Company Name: Bank of America Corp
Public Availability Date: March 8, 2004Document Sections:
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
STAFF REPLY LETTER
STAFF REPLY LETTER [INQUIRY LETTER]
January 27, 2004 BY OVERNIGHT 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 Virginia M. Brown
Ladies and Gentlemen: Bank of America Corporation (the "Corporation") received a proposal on October
24, 2003 (the "Proposal") from Virginia M. Brown (the "Proponent"), for
inclusion in the proxy materials for the Corporation's 2004 Annual Meeting of
Stockholders (the "2004 Annual Meeting"). The Proposal is attached hereto as
Exhibit A. The Corporation hereby requests 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 or about 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 those materials 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 requests that the Corporation "refrain from making direct
charitable contributions," but it particularly targets contributions to Planned
Parenthood and similar organizations. REASON FOR EXCLUSION OF PROPOSAL
The Corporation believes that the Proposal may properly be omitted from the
Corporation's 2003 Annual Meeting proxy materials pursuant to Rule 14a-8(i)(7)
because it deals with a matter relating to the Corporation's ordinary business
operations. The Proposal requests that the Corporation "refrain from making direct
charitable contributions." Although the Proposal appears neutral on its face,
its supporting statement makes clear that the proposed ban on charitable
contributions is really directed toward a particular kind of charitable
contribution, namely, abortion-related organizations. This is further supported
by this particular Proponent's history in submitting abortion-related proposals.
Historically, the Division has found that facially neutral proposals that were
in effect directed toward specific kinds of charitable giving were excluded
pursuant to Rule 14a-8(i)(7) (and its predecessor, Rule 14a-8(c)(7)) as relating
to ordinary business. In Bank of America Corporation (January 24, 2003, attached as Exhibit B), this
same proponent submitted an almost verbatim proposal that was neutral on its
face, yet actually was directed toward a particular kind of charitable
contribution, namely, abortion-related organizations including Planned
Parenthood. In that letter, the Proponent's submission made numerous references
to antiabortion organizations. The Division concurred that the proposal,
although neutral on its face, could be excluded under Rule 14a-8(i)(7) since it
related to the Corporation's "ordinary business operations (i.e., charitable
contributions directed to specific types of organizations)."
This year, the Proponent has attempted to once again circumvent Rule 14a-8(i)(7)
by submitting a facially neutral proposal. However, once again, it appears that
the Proponent is directing her aim at a particular kind of charitable
contribution, namely, abortion-related organizations including Planned
Parenthood. The supporting statement repeatedly refers to the abortion catch
word "choice." In fact, the Proponent herself states the following in her
supporting statement, "abortion rights advocates often use the word choice,
without mentioning what the choice is all about, i.e., abortion." (emphasis
added). The Proponent equates "choice" directly with the word abortion and uses
the words "choice" or "abortion" 12 times, as well as the phrase "destruction of
human embryos" in the supporting statement. Additionally, the supporting
statement asserts that the Corporation is "forcing thousands of people to
support causes they may disagree with on a most profound level." The Proponent
supports that statement with anti-abortion rhetoric aimed at abortion-related
organizations, including Planned Parenthood. Furthermore, the supporting
statement asserts the following:
Today there are a number of prominent charities advocating for abortion and,
in at least one case, Planned Parenthood, actually performing abortions; and
Other charities, often times involved in research for cures of diseases, may
advocate the destruction of human embryos for research purposes.
The Proponent's supporting statement makes clear the Proponent's true
intentionto force the Corporation to eliminate contributions to
abortion-related organizations, including Planned Parenthood. On the whole, it
is clear that the Proponent is concerned not about charitable contributions
generally, but rather only those contributions to organizations that are
disfavored by the Proponent. The true goal is the elimination of charitable
contributions to groups involved in abortion and other related activities and
Planned Parenthood, in particular. This fact is bolstered by the Proponent's
prior submissions to the Corporation. Given the underlying intent of the Proposal, the Corporation believes that the
Proponent's objective is to target specific types of charitable contributions.
Accordingly, the Proposal falls within the scope of the no-action letters issued
by the Division that concur with the exclusion of proposals, pursuant to Rule
14a-8(i)(7) (or its predecessor, Rule 14a-8(c)(7)), that seek to prohibit
charitable contributions to specific types of organizations. See, e.g., Bank of
America Corporation (January 24, 2003); Lucent Technologies (October 3, 2002)
(facially neutral proposal to refrain from making charitable contributions to
organizations that violate their industries' code of ethics); American Home
Products Corporation (March 4, 2002) (facially neutral proposal that the company
form a committee to study the impact of charitable contributions on the business
of the company); Schering-Plough Corporation (March 4, 2002) (facially neutral
proposal that the company form a committee to study the impact of charitable
contributions on the business of the company); The Walt Disney Company (November
10, 1997) (facially neutral proposal that the company refrain from making any
charitable contributions); and Colgate-Palmolive Company (February 10, 1997)
(proposal requesting that the company make no charitable contributions to
organizations that perform abortions). In American Home Products, a facially neutral proposal requested that the board
"form a committee to study the impact [that] charitable contributions have on
the business of the company." The Division concurred that, notwithstanding the
facially neutral language of the Proposal, it was directed toward charitable
contributions to a specific type of organization (abortion-related
organizations) and could, therefore, be excluded under Rule 14a-8(i)(7) because
it related to the company's ordinary business operations. Similar to the
Proposal, the preamble to the American Home Products proposal included, among
others, the following statements:
"Whereas, some charitable groups are involved in controversial activities like
abortion[;]"
"Whereas, Planned Parenthood is the (sic) charitable organization and the
single largest provider of abortions in the United States[;]" and
"Whereas, our company or its affiliated foundation, (sic) has given money to
Planned Parenthood and other charities." The proposal in American Home Products, using the same tactic employed by the
Proponent, was an attempt to veil a proposal aimed at a specific type of
charitable contribution with a facially neutral proposal. Finding this proposal
to be related to "charitable contributions directed to specific types of
organizations," the Division concurred that it could be omitted from the
company's proxy materials in reliance on Rule 14a-8(i)(7). In reaching this
decision, the Division went beyond the face of the proposal in order to
recognize the proponent's and the proposal's true objective.
In Schering-Plough, a facially neutral proposal requested that the company "form
a committee to study the impact [that] charitable contributions have on the
business of the company and its share value." The company argued that the
proposal, along with its supporting statement, were "clearly designed to involve
the Company in the issue of abortion." The Division concurred that the proposal
could be omitted from the company's proxy materials in reliance on Rule
14a-8(i)(7) because the proposal related to the company's ordinary business
operations (i.e., charitable contributions directed to specific types of
organizations). In Walt Disney, a facially neutral proposal requested that the
company "refrain from making any charitable contributions." However, when read
in combination with the proposal's supporting statement, it was clear that the
proposal was directed at contributions to organizations advocating homosexual
causes. Looking behind the face of the proposal in order to recognize the
proponent's and the proposal's true objective, as was done in American Home
Products and Schering-Plough, the Division concurred that the proposal could be
omitted from the company's proxy materials in reliance on Rule 14a-8(i)(7)
because the proposal related to the Company's ordinary business operations
(i.e., charitable contributions directed to specific types of organizations).
As the American Home Products, Schering-Plough and Walt Disney no-action letters
evidence, the Division has historically looked beyond a facially neutral
shareholder proposal in order to determine whether the proposal is actually
directed toward contributions to specific types of charitable organizations. In
each of these no-action letters, facially neutral proposals were found to be
directed toward specific kinds of charitable giving and were therefore excluded
pursuant to Rule 14a-8(i)(7) (or its predecessor, Rule 14a-8(c)(7)) as relating
to ordinary business. The Corporation believes that the facially neutral
Proposal is clearly directed to specific types of charitable contributions,
namely abortion-related organizations, including Planned Parenthood, just as the
facially neutral proposals in letters cited above were actually directed toward
particular kinds of charitable contributions. CONCLUSION
On the basis of the foregoing, the Corporation respectfully requests 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 704.386.9036.
Please acknowledge receipt of this letter by stamping and returning the enclosed
receipt copy of this letter. Thank you for your prompt attention to this matter.
Very truly yours, /s/
Jacqueline Jarvis Jones
Assistant General Counsel cc: Virginia M. Brown [INQUIRY LETTER]
NOV 20 2002 Ms. Rachel R. Cummings
Corporate Secretary
Bank of America Corporation
Bank of America Corporate Center
Charlotte North Carolina, 28255 Dear Mrs. Cummings:
I own 302 shares of Bank of America Corporation. I have owned the shares for
over one year and intend to own them through the time of the next annual
meeting. At that meeting I will present the following proposal:
Whereas, charitable contributions should serve to enhance shareholder value.
Whereas, the company has given money to groups involved in abortion and other
activities. Whereas, our company is dependent on people to buy our products and services.
Whereas, our company respects diverse religious and cultural beliefs. It should
try not to offend these beliefs wherever possible. Whereas, our company is being boycotted by Life Decisions International and
mutual funds like the Timothy Plan and the Ave Maria Catholic Values Fund
because of our contributions to certain groups. Resolved: The shareholders request the company to refrain from making charitable
contributions. If the company wishes, it could send a note to shareholders with
each dividend check suggesting the shareholder contribute to their favorite
charity. The shareholder could be encouraged to inform the charity that a
portion of the contribution is the result to the hard work of the men and women
of Bank of America Corporation. Supporting statement: Shareholder money is entrusted to the Board of Directors
to be invested in a prudent manner for the benefit of the shareholders. Members
of the Board have a fiduciary responsibility to maximize shareholder value.
People did not invest in this company so it could be given to someone else's
favorite charity. In fact, some of the money has gone to Planned Parenthood, a
group that was responsible for almost two hundred thousand abortions in the
United States last year. How such contributions contribute to shareholder value
would surely be difficult to quantify. In contrast, the subsequent boycotts
caused by these contributions could hardly be considered beneficial.
Sincerely, /s/
Virginia M. Brown [INQUIRY LETTER]
January 24, 2003 Jacqueline Jarvis Jones
Assistant General Counsel
Bank of America Corporation
Legal Department
NC1-002-29-01
101 South Tryon St.
Charlotte, NC 28255 RE: Bank of America Corporation
Incoming letter dated December 20, 2002 Dear Ms. Jones:
This is in response to your letter dated December 20, 2002 concerning the
shareholder proposal submitted to Bank of America by Virginia M. Brown. Our
response is attached to the enclosed photocopy of your correspondence. By doing
this, we avoid having to recite or summarize the facts set forth in the
correspondence. Copies of all of the correspondence also will be provided to the
proponent. In connection with this matter, your attention is directed to the enclosure,
which sets forth a brief discussion of the Division's informal procedures
regarding shareholder proposals. Sincerely,
/s/ Martin P. Dunn
Deputy Director Enclosures cc: Virginia M. Brown
581 Oregon Ave.
Port Allen, LA 70767 [INQUIRY LETTER]
December 20, 2002 BY OVERNIGHT 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 Virginia M. Brown
Ladies and Gentlemen: Bank of America Corporation (the "Corporation") received a proposal on November
20, 2002 (the "Proposal") from Virginia M. Brown (the "Proponent"), for
inclusion in the proxy materials for the Corporation's 2003 Annual Meeting of
Stockholders (the "2003 Annual Meeting"). The Proposal is attached hereto as
Exhibit A. The Corporation hereby requests 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
2003 Annual Meeting for the reasons set forth herein. GENERAL
The 2003 Annual Meeting is scheduled to be held on April 30, 2003. The
Corporation intends to file its definitive proxy materials with the Securities
and Exchange Commission (the "Commission") on or about March 24, 2003 and to
commence mailing those materials 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 2003 Annual Meeting. SUMMARY OF PROPOSAL
The Proposal requests that the Corporation "refrain from making charitable
contributions," but it particularly targets contributions to Planned Parenthood
and organizations that support abortions. REASON FOR EXCLUSION OF PROPOSAL
The Corporation believes that the Proposal may properly be omitted from the
Corporation's 2003 Annual Meeting proxy materials pursuant to Rule 14a-8(i)(7)
because it deals with a matter relating to the Corporation's ordinary business
operations. The Proposal requests that the Corporation "refrain from making charitable
contributions." Although the Proposal appears facially neutral, its preamble and
supporting statement make clear that the proposed ban on charitable
contributions is actually directed toward a particular kind of charitable
contribution, namely, contributions to Planned Parenthood and organizations that
support abortions. Historically, the Division has found that facially neutral
proposals that were in effect directed toward specific kinds of charitable
giving were excludable pursuant to Rule 14a-8(i)(7) (and its predecessor, Rule
14a-8(c)(7)) as relating to ordinary business. Statements in the preamble and supporting statement include the following:
"Whereas, the company has given money to groups involved in abortion ...;"
"Whereas, our company is being boycotted by Life Decisions International and
mutual funds like Timothy Plan and the Ave Maria Catholic Values Fund ...;" and
"In fact, some of the money has gone to Planned Parenthood, a group that was
responsible for almost two hundred thousand abortions in the United States last
year." The mission statements of the "boycotting" groups cited in the Proposal's
preamble are indicative of the specific kind of charitable contributions that
the Proponent desires to eliminate. Life Decisions International is an organization that, according to its website,
"brings together many of North America's leading experts for its primary mission
of challenging the agenda of Planned Parenthood worldwide." The organization
seeks to accomplish this, at least in part, by "refusing to do business with
corporations that fund its (Planned Parenthood's) deadly agenda."
The Timothy Plan, according to its website, is a mutual fund that considers
itself to be "America's first pro-life, pro-family, biblically-based mutual fund
group." The fund seeks to serve those who are "concerned with the moral issues
(abortion, pornography, anti-family entertainment, non-married lifestyles,
alcohol, tobacco and gambling) that are destroying children and families ..."
The Ave Maria Catholic Values Fund, according to its website, "is an equity
mutual fund designed specifically for investors who are morally responsible,
pro-life Catholics." The website passages referenced above are attached hereto as Exhibit B. The
Proponent's references to these groups, as well as other statements in the
preamble and supporting statement, make clear the Proponent's true intentionto
force the Corporation to eliminate contributions to Planned Parenthood and
organizations that support abortions. On the whole, it is clear that the
Proponent is concerned not about charitable contributions generally, but rather
only those contributions to organizations that are disfavored by the Proponent.
The true goal is the elimination of charitable contributions to "groups involved
in abortion and other related activities" and, in particular, Planned
Parenthood. Given the true intent of the Proposal, the Corporation believes that the
Proponent's objective is to target specific types of charitable contributions.
Accordingly, the Proposal falls within the scope of the no-action letters issued
by the Division that concur with the exclusion of proposals, pursuant to Rule
14a-8(i)(7) (or its predecessor, Rule 14a-8(c)(7)), that seek to prohibit
charitable contributions to specific types of organizations. See, e.g., Lucent
Technologies (October 3, 2002) (facially neutral proposal to refrain from making
charitable contributions to organizations that violate their industries' code of
ethics); American Home Products Corporation (March 4, 2002) (facially neutral
proposal that the company form a committee to study the impact of charitable
contributions on the business of the company); Schering-Plough Corporation
(March 4, 2002) (facially neutral proposal that the company form a committee to
study the impact of charitable contributions on the business of the company);
The Walt Disney Company (November 10, 1997) (facially neutral proposal that the
company refrain from making any charitable contributions); and Colgate-Palmolive
Company (February 10, 1997) (proposal requesting that the company make no
charitable contributions to organizations that perform abortions).
In American Home Products, a facially neutral proposal requested that the board
"form a committee to study the impact [that] charitable contributions have on
the business of the company." The Division concurred that, notwithstanding the
facially neutral language of the Proposal, it was directed toward charitable
contributions to a specific type of organization (abortion related
organizations) and could, therefore, be excluded under Rule 14a-8(i)(7) because
it related to the company's ordinary business operations. Similar to the
Proposal, the preamble to the American Home Products proposal included, among
others, the following statements:
"Whereas, some charitable groups are involved in controversial activities like
abortion[;]"
"Whereas, Planned Parenthood is the (sic) charitable organization and the
single largest provider of abortions in the United States[;]" and
"Whereas, our company or its affiliated foundation, (sic) has given money to
Planned Parenthood and other charities." The proposal in American Home Products, using the same tactic employed by the
Proponent, was an attempt to veil a proposal aimed at a specific type of
charitable contribution with a facially neutral proposal. Finding this proposal
to be related to "charitable contributions directed to specific types of
organizations," the Division concurred that it could be omitted from the
company's proxy materials in reliance on Rule 14a-8(i)(7). In reaching this
decision, the Division went beyond the face of the proposal in order to
recognize the proponent's and the proposal's true objective.
In Schering-Plough, a facially neutral proposal requested that the company "form
a committee to study the impact [that] charitable contributions have on the
business of the company and its share value." The company argued that the
proposal, along with its supporting statement, were "clearly designed to involve
the [c]ompany in the issue of abortion." The Division concurred that the
proposal could be omitted from the company's proxy materials in reliance on Rule
14a-8(i)(7) because the proposal related to the company's ordinary business
operations (i.e., charitable contributions directed to specific types of
organizations). In Walt Disney, a facially neutral proposal requested that the
company "refrain from making any charitable contributions." However, when read
in combination with the proposal's supporting statement, it was clear that the
proposal was directed at contributions to organizations advocating homosexual
causes. Looking behind the face of the proposal in order to recognize the
proponent's and the proposal's true objective, as was done in American Home
Products and Schering-Plough, the Division concurred that the proposal could be
omitted from the company's proxy materials in reliance on Rule 14a-8(i)(7)
because the proposal related to the Company's ordinary business operations
(i.e., charitable contributions directed to specific types of organizations).
As the American Home Products, Schering-Plough and Walt Disney no-action letters
evidence, the Division has historically looked beyond a facially neutral
shareholder proposal in order to determine whether the proposal is actually
directed toward contributions to specific types of charitable organizations. In
each of these no-action letters, facially neutral proposals were found to be
directed toward specific kinds of charitable giving and, therefore, were
excluded pursuant to Rule 14a-8(i)(7) (or its predecessor, Rule 14a-8(c)(7)) as
relating to ordinary business. The Corporation believes that the facially
neutral Proposal is clearly directed to specific types of charitable
contributions, namely those to Planned Parenthood and organizations that support
abortions, just as the facially neutral proposals in letters cited above were
actually directed toward particular kinds of charitable contributions.
CONCLUSION On the basis of the foregoing, the Corporation respectfully requests the
concurrence of the Division that the Proposal may be excluded from the
Corporation's proxy materials for the 2003 Annual Meeting. Based on the
Corporation's timetable for the 2003 Annual Meeting, a response from the
Division by January 24, 2003 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 704.386.9036.
Please acknowledge receipt of this letter by stamping and returning the enclosed
receipt copy of this letter. Thank you for your prompt attention to this matter.
Very truly yours, /s/
Jacqueline Jarvis Jones
Assistant General Counsel cc: Virginia M. Brown
[STAFF REPLY LETTER]
January 24, 2003 Response of the Office of Chief Counsel Division of Corporation Finance
Re: Bank of America Corporation
Incoming letter dated December 20, 2002 The proposal requests that the company refrain from making charitable
contributions. There appears to be some basis for your view that Bank of America may exclude
the proposal from its proxy materials under rule 14a-8(i)(7), as relating to its
ordinary business operations (i.e., charitable contributions directed to
specific types of organizations). 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)(7). Sincerely,
/s/ Jennifer Bowes
Attorney-Advisor
[STAFF REPLY LETTER]
March 8, 2004 Response of the Office of Chief Counsel Division of Corporation Finance
Re: Bank of America Corporation
Incoming letter dated January 27, 2004 The proposal requests that the company refrain from making direct charitable
contributions. We are unable to concur in your view that Bank of America may exclude the
proposal under rule 14a-8(i)(7). Accordingly, we do not believe that Bank of
America may omit the proposal from its proxy materials in reliance on rule
14a-8(i)(7). Sincerely, /s/
Daniel Greenspan
Attorney-Advisor
|
