Securities Act of 1933
Bank of America Corporation
Based on the facts presented, the Division will not recommend that the Commission take enforcement action against BAC, BAS or MLPFS if BAS or MLPFS sells BAC common stock in the manner described in your letter without registration under the Securities Act. Capitalized terms in this letter have the same meaning as in your letter.
This position is limited to sales by BAS or MLPFS of BAC common stock in connection with facilitating BAS and MLPFS customer transactions in Baskets comprised of the component stocks of a Specified Index. In reaching this position, we particularly note that:
BAS and MLPFS transactions in the BAC common stock will occur as part of an integrated set of transactions based on a Basket comprising the component stocks of a Specified Index and executed through computerized trading facilities that permit a simultaneous entry of multiple orders.
Orders to sell all of the BAC common stock related to the Basket comprising the component stocks of a Specified Index will be entered simultaneously along with orders to sell all the other component stocks.
Neither BAS, MLPFS nor any affiliate of BAC will solicit customer transactions in the BAC common stock or the Baskets comprising the component stocks of a Specified Index.
At any point in time, the individual percentage representation of stock issued by BAC or an affiliate in a Basket comprising the component stocks of a Specified Index will be 5% or less of the value of such Basket, and such Specified Index will be composed of the equity securities of at least 20 different issuers.
None of the Specified Indices was created by BAC, BAS, MLPFS or any of their affiliates.
This position is based on the representations made to the Division in your letter. Any different facts or conditions might require the Division to reach a different conclusion. Further, this response expresses only the Division's position on enforcement action and does not purport to express any legal conclusion on the question presented.
Thomas J. Kim
Chief Counsel and Associate Director
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