|IN RE BANKAMERICA CORP. SECURITIES LITIGATION|| :
|MDL No. 1264|
Senior Judge Nangle
This notice is given pursuant to Rule 23 of the Federal Rules of Civil Procedure and by Order of the United States District Court for the Eastern District of Missouri, Eastern Division (the "Court"). You are receiving this notice because you purchased, sold, or owned shares in Bank of America Corporation, or its predecessors, NationsBank Corporation and BankAmerica Corporation, on or about the merger of the two predecessor corporations at the close of business on September 30, 1998 (the "Merger").
Subsequent to the Merger, a number of federal lawsuits were filed seeking to represent various classes of persons who purchased, sold, or owned shares in Bank of America Corporation ("Bank of America") or its two predecessors during a time period beginning August 4, 1998 and ending October 13, 1998, inclusive (the "Class Period"). These lawsuits have been consolidated for all pretrial purposes in the Court. The Court has now certified four separate plaintiff classes, described more fully below (the "Classes"), on whose behalf these consolidated lawsuits are being prosecuted.
By order of the Court, this notice is being sent to you in the belief that you may be a member of one or more of the Classes, to inform you as follows:
• THE COURT HAS CERTIFIED THE ABOVE CAPTIONED CONSOLIDATED LAWSUITS (THE "ACTION") AS A CLASS ACTION ON BEHALF OF THE CLASSES DEFINED IN SECTION II BELOW.
• IF YOU MEET THE CLASS DEFINITIONS, YOU WILL BE A MEMBER OF THE APPLICABLE CLASS OR CLASSES, UNLESS YOU ACT TO EXCLUDE YOURSELF PURSUANT TO THE INSTRUCTIONS IN SECTION IV BELOW. IF YOU WISH TO REMAIN A MEMBER OF THE CLASS OR CLASSES APPLICABLE TO YOU, YOU DO NOT NEED TO TAKE ANY ACTION IN RESPONSE TO THIS NOTICE.
• NO DETERMINATION HAS BEEN MADE ON THE MERITS OF THE CASE. ANY FINAL JUDGMENT WILL BIND ALL MEMBERS OF THE CLASSES EXCEPT THOSE MEMBERS WHO ACT TO EXCLUDE THEMSELVES NOW.
• YOU MAY OBTAIN MORE DETAILED INFORMATION ABOUT THE ACTION BY ACCESSING THE COURT FILE OR THE INTERNET WEB SITE ESTABLISHED BY PLAINTIFFS' COUNSEL AT: http://www.bacsecuritieslit.com.
This matter consolidates for pretrial purposes 24 lawsuits filed in different federal courts by shareholders of Bank of America and its two predecessor entities, BankAmerica Corporation ("BankAmerica") and NationsBank Corporation ("NationsBank"). BankAmerica and NationsBank merged at the end of business September 30, 1998 to form a new BankAmerica Corporation (now called Bank of America Corporation).
The lawsuits allege that Bank of America, BankAmerica, NationsBank, and certain officers and directors of Bank of America, BankAmerica and NationsBank (the "Defendants") violated federal securities laws, namely Sections 10(b), 14(a), and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b 5, and Sections 11, 12(a)(2), and 15 of the Securities Act of 1933, and state common law upon issuance of a series of allegedly materially false and misleading statements, including representations and omissions in a Joint Proxy Statement Prospectus dated August 4, 1998 issued in connection with the Merger.
The Defendants are Bank of America Corporation, Hugh L. McColl, Jr., James H. Hance, Jr., David A. Coulter, Michael E. O'Neill, John J. Higgins, and Marc D. Oken. The individuals were all officers or directors of Bank of America or its predecessors at times material to the allegations in the complaint.
Specifically, those plaintiffs who are members of the NationsBank Holder Class, the NationsBank Purchaser Class, or the BankAmerica Pur chaser Class, as defined below in Section II, allege that Defendants violated applicable law by failing to disclose material information about a relationship that BankAmerica Corporation had with an investment firm known as D. E. Shaw, and that they were harmed thereby.
Those plaintiffs who are members of the BankAmerica Holder Class, as defined below in Section II, allege that they were damaged because Defendants misrepresented and failed to disclose facts concerning whether the merger would be a "merger of equals."
The Defendants deny these claims and specifically deny any wrongdoing or liability to any Class or Class member. The Defendants filed a motion to dismiss, challenging the sufficiency of the complaint, which the Court denied in substantial part, finding that the complaint was suf ficient under applicable federal and state law. Neither the class certification, discussed below, nor the denial of the motion to dismiss constitutes a determination on the merits of the case. Any final judgment made by the Court will be binding on all members of the Classes except those members who exclude themselves as provided herein.
A. The four Classes and who is included in them.
The Court has certified the Action as a class action on behalf of four separate and distinct Classes:
(1) The "NationsBank Holder Class." All common and preferred shareholders of NationsBank who were entitled to vote on the Merger of NationsBank and BankAmerica or who held their shares in NationsBank as of the close of business on September 30, 1998.
(2) The "NationsBank Purchaser Class." All purchasers of NationsBank securities between August 4, 1998 and September 30, 1998.
(3) The "BankAmerica Holder Class." All common and preferred shareholders of BankAmerica who were entitled to vote on the Merger, or who held their shares in BankAmerica as of the close of business on September 30, 1998.
(4) The "BankAmerica Purchaser Class." All purchasers of BankAmerica securities between August 4, 1998 and September 30, 1998, and all purchasers of BankAmerica (now Bank of America) securities between October 1, 1998 and October 13, 1998.
B. Persons excluded from the Classes.
The Court's Order excludes from the four Classes certain persons who would otherwise fall within the definition of one or more of the Classes. The persons excluded from the Classes are: (1) the Defendants; (2) Bank of America, its subsidiaries and affiliates, both in its own right and as the successor in interest of BankAmerica and NationsBank; (3) the officers and directors of Bank of America, BankAmerica, and NationsBank; (4) members of the immediate families of any of the Defendants; (5) any entity in which any of the Defendants has a controlling interest; and (6) the legal representatives, heirs, successors, predecessors in interest, affiliates or assigns of any of the Defendants.
C. The certified class representatives.
The Court has certified the following class representatives for the four separate classes certified by the Court:
For the NationsBank Holder Class: Joseph Hempen, John M. Koehler, and David P. Oetting.
For the NationsBank Purchaser Class: Kevin Kloster.
For the BankAmerica Holder Class: Selma Kaiser and Walter E. Ryan, Jr.
For the BankAmerica Purchaser Class: Brian Markee.
D. Class counsel.
The Court approved the following attorneys to serve as plaintiffs' Lead Counsel and Executive Committee to represent the interests of the respective Classes.
For the NationsBank Holder and Purchaser Classes: Martin M. Green, Green Schaaf & Jacobson, P.C., 7733 Forsyth Boulevard, Suite 700, St. Louis (Clayton), MO 63105 (Lead Counsel, and Liaison Counsel for all Classes); Martin D. Chitwood, Chitwood & Harley, 2900 Promenade II, 1230 Peachtree Street NE, Atlanta, GA 30309 (Co Lead Counsel); Jules Brody, Stull Stull & Brody, 6 East 45th Street, New York, NY 10017 (Co Lead Counsel); Vincent R. Cappucci, Entwistle & Cappucci LLP, 400 Park Avenue, New York, NY 10022 (Executive Committee Member); and Daniel W. Krasner, Wolf Haldenstein Adler Freeman & Herz, LLP, 270 Madison Avenue, New York, NY 10016 (Executive Committee Member).
For the BankAmerica Holder and Purchaser Classes: Arthur N. Abbey and James S. Notis, Abbey, Gardy & Squitieri, LLP, 212 East 39th Street, New York, NY 10016, (212) 889 3700 (Lead Counsel); and Clinton A. Krislov, Krislov & Associates, Ltd., 222 North LaSalle Street, Suite 2120, Chicago, IL 60601, (312) 606 0500 (Executive Committee Member).
If you wish to remain in any Class in which you are included, you need not take any action at this time. If you remain in the applicable Class or Classes, then: (a) your interests in the action will be represented by Class Counsel, as defined in Section II above; (b) you will not have to pay any of Class Counsel's attorneys' fees or expenses, except to the extent that the Court may direct that such fees and expenses be paid out of any settlements or recoveries obtained for the Classes; (c) you may be entitled to share in the ben efits of any settlements or recoveries, and you will be bound by any such settlements and by any favorable or unfavorable judgments entered in the Action; (d) you will have the right to appear and be heard regarding Court approval of any future settlements, and any applications for payment of attorneys' fees and expenses; and (e) you will have the right to receive notice of and to object to any settlements.
If you do not wish to have your interests represented by Class Counsel, you may enter a separate appearance through counsel of your choice, or personally, at your own expense.
In order for you to benefit from any settlements or recoveries in the Action, should there be any, you may be required at a future date to substantiate your membership in the Class or Classes applicable to you as well as the amount of your claim. Therefore, you should retain all records pertaining to your ownership of, as well as all purchases and sales of, NationsBank, BankAmerica and Bank of America securities (collectively, the "Class Securities") during the period beginning August 4, 1998 and ending October 13, 1998, inclusive (the "Class Period").
Under the law, you have the right to exclude yourself from the Classes certified by the Court of which you are a member. You may exclude yourself from the Classes if you wish to pursue a separate lawsuit against the Defendants, or for any reason at all. If you exclude yourself from the Class or Classes in which you are included, you will not be entitled to participate in any recovery by such Class, and you will not be bound by any settlement or favorable or unfavorable judgment in the Action.
If you do not wish to remain a member of the Class or Classes in which you are included, then you must timely request in writing to be excluded from such Class. Your request for exclusion must legibly set forth your name and address, and must include a statement that you wish to be excluded from the applicable Class in the In re BankAmerica Corp. Securities Litigation. Your request for exclusion must be sent by United States Mail, postmarked not later than September 5, 2000 to the Claims Administrator at the address stated at the end of this Notice.
If you request exclusion from a Class on behalf of any person, entity or individual other than yourself, such as, for example, a trust, a minor, or a pension fund, you must state in addition the basis of your legal authority to make a request for exclusion on behalf of that person, entity or other individual.
In order to insure proper processing of your request or requests for exclusion, please include with each request the following: your Social Security number ("SSN") or taxpayer identification number ("TIN"), and a list stating the number of shares of Bank of America, BankAmerica, and NationsBank stock you purchased, sold, or owned during the Class Period, and, for purchased or sold shares, the date or dates of each such purchase and sale.
Actions have been filed in the Superior Court of California, San Francisco County, asserting claims substantially overlapping the factual allegations in this Action. These state court actions include: Giorgetti v. BankAmerica Corporation, Case No. 998949; Desmond v. BankAmerica Corporation, Case No. 998629 (consolidating five California state court actions); and Deichler v. BankAmerica Corporation, Case No. 998673.
The Giorgetti action was certified as a class action on behalf of a class of BankAmerica shareholders who were residents of California or entities incorporated in or doing business in California. The Giorgetti action was dismissed on motion of the defendants in that case. The Gior getti plaintiffs are pursuing an appeal.
The Desmond action was stayed by the Court. The Desmond plaintiffs have appealed the stay. The Desmond plaintiffs had a motion for class certification pending at the time the stay was entered. The motion sought certification of classes essentially identical to the classes certified in this Action. The claims alleged by the Desmond plaintiffs arise under California state law.
The Deichler action was stayed by the California state court in favor of this Action.
The pleadings and orders in the California actions are in the files of the Office of the Clerk of the Court, 400 McAllister Street, San Fran cisco, CA 94102 4514.
If you receive multiple copies of this notice, it may be because you had multiple brokerage accounts, holdings or transactions in the Class Securities.
If notice was sent to a wrong address, or if your address changes in the future, please send prompt written notification of your correct address to the Claims Administrator at the address stated at the end of this Notice.
Pursuant to an Order of the Court, each bank, brokerage firm, trust company, trustee, and other nominee for a beneficial owner who pur chased or held Class Securities during the periods described above is required promptly to either: (1) forward to all such persons or other enti ties a copy of this Notice, or (2) send a computer file (i.e., Word or Excel files, text files, or other commonly available and compatible data formats) of the names and addresses of persons or entities for whom they purchased Class Securities, or for whom they held Class Securities, during the time periods described above to the Claims Administrator at the address stated at the end of this Notice. Copies of the Notice will be mailed to all persons and entities identified on such files.
Nominal holders of Class Securities will be reimbursed for their actual out of pocket expense incurred in identifying or notifying Class members pursuant to the preceding paragraph to the extent that they provide appropriate documentation of the expense claimed. The out of pocket expenses for which nominal holders shall be reimbursed does not include any service or handling fee.
The foregoing information is not all inclusive. You may obtain additional and more detailed information by any of the following means: (1) visiting the Office of the Clerk of the Court, 1114 Market Street, Third Floor, St. Louis, MO 63101, during normal court hours, in order to inspect the pleadings and other papers maintained there in File No. MDL 1264 (Judge Nangle); (2) by accessing the Internet web site established for this Action by Class Counsel at: http://www.bacsecuritieslit.com, which web site contains pleadings, filings, and court orders in the Action deemed important by Class Counsel, and which Class Counsel will periodically update with general information about the proceedings; or (3) by contacting the Claims Administrator:
In re BankAmerica Corp. Securities Litigation
c/o Heffler Radetich & Saitta L.L.P.
P.O. Box 1050
Philadelphia, PA 19105 1050
Tel: (215) 665 1191
Please note that the web site established for this Action is maintained solely by Class Counsel, and that the content of the web site is nei ther reviewed nor approved by the Court or Defendants' counsel.
Dated: May 9, 2000
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI