareholders voting on the proposal, nor the Company in implementing the proposal (if adopted), would be able to determine with any reasonable certainty exactly what actions or measures the proposal requires" or "so inherently vague and indefinite that shareholders voting on the proposal would not be able to determine with reasonable certainty what actions the Company would take under the proposal" or "misleading because any action ultimately taken by the Company upon implementation of the proposal could be significantly different from the actions envisioned by shareholders voting on the proposal." See Philadelphia Electric Company (July 30, 1992); NYNEX Corporation (January 12, 1990).

The Corporation's stockholders cannot be asked to guess exactly on what they are voting, and the Corporation and the stockholders could well have significantly different interpretations of the Proposal. The Corporation believes that the Proposal is so inherently vague, ambiguous, indefinite and misleading, that the Proposal may be omitted under Rule 14a-8(i)(3), as both a violation of Rule 14a-9 and Rule 14a-5, in that it is vague and indefinite.

3. The Corporation may omit the Proposal pursuant to Rule 14a-8(i)(7) because it deals with a matter relating to the Corporation's ordinary business operations.

Rule 14a-8(i)(7) permits the omission of a stockholder proposal that deals with a matter relating to the ordinary business of a corporation. The Division has routinely found that proposals relating, at least in part, to non-extraordinary transactions, may properly be viewed as matters of ordinary business and may be excluded under Rule 14a-8(i)(7), even if other parts of the proposal relate to extraordinary transactions. See Archon Corporation (March 10, 2003); Lancer Corporation (March 10, 2003); SunSource Inc. (March 31, 2000); and The Reader's Digest Association, Inc. (August 18, 1998).

As noted above, the Proposal is vague and indefinite. As drafted, the Proposal is so broad that it covers "any merger discussions with any major institution." (emphasis added) The Proposal would cover even the most basic preliminary merger discussions that occur quite often among public companies. These discussions are clearly non-extraordinary and are within the day to day operations of a public company. Furthermore, whether it is intended to or not, the Proposal would cover discussions with institutions that may be deemed "major" to the Proponent, but which are not material or significant under the securities laws, such as Regulation S-X. For example, assume the Corporation wants to acquire a well known entity through a merger transaction in which the entity is merged into a subsidiary of the Corporation. However, even if this transaction was not material to the Corporation, it would be prohibited by the Proposal.

Since the Proposal operates to prohibit ordinary business by prohibiting non-extraordinary transactions, the Corporation believes that the Proposal should be excluded pursuant to Rule 14a-8(i)(7).

CONCLUSION

On the basis of the foregoing, and on behalf of the Corporation, we respectfully request the concurrence of the Division that the Proposal may be excluded from the Corporation's proxy materials for the 2004 Annual Meeting. Based on the Corporation's timetable for the 2004 Annual Meeting, a response from the Division by March 5, 2004 would be of great assistance.

If you have any questions or would like any additional information regarding the foregoing, please do not hesitate to contact the undersigned at 704.378.4718 or Jacqueline Jarvis Jones, Assistant General Counsel of the Corporation, at 704.386.9036.

Please acknowledge receipt of this letter by stamping and returning a copy of this letter to our courier. Thank you for your prompt attention to this matter.

Very truly yours,

/s/

Andrew A. Gerber

cc: Jacqueline Jarvis Jones, Esq.
C. Stephen Bigler, Esq.

cc: Omar Bouhadiba (via e-mail and international mail)
P.O. Box 1250
Dubai
UAE
OmarBo@mashreqbank.com

-----FOOTNOTES-----

¹ Although the Proposal refers to "management," it cannot be implemented without action by the Board of Directors of the Corporation.

[APPENDIX]

From: Omar Bouhadiba, CBG

Sent: Saturday, November 29, 2003 10:31 AM

To: `Jones, Jacqueline J'

Subject: RE: Shareholder Proposal

Is this ok now?

Quote:

It is now a well established fact that big bank mergers are in their vast majority n[text illegible] destroyers of shareholder value. The markets are in no doubt that bank mergers are a losing proposition for shareholders and are prompt to punish institutions that engage in such strategy. It is a fact that the simple announcement of the Fleet Boston plan[text illegible] merger was enough to wipe out 10% of the value of the corporation in one day.

By engaging in merger talks, Bank of America management has displayed a lack of commitment to the share price. The active pursuit of size through acquisition is non accretive and distracts management from the main task of managing for shareholder value.

Proposal:

Bank of America management has no mandate going forward to pursue any merger discussi with any major institution.

[STAFF REPLY LETTER]

March 10, 2004

Response of the Office of Chief Counsel Division of Corporation Finance

Re: Bank of America Corporation Incoming letter dated January 30, 2004

The proposal states that Bank of America management has "no mandate" going forward to pursue "merger discussions" with "any major institution."

There appears to be some basis for your view that Bank of America may exclude the proposal under rule 14a-8(i)(3) as materially vague and indefinite. Accordingly, we will not recommend enforcement action to the Commission if Bank of America omits the proposal from its proxy materials in reliance on rule 14a-8(i)(3). In reaching this position, we have not found it necessary to address the alternative bases for omission upon which Bank of America relies.

Sincerely,

/s/

John Mahon
Attorney-Advisor