Company Name: Bank of America Corp.
Public Availability Date: February 16, 2006
Document Sections:
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
December 19, 2005
BY OVERNIGHT 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 by James Perry Slaton
Ladies and Gentlemen:
Bank of America Corporation (the "Corporation") received a proposal on October
31, 2005 (the "Proposal") from James Perry Slaton (the "Proponent"), for
inclusion in the proxy materials for the Corporation's 2006 Annual Meeting of
Stockholders (the "2006 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
2006 Annual Meeting for the reasons set forth herein.
GENERAL
The 2006 Annual Meeting is scheduled to be held on or about April 26, 2006. The
Corporation intends to file its definitive proxy materials with the Securities
and Exchange Commission (the "Commission") on or about March 20, 2006 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 2006 Annual Meeting.
SUMMARY OF PROPOSAL
The Proposal recommends that "all stockholders shall be entitled to attend and
speak at any and all Annual Meetings of Stockholders."
REASONS FOR EXCLUSION OF PROPOSAL
The Corporation believes that the Proposal may be properly omitted from the
proxy materials for the 2006 Annual Meeting pursuant to Rules 14a-8(b) and (f)
and Rules 14a-8(i)(7), (i)(4), and (i)(10). The Proposal may be excluded
pursuant to Rule 14a-8(b) and (f) because the Proponent failed to provide the
requested documentary support of his stock ownership. 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. The Proposal also may be excluded
pursuant to Rule 14a-8(i)(4) because it relates to the redress of a personal
grievance against the Corporation. Finally, the Proposal also may be excluded
pursuant to Rule 14a-8(i)(10) because it has been substantially implemented.
1. The Corporation may omit the Proposal pursuant to Rules 14a-8(b) and (f)
because the Proponent failed to provide the requested documentary support of his
stock ownership.
The Corporation believes that the Proposal may be properly omitted from its
proxy materials for the 2006 Annual Meeting pursuant to Rules 14a-8(b) and
14a-8(f). Pursuant to Rule 14a-8(b), a proponent must have continuously held at
least $2,000 in market value of voting securities for at least one year prior to
submitting the proposal, and must continue to hold those securities through the
date of the meeting. Pursuant to Rule 14a-8(f), a registrant must request
documentary support of the proponent's ownership within 14 calendar days of its
receipt of the proposal, and the proponent must furnish such support within 14
calendar days of his or her receipt of the registrant's request.
On October 31, 2005, the Corporation received the Proposal. The Corporation's
stockholder records did not reflect that the Proponent was a record holder.
Accordingly, by letter dated November 3, 2005, a copy of which is attached as
Exhibit B, the Corporation requested documentary support of the Proponent's
ownership in the Corporation (the "Request Letter"). The Request Letter was sent
certified mail, return receipt requested. Based on the return receipt received
by the Corporation, a copy of which is attached as Exhibit C, the Proponent
received the Request Letter on November 4, 2005. The Request Letter specifically
referenced the 14-day deadline and provided the relevant portions of Rule 14a-8.
More than 14 days have elapsed since the Proponent's receipt of the Request
Letter and the Proponent has not timely provided the required evidence to
document his ownership of at least $2,000 in market value of the Corporation's
common stock continuously for at least one year prior to submitting the
Proposal. See International Business Machines Corporation (November 30, 2005)
and The Home Depot, Inc. (August 5, 2005).
Since the Proponent failed to provide the requested documentary support of his
stock ownership within the required 14-day period, he has failed to comply with
the requirements of Rules 14a-8(b) and (f). Accordingly, the Proposal may
properly be omitted from the Corporation's proxy materials for the 2006 Annual
Meeting.
2. 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 involving the conduct of stockholder meetings
relate to matters of ordinary business and can be excluded under Rule
14a-8(i)(7). See 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"); AmSouth Bancorporation (January 15, 2002)(excluding a proposal requesting
that the floor of the company's annual meeting be opened to questions and
comments from shareholders for thirty minutes prior to adjournment); Verizon
Communications Inc. (February 25, 2002) (excluding a proposal that sought to
limit the location of the company's annual meetings); Niagara Mohawk Holdings,
Inc. (March 5, 2001)(excluding a proposal that related to setting aside a
discussion room for all shareholders at the company's annual meeting; and The
Gillette Company (February 2, 2001) (excluding a proposal recommending that the
board provide information to shareholders attending the company's annual meeting
and present measures for open discussion). The Proposal seeks to address the
means by which the Corporation conducts its annual meetings. Such matters are
well within the ordinary business operations of the Corporation and clearly do
not raise any significant policy concerns. Accordingly, the Corporation believes
that the Proposal should be excluded pursuant to Rule 14a-8(i)(7).
3. The Corporation may omit the Proposal pursuant to Rule 14a-8(i)(4) because it
relates to the redress of a personal grievance against the Corporation.
Rule 14a-8(i)(4) permits the omission of a stockholder proposal that deals with
a matter that relates to the redress of a personal grievance against the
Corporation. The Proponent was formerly employed by the Corporation as a
security guard. The Proponent was terminated prior to the 2005 Annual Meeting of
Stockholders (the "2005 Annual Meeting"). Prior the 2005 Annual Meetings, the
Proponent contacted numerous people inside and outside of the Corporation to:
indicate that he would be at the 2005 Annual Meeting and intended to discuss
various issues related to his employment at the Corporation and to directly
engage Kenneth D. Lewis, the Corporation's Chairman, Chief Executive Officer and
President about his personal issues;
threaten litigation in connection with his termination; and
state that he will do whatever it takes and whatever necessary to get even
with the people that did him wrong.
Based on these communications, the Corporation perceived that the Proponent was
likely to cause a disturbance at the 2005 Annual Meeting and posed a threat of
harm to other shareholders, employees and directors and, accordingly, denied the
Proponent access to the 2005 Annual Meeting. While the Proposal is facially
neutral, it is clear that the subject matter of the Proposal relates directly to
the Proponent's personal situation and the denial of his access to the 2005
Annual Meeting. The Division has regularly permitted the exclusion of proposals
designed to redress a personal grievance. See General Electric Company (February
2, 2005); Morgan Stanley (January 4, 2003); NSTAR (March 15, 2000); and US WEST
(February 22, 1999). Accordingly, since the Proposal deals with a matter that
relates to the redress of the Proponent's personal grievance against the
Corporation, the Corporation believes that the Proposal should be excluded
pursuant to Rule 14a-8(i)(4).
4. The Company may omit the Proposal pursuant to Rules 14a-8(i)(10) because the
Corporation has already substantially implemented the Proposal.
The Corporation believes that the Proposal may be properly omitted from the
proxy materials for the 2006 Annual Meeting pursuant to Rule 14a-8(i)(10), which
permits the omission of a stockholder proposal if "the company has already
substantially implemented the proposal." The "substantially implemented"
standard replaced the predecessor rule, which allowed the omission of a proposal
that was "moot." The current rule also clarifies the Commission's interpretation
of the predecessor rule that the proposal need not be "fully effected" by the
company to meet the mootness test, so long as it was substantially implemented.
See The Gap, Inc. (March 4, 2005) and Bank of America Corporation (February 18,
2003). The Corporation has traditionally permitted all of its stockholders to
attend its annual meetings and to speak at those meetings in accordance with the
meeting rules. The only exception is when there is a reason to believe that the
stockholder may cause a disturbance at the annual meeting or pose a threat of
harm to other stockholders, or to the employees or directors of the Corporation.
Accordingly, the proposal to permit stockholders shall be entitled to attend and
speak at any and all annual meetings has not only been substantially
implemented, but it has, in fact, been "fully effected" and should be excluded
pursuant to Rule 14a-8(i)(10).
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 2006 Annual Meeting. Based on the
Corporation's timetable for the 2006 Annual Meeting, a response from the
Division by February 3, 2006 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 704-386-5083.
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/
William J. Mostyn, III
Deputy General Counsel and Corporate Secretary
cc: James Perry Slaton
[INQUIRY LETTER]
Mr. William Mostyn
Corporate Secretary
Bank of America Corporation
101 South Tryon Street
NC1-002-29-01
Charlotte, NC 28255
Proxy Statement Proposal for 2006 Annual Meeting
Resolved: The shareholders recommend that all stockholders shall be entitled to
attend and speak at any and all Annual Meetings of Stockholders.
Please advise Mr. Ken Lewis of this proposal.
Respectfully submitted,
/s/
James Perry Slaton
211 Newbury Circle
Westminster, SC 29693
980.254.5653
[INQUIRY LETTER]
January 10, 2006
Securities and Exchange Commission
Office of Chief Counsel
Division of Corporate Finance
100 F Street, NE
Washington, DC 20549
Bank of America Stockholder Proposal
Ladies and Gentlemen,
I, James Perry Slaton, a long time holder of Bank of America stock, submitted a
proposal for inclusion in the proxy statement related to the Bank of America's
2006 Annual Meeting of Stockholders.
The "proposal" is as follows:
"The shareholders recommend that all stockholders shall be entitled to attend
and speak at any and all Annual Meetings of Stockholders".
False and Misleading Statements to the SEC
Mr. William J. Mostyn, III, Deputy General Counsel and Corporate Secretary of
Bank of America, has petitioned the SEC to allow Bank of America to exclude the
above mentioned proposal from Bank of America's 2006 Annual Stockholders
meeting's proxy materials (Exhibit A)
Mr. Mostyn's letter includes several false and misleading statements.
They include but are not limited to:
1) I (Slaton) have threatened litigation in connection with my termination.
(Untrue, I have not)
2) I (Slaton) stated I will do whatever it takes and whatever necessary to get
even with the people who have done me wrong. (Untrue, I did not make this
statement). This statement was fabricated by a Bank of America employee who is
the subject of a racial discrimination lawsuit filed against Bank of
AmericaJeffrey Schwartz v. Bank of America. I have been subpoenaed to testify
in this action. My testimony incriminates the person who made this statement. He
is trying desperately to discredit me.
3) I (Slaton) was denied access to Bank of America's 2005 Annual Stockholder's
meeting. (Untrue. Bank of America tried to intimidate me by having a rather
large police officer intercept me and ask me to speak with a bank official
instead of attending the meeting. I could have walked right by the officer,
presented my meeting invitation (Exhibit B) and attended the meeting. I chose to
talk to the bank official. In retrospect, I realize that this was just a ploy,
my meeting with the bank official was unproductive and abruptly ended by the
official when the stockholders' meeting adjourned.).
4) The Corporation perceived I (Slaton) posed a threat of harm to other
shareholders, employees and directors and would likely cause a disturbance at
the 2005 Annual Meeting. (This is ludicrous, fabricated by Bank of America).
5) Proponent (Slaton) was employed by Bank of America as a security guard.
(Untrue and demeaning. Mr. Mostyn included this in his letter to give the SEC
the impression that I am armed and dangerous).
6) Bank of America's stockholder records reflect I am not "a record holder"
(Untrue, see Exhibit B again). If this is true, why does Bank of America send me
a dividend check every quarter and send me a meeting invitation every year?
Bank of America History of Intimidating Shareholders
Bank of America's CEO's office mandated that a member of Bank of America
Corporate Security and a plain-clothed Charlotte Police Officer stand next to
and intimidate stockholders who speak at annual shareholders' meetings. I know
this occurred during the 2001 shareholder meeting. This has been captured on
video and can be found in Bank of America's archives. If requested, I can
provide names of witnesses.
Reasons for Inclusion of Proposal
The process of submitting this "proposal" meets all conditions as outlined by
the Securities Exchange Act of 1934.
Rule 14a-8. Shareholder Proposals
I am eligible to submit a proposal and followed the outlined procedures.
Rule 14a-8(b)
I have continuously held well over $2,000 (market value) of voting securities
for at least one year prior to submitting the "proposal" and will hold these
securities through the date of the next Annual Stockholder meeting. I notified
Mr. Mostyn of this in writing (Exhibit C).
Rule 14a-8(f)
Bank of America did not notify me that it was necessary for me to provide
documentary support of my stock ownership. Their certified letter did not reach
me. Someone printed my name and initialed the return receipt (Exhibit D) without
my knowledge or permission.
My name appears in Bank of America's records as a shareholder. (Exhibit B)
provides proof of this.
(Exhibit E) is a copy of page 30 of Bank of America's stockholder newsletter
dated March 28, 2005. Please note the section regarding "Proposals for the 2006
Annual Meeting of Shareholders". I have complied with all procedures outlined in
this section in submitting my proposal.
Rule 14a-8(i)(7)
None of the precedents quoted in Mr. Mostyn's letter regarding this rule are
relevant.
Rule 142-8(i)(4)
Regarding the 2005 Annual Stockholder meeting, I had planned to limit my
comments to matters of interest to my fellow shareholders, to include the
unethical behavior of the Chief Financial Officer. Recently, this CFO was forced
into retirement.
At this time, it is my intention to speak of only similar matters that impact
the ethical and fiscal health of Bank of America. This fact renders the General
Electric, Morgan Stanley, NSTAR and US West cases irrelevant.
Rulea-8(1)(10)
The company has somewhat, but not substantially, implemented my proposal. Bank
of America's stockholders should be given the opportunity to vote on having the
Proposal fully implemented.
I agree, that if it can be proven, (not just conjecture, opinion/bias or a
hidden agenda) that a stockholder who has a history of violence and there is
substantiated evidence that he/she may physically harm another meeting attendee,
the individual should be supervised or barred from attending any meeting. The
individual also should be incarcerated if they are dangerous enough to be barred
from a meeting. In such cases, the SEC and the affected stockholder should be
given the benefit and results, in writing, of an unbiased and fair
investigation.
Conclusion
I, James Perry Slaton, request that, based on the facts outlined in this letter,
the "Proposal" not be excluded from Bank of America's Proxy materials for the
2006 Annual Meeting. Please allow the stockholders to vote on this important
proposal impacting their company.
Please notify me, of your decision, at my address noted in the upper right
corner of page one of this letter.
I can be reached at 980.254.5653 or perryslaton@carolina.rr.com if clarification
or more information is needed.
Respectfully submitted,
/s/
James Perry Slaton
C: Mr. William Mostyn III
Deputy General Counsel, Corporate Secretary of Bank of America (Via Email and US
Postal Service)
[STAFF REPLY LETTER]
February 16, 2006
Response of the Office of Chief Counsel Division of Corporation Finance
Re: Bank of America Corporation Incoming letter dated December 19, 2005
The proposal recommends that all stockholders shall be entitled to attend and
speak at any and all annual meetings of stockholders.
We note that it is unclear whether the submission is a proposal made under rule
14a-8 or is a proposal to be presented directly at the annual meeting, a matter
we do not address. To the extent that the submission involves a rule 14a-8
issue, 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., conduct of annual 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). 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/
Ted Yu
Special Counsel
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