Mr. Ken Lewis believed in the acquisition of Merrill Lynch. With the jewel of a financial advisors group, the acquisition should have been the crowning achievement of his lifetime. He was known for his carefully planned acquisitions. He did not overpay for his targets, and he successfully integrated them into his company, a rare achievement in the banking industry. Just look at Citigroup. There were many difficulties of the Merrill acquisition coming at an time of extreme global financial crises. Mr. Lewis could still have stayed on to manage his final mega acquisition and to fully enjoy the fruits of his accomplishment but for a technical mistake.

In the Bible, Moses is said to have been denied the ability to enter the promised land because he tapped three times upon a rock instead of just once when calling forth a miracle. This is said to show arrogance about his own abilities and a lack of proper deference to God.

Likewise, Mr. Lewis allowed the shareholder vote on the Merrill Lynch merger to proceed without alerting them of the contents of an exhibit that was referenced in the proxy statement but missing from its pages. This exhibit would have informed the shareholders of the $3.6 billion bonus pool that was earmarked for Merrill employees.

Mr. Lewis must have known about the missing exhibit. Either the omission was a printing error or it was a deliberate decision to withhold information. His company's general counsel would have undoubtedly known of the error. For such an important vote, the general counsel would have sent several top lawyers to the printers to read each word and check each table and exhibit to make sure that the final printed copy did not contain any errors. The general counsel would have received a phone call at his home or office informing him of the missing exhibit in the final printed document.

Also, Mr. Lewis would have assigned several of his personal aides to carefully read each word in the proxy statement and to check for errors. They would have noticed the missing exhibit and brought it to Mr. Lewis's attention.

Omitting any mention of the $3.6 billion bonus liability is a material omission of facts. If this exhibit was left out by mistake, Mr. Lewis had ample opportunity to correct the error. As a last minute effort, he could have simply read out loud the contents of the exhibit at the beginning of the shareholders' meeting. Since a large majority of people not physically present at the meeting would have taken part via a conference call, and some reporters at the meeting would have immediately began spreading the information as "breaking news," most of the shareholders would have been successfully informed before casting their vote. (Shareholders who cast their votes early have the ability to change their votes.)

The shareholders at the December 5th meeting voted overwhelmingly to proceed with the acquisition of Merrill Lynch. Had they been informed of the bonus amount, it is my opinion that the shareholders would still have approved the acquisition, even though the number of majority votes may have been less overwhelming.

It seems likely that Mr. Lewis knowingly violated the proxy statement requirement and thereby committed securities fraud. Even though it seems like a technical violation, and his overall vision and motives were well intentioned, the Board of Bank of American could not afford to keep Mr. Lewis as its CEO or Chairman of the Board .

I still admire Mr. Lewis for his lifetime of achievement. I believe history will be kinder to him.