Registration No. 2-80406
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST - EFFECTIVE AMENDMENT NO. 6
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Bank of America Corporation
(formerly NationsBank Corporation)
(Exact Name of Registrant as Specified in Its Charter)
Delaware 56-0906609
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
(Address of Principal Executive Offices)
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The NationsBank 401(k) Plan
(formerly the NCNB Corporation and Designated Subsidiaries
Stock / Thrift Plan and Trust)
(Full Title of the Plan)
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PAUL J. POLKING, ESQ.
Executive Vice President
and General Counsel
Bank of America Corporation
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
(Name and Address of Agent for Service)
(704) 386-5000
(Telephone Number, Including Area Code, of Agent for Service)
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EXPLANATORY NOTE
This Post-Effective Amendment No. 6 to Registration Statement on
Form S-8 (Registration No. 2-80406) (the "Registration Statement") is filed by
Bank of America Corporation (the "Registrant") with respect to The NationsBank
401(k) Plan (the "Plan"), which was formerly known as the NCNB Corporation and
Designated Subsidiaries Stock/Thrift Plan and Trust.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents constituting a Prospectus (a "Prospectus") with
respect to this Post-Effective Amendment No. 6 to Form S-8 of the Registrant are
kept on file at the offices of the Registrant in accordance with Rule 428
promulgated pursuant to the Securities Act of 1933, as amended (the "Securities
Act"). The Registrant will provide without charge to participants in the Plan,
on the written or oral request of any such person, a copy of any or all of the
documents constituting a Prospectus. Written requests for such copies should be
directed to Charles J. Cooley, Corporate Personnel Executive, Bank of America
Corporation, Bank of America Corporate Center, 100 North Tryon Street,
Charlotte, North Carolina 28255. Telephone requests may be directed to (704)
386-5000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been heretofore filed by
the Registrant or the Plan with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated by reference herein:
(a) The Registrant's Annual Report on Form 10-K for the
year ended December 31, 1999;
(b) The Plan's Annual Report on Form 11-K for the year
ended December 31, 1998;
(c) The Registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 2000 and Current
Reports on Form 8-K filed January 20, 2000, February
10, 2000, February 14, 2000 and April 19, 2000; and
(d) The description of the Registrant's Common Stock
contained in the Registrant's Current Report on Form
8-K filed September 28, 1998, and any amendment or
report filed for the purpose of updating such
description.
All documents filed by the Registrant or the Plan with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the effectiveness of this Registration Statement and prior to the filing of a
post-effective amendment hereto that either indicates that all securities
offered hereby have been sold or deregisters all securities then remaining
unsold shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document that also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
The Registrant will provide without charge to each person to whom a
Prospectus constituting a part of this Registration Statement is
delivered, on the written or oral request of any such person, a copy of any or
all of the documents incorporated herein by reference (other than exhibits to
such documents which are not specifically incorporated by reference in such
documents). Written requests for such copies should be directed to Charles J.
Cooley, Corporate Personnel Executive, Bank of America Corporation, Bank of
America Corporate Center, 100 North Tryon Street, Charlotte, North Carolina
28255. Telephone requests may be directed to (704) 386-5000.
Item 6. Indemnification of Directors and Officers.
Subsection (a) of Section 145 of the Delaware General Corporation
Law (the "DGCL") empowers a corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful. Subsection (b) of Section 145 of the DGCL
empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit if such person acted in accordance with the above standards,
except that no indemnification may be made in respect to any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which the action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnification
for such expenses which the Court of Chancery or such other court shall deem
proper.
Section 145 of the DGCL further provides that, to the extent
that a director or officer of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in the defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
therewith; and that indemnification provided by, or granted pursuant to, Section
145 shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled. Section 145 further empowers the corporation to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him or her and incurred by him or her in
any such capacity, or arising out of such person's status as such, whether or
not the corporation would have the power to indemnify such person against such
liabilities under Section 145 of the DGCL.
Section 102(b)(7) of the DGCL permits a corporation's
certificate of incorporation to contain a provision eliminating or limiting the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director; provided that such
provision shall not eliminate or limit the liability of a director for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders;
(ii) acts or omissions not in good faith or which involved intentional
misconduct or a knowing violation of law; (iii) willful or negligent unlawful
payment of a dividend or stock purchase or redemption; or (iv) any transaction
from which the director derived an improper personal benefit.
The Restated Certificate of Incorporation of the Registrant
eliminates the ability to recover monetary damages against directors of the
Registrant for breach of fiduciary duty to the fullest extent permitted by the
DGCL. In accordance with the provisions of the DGCL, the Bylaws of the
Registrant provide that, in addition to the indemnification of directors and
officers otherwise provided by the DGCL, the Registrant shall, under certain
circumstances, indemnify its directors, executive officers and certain other
designated officers against any and all liability and litigation expense,
including reasonable attorneys' fees, arising out of their status or activities
as directors and officers, except for liability or litigation expense incurred
on account of activities that were at the time known or believed by such
director or officer to be in conflict with the best interests of the Registrant.
Pursuant to such Bylaws and as authorized by statute, the Registrant may also
maintain insurance on behalf of its directors and officers against liability
asserted against such persons in such capacity whether or not such directors or
officers have the right to indemnification pursuant to the Bylaws or otherwise.
In addition, pursuant to the Agreement and Plan of
Reorganization dated as of April 10, 1998 by and between the Registrant
(formerly NationsBank Corporation ("NationsBank")) and the former BankAmerica
Corporation ("old BankAmerica"), for six years after September 30, 1998 (the
date of the merger of old BankAmerica with and into the Registrant (the
"Merger")), the Registrant will indemnify directors, officers and employees of
old BankAmerica, NationsBank, or any of their respective subsidiaries against
certain liabilities in connection with such persons' status as such or in
connection with the Merger Agreement or any of the transactions contemplated
thereby. Pursuant to the Merger Agreement, the Registrant will also, for six
years after September 30, 1998 and with respect to events occurring prior to the
consummation of the Merger, honor all rights to indemnification and limitations
of liability existing in favor of the foregoing persons as provided in the
governing documents of NationsBank, old BankAmerica or their respective
subsidiaries.
Pursuant to the Merger Agreement, for six years after
September 30, 1998, the Registrant will also use its best efforts to cause the
directors and officers of old BankAmerica and NationsBank to be covered by a
directors' and officers' liability insurance policy with respect to acts or
omissions occurring prior to the consummation of the Merger.
The foregoing is only a general summary of certain aspects of
Delaware law dealing with indemnification of directors and officers and does not
purport to be complete. It is qualified in its entirety by reference to the
relevant statutes which contain detailed specific provisions regarding the
circumstances under which and the person for whose benefit indemnification shall
or may be made.
Item 8. Exhibits.
The following exhibits are filed with or incorporated by reference in
this Registration Statement.
Exhibit No. Description of Exhibit
5.1 Opinion of J.W. Kiser, Esq. as to the legality of the securities *
The Registrant will submit, or has submitted, the
Plan and any amendment thereto to the Internal
Revenue Service ("IRS") in a timely manner and has
made, or will make, all changes required by the IRS
in order to qualify the Plan.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of J.W. Kiser, Esq. (included in Exhibit 5.1) *
24.1 Power of Attorney*
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* Previously filed as an exhibit to the Registration Statement on Form
S-8 to which this is Post-Effective Amendment No. 6
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post- effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
The Registrant
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Post-Effective Amendment No. 6 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Charlotte,
State of North Carolina, on May 15, 2000.
BANK OF AMERICA CORPORATION
By: /s/ CHARLES M. BERGER
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Charles M. Berger
Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment No. 6 to the Registration Statement has been
signed by the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
Signature Title Date
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* Principal Executive Officer and Director May 15, 2000
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Hugh L. McColl, Jr.
* Principal Financial Officer and Director May 15, 2000
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James H. Hance, Jr.
* Principal Accounting Officer May 15, 2000
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Marc D. Oken
* Director May 15, 2000
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Charles W. Coker
* Director May 15, 2000
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Alan T. Dickson
Director May __, 2000
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Frank Dowd, IV
Director May __, 2000
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Kathleen F. Feldstein
* Director May 15, 2000
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Paul Fulton
Director May __, 2000
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Donald E. Guinn
* Director May 15, 2000
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C. Ray Holman
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
* Director May 15, 2000
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W. W. Johnson
* President and Director May 15, 2000
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Kenneth D. Lewis
Director May __, 2000
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Walter E. Massey
* Director May 15, 2000
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O. Temple Sloan, Jr.
* Director May 15, 2000
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Meredith R. Spangler
* Director May 15, 2000
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Ronald Townsend
Director May __, 2000
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Solomon D. Trujillo
* Director May 15, 2000
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Jackie M. Ward
Director May __, 2000
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Virgil R. Williams
*By: /s/ CHARLES M. BERGER
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Charles M. Berger
Attorney-in-Fact
</TABLE>
<PAGE>
The Plan
Pursuant to the requirements of the Securities Act of 1933,
the Bank of America Corporation Corporate Benefits Committee has duly caused
this Post-Effective Amendment No. 6 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Charlotte, State of North Carolina, on May 15, 2000.
THE NATIONSBANK 401(K) PLAN
By: /s/ CHARLES D. LORING
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Charles D. Loring
Senior Vice President
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
5.1 Opinion of J.W. Kiser, Esq. as to the legality of the
securities *
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of J.W. Kiser, Esq.(included in Exhibit 5.1.)*
24.1 Power of Attorney*
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*Previously filed as an exhibit to the Registration Statement on Form S-8 to
which this is Post-Effective Amendment No. 6
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Post-Effective Amendment No. 6 to Registration Statement on Form S-8
(Registration No. 2-80406) of Bank of America Corporation of our report dated
January 13, 2000, which appears on page 53 of the Bank of America Corporation
Annual Report on Form 10-K for the year ended December 31, 1999.
/s/ PRICEWATERHOUSECOOPERS LLP
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May 12, 2000
Charlotte, North Carolina
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Post-Effective Amendment No. 6 to Registration Statement on Form S-8
(Registration No. 2-80406) of Bank of America Corporation of our report dated
July 1, 1999 included in The NationsBank 401(k) Plan's Annual Report on Form
11-K for the year ended December 31, 1998.
/s/ PRICEWATERHOUSECOOPERS LLP
May 12, 2000
Charlotte, North Carolina
