June 8,2007 

BY HAND DELIVERY 

The Honorable P. Kevin Caste1 

United States District Judge 

Daniel Patrick Moynihan United States Courthouse 

500 Pearl Street 

Room 2260 

New York, New York 10007- 13 12 

Re: Bank of America Corp. v. ABN AMRO 

Bank N.V., et al., 07 Civ. 3578 (PKC) 

Dear Judge Castel: 

This joint letter is respectfully submitted by the parties in accordance with the 

Court's Order Scheduling Initial Pretrial Conference dated May 7,2007. The initial pretrial 

conference is scheduled for June 15, 2007, at 9:30 a.m. In addition, for the reasons set out 

below, the parties jointly request that the initial pretrial conference be postponed until sometime 

during the week of July 23,2007 given the schedule for proceedings in related litigation in the 

Netherlands. 

Case 1:07-cv-03578-PKC Document 7 Filed 06/11/2007 Page 1 of 7
The Honorable P. Kevin Caste1 

June 8,2007 

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1. Brief description of the case 

This action arises out of the Purchase and Sale Agreement dated April 22, 2007 

(the "PSA), pursuant to which plaintiff Bank of America Corporation ("Bank of America") 

agreed to purchase from defendant ABN AMRO Bank N.V. ("ABN Bank") the ABN Bank 

subsidiary ("ABN North America") that owns all of the shares of LaSalle Bank Corporation 

("LaSalle"), for $21 billion in cash (subject to adjustments, based on certain factors specified in 

the PSA). ABN Bank, which is incorporated under the laws of the Netherlands, is itself a 

subsidiary of defendant ABN AMRO Holding N.V. ("ABN Holding"), a public company that is 

also incorporated under the laws of the Netherlands. ABN Holding and ABN Bank are jointly 

referred to herein as ABN. 

Bank of America alleges in its complaint that in the PSA, ABN Bank expressly 

represented and warranted to Bank of America that each of the following matters was "true and 

correct": 

(a) ABN Bank "has full corporate power and authority to execute and deliver 

[the PSA] and to consummate the transactions contemplated hereby"; 

(b) "No other corporate proceedings (including any approvals of [ABN 

Bank's] stockholders) on the part of [ABN Bank] are necessary to 

approve [the PSA] and to consummate the transactions contemplated 

hereby"; 

(c) The PSA "has been duly and validly executed and delivered by [ABN 

Bank]" and "constitutes a valid and binding obligation of [ABN Bank], 

enforceable against [ABN Bank] in accordance with its terms"; and 

(d) "Neither the execution and delivery of [the PSA] by [ABN Bank] nor the 

consummation by [ABN Bank] of the transactions contemplated hereby, 

nor compliance by [ABN Bank] with any of the terms or provisions 

hereof, will . . . violate any statute, code, ordinance, rule, regulation, 

judgment, order, writ, decree or injunction applicable to [ABN Bank], 

[ABN North America] or any of their respective subsidiaries or any of 

their respective properties or assets." 

Bank of America alleges that these representations and warranties - which it also alleges 

confirmed oral assurances given by defendants' representatives to Bank of America during the 

course of negotiations that ABN Bank in fact had the authority to enter into the PSA and to sell 

ABN North America to Bank of America without the need for any further corporate proceedings 

under Dutch law -were essential terms of the contract in view of Bank of America's desire for 

speed and certainty of consummation. 

Case 1:07-cv-03578-PKC Document 7 Filed 06/11/2007 Page 2 of 7
The Honorable P. Kevin Caste1 

June 8,2007 

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Bank of America also alleges that the PSA contains a "go shop" provision that 

gave ABN Bank 14 days (i.e., until May 6,2007) to solicit, negotiate and conditionally accept a 

"Superior Proposal" for LaSalle from any third party. According to Bank of America, the PSA 

provides, in substance, that a "Superior Proposal" must be an all-cash offer to buy LaSalle itself 

(as distinct from ABN Holding as a whole) without any conditions relating to financing of the 

purchase price and on terms that are superior from a financial point of view to the Bank of 

America deal, subject to Bank of America's right to match any third party's "Superior Proposal" 

within five business days. Bank of America further alleges that the PSA provides that once the 

14-day "go shop" period has ended without ABN Bank's entry into an "Alternative Acquisition 

Agreement" with respect to a "Superior Proposal", ABN Bank cannot solicit, or even consider, 

alternative proposals to buy LaSalle. The "go-shop" period expired without ABN Holding 

receiving a "Superior Proposal" or entering into any such "Alternative Acquisition Agreement." 

On April 23, 2007, the same day that ABN Holding announced the LaSalle 

transaction with Bank of America, ABN Holding also announced an agreement to merge with 

Barclays PLC, a U.K. bank, in a stock-for-stock transaction that valued ABN AMRO at 

approximately $88 billion. The Barclays transaction is conditioned upon the sale of LaSalle. 

Bank of America's acquisition of LaSalle is not conditioned upon the Barclays transaction or any 

other transaction. 

On April 25,2007, a consortium of European banks (the "Consortium") publicly 

proposed the possibility of acquiring ABN Holding for stock and cash. One of the members of 

the Consortium, Royal Bank of Scotland Group plc ("RBS"), has publicly expressed its interest 

in acquiring LaSalle. Accordingly, the Consortium made its potential bid for ABN Holding 

contingent on LaSalle remaining within ABN Holding (and not being sold to Bank of America).' 

On April 26,2007, a Dutch shareholder advocacy group (the "VEB") commenced 

proceedings against ABN Holding and ABN Bank in the Enterprise Chamber of the Amsterdam 

Court of Appeal (the "Enterprise Chamber"), seeking, among other things, a provisional ruling 

that the sale of LaSalle required the approval of ABN Holding's shareholders under Dutch law. 

On April 28, the Enterprise Chamber held a hearing on the VEB's application for immediate 

relief and, on May 3, the Enterprise Chamber issued a provisional order forbidding the 

' On May 5,2007, ABN Holding received a proposal from the Consortium to purchase 

LaSalle, which was conditioned upon the purchase by the Consortium of ABN Holding as a 

whole. The Managing Board and the Supervisory Board of ABN Holding did not conclude that 

the Consortium's bid for LaSalle was a "Superior Proposal" under the PSA, and the 14-day "goshop" period thus expired without ABN Bank's acceptance of a "Superior Proposal." 

Case 1:07-cv-03578-PKC Document 7 Filed 06/11/2007 Page 3 of 7
The Honorable P. Kevin Caste1 

June 8,2007 

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implementation and consummation of the PSA pending approval of the transaction by ABN 

Holding's shareholders. 

ABN Holding and ABN Bank have appealed from the order of the Enterprise 

Chamber to the Netherlands Supreme Court - as have Bank of America and Barclays, both of 

which were permitted to participate in the proceedings before the Enterprise Chamber as 

"interested parties." Each of these parties has requested that the Netherlands Supreme Court 

nullify the May 3 order of the Enterprise Chamber. The VEB and the Consortium are expected 

to oppose these requests in briefs that are due on June 11. The Netherlands Supreme Court has 

recently agreed to give expedited treatment to these appeals and has advised all parties that it 

intends to render its decision on the appeals before the Court's summer recess begins (i.e., in 

early to mid-July 2007). 

Bank of America filed its complaint in this Court on May 4, 2007. The PSA 

provides that it is to be interpreted, construed and governed by New York law without regard to 

conflict of laws principles. 

Bank of America's complaint sets forth four causes of action: 

(a) Specific Performance. Bank of America seeks specific performance of 

ABN Bank's obligation - to sell LaSallc. The PSA recites the parties' 

agreement that irreparable damage would occur in the event that any 

party failed to consummate the proposed transaction in accordance with 

the terms of the PSA and that the parties "shall be entitled to specific 

performance in such event." 

(b) Iniunctive Relief. Bank of America also seeks an injunction preventing 

defendants from negotiating for the sale of LaSalle with, or selling 

LaSalle to, any third party other than as provided for in the PSA. 

(c) Damage claim for breach of contract. Alternatively, Bank of America 

seeks damages resulting from ABN Bank's alleged breach of 

representations and warranties relating to its authority to sell LaSalle and 

its ability to do so without any further corporate proceedings. 

(d) Damage claim for quantum meruit. Bank of America also seeks damages 

from both ABN Bank and ABN Holding on a theory of quantum meruit: 

if, as a result of their representations and warranties and the $21 billion 

purchase price they thereby succeeded in extracting from Bank of 

America, defendants are ultimately able to obtain an acquisition price for 

ABN Holding that exceeds the price they otherwise would have obtained, 

Case 1:07-cv-03578-PKC Document 7 Filed 06/11/2007 Page 4 of 7
The Honorable P. Kevin Caste1 

June 8,2007 

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defendants will have been unjustly enriched at the expense of Bank of 

America. 

All parties have agreed that the date for ABN to answer or move with respect to 

the Complaint is June 29,2007 and a stipulation establishing that response date has been 

submitted to the Court and so ordered. It is the position of ABN that the filing of this action by 

Bank of America was premature. First, it is ABN's position that if the decision of the Enterprise 

Chamber is reversed, as Bank of America has advocated in its appeal to the Netherlands 

Supreme Court, there is no breach of the PSA and no basis for this action whatsoever. Similarly, 

it is ABN's position that even if the decision of the Enterprise Chamber is not reversed and a 

shareholder vote proves necessary, that vote could approve the contracted sale of LaSalle to 

Bank of America and there would be no damages to Bank of America in connection with what 

would then be at most a technical breach of the PSA. Finally, it is ABN's position that even if a 

party other than Barclays PLC acquires ABN Holding, that party may choose to honor the terms 

of the PSA and complete the sale of LaSalle to Bank of America. Given these various scenarios, 

there is, in the view of ABN, no purpose served by the prosecution of this action at the present 

time. In Bank of America's view, the action is not premature and it could suffer damages 

attributable to what ABN characterizes as "at most a technical breach" of the PSA even if the 

sale of LaSalle to Bank of America were ultimately consummated. 

2. Contemplated Motions 

In Bank of America's view, the necessity for motion practice largely turns upon 

the outcome of the pending appeals to the Netherlands Supreme Court. In the event that the 

Supreme Court promptly reverses the Enterprise Chamber and rules that shareholder approval of 

the PSA by ABN Holding's shareholders is not required under Dutch law, and Bank of America 

and ABN Bank are able to proceed to closing under the PSA in a timely fashion, there probably 

will be no need for motion practice in this Court. Should the Supreme Court affirm the 

Enterprise Chamber, however, there are a number of motions that Bank of America might file 

depending upon the grounds for the Supreme Court's ruling and any actions taken by defendants 

(andior any third parties) in response thereto. Such motions could include: (a) a motion for a 

preliminary injunction prohibiting defendants' sale of LaSalle to a tlurd party; (b) a motion for 

partial summary judgment on Bank of America's claim for specific performance; and/or (c) a 

motion for expedited proceedings. 

In this connection, it is Bank of America's position that, even if the Netherlands 

Supreme Court were to affirm the Enterprise Chamber's ruling that the sale of ABN North 

America (which holds the shares of LaSalle) required the approval of ABN Holding's 

shareholders under Dutch law, Bank of America's rights to obtain injunctive relief, including 

specific performance, would remain unimpaired under New York law because: (1) Bank of 

America was a bona fide purchaser without notice of any fraud or misuse of power by 

defendants' directors in authorizing the sale of ABN North America; (2) under the PSA the 

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The Honorable P. Kevin Caste1 

June 8,2007 

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parties expressly agreed that New York law governs the interpretation and enforcement of the 

PSA and that this Court is the appropriate forum to determine any disputes arising under the 

PSA: and (3) under principles of contract and comity, this Court should not give extraterritorial 

effect to the Dutch court proceedings, especially inasmuch as the pertinent provisions of Dutch 

law apply (if at all) only to the rights of the shareholders of ABN Holding vis-a-vis the directors 

of that company, and not to the rights of Bank of America to enforce the PSA. See Cross 

Properties. Inc. v. Brook Realty Co., 37 A.D.2d 193, 201-03,322 N.Y.S.2d 773, 781-83 (2d 

Dep't 1971), aft d on the opinion below, 31 N.Y.2d 938 (1972) (holding that specific 

performance is a remedy available to bona fide purchaser, based in US., of seller's assets located 

in US., notwithstanding failure by seller's parent company to comply with shareholder vote 

requirement purportedly imposed by British law). 

ABN does not disagree that the need for motion practice will depend in large part 

on the resolution of the appeals to the Netherlands Supreme Court and other developments. At 

present ABN believes it is premature to identify potential motions that it may make. 

3. The Prospect for Settlement 

Given the pendency of the Dutch appeals, it is premature to comment on the 

prospect for settlement. 

4. Related Matters in this Court 

On April 27,2007, Halpert Enterprises commenced in Supreme Court, New York 

County, a purported class action against ABN Holding, the members of the Managing and 

Supervisory Boards of ABN Holding and Bank of America. Halpert Enterprises v. ABN AMRO 

Holding N.V.. et al., Index No. 07601397. Plaintiff alleges that the members of the ABN Boards 

breached their fiduciary duties by causing ABN Bank to enter into the PSA and that the 

termination fee clause in the PSA is unlawful as it was designed by ABN, its Board members and 

Bank of America to discourage other bidders for LaSalle. To date, Plaintiff in that action has 

See The Bremen v. Zapata Off-Shore Cow., 407 U.S. I, 12-13 (1972) (choice of forum 

clause in a "freely negotiated private international agreement, unaffected by fraud, undue 

influence, or overweening bargaining power, such as that involved here, should be given full 

effect"); & v. Corporation of Lloyd's, 996 F.2d 1353, 1362 (2d Cir. 1993) (noting the 

"presumptive validity of forum selection and choice of law clauses where the underlying 

transaction is fundamentally international in character" because such clauses "eliminate 

uncertainty in international commerce and insure that the parties are not unexpectedly subjected 

to hostile forums and laws"). 

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The Honorable P. Kevin Castel 

June 8,2007 

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served only Bank of America, and Bank of America has today filed a Notice of Removal to this 

Court (to which the ABN defendants have consented). We anticipate that the Halpert action will 

ultimately be assigned to Your Honor as a related case. 

Finally, on May 15,2007, an action was commenced in this Court captioned 

and Toni Sadowskv v. Bank of America Corporation, Civil Action No. 07 Civ. 3800. Plaintiffs 

in that action purport to be ABN Holding shareowners suing in the capacity of third party 

beneficiaries of the PSA. They assert various claims against Bank of America and, in particular, 

seek to enjoin the prosecution by Bank of America of its claims against ABN. The Sadowsky 

case has also been assigned to Your Honor. 

5. Request for Continuance of the Initial Conference 

Given the pending appeals to the Netherlands Supreme Court and the importance 

of those appeals to the claims asserted and defenses likely to be asserted in this action, the parties 

have conferred and agreed that that the initial conference now scheduled for June 15, 2007 at 

9:30 a.m. should be continued to a date after the Netherlands Supreme Court is likely to have 

ruled. As noted above, the parties believe that ruling will be issued sometime in early to rnidJuly and thus the parties request that the conference be scheduled sometime during the week of 

July 23, 2007. 

Respectfully yours, " n d $-% 

Eric M. Roth Lawrence Portnoy 

-. '/ WACHTELL, LIPTON, DAVIS POLK & WARDWELL 

& KATZ 

)r Plaintiff Bank Counsel for Defendants ABN 

.< . 

ROSEN 

Counsel fc 

of America AMRO Bank N.V. and ABN 

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