Updated to correct the value of the settlement with the SEC on a per share basis.
CHARLOTTE, N.C. (
Bank of America
investors could receive a $150 million reward and new voting rights on compensation if a legal settlement is approved, though the company's legal entanglements related to its Merrill Lynch deal appear to be far from over.
Bank of America moved toward settling two Merrill-related legal entanglements on Thursday, one with the
Securities and Exchange Commission
, and another with the North Carolina Attorney General, just as another state attorney general filed suit. It also continues to face shareholder lawsuits and other regulatory investigations over controversial management decisions ahead of the deal's closing on Jan. 1, 2009.
The SEC is seeking approval of a $150 million settlement with the bank -- more than four times as much as its initially proposed settlement of $33 million. The new settlement must be approved by New York State
Judge Jed Rakoff, who rejected the first settlement as inadequate and unfair.
The money would be distributed to shareholders as part of the SEC's "Fair Fund" program. Given Bank of America's current 8.65 billion in outstanding shares, according to
, the amount equates to roughly 1.7 cents per share.
The SEC opted not to pursue charges against individual executives, finding that "no one acted with any intent to mislead," Bank of America said.
The bank will also pay its headquarters state of North Carolina $1 million, to be used for strengthening consumer protection, though it is "not a penalty or a fine." The SEC will also collect a $1 disgorgement fee.
Just as those settlements were announced, New York State Attorney General Andrew Cuomo filed civil charges against Bank of America, former CEO Ken Lewis and former CFO Joe Price on Thursday, alleging that the bank did indeed mislead investors. On a conference call, Cuomo said executives' statements to regulators about their intention to walk away from the deal, in light of Merrill's losses were "just a fraud."
"We believe bank management understated the Merrill Lynch losses to shareholders to get shareholders to approve the deal then overstated their ability to terminate the agreement to get $20 billion from federal government," Cuomo said, according to news reports.
Bank of America disputes the charges and vowed to defend itself against them.
Nonetheless, as part of the announced settlements, the company agreed to "strengthen its corporate governance and disclosure practices," the SEC said, in light of accusations that it had failed to provide material information in a timely fashion, and was not looking out for the best interest of shareholders. Bank of America did not disclose Merrill's escalating losses and a planned $5.8 billion bonus distribution before shareholders voted to approve the merger in December 2008.
In a press release, B of A outlined the steps it would take to achieve the settlements' goals. For a period of three years, an independent auditor will assess its disclosure controls and procedures and file reports on effectiveness. The CEO and CFO will sign "management certifications" of all proxy filings, apparently in an effort to hold them accountable for top-level decisions. (Former CEO Ken Lewis had said Merrill-related decisions were made on the advice of corporate and government lawyers.)
Additionally, Bank of America will hire lawyers to advise the board's audit committee on matters of disclosure, maintain a consultant to advise the board's compensation committee and strengthen independence requirements of those committee members. The bank will also outline on its Web site the principles that bonuses and incentives are based upon. Shareholders will be provided with an advisory vote if those principles change, as well as an annual "say on pay" advisory vote regarding executive compensation.
Advisory votes, however, are not set in stone. They are a means for shareholders who are unhappy with management's policies to express disapproval. Management is free to disregard the results, and it's unusual that disaffected shareholder contingencies garner more votes than the fund managers who control more shares and often side with management.
However, a vote last April that removed Lewis from his chairman seat was an outlier from that trend, and may show a new determination for shareholder activism. Management appears to recognize that shareholder patience is running thin.
Bank of America stock was recently down 3.7% at $14.96. Midday volume stood at just under 117 million, compared to the issue's trailing three-month daily average of 206.7 million.
-- Written by Lauren Tara LaCapra in New York