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Settlement Hearing; and (Iii) Motion for Attorneys’ Fees and Expenses

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Settlement Hearing; and (Iii) Motion for Attorneys’ Fees and Expenses UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CONDITIONALLY CERTIFIED CLASS OF CIVIL ACTION CERTAIN FORMER SUMMIT BANCORP NO. 2:08-cv-04947-GEB-MCA SHAREHOLDERS, Plaintiffs, vs. CLASS ACTION FLEETBOSTON FINANCIAL CORPORATION, et al., Defendants. NOTICE OF: (I) PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION; (II) SETTLEMENT HEARING; AND (III) MOTION FOR ATTORNEYS’ FEES AND EXPENSES A Federal Court authorized this Notice. This is not a solicitation from a lawyer. TO: ALL PERSONS AND ENTITIES THAT RECEIVED SHARES OF FLEETBOSTON FINANCIAL (“FBF”) COMMON STOCK IN EXCHANGE FOR SHARES OF SUMMIT BANCORP (“SUMMIT”) COMMON STOCK IN CONNECTION WITH THE MERGER BETWEEN THE COMPANIES PURSUANT TO THE REGISTRATION STATEMENT AND PROSPECTUS FILED ON OR ABOUT JANUARY 25, 2001, AND SOLD SUCH SHARES DURING THE PERIOD FROM DECEMBER 19, 2001 THROUGH NOVEMBER 6, 2003, INCLUSIVE, AND WERE DAMAGED THEREBY (THE “CLASS” AND “CLASS PERIOD”). THIS NOTICE EXPLAINS IMPORTANT RIGHTS YOU MAY HAVE, INCLUDING YOUR POSSIBLE RECEIPT OF CASH FROM THE SETTLEMENT. IF YOU ARE A MEMBER OF THE CLASS, AS DEFINED ABOVE, YOUR LEGAL RIGHTS MAY BE AFFECTED WHETHER OR NOT YOU ACT. PLEASE READ THIS NOTICE CAREFULLY !1 RECEIPT OF THIS NOTICE DOES NOT NECESSARILY MEAN THAT YOU ARE A CLASS MEMBER OR THAT YOU ARE ENTITLED TO RECEIVE PROCEEDS FROM THE SETTLEMENT. IF YOU WISH TO BE ELIGIBLE TO PARTICIPATE IN THE SETTLEMENT, YOU MUST SUBMIT THE ENCLOSED PROOF OF CLAIM POSTMARKED NO LATER THAN NOVEMBER 29, 2011. 1. Description of the Action and the Settling Parties : Plaintiffs consist of the Conditionally Certified Class of Certain Former Summit Bancorp Shareholders and Class Representatives Marjorie J. Maucher, Adam E. Loory, Frank W. Deardorf, Gerritt S. Swart, and Douglas G. Lamb. This Notice relates to a proposed Settlement of a class action lawsuit pending against FBF (now Bank of America) and individual defendants Terrence Murray, Charles K. Gifford, Robert J. Higgins, Henrique C. Meirelles, Eugene M. McQuade, Ernest L. Puschaver, William C. Mutterperl, Joel B. Alvord, William Barnet, III, Daniel P. Burnham, Jr., John T. Collins, William F. Connell, Gary L. Countryman, Alice F. Emerson, James F. Hardymon, Marian L. Heard, Robert M. Kavner, Thomas J. May, Donald F. McHenry, Michael B. Picotte, Thomas R. Piper, Thomas C. 1 Any capitalized terms used in this Notice that are not otherwise defined herein shall have the meanings ascribed to them in the Stipulation and Agreement of Settlement dated July 13, 2011 (the “Stipulation”) entered into by and among the settling parties. A copy of the Stipulation is available at www.berdonclaims.com . Quick, Francene S. Rodgers, Thomas M. Ryan, and Paul R. Tregurtha (collectively, the “Settling Defendants,” and together with Plaintiffs, the “Settling Parties”). The Action centered on Plaintiffs’ claim that FBF failed to maintain adequate loan loss reserves based on the state of the Argentine economy, and that as a result, FBF’s statements concerning its loan loss reserves in the registration statement and prospectus it filed on or about January 25, 2001 (“Registration Statement and Prospectus”) for shares it would be issuing in connection with FBF’s merger with Summit (the “FBF-Summit Merger”) were materially misleading in violation of federal securities laws. Plaintiffs’ claim was based on the allegations that Defendants understated the risks FBF faced with its operations in Argentina, which included the allegations that FBF misrepresented its loan loss reserves, that FBF overstated its expertise in Argentina, and that FBF failed to recognize the risk that Argentina would decouple its peso from the U.S. dollar and the substantively negative effect that this decoupling would have on Argentina’s economy and on FBF’s loan portfolios and loan loss reserves. Plaintiffs also made other claims, which were dismissed from the Action, including an allegation that FBF failed to disclose improper business practices (such as purportedly manipulating the market for initial public offerings) at its former subsidiary, Robertson Stephens, Inc. The proposed Settlement, if approved by the Court, will resolve all claims in the Action and provide relief to all Persons and entities who are eligible Class Members. 2 2. Statement of Class’s Recovery : Pursuant to the Settlement described herein, a settlement payment of $5,500,000 in cash (the “Settlement Amount”) has been deposited into an interest-bearing escrow account for the benefit of the Class. The Settlement Amount together with all interest earned thereon shall be the “Settlement Fund.” Plaintiffs’ damages expert estimates that approximately 14,658,400 shares of FBF common stock acquired by Class Members may have been affected by the alleged conduct at issue in the Action. If all Class Members elect to participate in the Settlement, it is estimated that the average per-share distribution from the Settlement Fund will be approximately $0.3752 per affected share of FBF common stock before the deduction of Court-awarded attorneys’ fees and expenses and the costs of notice and administration. Note that this is only an estimate of recovery. A Class Member’s actual recovery will be determined in accordance with the plan of allocation approved by the Court. The proposed Plan of Allocation is set forth on pages 9-11 below. 3. Statement of Potential Outcome of the Action : The Settling Parties disagree on both liability and damages and do not agree on the average amount of damages per share that would be recoverable if Plaintiffs prevailed on each claim alleged in the Action. The issues on which the Settling Parties disagree include: (a) whether the statements made in or facts allegedly omitted from the Registration Statement and Prospectus were false, material, or otherwise actionable under the federal securities laws; (b) the extent to which the various matters that Plaintiffs alleged were materially false or misleading influenced (if at all) the trading prices of FBF common shares at various times during the Class Period; (c) the extent to which the allegedly adverse material facts that Plaintiffs alleged were omitted or the material misrepresentations alleged influenced (if at all) the trading prices of FBF common stock at various times during the Class Period; (d) the extent to which external factors, such as general market conditions, influenced the trading prices of FBF common stock at various times during the Class Period; (e) the effect of various market forces influencing the trading prices of FBF common stock at various times during the Class Period; (f) the amount by which shares of FBF common stock were allegedly artificially inflated (if at all) during the Class Period; and (g) the appropriate economic model for determining the amount by which shares of FBF common stock were allegedly artificially inflated (if at all) during the Class Period. 4. Statement of Attorneys’ Fees and Expenses Sought : Class Counsel (as identified in ¶5 below) will apply to the Court for an award of attorneys’ fees in an amount not to exceed 25% of the Settlement Fund. Class Counsel also will apply for expenses incurred in connection with the prosecution and resolution of the Action in an amount not to exceed $900,000, which may include the reasonable costs and expenses of Plaintiffs directly related to their representation of the Class, plus interest on such expenses at the same rate 2 As set forth in ¶26 below, excluded from the Class are Defendants in the Action and certain Persons and entities related to the Defendants. Also excluded from the Class are those Persons and entities who timely request exclusion from the Class pursuant to this Notice. 2 as earned on the Settlement Amount. If the Court approves Class Counsel’s fee and expense application, the average cost per potentially affected share of FBF common stock will be approximately $0.155. 5. Identification of Attorneys’ Representatives : Plaintiffs and the Class are represented by the law firms of Robbins Geller Rudman & Dowd LLP, Stull, Stull & Brody, and Weiss & Lurie, who are the Court- appointed counsel for Plaintiffs and the Conditionally Certified Class (“Class Counsel”) and Kantrowitz, Goldhamer & Graifman, P.C. as Liason Counsel. Any questions regarding the Settlement should be directed to: Rick Nelson, c/o Shareholder Relations, Robbins Geller Rudman & Dowd LLP, 655 West Broadway, Suite 1900, San Diego, CA 92101, (800) 449-4900; [email protected] ; or Howard T. Longman, Stull, Stull & Brody, 6 East 45th Street, New York, NY 10017, (800) 337-4893; [email protected] ; or Richard A. Acocelli, Weiss & Lurie, 1500 Broadway, 16th Floor, New York, NY 10036; [email protected] . Please do not contact any representative of the Settling Defendants or the Court with questions about the Settlement. 6. Reasons for Settlement : Plaintiffs’ principal reason for the Settlement is the benefit to be provided to the Class now. This benefit must be compared to the significant risk that a smaller recovery or no recovery might be achieved after contested motions, a contested trial, and likely appeals, possibly years into the future. For the Settling Defendants, who deny all allegations of wrongdoing or liability whatsoever, the principal reason for the Settlement is to eliminate the expense, risks, and uncertain outcome of the litigation. YOUR LEGAL RIGHTS AND OPTIONS IN THE SETTLEMENT REMAIN A MEMBER OF THE This is the only way to get a payment. If you wish to obtain a CLASS AND SUBMIT A PROOF payment as a Class Member, you will need to file a Proof of OF CLAIM POSTMARKED BY Claim (which is included with this Notice) postmarked no later NOVEMBER 29, 2011. than November 29, 2011. EXCLUDE YOURSELF FROM Get no payment. This is the only option that allows you the THE CLASS BY SUBMITTING possibility of being part of any other lawsuit against any A WRITTEN REQUEST FOR Defendant or other Defendant Released Parties concerning the EXCLUSION SO THAT IT IS claims that were, or could have been, asserted in this Action POSTMARKED NO LATER that will not be barred by the Settlement.
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