Today, the Securities and Exchange Commission announced that it had charged Bank of America Corporation for misleading investors in connection with Bank of America’s acquisition of Merrill Lynch & Co. Bank of America has agreed to settle the charges and pay a penalty of $33 million.
In the complaint filed in the Southern District of New York, the SEC alleges that Bank of America misled its shareholders in its proxy solicitation leading up to shareholder approval of the acquisition of Merrill Lynch & Co. According to the SEC, the joint proxy statement distributed to both Bank of America and Merrill’s shareholders included the companies’ merger agreement as an appendix, yet failed to provide further information so as to make that disclosure not materially false and misleading. Specifically, the SEC alleges that while the merger agreement filed with the proxy stated that no discretionary bonuses would be paid to executives of Merrill, the proxy did not include a schedule to the agreement by which Bank of America had already consented to Merrill paying up to $5.8 billion in such bonuses.
Without admitting or denying the allegations, B of A agreed to the entry of judgment which permanently enjoins it from violating the proxy solicitation rules and orders the payment of the $33 million penalty. The settlement requires court approval.
This announcement by the SEC comes after several Congressional hearings scrutinized the merger, and the involvement participants ranging from Bank of America CEO and President Ken Lewis, to Federal Reserve Chairman Ben Bernanke.