Company Name: Bank of America Corp.
Public Availability Date: December 14, 2006
Document Sections:
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
November 20, 2006
BY OVERNIGHT DELIVERYSecurities and Exchange Commission
Office of Chief Counsel
Division of Corporation Finance
100 F. Street, N.E.
Washington, DC 20549
Re: Stockholder Proposal Submitted by Frank Coleman Inman
Ladies and Gentlemen:
Bank of America Corporation (the "Corporation") received a proposal on October
31, 2006 (the "Proposal") from Frank Coleman Inman (the "Proponent"), for
inclusion in the proxy materials for the Corporation's 2007 Annual Meeting of
Stockholders (the "2007 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
2007 Annual Meeting for the reasons set forth herein.
GENERAL
The 2007 Annual Meeting is scheduled to be held on or about April 25, 2007. The
Corporation intends to file its definitive proxy materials with the Securities
and Exchange Commission (the "Commission") on or about March 19, 2007 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 2007 Annual Meeting.
SUMMARY OF PROPOSAL
The Proposal requests that the "board of directors initiate the appropriate
process to amend BAC's governance documents (certificate of incorporation or
bylaws) to provide that annual stockholders meetings take place on a Friday,
Saturday or Monday."
REASONS FOR EXCLUSION OF PROPOSAL
The Corporation believes that the Proposal may be properly omitted from the
proxy materials for the 2007 Annual Meeting pursuant to Rule 14a-8(i)(7) because
it deals with a matter relating to the ordinary business of the Corporation. The
Division has routinely found that proposals dealing with the date of shareholder
meetings, the location of shareholder meetings, and matters concerning the
conduct of annual shareholders meetings relate to ordinary business matters and
accordingly, may be excluded under Rule 14a-8(i)(7). This has been the case,
even when such proposals are framed as charter or bylaw amendments. In Verizon
Communications, Inc. (January 30, 2001) ("Verizon"), a proposal recommended that
the company change the date of its annual meeting to the "first Wednesday in
June each year." In Verizon, the Division took the position that the proposal to
change the date of a company's shareholder meeting was a matter within the scope
of a company's ordinary business and was, therefore, excludable under Rule
14a-8(i)(7). In a substantially similar line of letters, the Division has taken
the view that proposals related to the location of shareholder meetings is also
a matter relating to the conduct of a company's ordinary business operations
and, thus, may be excluded from the company's proxy materials under Rule
14a-8(i)(7). See Raytheon Company (January 19, 2006) (excluding a proposal
relating to the location of the annual meeting); and Bank of America Corporation
(January 10, 2003) (excluding a proposal to rotate the annual meeting to major
cities where the company is located). Furthermore, the Division has also
routinely found that proposals involving the conduct of shareholder meetings
relate to matters of ordinary business and can be excluded under Rule
14a-8(i)(7). See Exxon Mobil Corporation (March 2, 2005) (excluding a proposal
to amend the company's corporate governance guidelines to set aside time for
shareholders to ask questions); The Gillette Company (February 22, 2005)
(excluding a proposal requesting a period of time be set aside so that "all who
wish to speak may do so"); Citigroup Inc. (January 14, 2004) (excluding a
proposal relating to guidelines for speakers at annual meetings); and Edison
International (January 30, 2001) and Commonwealth Energy Corporation (November
15, 2002) (excluding proposals to amend the bylaws with respect to the location
and conduct of shareholder meetings).
Establishing an appropriate day or date for a company's annual meeting involves
an assessment of numerous issues, including among other things, the availability
of the directors and executive officers, appropriate management and staff
resources to support the meeting on such day or date, the availability of
adequate facilities on such day or date at the desired location and the costs
associated with holding the meeting on that day or date at such facilities. The
Corporation's management has a unique and intimate knowledge of the
Corporation's business, and, thus, can make an informed decision as to the
appropriate day or date for the Corporation's annual meeting of stockholders. In
addition, a day or date that is convenient for the Proponent may not be
convenient for the Corporation's shareholders at large. It is impractical for
the Corporation's stockholders to make this decision as they do not, as a group,
have the same knowledge of the Corporation and its stockholders and the
availability of the directors, management and staff, and cannot as readily
access and assess information regarding the feasibility of and costs associated
with holding the meeting on a given day or date. Moreover, to fix a specific day
or date for all future annual meetings of the Corporation's stockholders would
limit the discretion of the Board of Directors and management. Such an advance
determination would eliminate the flexibility needed to fix the day or date of
an annual meeting based upon the particular circumstances in a given year.
The Proposal seeks to establish the days in which stockholder meetings may be
held. Matters relating to the conduct of shareholder meetings, including the
day, date or location, have routinely been found to relate to matters of
ordinary business, and clearly do not raise any significant policy concerns.
Based on the foregoing and consistent with the precedent cited above, the
Corporation believes that the Proposal should be excluded pursuant to Rule
14a-8(i)(7).
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 2007 Annual Meeting. Based on the
Corporation's timetable for the 2007 Annual Meeting, a response from the
Division by February 3, 2007 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/
Kenneth L. Wagner
Associate General Counsel
cc: William J. Mostyn III
Frank Coleman Inman
[INQUIRY LETTER]
October 26, 2006
Bank of America Corporation
Attention: Corporate Secretary
101 South Tryon Street
NC1-002-29-01
Charlotte, North Carolina 28255
Dear Corporate Secretary:
The following is my stockholder's proposal for consideration at the 2007 Annual
Meeting:
Stockholder Proposal Regarding Annual Meeting Day
Resolved: That the shareholders of Bank of America Corporation hereby request
that the board of directors initiate the appropriate process to amend BAC's
governance documents (certificate of incorporation or bylaws) to provide that
annual stockholder meetings take place on a Friday, Saturday, or Monday.
Stockholder's Statement Supporting Item
In the past few years, our typical annual stockholder meeting has been held late
Wednesday morning, a decidedly inconvenient time for most stockholders. With a
Friday, Saturday, or Monday meeting, more working shareholders will be able to
attend, while missing less work and taking less vacation time.
Stockholders who fly to our annual meetings will also likely save money as
Saturday night stay-overs usually mean substantial airline ticket savings. We
are Bank of America, and most of our stockholders are flying distance away.
Avoiding a meeting conflict with a NASCAR weekend will help keep lodging
available and rates more modest.
BAC stockholders' meetings may last a little longer to answer questions from
more shareholders, perhaps unearthing and solving important issues. Our regular
meeting venue has space for a few hundred more stockholders. Chaired by Warren
Buffett, Berkshire Hathaway annual stockholders' meetings (on Saturdays) last
about 6 hours and roughly 24,000 attended in 2006. Perhaps BAC's could last
slightly more than 1 1/2 hours, the most in recent years.
Typically, fewer than 1,000 people attend our annual meetings, despite having
nearly 300,000 stockholders. At recent meetings, stockholders lack refreshments.
More concerning, hired security and BAC personnel physically block typical
stockholders from walking up and meeting directors. Clearly, our annual meetings
have fallen short of excellence in recent years. Top management and directors
should mingle with typical stockholders before and after each annual meeting,
often the norm elsewhere. BAC seems to employ plenty of security and even had
metal detectors recently.
Top management does deliver an outstanding presentation every year and does a
good job overall of answering questions from stockholders. Most importantly,
profits and dividends continue strong growth, which is usually well reflected in
our stock price. BAC associates deserve credit and our thanks for this
remarkable achievement.
Among our many stockholders, we have experts in banking, corporate governance,
economics, and long-term investing. In 2006, we stockholders passed (with 56%) a
positive resolution requiring each director to earn a majority of shares voted;
BAC stock quickly rose $2 per share, creating about $9.2 billion in shareholder
value. A better annual meeting day each year may increase our Bank of America
stock price, via more discussion and future adoption of positive and profitable
ideas for BAC.
The above concludes my stockholder's proposal to be included in the proxy
statement for the 2007 Annual Meeting, which I plan to attend and read this
proposal. As I am submitting this proposal prior to the November 20, 2006 proxy
statement deadline, the favor of a prompt reply is requested, especially since
BAC lost my proposal last year.
Of course, I intend to continually hold at least $2,000 worth of Bank of America
common stock through the 2007 BAC stockholders' meeting, per SEC requirements
for a stockholder's proposal. In fact, I am not planning on selling any of my
29,600 shares.
Sincerely,
/s/
Frank Coleman Inman
[INQUIRY LETTER]
December 4, 2006
BY PRIORITY DELIVERY
Securities and Exchange Commission
Office of Chief Counsel
Division of Corporation Finance
100 F. Street, N.E.
Washington, DC 20549
Re: Stockholder Proposal Submitted to Bank of America by Frank Coleman Inman
Ladies and Gentlemen:
Bank of America Corporation (BAC) received my stockholder proposal (Exhibit A)
for a better annual stockholders' meeting day (any of 156 possibilities per
year), and has chosen to seek this proposal's elimination from shareholder proxy
materials by writing you on November 20, 2006 in a letter from Kenneth Wagner,
Associate General Counsel.
REASONS FOR INCLUSION OF PROPOSAL
The stockholder proposal seeks to address the problem of poor shareholder
attendance (roughly 1/3 of 1% eligible) at Bank of America stockholders'
meetings over the last several years. In recent years, I have asked the Bank of
America leadership several times to consult stockholders via a proxy question
when would be the best (or a better) time for an annual meeting. Despite the
precedence of this by Warren Buffett of Berkshire Hathaway, the Bank of America
leadership has chosen to stick with a mid-week meeting in the Spring, usually
late morning on the last Wednesday in April. The planned Wednesday, April 25,
2007 annual meeting falls in line.
Bank of America has yet to consult most stockholders as to when the annual
shareholders' meeting should occur. This seems to contrast with BAC's letter to
you of 11/20/06 from Mr. Wagner which states at the top of page 3, "... a day or
date that is convenient for the Proponent may not be convenient for the
Corporation's shareholders at large." In recent years, how would BAC know the
current annual meeting policy is convenient and/or effective for shareholders?
Thus, my stockholder proposal offers 156 choices each year to BAC management,
that annual meetings take place on a Friday, Saturday or Monday (any of 3 days
per week times 52 weeks per year gives BAC leadership 156 choices per year).
This provides the needed flexibility for both BAC leadership and most
stockholders to find a good meeting time each year.
The proposal seeks to improve upon past resolutions that allow only one day per
year to have a stockholders' meeting. I do question the idea that the annual
stockholders' meeting falls under the designation of ordinary business; this is
the one day per year where typical stockholders get to face the leadership of a
large, publicly traded corporation, and exchange ideas. What is less ordinary?
With 156 days from which to choose, ordinary business conflicts should be
avoided.
In its reason for excluding my proposal (ordinary business), Bank of America
sites a situation in 2003 (middle of page 2 of BAC's 11/20/06 letter to you),
where BAC omitted a proposal to rotate the city in which the annual meeting took
place. Ironically, in 2003 (the same year), BAC included a much more similar and
relevant proposal to mine (Exhibit B, attached with BAC cover page) to change
the meeting day to a different single day each year, 156 times more restrictive
that my proposal. Remarkably, BAC offers no refuting arguments to my proposal's
supporting statement other than the dubious ordinary business argument.
My proposal most likely makes it easier for working and out of town stockholders
the attend the annual meeting, the vast majority of BAC's owners. As you
deliberate whether or not to compel BAC to include my proposal in its proxy
statement, please consider the following two questions that I learned to ask
while taking a course in business ethics. Would I feel comfortable explaining my
decision to my mother? Would I feel good defending my decision on T.V.?
Consider that even if my proposal is placed before stockholders and earns a
majority of shares voted, BAC does not have to adopt the stockholders' proposal.
This scenario has happened this year at BAC as the 2006 proposal requiring each
director to earn a majority of shares voted earned 56%, yet has not truly been
adopted by Bank of America. My proposal deserves to be voted upon since the
downside is quite limited and the upside is great. Typical stockholders need
more real power than the ability in a typical year to merely buy, hold or sell.
(See Exhibit C)
Please contact me anytime if I may assist in any way. I am enclosing six sets of
these materials, each including this letter, my stockholder proposal, the
relevant proposal from another BAC stockholder in 2003, and the related
Financial Times article.
Sincerely,
/s/
Frank Coleman Inman
BAC Stockholder
cc: Kenneth L. Wagner
William J. Mostyn III (via a second set mailed priority to Mr. Wagner)
[INQUIRY LETTER]
October 26, 2006
Bank of America Corporation
Attention: Corporate Secretary
101 South Tryon Street
NC1-002-29-01
Charlotte, North Carolina 28255
Dear Corporate Secretary:
The following is my stockholder's proposal for consideration at the 2007 Annual
Meeting:
Stockholder Proposal Regarding Annual Meeting Day
Resolved: That the shareholders of Bank of America Corporation hereby request
that the board of directors initiate the appropriate process to amend BAC's
governance documents (certificate of incorporation or bylaws) to provide that
annual stockholder meetings take place on a Friday, Saturday, or Monday.
Stockholder's Statement Supporting Item
In the past few years, our typical annual stockholder meeting has been held late
Wednesday morning, a decidedly inconvenient time for most stockholders. With a
Friday, Saturday, or Monday meeting, more working shareholders will be able to
attend, while missing less work and taking less vacation time.
Stockholders who fly to our annual meetings will also likely save money as
Saturday night stay-overs usually mean substantial airline ticket savings. We
are Bank of America, and most of our stockholders are flying distance away.
Avoiding a meeting conflict with a NASCAR weekend will help keep lodging
available and rates more modest.
BAC stockholders' meetings may last a little longer to answer questions from
more shareholders, perhaps unearthing and solving important issues. Our regular
meeting venue has space for a few hundred more stockholders. Chaired by Warren
Buffett, Berkshire Hathaway annual stockholders' meetings (on Saturdays) last
about 6 hours and roughly 24,000 attended in 2006. Perhaps BAC's could last
slightly more than 1 1/2 hours, the most in recent years.
Typically, fewer than 1,000 people attend our annual meetings, despite having
nearly 300,000 stockholders. At recent meetings, stockholders lack refreshments.
More concerning, hired security and BAC personnel physically block typical
stockholders from walking up and meeting directors. Clearly, our annual meetings
have fallen short of excellence in recent years. Top management and directors
should mingle with typical stockholders before and after each annual meeting,
often the norm elsewhere. BAC seems to employ plenty of security and even had
metal detectors recently.
Top management does deliver an outstanding presentation every year and does a
good job overall of answering questions from stockholders. Most importantly,
profits and dividends continue strong growth, which is usually well reflected in
our stock price. BAC associates deserve credit and our thanks for this
remarkable achievement.
Among our many stockholders, we have experts in banking, corporate governance,
economics, and long-term investing. In 2006, we stockholders passed (with 56%) a
positive resolution requiring each director to earn a majority of shares voted;
BAC stock quickly rose $2 per share, creating about $9.2 billion in shareholder
value. A better annual meeting day each year may increase our Bank of America
stock price, via more discussion and future adoption of positive and profitable
ideas for BAC.
The above concludes my stockholder's proposal to be included in the proxy
statement for the 2007 Annual Meeting, which I plan to attend and read this
proposal. As I am submitting this proposal prior to the November 20, 2006 proxy
statement deadline, the favor of a prompt reply is requested, especially since
BAC lost my proposal last year.
Of course, I intend to continually hold at least $2,000 worth of Bank of America
common stock through the 2007 BAC stockholders' meeting, per SEC requirements
for a stockholder's proposal. In fact, I am not planning on selling any of my
29,600 shares.
Sincerely,
/s/
Frank Coleman Inman
[STAFF REPLY LETTER]
December 14, 2006
Response of the Office of Chief Counsel Division of Corporation Finance
Re: Bank of America Corporation Incoming letter dated November 20, 2006
The proposal requests that the board of directors initiate the appropriate
process to amend Bank of America's governance documents (certificate of
incorporation or bylaws) to provide that annual stockholder meetings take place
on a Friday, Saturday, or Monday.
There appears to be some basis for your view that Bank of America may exclude
the proposal under rule 14a-8(i)(7), as relating to Bank of America's ordinary
business operations (i.e., the date of shareholder meetings). 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/
Derek B. Swanson
Attorney-Adviser
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