<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 19, 1997
REGISTRATION NO. 333-38135
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
PRE-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
BANKBOSTON CORPORATION
(Exact name of Registrant as specified in its charter)
------------------------
<TABLE>
<S> <C>
MASSACHUSETTS 04-2471221
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
100 FEDERAL STREET, BOSTON, MASSACHUSETTS 02110 (617) 434-2200
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
------------------------
<TABLE>
<S> <C>
GARY A. SPIESS, ESQ. JANICE B. LIVA, ESQ.
General Counsel and Clerk Assistant General Counsel and Assistant Clerk
BANKBOSTON CORPORATION BANKBOSTON CORPORATION
100 Federal Street 100 Federal Street
Boston, Massachusetts 02110 Boston, Massachusetts 02110
(617) 434-2870 (617) 434-8630
</TABLE>
(Names, addresses, including zip codes, and telephone numbers, including area
codes, of agents for service)
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION -- DATED NOVEMBER 19, 1997
PROSPECTUS
- -----------------
[BANKBOSTON LOGO]
BANKBOSTON CORPORATION
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
------------------------
BankBoston Corporation (the "Corporation") intends to issue from time to
time in one or more series up to $1,500,000,000 in aggregate initial offering
price of (i) debt securities, which may be either senior (the "Senior
Securities") or subordinated (the "Subordinated Securities"; and collectively
with the Senior Securities, the "Debt Securities") and warrants to purchase the
Debt Securities (the "Debt Warrants"), (ii) shares of preferred stock (the
"Preferred Stock"), which may be issued in the form of depositary shares
evidenced by depositary receipts (the "Depositary Shares"), and warrants to
purchase shares of the Preferred Stock (the "Preferred Stock Warrants"), and
(iii) shares of common stock, par value $1.50 per share (the "Common Stock") and
warrants to purchase shares of the Common Stock (the "Common Stock Warrants").
The Debt Securities, Preferred Stock, Depositary Shares, Common Stock, Debt
Warrants, Preferred Stock Warrants and Common Stock Warrants (such Debt
Warrants, Preferred Stock Warrants and Common Stock Warrants being referred to
collectively as the "Securities Warrants") offered hereby (collectively, the
"Securities") may be offered, separately or together, in separate series in
amounts, at prices and on terms to be determined at the time of sale and to be
set forth in a supplement to this Prospectus (a "Prospectus Supplement").
------------------------
The Debt Securities of any series may be issued with Securities Warrants,
and, in the case of the Subordinated Securities, may be convertible into or
exchangeable for Capital Securities of the Corporation (as defined herein). The
Senior Securities will rank equally with all other unsubordinated and unsecured
indebtedness of the Corporation. The Subordinated Securities will be subordinate
to all existing and future Senior Indebtedness of the Corporation (as defined
herein). The holders of Subordinated Securities of any series may be obligated
at any time or at maturity to exchange such Subordinated Securities for Capital
Securities. Unless otherwise indicated in the applicable Prospectus Supplement,
the maturity of the Subordinated Securities will be subject to acceleration only
in the event of certain events of bankruptcy, insolvency or reorganization of
the Corporation or the receivership of BankBoston, N.A. The specific terms of
the Securities in respect of which this Prospectus is being delivered, such as,
where applicable, (i) in the case of Debt Securities, the specific designation,
aggregate principal amount, currency, denomination, maturity, priority, rate of
interest (which may be variable or fixed), time of payment of interest, terms
for optional redemption or repayment by the Corporation or any holder or for
sinking fund payments, terms for conversion or exchange into Capital Securities
(in the case of Subordinated Securities), the initial public offering price, any
stock exchange listings, any special provisions related to Debt Securities
denominated in a foreign currency or issued as medium-term notes, original issue
discount securities or other special terms, and the designation of the Trustee,
Security Registrar and Paying Agent, (ii) in the case of Preferred Stock, the
specific title and stated value, number of shares or fractional interests
therein, any dividend, liquidation, redemption, voting and other rights, the
terms for conversion into Capital Securities or other preferred stock or for
exchange for Capital Securities or other debt securities, any stock exchange
listings, and the initial public offering price, (iii) in the case of the common
stock, the aggregate number of shares offered, and the initial public offering
price and (iv) in the case of Securities Warrants, where applicable, the
duration, offering price, exercise price and detachability, will be as set forth
in the accompanying Prospectus Supplement. The Prospectus Supplement will also
contain information, where applicable, about certain United States federal
income tax considerations relating to the Securities covered by the Prospectus
Supplement.
------------------------
The Securities may be sold to the public through, or through underwriting
syndicates managed or co-managed by, one or more underwriters, including
BancBoston Securities Inc. ("BSI"), pursuant to terms of offering established at
the time of sale. In addition, the Securities may be sold by the Corporation
directly or through dealers or agents designated from time to time, which agents
may include BSI. The Prospectus Supplement will also set forth with respect to
the sale of the Securities in respect of which this Prospectus is being
delivered the names of the underwriters, dealers or agents, if any, any
applicable commissions or discounts, the net proceeds to the Corporation from
such sale and any other terms of the offering. Any underwriters, dealers or
agents participating in the offering may be deemed "underwriters" within the
meaning of the Securities Act of 1933, as amended (the "Securities Act").
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
------------------------
THE SECURITIES WILL BE UNSECURED OBLIGATIONS OF THE CORPORATION AND WILL
NOT BE SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY BANK OR NONBANK
SUBSIDIARY OF THE CORPORATION AND ARE NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION (THE "FDIC"), BANK INSURANCE FUND OR ANY OTHER GOVERNMENT
AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS
SUPPLEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is , 1997.
<PAGE> 3
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
THE PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
CORPORATION OR ANY UNDERWRITER OR AGENT. THE DELIVERY OF THIS PROSPECTUS OR THE
PROSPECTUS SUPPLEMENT AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION HEREIN OR
THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY OF THE SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT
IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION.
UNLESS OTHERWISE INDICATED, CURRENCY AMOUNTS IN THIS PROSPECTUS AND ANY
PROSPECTUS SUPPLEMENT ARE STATED IN U.S. DOLLARS ("$," "DOLLARS," "U.S.
DOLLARS," OR "U.S. $").
AVAILABLE INFORMATION
The Corporation is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements, and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Corporation can be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's regional
offices at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, and 7
World Trade Center, Suite 1300, New York, New York 10048. Copies of such
material can be obtained by mail from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 at
prescribed rates. Certain securities of the Corporation are listed on the New
York Stock Exchange ("NYSE") and the Boston Stock Exchange ("BSE"), and such
reports, proxy statements and other information concerning the Corporation also
may be inspected at the offices of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005, and the Boston Stock Exchange Incorporated,
One Boston Place, Boston, Massachusetts 02108. The Commission also maintains an
internet site (http://www.sec.gov) that contains information regarding the
Corporation's electronic filings with the Commission.
This Prospectus does not contain all of the information set forth in the
Registration Statements on Form S-3 (and exhibits thereto, as amended) which the
Corporation has filed with the Commission under the Securities Act and to which
reference is hereby made. The Registration Statements (and exhibits thereto) may
be inspected at the Public Reference Section of the Commission, at the address
noted above, and copies thereof may be obtained from the Commission at
prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Prospectus the following
documents and information heretofore filed by the Corporation with the
Commission, which documents are not presented herein or delivered herewith:
1. The Corporation's Annual Report on Form 10-K for its fiscal year
ended December 31, 1996 (the "1996 10-K");
2. Quarterly Reports on Form 10-Q for the periods ended March 31, 1997,
June 30, 1997 and September 30, 1997;
3. Current Reports on Form 8-K dated January 16, 1997, April 17, 1997,
July 17, 1997 and October 16, 1997; and
4. The description of the Corporation's Common Stock, Preferred Stock
and Preferred Stock Purchase Rights contained in the Corporation's
registration statements filed under Section 12 of the Exchange Act,
including any amendment or report filed for the purpose of updating
such description.
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<PAGE> 4
All documents subsequently filed by the Corporation pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the
offering of the Securities offered hereby shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the date of filing
of such documents. Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in the accompanying Prospectus Supplement, or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
THE CORPORATION WILL PROVIDE UPON REQUEST AND WITHOUT CHARGE TO EACH PERSON
TO WHOM THIS PROSPECTUS IS DELIVERED A COPY OF ANY OR ALL OF THE FOREGOING
DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED THEREIN BY REFERENCE). WRITTEN
REQUESTS SHOULD BE DIRECTED TO INVESTOR RELATIONS, BANKBOSTON CORPORATION, P.O.
BOX 2016, 01-20-02, BOSTON, MASSACHUSETTS 02106-2016. TELEPHONE REQUESTS MAY BE
DIRECTED TO INVESTOR RELATIONS AT (617) 434-7858.
THE CORPORATION
The Corporation's name was changed from "Bank of Boston Corporation" to
"BankBoston Corporation" effective April 25, 1997. The Corporation is a
registered bank holding company, organized in 1970 under Massachusetts law, with
national and international operations. Through its subsidiaries and, in certain
cases, joint ventures, the Corporation is engaged in providing a wide variety of
personal, corporate and global banking services to individuals, corporate and
institutional customers, governments, and other financial institutions. These
services include retail banking, consumer finance, private banking, trust,
mortgage origination and servicing, domestic corporate and investment banking,
leasing, international banking, commercial real estate lending, correspondent
banking, and securities and payments processing. The Corporation's principal
subsidiary is BankBoston, N.A. (the "Bank"), a national banking association. The
other major banking subsidiary of the Corporation is Rhode Island Hospital Trust
National Bank ("Hospital Trust").
As of September 30, 1997, the Corporation had total assets of $68.2
billion, total deposits of $44.7 billion and total stockholders' equity of $4.4
billion.
The executive office of the Corporation and the head office of the Bank are
located at 100 Federal Street, Boston, Massachusetts 02110 (Telephone
617-434-2200).
------------------------
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS
The Corporation's ratios of earnings to fixed charges and earnings to
combined fixed charges and preferred stock dividend requirements are set forth
below for the periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEARS ENDED DECEMBER 31,
---------------- ------------------------------------
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Excluding Interest on Deposits.... 2.33x 2.16x 2.24x 2.08x 1.90x 2.44x 2.17x
Including Interest on Deposits.... 1.53 1.41 1.44 1.42 1.41 1.38 1.22
Earnings to Combined Fixed Charges and
Preferred Stock Dividend
Requirements:
Excluding Interest on Deposits.... 2.20 2.01 2.09 1.96 1.79 2.13 2.00
Including Interest on Deposits.... 1.49 1.37 1.40 1.38 1.37 1.33 1.20
</TABLE>
For purposes of computing both the ratio of earnings to fixed charges and
earnings to combined fixed charges and preferred stock dividend requirements,
earnings represent net income before extraordinary items and cumulative effect
of changes in accounting principles plus applicable income taxes and fixed
charges.
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<PAGE> 5
Fixed charges, excluding interest on deposits, include interest expense (other
than on deposits) and the proportion deemed representative of the interest
factor of rent expense, net of income from subleases. Fixed charges, including
interest on deposits, include all interest expense and the proportion deemed
representative of the interest factor of rent expense, net of income from
subleases. Pretax earnings required for preferred stock dividends were computed
using tax rates for the applicable year.
SUPERVISION AND REGULATION
The Corporation, as a bank holding company, is registered with the Board of
Governors of the Federal Reserve System (the "Board of Governors"). The
Corporation is subject to the supervision of, and to regular inspection by, the
Federal Reserve Bank of Boston. The Corporation's banking subsidiaries that are
organized as national banking associations, the Bank and Hospital Trust, are
subject to regulation by the Office of the Comptroller of the Currency (the
"OCC") and the FDIC. A summary of certain of these regulatory provisions is set
forth in the Corporation's 1996 10-K.
In addition to extensive existing government regulation, federal and state
statutes and regulations can change in unpredictable ways, often with
significant effects on the way in which banks may conduct business. Legislation
which has been enacted in recent years has substantially increased the level of
competition among commercial banks, thrift institutions and non-banking
institutions, including insurance companies, brokerage firms, mutual funds,
investment banks and major retailers. The enactment of banking legislation such
as the Financial Institutions Reform, Recovery, and Enforcement Act of 1989
("FIRREA") and the Federal Deposit Insurance Corporation Improvement Act of 1991
has affected the banking industry by, among other things, broadening the
regulatory powers of the federal banking agencies in a number of areas. Under
FIRREA, an FDIC-insured bank can be held liable for any loss incurred by, or
reasonably expected to be incurred by, the FDIC in connection with (i) the
default of a commonly controlled FDIC-insured bank or (ii) any assistance
provided by the FDIC to a commonly controlled FDIC-insured bank in danger of
default. "Default" is defined generally as the appointment of a conservator or
receiver and "in danger of default" is defined generally as the existence of
certain conditions indicating that a "default" is likely to occur in the absence
of regulatory assistance. In addition, FIRREA broadened the enforcement powers
of the federal banking agencies, including the power to impose fines and
penalties, over all financial institutions. Further, under FIRREA the failure to
meet capital guidelines could subject a financial institution to a variety of
regulatory actions, including the termination of deposit insurance by the FDIC.
USE OF PROCEEDS
The Corporation intends to use the net proceeds from the sale of the
Securities for general corporate purposes which may include one or more of the
following: investments in and advances to the Corporation's subsidiaries;
financing future acquisitions of financial institutions, as well as banking and
other assets; and the redemption of certain of the Corporation's outstanding
securities. The precise amounts and timing of the application of proceeds used
for such corporate purposes will depend upon funding requirements and the
availability of other funds to the Corporation and its subsidiaries.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The following sets forth certain general terms and provisions of the Debt
Securities to which any Prospectus Supplement may relate. The particular terms
of any Debt Securities and the extent, if any, to which such general provisions
may apply to such Debt Securities will be described in the Prospectus Supplement
relating to such Debt Securities.
The Senior Securities offered hereby are to be issued under an Indenture,
dated as of June 15, 1992, between the Corporation and Norwest Bank Minnesota,
National Association ("Norwest" or the "Trustee"), as Trustee (the "Senior
Indenture") and the Subordinated Securities offered hereby are to be issued
under an Indenture, dated as of June 15, 1992, between the Corporation and
Norwest, as Trustee, as amended by the
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<PAGE> 6
First Supplemental Indenture dated as of June 24, 1993 (the "Subordinated
Indenture"; and collectively with the Senior Indenture, the "Indentures"),
copies of which are filed as exhibits to the Registration Statement. The
following summaries of certain provisions of the Indentures do not purport to be
complete and such summaries are qualified in their entirety by reference to all
of the provisions of the Indentures, including the definitions therein of
certain terms. Whenever particular sections, articles or defined terms of the
Indentures are referred to, such provisions or definitions are incorporated
herein by reference.
Because the Corporation is a holding company, its rights and the rights of
its creditors, including the Holders of the Debt Securities, to participate in
the assets of any subsidiary, including the Bank, upon the subsidiary's
liquidation or reorganization or otherwise would be subject to the prior claims
of the subsidiary's creditors, except to the extent that the Corporation may
itself be a creditor with recognized claims against the subsidiary. There is no
restriction in the Debt Securities or either Indenture against the incurring of
indebtedness by the Corporation, the Bank or any other subsidiary of the
Corporation.
The Indentures do not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and Debt Securities may be issued
thereunder in series up to the aggregate principal amount which may be
authorized from time to time by the Corporation. The Debt Securities will be
unsecured obligations of the Corporation. The Senior Securities will rank on a
parity with all other unsecured and unsubordinated indebtedness of the
Corporation. The Subordinated Securities will be subordinate in right of payment
as described below under "Subordination." Unless otherwise set forth in the
Prospectus Supplement, neither the Indentures nor the Debt Securities contain
provisions which would afford Holders of Debt Securities protection in the event
of a takeover, recapitalization or similar restructuring of the Corporation,
which could adversely affect the Debt Securities.
The Debt Securities may be issued in one or more separate series of Senior
Securities and/or one or more separate series of Subordinated Securities.
Reference is made to the Prospectus Supplement relating to the particular series
of Debt Securities offered thereby for the terms of such Debt Securities,
including, where applicable:
(1) the title of such Debt Securities (which shall distinguish such
Debt Securities from all other series of Debt Securities), which may
include medium-term notes;
(2) any limit on the aggregate principal amount or aggregate initial
offering price of the Debt Securities;
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of such Debt Securities
will be payable;
(4) the rate or rates at which the Debt Securities will bear
interest, if any, which rate may be zero in the case of certain Debt
Securities issued at an issue price representing a discount from the
principal amount payable at maturity, or the method by which such rate or
rates will be determined, and the date or dates from which such interest,
if any, will accrue or the method by which such date or dates will be
determined;
(5) the date or dates on which such interest, if any, on the Debt
Securities will be payable and the regular record date, if any, for such
Interest Payment Dates or the method by which such date or dates will be
determined;
(6) the place or places where (i) the principal of and premium, if
any, and any interest on the Debt Securities will be payable, (ii)
Registered Debt Securities may be surrendered for registration of transfer,
and (iii) Debt Securities may be surrendered for exchange;
(7) any sinking fund or analogous provisions;
(8) the period or periods within which, the price or prices at which
and the Currency in which, the Debt Securities may, pursuant to any
redemption provision, be redeemed, in whole or in part, and the other
detailed terms and provisions of any such redemption provisions;
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<PAGE> 7
(9) if other than denominations of $1,000 and any integral multiples
thereof, the denominations in which any Registered Debt Securities will be
issuable and, if other than a denomination of $5,000, the denominations in
which any Bearer Debt Securities will be issuable;
(10) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent, and the designation of the initial Exchange
Rate Agent, if any;
(11) if other than the principal amount, the portion of the principal
amount (or the method by which such portion will be determined) of Debt
Securities that will be payable upon declaration of acceleration of the
Maturity thereof;
(12) if other than United States dollars, the currency of payment,
including composite currencies, of principal and premium, if any, and
interest, if any, on such Debt Securities, (which may be different for
principal, premium, if any, and interest, if any);
(13) any index, formula or other method used to determine the amount
of payments of principal of and premium, if any, and interest, if any, on
the Debt Securities;
(14) whether the principal of and premium, if any, and interest, if
any, on the Debt Securities are to be payable, at the election of the
Corporation or the Holder, in a Currency other than the Currency in which
the Debt Securities are denominated or stated to be payable and the period
or periods within which and the terms, conditions and manner of making such
election and determining the applicable exchange rate;
(15) any terms upon which any Subordinated Securities will be
convertible into or exchangeable for Capital Securities of the Corporation;
(16) whether such Debt Securities are Senior Securities or
Subordinated Securities, or include both;
(17) whether provisions relating to defeasance and covenant defeasance
will be applicable to such series of Debt Securities;
(18) any provisions granting special rights to Holders of Debt
Securities upon the occurrence of specified events;
(19) any modifications, deletions or additions to the Events of
Default, Defaults (in the case of Subordinated Securities) or covenants of
the Corporation with respect to the Debt Securities;
(20) whether the Debt Securities are issuable as Registered Debt
Securities, Bearer Debt Securities (with or without coupons) or both, any
restrictions on the offer, sale or delivery of Bearer Debt Securities, and
whether Bearer or Registered Debt Securities may be exchanged for
Registered or Bearer Debt Securities, respectively, and the circumstances
and place or places where such exchanges may be made;
(21) whether any Debt Securities are issuable initially in temporary
or permanent global form (with or without coupons) and, if so (i) whether
(and the circumstances under which) beneficial owners of interests in
permanent global Debt Securities may exchange their interests for Debt
Securities of like tenor of any authorized form and denomination, and (ii)
the identity of any initial depository for such global Debt Securities;
(22) the date as of which any Bearer Debt Securities and any temporary
global Debt Security will be dated if other than the original issuance date
of the first Debt Security of that series to be issued;
(23) the Person to whom any interest on any Registered Debt Securities
will be payable, if other than the registered Holder, the Person to whom
any interest on any Bearer Debt Securities will be payable if other than
upon presentation and surrender of the coupons appertaining thereto, and
the extent to which and manner that any interest payable on a temporary
global Debt Security will be paid if other than as specified in the
Indentures;
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<PAGE> 8
(24) the form and/or terms of certificates, documents or conditions,
if any, for Debt Securities to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Debt Security of such
Series);
(25) if Debt Securities are to be issued upon the exercise of
warrants, the time, manner and place for such Debt Securities to be
authenticated and delivered;
(26) whether and under what circumstances the Corporation will pay
Additional Amounts regarding any tax, assessment or government charge as
contemplated by the applicable Indenture to any Holder who is not a United
States person and, if so, whether and under what terms the Corporation will
have the option to redeem such Debt Securities in lieu of paying such
Additional Amounts (and the terms of such option); and
(27) any other terms, conditions, rights and preferences (or
limitations on such rights or preferences) relating to the Debt Securities
(which terms shall not be inconsistent with the provisions of the
applicable Indenture and the Trust Indenture Act).
The Debt Securities may be issued as Original Issue Discount Debt
Securities to be sold at a substantial discount below their principal amount.
Special U.S. federal income tax and other considerations applicable thereto will
be described in the Prospectus Supplement relating thereto.
The Debt Securities may also be issued under the Indentures upon exercise
of Debt Warrants issued by the Corporation. See "Description of Securities
Warrants."
Under the Indentures, the Company will have the ability, in addition to the
ability to issue Debt Securities with terms the same as or different from those
of Debt Securities previously issued, to "reopen" a previous issue of a series
of Debt Securities and issue additional Debt Securities of such series or
establish additional terms of such series of Debt Securities.
REGISTRATION AND TRANSFER
Unless otherwise provided in the Prospectus Supplement, each series of Debt
Securities will be issued only as Registered Securities. If so provided with
respect to a series of Debt Securities, however, Debt Securities of such series
will be issued only as Bearer Securities, or in a combination of both Registered
Securities and Bearer Securities. Debt Securities issued as Bearer Securities
shall have interest coupons attached unless issued as zero coupon securities.
(Sections 201, 301. All Section references herein are to the applicable
Indenture or Indentures.) If Bearer Securities are issued, the United States
federal income tax consequences and other special considerations, procedures and
limitations applicable to such Bearer Securities will be described in the
Prospectus Supplement.
Unless otherwise provided in the Prospectus Supplement, Registered
Securities may be presented for transfer (duly endorsed or accompanied by a
written instrument of transfer, if so required by the Corporation or the
Security Registrar) or exchanged for other Debt Securities of the same series at
the office of its agent in New York City or the principal office of the Bank in
Boston. Such transfer or exchange shall be made without service charge, but the
Corporation may require payment of any tax or other governmental charge as
described in the applicable Indenture. Any provisions relating to the exchange
of Bearer Securities for other Debt Securities of the same series (including, if
applicable, Registered Securities) will be described in the Prospectus
Supplement. Unless otherwise specified in the Prospectus Supplement, Registered
Securities will not be exchangeable for Bearer Securities. (Sections 301, 305,
1002.)
Unless otherwise indicated in the Prospectus Supplement, Registered
Securities, other than Registered Securities issued in global form which may be
of any denomination, will be issued without coupons and in denominations of
$1,000 or integral multiples thereof, and Bearer Securities, other than Bearer
Securities issued in global form which may be of any denomination, will be
issued in a denomination of $5,000. (Sections 301, 302.)
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GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of, a depositary or common depositary (the "Common
Depositary") identified in the Prospectus Supplement. Global Securities may be
issued in either registered or bearer form and in either temporary or permanent
form. Unless and until it is exchanged in whole or in part for the individual
Debt Securities represented thereby, a Global Security may not be transferred
except as a whole by the Common Depositary for such Global Security to its
nominee or another nominee or by a nominee to the Common Depositary or another
nominee or by the Common Depositary or any nominee to a successor Common
Depositary or any nominee of such successor. (Sections 203, 303, 304.)
The specific terms of the depository arrangement with respect to a series
of Debt Securities and certain limitations and restrictions, including special
U.S. federal income tax consequences, relating to a series of Bearer Securities
in the form of one or more Global Securities, will be described in the
Prospectus Supplement.
Principal and interest payments on the Global Securities registered in the
name of the Common Depositary or its nominee will be made to the Common
Depositary or its nominee, as the case may be, as the registered owner of such
Global Securities. Under the terms of the Indentures, the Corporation and the
Paying Agents will treat the persons in whose names the Global Securities are
registered as the owners of such Global Securities for the purpose of receiving
payment of principal and interest on such Global Securities and for all other
purposes whatsoever. Therefore, neither the Corporation nor the Paying Agents
has any direct responsibility or liability for the payment of principal of or
interest on the Global Securities to owners of beneficial interests in the
Global Securities.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the Prospectus Supplement, payment of
principal of and premium, if any, and interest, if any, on Registered Securities
will be made at the office of its agent in New York City or at the principal
office of the Bank in Boston, except that, at the option of the Corporation,
interest may be paid by mailing a check to the address of the person entitled
thereto as such address appears in the Security Register. (Sections 301, 307,
1002.)
Unless otherwise indicated in the Prospectus Supplement, payment of
principal of and premium, if any, and interest, if any, on Bearer Securities
will be made, subject to any applicable laws and regulations, at such office
outside the United States as specified in the Prospectus Supplement and as the
Corporation may designate from time to time or by transfer to an account
maintained by the payee with a bank located outside the United States. Unless
otherwise indicated in the Prospectus Supplement, payment of interest on Bearer
Securities will be made only against surrender of the coupon relating to such
Interest Payment Date. No payment with respect to any Bearer Security will be
made at any office or agency of the Corporation in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States. (Sections 301, 307.)
RESTRICTION ON CERTAIN DISTRIBUTIONS
The Corporation has agreed in the Senior Indenture that it will not make
any payment or other distribution in shares of capital stock of the Bank or its
successor, unless the Bank or its successor unconditionally guarantees payment
when due of the principal of and premium, if any, and interest, if any, on the
Senior Securities issued pursuant to the Senior Indenture. (Section 1008.)
RESTRICTIONS ON LIENS
The Senior Indenture also prohibits the Corporation from, directly or
indirectly, creating, assuming, incurring or suffering to exist any Lien upon
any shares of capital stock of the Bank (other than directors' qualifying
shares) or any shares of capital stock of a Subsidiary which owns capital stock
of the Bank, except liens for taxes, assessments, judgments or other
governmental charges or levies that are not yet due or are
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payable without penalty or of which the amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which the
Corporation shall set aside on its books adequate reserves with respect thereto.
(Section 1009.)
CONSOLIDATION, MERGER AND SALE OF ASSETS
Under each Indenture, the Corporation, without the consent of the Holders
of any of the Outstanding Debt Securities under the applicable Indenture, may
consolidate with or merge into any other corporation or convey, transfer or
lease its properties and assets substantially as an entirety to any Person
provided that: (i) the successor is a corporation organized and existing under
the laws of the United States, any state thereof or the District of Columbia;
(ii) the successor corporation expressly assumes, by an indenture supplemental
to the applicable Indenture, the Corporation's obligation for the due and
punctual payment of the principal of and premium, if any, and interest, if any,
on all of the Debt Securities under the applicable Indenture and the performance
of every covenant of the applicable Indenture; (iii) after giving effect to the
transaction, no Event of Default under the Senior Indenture and no Default under
the Subordinated Indenture, and no event which, after notice or lapse of time,
or both, would become an Event of Default or a Default, as the case may be,
shall have happened and be continuing; and (iv) certain other conditions are
met. (Section 801.)
MODIFICATION AND WAIVER
Each Indenture provides that modification or amendments of the Indentures
may be made by the Corporation and the Trustee, with the consent of the Holders
of 66 2/3 percent in principal amount of the Outstanding Debt Securities of each
series affected by such modification or amendment; provided, however, that no
such modification or amendment may, without the consent of the Holder of each
Outstanding Debt Security affected thereby: (a) change the Stated Maturity of
the principal of, or any installment of interest on, any Debt Security; (b)
reduce the principal amount of, or rate of interest, if any, on, or any premium
payable upon the redemption or (in the case of Subordinated Securities) exchange
of any Debt Security; (c) change any obligation of the Corporation to pay
Additional Amounts; (d) reduce the amount of principal of any Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof or the amount provable in bankruptcy; (e)
adversely affect any right of repayment at the option of any Holder of any Debt
Security; (f) change the place or Currency of, or (in the case of Subordinated
Securities) class of Capital Securities for, payment of principal of, or any
premium or interest on, any Debt Security; (g) impair the right to institute
suit for the enforcement of any payment on or with respect to any Debt Security
on or after the Stated Maturity thereof (or, in the case of redemption, exchange
(in the case of Subordinated Securities) or repayment at the option of the
Holder, on or after the Redemption Date, Exchange Date (in the case of
Subordinated Securities) or Repayment Date); (h) adversely affect the right to
convert any Convertible Security (in the case of Subordinated Securities); (i)
reduce the percentage of principal amount of Outstanding Debt Securities of any
series, the consent of whose Holders is required for modification or amendment
of the Indentures, or for waiver of compliance with certain provisions of the
Indentures or for waiver of certain defaults and their consequences, or reduce
the requirements for quorum or voting by the Holders; or (j) modify certain
provisions of the Indentures except to increase the percentage of Holders
required to consent thereon to amendment or modification thereof or to provide
that certain other Indenture provisions cannot be modified or waived without the
consent of the Holder of each Outstanding Debt Security affected thereby.
(Section 902.)
The Holders of 66 2/3 percent in principal amount of the Outstanding Debt
Securities of each series may, on behalf of all Holders of Debt Securities of
that series, waive, insofar as that series is concerned, compliance by the
Corporation with certain terms, conditions, or provisions of the Indentures.
(Section 1011.) The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series may, on behalf of all Holders of
Debt Securities of that series, waive any past default under the applicable
Indentures with respect to Debt Securities of that series and its consequences,
except a default in the payment of principal (including, in the case of
Subordinated Securities, principal to be paid by delivery of Capital Securities)
or premium, if any, or interest, if any, or in respect of a covenant or
provision which under Article 9 of each Indenture cannot be modified or amended
without the consent of the Holder of each Outstanding Debt Security of such
series affected. (Section 513.)
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Each Indenture provides that, in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or are present at a meeting of Holders for quorum purposes, and for making
calculations required under Section 313 of the Trust Indenture Act: (i) the
principal amount of an Original Issue Discount Security that may be counted in
making such determination or calculation and that shall be deemed to be
Outstanding shall be the amount of principal thereof that would be due and
payable as of the time of such determination upon acceleration of the Maturity
thereof; (ii) the principal amount of any Debt Security denominated in a Foreign
Currency that may be counted in making such determination or calculation and
that shall be deemed to be Outstanding for such purpose shall be the Dollar
equivalent, determined as of the date of original issuance of such Debt
Security, of the principal amount of such Debt Security (or, in the case of an
Original Issue Discount Security, the Dollar equivalent, determined as of the
date of original issuance of such Debt Security, of the amount determined as
provided in (i) above); and (iii) the principal amount of any Indexed Debt
Security that may be counted in making such determination or calculation and
that shall be deemed Outstanding for such purpose shall be equal to the
principal face amount of such Indexed Debt Security at original issuance, unless
otherwise provided with respect to such Debt Security. (Section 101.)
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide that the Corporation may elect (1) to defease and be
discharged from its obligations with respect to any Debt Securities of or within
a series and any related coupons (except the obligations to pay any Additional
Amounts; to register the transfer of or exchange such Debt Securities and any
related coupons; to replace temporary or mutilated, destroyed, lost or stolen
Debt Securities and any related coupons; to maintain an office or agency in
respect of such Debt Securities and any related coupons; and to hold moneys for
payment in trust) ("defeasance") or (2) with respect to the Senior Indenture, to
be released from its obligations with respect to such Debt Securities and any
related coupons under Section 1009 of the Senior Indenture (the restriction
described above under "Restrictions on Liens") or, if provided pursuant to
Section 301 of the applicable Indenture, its obligations with respect to any
other covenant, and any omission to comply with such obligations shall not
constitute a default or an Event of Default under the Senior Indenture or a
Default under the Subordinated Indenture with respect to such Debt Securities
and any related coupons ("covenant defeasance"), in either case by (a)
depositing irrevocably with the Trustee as trust funds in trust (i) an amount in
such Currency or, with respect to the Subordinated Securities, a sum (including
Capital Securities, if any) in such Currency (or class of Capital Securities),
in which such Debt Securities and any related coupons are payable at Stated
Maturity, or (ii) Government Obligations (as defined below), in each case in an
amount which through the scheduled payment of principal of and premium, if any,
and interest, if any, in respect thereof in accordance with their terms will
provide, not later than one business day before the due date of any payment,
money in an amount or (iii) a combination of such Currency and Government
Obligations, sufficient to pay the principal (including in the case of
Subordinated Securities, principal to be paid by the delivery of Capital
Securities) of and premium, if any, and interest, if any, on the Debt Securities
of such series and any related coupons on the Stated Maturity of such principal
or installment of principal or interest and any mandatory sinking fund or
similar payments applicable to such Debt Securities and (b) satisfying certain
other conditions precedent specified in the Indentures. Such deposit and
termination is conditioned among other things upon the Corporation's delivery of
an Opinion of Counsel that the Holders of the Debt Securities of such series and
any related coupons will have no U.S. federal income tax consequences as a
result of such deposit and termination. (Senior Indenture, Article 14;
Subordinated Indenture, Article 15.)
If the Corporation exercises its covenant defeasance option with respect to
any series of Debt Securities and any related coupons and such Debt Securities
and related coupons are declared due and payable because of the occurrence of
any Event of Default other than with respect to a covenant as to which there has
been covenant defeasance described above, the money and Government Obligations
on deposit with the Trustee will be sufficient to pay amounts due on such Debt
Securities at their Stated Maturity but may not be sufficient to pay amounts due
on such Debt Securities and any related coupons at the time of acceleration
relating to such Event of Default. However, the Corporation would remain liable
to make payment of such amounts due at the time of acceleration.
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The Prospectus Supplement may further describe the provisions, if any,
permitting such defeasance or covenant defeasance, including any modifications
to the provisions described above, with respect to the Debt Securities of or
within any particular series and any related coupons.
Unless otherwise specified in the Prospectus Supplement, "Government
Obligations" means securities that are (i) direct obligations of the government
which issued the Currency in which the Debt Securities of a particular series
are payable or (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the government which issued the
Currency in which the Debt Securities of a particular series are payable, the
payment of which is unconditionally guaranteed by such government, which, in
either case, are full faith and credit obligations of such government payable in
such Currency and are not callable or redeemable at the option of the issuer
thereof, and also includes a depositary receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depositary receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest or principal of the Government
Obligation evidenced by such depositary receipt. (Section 101.)
REGARDING THE TRUSTEE
Norwest, the Trustee under the Indentures, has its principal corporate
trust office at Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479.
The Corporation and its banking subsidiaries maintain banking relationships with
the Trustee.
SENIOR SECURITIES
The Senior Securities will be direct unsecured obligations of the
Corporation and will constitute Senior Indebtedness (as defined below under
"Subordinated Securities -- Subordination") ranking on a parity with the other
Senior Indebtedness of the Corporation.
EVENTS OF DEFAULT
The following will be Events of Default under the Senior Indenture with
respect to Senior Securities of any series: (a) failure to pay principal or
premium, if any, on any Senior Security of that series at Maturity; (b) failure
to pay any interest on any Senior Security of that series when due and payable,
continued for 30 days; (c) failure to deposit any sinking fund payment, when
due, in respect of any Senior Security of that series; (d) failure to perform
any covenant or warranty of the Corporation in the Senior Indenture (other than
a covenant or warranty included in the Senior Indenture solely for the benefit
of series of Senior Securities other than that series), continued for 60 days
after written notice as provided in the Senior Indenture; (e) default under any
bond, debenture, note, mortgage, indenture, other instrument or other evidence
of Indebtedness for Money Borrowed in an aggregate principal amount exceeding
$3,000,000 by the Corporation or the Bank or its successors (including a default
with respect to Senior Securities of another series) under the terms of the
instrument or instruments by or under which such indebtedness is evidenced,
issued or secured, which default results in the acceleration of such
indebtedness, if such acceleration is not rescinded or annulled, or such
indebtedness is not discharged, within ten days after written notice as provided
in the Senior Indenture; (f) certain events in bankruptcy, insolvency or
reorganization of the Corporation or the Bank; and (g) any other Event of
Default provided with respect to Senior Securities of that series. (Senior
Indenture, Section 501.)
If an Event of Default with respect to Senior Securities of any series at
the time Outstanding occurs and is continuing, either the Trustee or the Holders
of at least 25 percent in aggregate principal amount of the Outstanding Senior
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Senior Securities or
Indexed Securities, such portion of the principal amount of such Senior
Securities as may be specified in the terms thereof) of all the Senior
Securities of that series to be due and payable immediately, by a written notice
to the Corporation (and to the Trustee, if given by Holders), and upon any such
declaration such principal amount (or specified amount) shall become
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immediately due and payable. At any time after a declaration of acceleration
with respect to Senior Securities of any series has been made, but before a
judgment or decree for payment of the money due has been obtained, the Holders
of a majority in principal amount of Outstanding Senior Securities of that
series may, under certain circumstances, rescind and annul such declaration and
its consequences, if all Events of Default have been cured, or if permitted,
waived, and all payments due (other than those due as a result of acceleration)
have been made or provided for. (Senior Indenture, Section 502.)
The Senior Indenture provides that, subject to the duty of the Trustee
during default to act with the required standard of care, the Trustee will be
under no obligation to exercise any of its rights or powers under the Senior
Indenture at the request or direction of any of the Holders of Senior Debt
Securities of any series or any related coupons, unless such Holders shall have
offered to the Trustee reasonable indemnity or security against the costs,
expenses and liabilities which may be incurred. (Senior Indenture, Section 602.)
Subject to certain provisions, the Holders of a majority in aggregate principal
amount of the Outstanding Senior Securities of any series will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Senior Securities of that series. (Senior
Indenture, Section 512.)
The Corporation is required to deliver to the Trustee annually an Officers'
Certificate as to its performance and observance of any of the terms, provisions
and conditions with respect to certain provisions in the Senior Indenture and as
to the absence of default. (Senior Indenture, Section 1010.)
SUBORDINATED SECURITIES
The Subordinated Securities will be direct, unsecured obligations of the
Corporation. The obligations of the Corporation pursuant to the Subordinated
Securities will be subordinate in right of payment to all Senior Indebtedness as
defined below under "Subordination."
Unless otherwise indicated in the applicable Prospectus Supplement, the
maturity of the Subordinated Securities will be subject to acceleration only in
the event of certain events of bankruptcy, insolvency or reorganization of the
Corporation or the receivership of the Bank. See "Events of Default; Defaults"
below.
SUBORDINATION
The obligation of the Corporation to make any payment on account of the
principal of or premium, if any, and interest, if any, on the Subordinated
Securities will be subordinate and junior in right of payment to the
Corporation's obligations to the Holders of Senior Indebtedness of the
Corporation to the extent described in the next paragraph. (Subordinated
Indenture, Section 1301.) "Senior Indebtedness" of the Corporation is defined in
the Subordinated Indenture to mean Indebtedness for Money Borrowed of the
Corporation and all Additional Senior Obligations, whether outstanding on the
date of execution of the Subordinated Indenture or thereafter created, assumed
or incurred, except "Indebtedness Ranking on a Parity with the Securities" or
"Indebtedness Ranking Junior to the Securities" and any deferrals, renewals or
extensions of such Senior Indebtedness. "Indebtedness for Money Borrowed" of the
Corporation is defined in the Subordinated Indenture as any obligation of, or
any obligation guaranteed by, the Corporation for the repayment of borrowed
money, whether or not evidenced by bonds, debentures, notes or other written
instruments, and any deferred obligations for the payment of the purchase price
of property or assets, except Additional Senior Obligations. "Additional Senior
Obligations" of the Corporation are defined in the Subordinated Indenture to
mean, unless otherwise determined with respect to any series of Subordinated
Securities, all obligations of the Corporation associated with derivative
products such as interest rate and foreign exchange rate contracts, commodity
contracts and similar arrangements, except Indebtedness for Money Borrowed.
"Indebtedness Ranking on a Parity with the Securities" is defined in the
Subordinated Indenture to mean Indebtedness for Money Borrowed of the
Corporation, whether outstanding on the date of execution of the Subordinated
Indenture or thereafter created, assumed or incurred, which specifically by its
terms ranks equally with and not prior to the Subordinated Securities in the
right of payment upon the happening of any event of the kind specified in the
next paragraph. The indentures of the Corporation governing the subordinated
indebtedness issued by the Corporation listed in items (i) and (ii) in the
sentence below do not include Additional Senior Obligations in the definition of
Senior Indebtedness of the Corporation. Additional Senior Obligations was
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added to the definition of Senior Indebtedness of the Corporation in the
Subordinated Indenture by the First Supplemental Indenture. Indebtedness Ranking
on a parity with the Securities includes the Corporation's (i) Floating Rate
Subordinated Notes Due 1998, issued pursuant to a Fiscal and Paying Agency
Agreement, dated as of August 26, 1986, between the Corporation and Morgan
Guaranty Trust Company of New York, as Fiscal Agent; (ii) Floating Rate
Subordinated Notes Due 2001, issued pursuant to a Fiscal and Paying Agency
Agreement, dated as of February 10, 1986, between the Corporation and Bankers
Trust Company, as fiscal agent; (iii) 6 7/8% Subordinated Notes Due 2003, issued
under the Subordinated Indenture on June 30, 1993; (iv) 6 5/8% Subordinated
Notes Due 2005, issued under the Subordinated Indenture on November 22, 1993;
and (v) 6 5/8% Subordinated Notes Due 2004, issued under the Subordinated
Indenture on January 12, 1994. "Indebtedness Ranking Junior to the Securities"
is defined in the Subordinated Indenture to mean any Indebtedness for Money
Borrowed of the Corporation, whether outstanding on the date of execution of the
Subordinated Indenture or thereafter created, assumed or incurred, which
specifically by its terms ranks junior to and not equally with or prior to the
Subordinated Securities (and any other Indebtedness Ranking on a Parity with the
Subordinated Securities) in right of payment upon the happening of any event of
the kind specified in the next paragraph. (Subordinated Indenture, Section 101.)
In the case of any bankruptcy, insolvency, receivership, conservatorship,
reorganization, readjustment of debt, marshalling of assets and liabilities or
similar proceedings or any liquidation or winding up of or relating to the
Corporation as a whole, whether voluntary or involuntary, all obligations of the
Corporation to Holders of Senior Indebtedness of the Corporation (other than
Additional Senior Obligations) shall be entitled to be paid in full before any
payment shall be made on account of the principal (including principal to be
paid by delivery of Capital Securities) of, or premium, if any, or interest, if
any, on the Subordinated Securities of any series. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior
Indebtedness of the Corporation (other than Additional Senior Obligations), the
Holders of the Subordinated Securities of any series, together with the Holders
of any Indebtedness Ranking on a Parity with the Subordinated Securities, shall
be entitled, ratably, to be paid from the remaining assets of the Corporation
the amounts at the time due and owing on account of unpaid principal (including
principal to be paid by delivery of Capital Securities) of, and premium, if any,
and interest, if any, on the Subordinated Securities of such series and on any
indebtedness Ranking on a Parity with the Subordinated Securities before any
payment or other distribution, whether in cash, property or otherwise, shall be
made on account of any capital stock or any Indebtedness Ranking Junior to the
Securities; provided, however, that if after payment in full of all sums owing
with respect to Senior Indebtedness of the Corporation (other than Additional
Senior Obligations) any amount of cash, property or securities remains available
for payment or distribution in respect of the Subordinated Securities ("Excess
Proceeds") and creditors in respect of Additional Senior Obligations have not
received payment in full of amounts due or to become due thereon or payments of
such amounts have not been provided for, then such Excess Proceeds shall be
applied to payment in full of the Additional Senior Obligations before any
payment is made on the Subordinated Securities. (Subordinated Indenture, Section
1301.) In the event and during the continuation of any default in the payment of
principal (including principal to be paid by delivery of Capital Securities) of,
or premium, if any, or interest, if any, on, any Senior Indebtedness (other than
Additional Senior Obligations) beyond any applicable grace period, or in the
event that any event of default with respect to any Senior Indebtedness (other
than Additional Senior Obligations) shall have occurred and be continuing, or
would occur as a result of certain payments, permitting the holders of such
Senior Indebtedness (or a trustee on behalf of the holders thereof) to
accelerate the maturity thereof, then, unless and until such default or event of
default shall have been cured or waived or shall have ceased to exist, no
payment of principal (including principal to be paid by delivery of Capital
Securities) of, or premium, if any, or interest, if any, on the Subordinated
Securities, or in respect of any redemption, exchange, retirement, purchase or
other acquisition of any of the Subordinated Securities, shall be made by the
Corporation. (Subordinated Indenture, Section 1303.)
By reason of such subordination in favor of the Holders of Senior
Indebtedness of the Corporation (including to the extent set forth above,
Additional Senior Obligations), in the event of the insolvency of the
Corporation, Holders of Senior Indebtedness of the Corporation may receive more,
ratably, and Holders of the Subordinated Securities having a claim pursuant to
the Subordinated Securities may receive less, ratably, than the other creditors
of the Corporation.
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EVENTS OF DEFAULT; DEFAULTS
The following will be Events of Default under the Subordinated Indenture
with respect to Subordinated Securities of any series: (a) certain events in
bankruptcy, insolvency or reorganization of the Corporation or the receivership
of the Bank; and (b) any other Event of Default provided with respect to
Subordinated Securities of that series. (Subordinated Indenture, Section 501.)
If an Event of Default with respect to Subordinated Securities of any
series at the time Outstanding occurs and is continuing, the Trustee or the
Holders of at least 25 percent in aggregate principal amount of the Outstanding
Subordinated Securities of that series may declare the principal amount (or, if
any of the Subordinated Securities of that series are Original Issue Discount
Subordinated Securities or Indexed Securities, such portion of the principal
amount of such Subordinated Securities as may be specified in the terms thereof)
of all the Subordinated Securities of that series to be due and payable
immediately, by a written notice to the Corporation (and to the Trustee, if
given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable. (Subordinated
Indenture, Section 502.) The foregoing provision would, in the event of the
bankruptcy or insolvency of the Corporation, be subject as to enforcement to the
broad equity powers of a Federal bankruptcy court and to the determination by
that court of the nature and status of the payment claims of the Holders of the
Subordinated Securities. At any time after a declaration of acceleration with
respect to the Subordinated Securities of any series has been made, but before a
judgment or decree for payment of the money due has been obtained, the Holders
of a majority in principal amount of Outstanding Subordinated Securities of that
series may, under certain circumstances, rescind and annul such acceleration but
only if all Defaults have been remedied, or if permitted, waived and if certain
other conditions have been satisfied. (Subordinated Indenture, Section 502.)
The following events will be Defaults under the Subordinated Indenture with
respect to Subordinated Securities of any series: (a) an Event of Default with
respect to such series of Subordinated Securities; (b) failure to pay principal
(including the delivery of any Capital Securities in exchange for or upon the
conversion of Subordinated Securities) or premium, if any, on any Subordinated
Security of that series at Maturity; (c) failure to pay any interest, if any, on
any Subordinated Security of that series when due and payable, continued for 30
days; (d) failure to deposit any sinking fund payment, when due, in respect of
any Subordinated Security of that series; (e) failure to perform any covenant or
warranty of the Corporation in the Subordinated Indenture (other than a covenant
or warranty included in the Subordinated Indenture solely for the benefit of
series of Subordinated Securities other than that series), continued for 60 days
after written notice as provided in the Subordinated Indenture; (f) default
under any bond, debenture, note, mortgage, indenture, other instruments or other
evidence of Indebtedness for Money Borrowed (including a default with respect to
Subordinated Securities of another series) in an aggregate principal amount
exceeding $3,000,000 by the Corporation or the Bank or its successors under the
terms of the instrument or instruments by or under which such indebtedness is
evidenced, issued or secured, which default results in the acceleration of such
indebtedness, if such acceleration is not rescinded or annulled, or such
indebtedness is not discharged, within ten days after written notice as provided
in the Subordinated Indenture; and (g) any other default provided with respect
to Subordinated Securities of that series. (Subordinated Indenture, Section
507.)
Unless otherwise provided in the terms of a series of Subordinated
Securities, there will be no right of acceleration of the payment of principal
of the Subordinated Securities of such series upon a default in the payment
(including any obligation to exchange Capital Securities for Subordinated
Securities of such series) of principal of or premium, if any, or interest, if
any, or a default in the performance of any covenant or agreement in the
Subordinated Securities or the Subordinated Indenture. If a Default with respect
to the Subordinated Securities of any series occurs and is continuing, the
Trustee may, subject to certain limitations and conditions, seek to enforce its
rights and the rights of the Holders of Subordinated Securities of such series
or the performance of any covenant or agreement in the Subordinated Indenture.
(Subordinated Indenture, Section 503.)
The Subordinated Indenture provides that, subject to the duty of the
Trustee upon the occurrence of a Default to act with the required standard of
care, the Trustee will be under no obligation to exercise any of its rights or
powers under the Subordinated Indenture at the request or direction of any of
the Holders of Subordinated Securities of any series or any related coupons
unless such Holders shall have offered to the
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Trustee reasonable indemnity or security against the costs, expenses and
liabilities which may be incurred. (Subordinated Indenture, Section 602.)
Subject to certain provisions, the Holders of a majority in aggregate principal
amount of the Outstanding Subordinated Securities of any series will have the
right to direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee, with respect to the Subordinated Securities of that series.
(Subordinated Indenture, Section 512.)
The Corporation is required to furnish to the Trustee annually an Officer's
Certificate as to the performance and observance by the Corporation of certain
of the terms, provisions and conditions under the Subordinated Indenture and as
to the absence of default. (Subordinated Indenture, Section 1010.)
CONVERSION
The Holders of Subordinated Securities of a specified series that are
convertible into Capital Securities ("Subordinated Convertible Securities") will
be entitled at certain times specified in the Prospectus Supplement relating to
such Subordinated Convertible Securities, subject to prior redemption, exchange,
repayment or repurchase, to convert any Subordinated Convertible Securities of
such series into Capital Securities, at the conversion price set forth in such
Prospectus Supplement, subject to adjustment and to such other terms as are set
forth in such Prospectus Supplement.
EXCHANGEABILITY
The Holders of Subordinated Securities of any series may be obligated at
any time or at Maturity to exchange them for Capital Securities of the
Corporation. The terms of any such exchange and any such Capital Securities will
be described in the Prospectus Supplement relating to such series of
Subordinated Securities. The Common Stock, Preferred Stock, and Capital
Securities of the Corporation are described below under "Description of Common
Stock," "Description of Preferred Stock," and "Description of Capital
Securities," respectively.
DESCRIPTION OF PREFERRED STOCK
The following summary contains a description of certain general terms of
the Corporation's Preferred Stock to which any Prospectus Supplement may relate.
Certain terms of any series of the Preferred Stock offered by any Prospectus
Supplement will be described in the Prospectus Supplement relating thereto. If
so indicated in the Prospectus Supplement, the terms of any series may differ
from the terms set forth below. The description of certain provisions of the
Preferred Stock does not purport to be complete and is subject to and qualified
in its entirety by reference to the provisions of the Corporation's Restated
Articles of Organization (the "Articles"), and the Certificate of Vote of
Directors Establishing a Series of a Class of Stock (the "Certificate") relating
to each particular series of the Preferred Stock, which will be filed with the
Commission at or prior to the time of the sale of such Preferred Stock.
GENERAL
Under the Corporation's Articles, the Board of Directors of the Corporation
is authorized, without further stockholder action, to provide for the issuance
of up to 10,000,000 shares of preferred stock, without par value, in one or more
series, with such designations or titles; dividend rates; special or relative
rights in the event of liquidation, distribution or sale of assets or
dissolution or winding up of the Corporation; any sinking fund provisions; any
redemption or purchase account provisions; any conversion provisions; and any
voting rights thereof, as shall be set forth as and when established by the
Board of Directors of the Corporation. The shares of any series of Preferred
Stock will be, when issued, fully paid and non-assessable and holders thereof
shall have no preemptive rights in connection therewith.
The liquidation preference of any series of the Preferred Stock is not
necessarily indicative of the price at which shares of such series of Preferred
Stock will actually trade at or after the time of their issuance. The market
price of any series of Preferred Stock can be expected to fluctuate with changes
in market and economic conditions, the financial condition and prospects of the
Corporation and other factors that generally influence the market prices of
securities.
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The shares of outstanding Preferred Stock are fully paid and
non-assessable. Section 45 of Chapter 156B of the Massachusetts General Laws
("MGL") provides that stockholders to whom a corporation makes any distribution,
whether by way of dividend, repurchase or redemption of stock or otherwise
(other than a distribution of stock of the corporation) if the corporation is,
or is thereby rendered, insolvent shall be liable to the corporation for the
amount of such distribution made, or for the amount of such distribution which
exceeds that which could have been made without rendering the corporation
insolvent, but in either event, only to the extent of the amount paid or
distributed to such stockholders, respectively.
RANK
Any series of the Preferred Stock will, with respect to dividend rights and
rights on liquidation, winding up and dissolution, rank (i) senior to all
classes of common stock and the Junior Participating Preferred Stock, Series D,
of the Corporation and with all equity securities issued by the Corporation, the
terms of which specifically provide that such equity securities will rank junior
to the Preferred Stock (collectively referred to as the "Junior Securities");
(ii) on a parity with all equity securities issued by the Corporation, the terms
of which specifically provide that such equity securities will rank on a parity
with the Preferred Stock, including the Corporation's four series outstanding:
Adjustable Rate Cumulative Preferred Stock, Series A, B and C, and 7 7/8%
Cumulative Preferred Stock, Series F (collectively referred to as the "Parity
Securities"); and (iii) junior to all equity securities issued by the
Corporation, the terms of which specifically provide that such equity securities
will rank senior to the Preferred Stock (collectively referred to as the "Senior
Securities"). As used in any Certificate for these purposes, the term "equity
securities" will not include debt securities convertible into or exchangeable
for equity securities.
DIVIDENDS
Holders of each series of Preferred Stock will be entitled to receive,
when, as and if declared by the Board of Directors of the Corporation, out of
funds legally available therefor, cash dividends at such rates and on such dates
as are set forth in the Prospectus Supplement relating to such series of the
Preferred Stock. Dividends will be payable to holders of record of the Preferred
Stock as they appear on the books of the Corporation (or, if applicable, the
records of the Depositary referred to below under "Depositary Shares") on such
record dates, as shall be fixed by the Board of Directors. Dividends on any
series of Preferred Stock may be cumulative or non-cumulative.
No full dividends may be declared or paid or funds set apart for the
payment of dividends on any Parity Securities unless dividends shall have been
paid or set apart for such payment on the Preferred Stock. If full dividends are
not so paid, the Preferred Stock shall share dividends pro rata with the Parity
Securities. If dividends are cumulative, any accumulated unpaid dividends will
not bear interest.
CONVERSION
The Prospectus Supplement for any series of the Preferred Stock will state
the terms, if any, on which shares of that series are convertible into shares of
another series of Preferred Stock or Capital Securities.
For any series of Preferred Stock which is convertible, the Corporation
shall at all times reserve and keep available, free from preemptive rights, out
of the aggregate of its authorized but unissued Preferred Stock or Capital
Securities or shares held in its treasury or both, for the purpose of effecting
the conversion of the shares of such series of Preferred Stock, the full number
of shares of Preferred Stock or Capital Securities then deliverable upon the
conversion of all outstanding shares of such series.
No fractional shares or scrip representing fractional shares of Preferred
Stock or Capital Securities will be issued upon the conversion of shares of any
series of convertible Preferred Stock. Each holder to whom fractional shares
would otherwise be issued will instead be entitled to receive, at the
Corporation's election, either (a) a cash payment equal to the current market
price of such holder's fractional interest or (b) a cash payment equal to such
holder's proportionate interest in the net proceeds (following the deduction of
applicable transaction costs) from the sale promptly by an agent, on behalf of
such holders, of shares of Preferred Stock or Capital Securities representing
the aggregate of such fractional shares.
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The holders of shares of Preferred Stock of any series at the close of
business on a dividend payment record date will be entitled to receive the
dividend payable on such shares (except that holders of shares called for
redemption on a redemption date occurring between such record date and the
dividend payment date shall not be entitled to receive such dividend on such
dividend payment date but instead will receive accrued and unpaid dividends to
such redemption date) on the corresponding dividend payment date notwithstanding
the conversion thereof or the Corporation's default in payment of the dividend
due. Except as provided above, the Corporation will make no payment or allowance
for unpaid dividends, whether or not in arrears, on converted shares or for
dividends on the shares of Preferred Stock or Capital Securities issued upon
conversion.
EXCHANGEABILITY
The holders of shares of Preferred Stock of any series may be obligated at
any time or at maturity to exchange such shares for Capital Securities or other
debt securities of the Corporation. The terms of any such exchange and any such
Capital Securities or other debt securities will be described in the Prospectus
Supplement relating to such series of Preferred Stock. The Capital Securities of
the Corporation are described below under "Description of Capital Securities."
REDEMPTION
A series of Preferred Stock may be redeemable at any time, in whole or in
part, at the option of the Corporation or the holder thereof upon terms and at
the redemption prices set forth in the Prospectus Supplement relating to such
series.
In the event of partial redemptions of Preferred Stock, whether by
mandatory or optional redemption, the shares to be redeemed will be determined
by lot or pro rata, as may be determined by the Board of Directors of the
Corporation or by any other method determined to be equitable by the Board of
Directors.
On and after a redemption date, unless the Corporation defaults in the
payment of the redemption price, dividends will cease to accrue on shares of
Preferred Stock called for redemption and all rights of holders of such shares
will terminate except for the right to receive the redemption price.
Under current regulations, bank holding companies may not exercise any
option to redeem shares of preferred stock without the prior approval of the
Board of Governors. Ordinarily, the Board of Governors would not permit such a
redemption unless (1) the shares are redeemed with the proceeds of a sale by the
bank holding company of common stock or perpetual preferred stock or (2) the
Board of Governors determines that a bank holding company's capital position
after such redemption would clearly be adequate and that its condition and
circumstances warrant the reduction of a source of permanent capital.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, holders of each series of Preferred Stock that ranks senior to
the Junior Securities will be entitled to receive out of assets of the
Corporation available for distribution to stockholders, before any distribution
is made on any Junior Securities, including Common Stock, distributions upon
liquidation in the amount set forth in the Prospectus Supplement relating to
such series of Preferred Stock, plus an amount equal to any accrued and unpaid
dividends. If upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the amounts payable with respect to the Preferred
Stock of any series and any other Parity Securities are not paid in full, the
holders of the Preferred Stock of such series and the Parity Securities will
share ratably in any such distribution of assets of the Corporation in
proportion to the full liquidation preferences to which each is entitled. After
payment of the full amount of the liquidation preference to which they are
entitled, the holders of such series of Preferred Stock will not be entitled to
any further participation in any distribution of assets of the Corporation.
However, neither (i) the merger or consolidation of the Corporation with or into
one or more corporations pursuant to any statute which provides in effect that
the stockholders of the Corporation shall continue as stockholders of the
continuing or combined corporation nor (ii) the acquisition by the Corporation
of assets or stock of another corporation shall be deemed to be a voluntary or
involuntary liquidation, dissolution or winding up of the Corporation.
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VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement relating to a
particular series of Preferred Stock, or except as expressly required by
applicable law, the holders of the Preferred Stock will have no voting rights.
Under Massachusetts law, a corporation may not amend its articles of
organization so as to adversely affect the rights of any class or series of its
stock without the affirmative vote of at least two-thirds (or a lesser
proportion, but not less than a majority, if so provided in the corporation's
articles of organization) of the shares of such class or series, with all series
of a class of stock which are adversely affected in the same manner voting
together as one class and any other series, which is adversely affected in a
manner different from other series of the same class, voting as a separate
class.
Under regulations adopted by the Board of Governors, if the holders of
shares of any series of Preferred Stock of the Corporation became entitled to
vote for the election of directors, such series may then be deemed a "class of
voting securities" and a holder of 25% or more of such series (or a holder of 5%
if it otherwise exercises a "controlling influence" over the Corporation) may
then be subject to regulation as a bank holding company in accordance with the
Bank Holding Company Act of 1956, as amended. In addition, at such time as such
series is deemed a class of voting securities, (i) any other bank holding
company may be required to obtain the approval of the Board of Governors to
acquire or retain 5% or more of such series, and (ii) any person other than a
bank holding company may be required to obtain the approval of the Board of
Governors under the Change in Bank Control Act to acquire or retain 10% or more
of such series.
PREFERRED STOCK OUTSTANDING
The Corporation has issued and outstanding four series of Preferred Stock:
Adjustable Rate Cumulative Preferred Stock (Series A, Series B and Series C),
and 7 7/8% Cumulative Preferred Stock, Series F. The Series A, B and C Preferred
Stock are issued as whole shares, and the Series F Preferred Stock is issued as
fractional shares represented by depositary shares ("Depositary Shares"). Each
Depositary Share represents a one-tenth interest in a share of Series F
Preferred Stock. The shares of Series F Preferred Stock underlying the
Depositary Shares are deposited with the Bank, as Depositary (the "Depositary"),
under a Deposit Agreement (the "Deposit Agreement") among the Corporation, the
Depositary and the holders from time to time of the depositary receipts issued
by the Depositary thereunder (the "Depositary Receipts"). The Depositary
Receipts evidence the Depositary Shares. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share is entitled through the Depositary,
in proportion to the one-tenth interest in a share of Series F Preferred Stock
underlying such Depositary Share, to all rights and preferences of a share of
Series F Preferred Stock (including dividend, voting, redemption and liquidation
rights).
As of September 30, 1997, 3,673,941 shares of Preferred Stock were issued
and outstanding with an aggregate liquidation preference of $278.4 million.
Holders of the outstanding Preferred Stock (or, Depositary Shares, in the case
of the Series F Preferred Stock) have no preemptive rights with respect to
shares of any other series of Preferred Stock or with respect to shares of the
Corporation's Common Stock. The outstanding Preferred Stock, and in the case of
the Series F Preferred Stock, the Depositary Shares, are listed on the NYSE and
BSE. The Bank is the registrar, transfer agent and dividend disbursing agent for
the outstanding Preferred Stock and the Depositary Shares.
The shares of outstanding Preferred Stock are fully paid and
non-assessable, subject to the provisions of Section 45 of the MGL. See
"DESCRIPTION OF PREFERRED STOCK -- General."
DIVIDENDS. Holders of shares (or Depositary Shares, in the case of Series
F Preferred Stock) of each series of outstanding Preferred Stock are entitled to
cumulative dividends, when, as and if declared by the Corporation's Board of
Directors. Dividends on the existing Preferred Stock must be paid or set apart
for payment before any dividends can be paid to holders of equity securities
which by their terms rank junior to the Preferred Stock, including the
Corporation's Common Stock. Dividends on the outstanding Preferred Stock are
payable in arrears on the 15th day of March, June, September and December in
each year in which the Preferred Stock is outstanding.
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LIQUIDATION AND REDEMPTION. In the event of any voluntary or involuntary
liquidation, distribution or sale of assets, dissolution or winding up of the
Corporation, the holders of each share of outstanding Preferred Stock shall be
entitled to receive, prior to any payment upon the Corporation's Common Stock,
cash in the amount of $50 in the case of the Series A and Series B Preferred
Stock, cash in the amount of $100 in the case of the Series C Preferred Stock
and cash in the amount of $250 in the case of the Series F Preferred Stock
(equivalent to $25 per Depositary Share). The outstanding Preferred Stock is
subject to partial or complete redemption at the option of the Corporation, with
the prior approval of the Board of Governors (if such approval is required at
the time of redemption), except that the Series F Preferred Stock is not
redeemable prior to July 15, 1998.
VOTING. Holders of outstanding Preferred Stock have no general voting
rights. However, during any period in which dividends on a series of outstanding
Preferred Stock are cumulatively in arrears in the amount of six or more full
quarterly dividends, the holders of shares of such series, shall be entitled (by
series, voting as a single class) to elect one director who shall serve until
such time as the arrearage in the payment of dividends has been cured.
DEPOSITARY SHARES
GENERAL. The Corporation may, at its option, elect to offer fractional
shares of Preferred Stock, rather than full shares of Preferred Stock. In the
event such option is exercised, the Corporation will issue receipts for
Depositary Shares, each of which will represent a fraction (to be set forth in
the Prospectus Supplement relating to a particular series of Preferred Stock) of
a share of a particular series of Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under the Deposit Agreement between the Corporation and
a bank or trust company selected by the Corporation having its principal office
in the United States and having a combined capital and surplus of at least
$50,000,000. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled, in proportion to the applicable fraction of a
share of Preferred Stock represented by such Depositary Share, to all the rights
and preferences of the Preferred Stock represented thereby (including dividend,
voting, redemption, conversion and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement. Depositary Receipts will be distributed to
those persons purchasing the fractional shares of Preferred Stock in accordance
with the terms of the offering. The forms of Deposit Agreement and Depositary
Receipt are filed as exhibits to the Registration Statement, and the following
summary is qualified in its entirety by reference to such exhibits.
Pending the preparation of definitive Depositary Receipts, the Depositary
may, upon the written order of the Corporation or any holder of Preferred Stock,
execute and deliver temporary Depositary Receipts which are substantially
identical to, and entitle the holders thereof to all the rights pertaining to,
the definitive Depositary Receipts. Definitive Depositary Receipts will be
prepared thereafter without unreasonable delay, and temporary Depositary
Receipts will be exchangeable for definitive Depositary Receipts at the
Corporation's expense.
DIVIDENDS AND OTHER DISTRIBUTIONS. The Depositary will distribute cash
dividends or other cash distributions received in respect of the Preferred Stock
to the record holders of Depositary Shares relating to such Preferred Stock in
proportion to the numbers of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto. If the Depositary determines that it is not feasible to make
such distribution, it may, with the approval of the Corporation, sell such
property and distribute the net proceeds from such sale to such holders.
REDEMPTION OR EXCHANGE OF STOCK. If a series of Preferred Stock
represented by Depositary Shares is to be redeemed or exchanged, the Depositary
Shares will be redeemed from the proceeds received by the Depositary resulting
from the redemption, in whole or in part, of such series of Preferred Stock held
by the
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Depositary, or exchanged for the Capital Securities or other debt securities to
be issued in exchange for the Preferred Stock (as the case may be, in accordance
with the terms of such series of Preferred Stock). The Depositary Shares will be
redeemed or exchanged by the Depositary at a price per Depositary Share equal to
the applicable fraction of the redemption price per share or market value of
Capital Securities or other debt securities per Depositary Share paid in respect
of the shares of Preferred Stock so redeemed or exchanged. Whenever the
Corporation redeems or exchanges shares of Preferred Stock held by the
Depositary, the Depositary will redeem or exchange as of the same date the
number of Depositary Shares representing shares of Preferred Stock so redeemed
or exchanged. If fewer than all the Depositary Shares are to be redeemed or
exchanged, the Depositary Shares to be redeemed or exchanged will be selected by
the Depositary by lot or pro rata or by any other equitable method as may be
determined by the Corporation.
WITHDRAWAL OF STOCK. Any holder of Depositary Shares may, upon surrender
of the Depositary Receipts therefor to the Depositary, receive the number of
whole shares of the related series of Preferred Stock and any money or other
property represented by such Depositary Receipts. Holders of Depositary Shares
making such withdrawals will be entitled to receive whole shares of Preferred
Stock on the basis set forth in the related Prospectus Supplement for such
series of Preferred Stock, but holders of such whole shares of Preferred Stock
will not thereafter be entitled to deposit such Preferred Stock under the
Deposit Agreement or to receive Depositary Receipts therefor. If the Depositary
Shares surrendered by the holder in connection with such withdrawal exceed the
number of Depositary Shares that represent the number of whole shares of
Preferred Stock to be withdrawn, the Depositary will deliver to such holder at
the same time a new Depositary Receipt evidencing such excess number of
Depositary Shares.
VOTING THE PREFERRED STOCK. Upon receipt of notice of any meeting at which
the holders of the Preferred Stock are entitled to vote, the Depositary will
mail the information contained in such notice of meeting to the record holders
of the Depositary Shares relating to such Preferred Stock. Each record holder of
such Depositary Shares on the record date (which will be the same date as the
record date of the Preferred Stock) will be entitled to instruct the Depositary
as to the exercise of the voting rights pertaining to the amount of the
Preferred Stock represented by such holder's Depositary Shares. The Depositary
will endeavor, insofar as practicable, to vote the amount of the Preferred Stock
represented by such Depositary Shares in accordance with such instructions, and
the Corporation will agree to take all reasonable actions which may be deemed
necessary by the Depositary in order to enable the Depositary to do so. The
Depositary will abstain from voting shares of the Preferred Stock to the extent
it does not receive specific instructions from the holder of Depositary Shares
representing such Preferred Stock.
CONVERSION RIGHTS. Any holder of Depositary Shares, upon surrender of the
Depositary Receipts therefor and delivery of instructions to the Depositary, may
cause the Corporation to convert any specified number of whole or fractional
shares of Preferred Stock represented by the Depositary Shares into the number
of whole shares of Capital Securities or other preferred stock (as the case may
be, in accordance with the terms of such series of the Preferred Stock) of the
Corporation obtained by dividing the aggregate liquidation preference of such
Depositary Shares by the Conversion Price (as such term is defined in the
Certificate) then in effect, as such Conversion Price may be adjusted by the
Corporation from time to time as provided in the Certificate. In the event that
a holder delivers Depositary Receipts to the Depositary for conversion which in
the aggregate are convertible either into less than one whole share of such
Capital Securities or other preferred stock or into any number of whole shares
of such Capital Securities or other preferred stock plus an excess constituting
less than one whole share of such Capital Securities or other preferred stock,
the holder shall receive payment in lieu of such fractional shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT. The form of Depositary
Receipt evidencing the Depositary Shares and any provision of the Deposit
Agreement may at any time be amended by agreement between the Corporation and
the Depositary. However, any amendment which materially and adversely alters the
rights of the holders of Depositary Shares will not be effective unless such
amendment has been approved by the holders of at least a majority of the
Depositary Shares then outstanding. The Deposit Agreement automatically
terminates if (i) all outstanding Depositary Shares have been redeemed; or (ii)
each share of Preferred Stock has been converted into Capital Securities or
other preferred stock or has been exchanged for Capital Securities or other debt
securities; or (iii) there has been a final distribution in respect of the
Preferred
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Stock in connection with any liquidation, dissolution or winding up of the
Corporation and such distribution has been distributed to the holders of
Depositary Shares. The Deposit Agreement also may be terminated by the
Corporation at any time upon 60 days prior written notice to the Depositary, in
which case the Depositary will deliver to the record holders, upon surrender of
the Depositary Receipts, such number of whole or fractional shares of Preferred
Stock represented by such Depositary Receipts.
CHARGES OF DEPOSITARY. The Corporation will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements. The Corporation will pay all charges of the Depositary
in connection with the initial deposit of the Preferred Stock and the initial
issuance of the Depositary Shares, all withdrawals of shares of Preferred Stock
by owners of Depositary Shares, and any redemption or exchange of the Preferred
Stock. Holders of Depositary Shares will pay other transfer and other taxes and
governmental charges and such other charges or expenses as are expressly
provided in the Deposit Agreement to be for their accounts.
MISCELLANEOUS. The Depositary will forward all reports and communications
from the Corporation which are delivered to the Depositary and which the
Corporation is required to furnish to the holders of the Preferred Stock.
Neither the Depositary nor the Corporation will be liable if it is
prevented or delayed by law or any circumstance beyond its control in performing
its obligations under the Deposit Agreement. The obligations of the Corporation
and the Depositary under the Deposit Agreement will be limited to performance in
good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares of
Preferred Stock unless satisfactory indemnity is furnished. They may rely upon
written advice of counsel or accountants, or upon information provided by
persons presenting Preferred Stock for deposit, holders of Depositary Receipts
or other persons believed to be competent and on documents believed to be
genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY. The Depositary may resign at any
time by delivering to the Corporation notice of its election to do so, and the
Corporation may at any time remove the Depositary, any such resignation or
removal to take effect upon the appointment of a successor Depositary and its
acceptance of such appointment. Such successor Depositary must be appointed
within 60 days after delivery of the notice of resignation or removal and must
be a bank or trust company having its principal office in the United States and
having a combined capital and surplus of at least $50,000,000.
DESCRIPTION OF COMMON STOCK
GENERAL
The Corporation's Common Stock as of October 31, 1997 consisted of
300,000,000 authorized shares, par value $1.50 per share, of which there were
145,277,534 shares outstanding. The Common Stock is traded on the NYSE and the
BSE. The transfer agent and registrar for the Common Stock is the Bank.
Shares of Common Stock may be issued from time to time, in such amounts and
proportion and for such consideration as may be fixed by the Board of Directors
of the Corporation. No holder of Common Stock has any preemptive or preferential
rights to purchase or to subscribe for any shares of capital stock or other
securities which may be issued by the Corporation. The Common Stock has no
redemption or sinking fund provisions applicable thereto. The Common Stock does
not have any conversion rights.
The Corporation issues authorized but unissued shares of its Common Stock
in connection with several employee benefit and stock option and incentive plans
maintained by the Corporation or its subsidiaries, and the Corporation's
Automatic Dividend Reinvestment and Common Stock Purchase Plan.
The shares of the Common Stock are fully paid and non-assessable. Section
45 of Chapter 156B of the MGL provides that stockholders to whom a corporation
makes any distribution, whether by way of dividend, repurchase or redemption of
stock or otherwise (other than a distribution of stock of the corporation) if
the corporation is, or is thereby rendered, insolvent shall be liable to the
corporation for the amount of such distribution made, or for the amount of such
distribution which exceeds that which could have been made
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without rendering the corporation insolvent, but in either event, only to the
extent of the amount paid or distributed to such stockholders, respectively.
LIQUIDATION
In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of the Common Stock
are entitled to receive, on a share for share basis, any assets or funds of the
Corporation which are distributable to its holders of Common Stock upon such
events, subject to the prior rights of creditors of the Corporation and holders
of the Corporation's outstanding Preferred Stock.
VOTING
Holders of Common Stock are entitled to one vote for each share on all
matters voted upon by the stockholders. The shares of Common Stock have
non-cumulative voting rights, which means that the holders of more than 50% of
the shares voting for the election of directors can elect 100% of the directors
if they choose to do so, and in such event, the holders of the remaining shares
voting for the election of directors will not be able to elect any person or
persons to the Board of Directors of the Corporation.
DIVIDENDS
When, as and if dividends, payable in cash, stock or other property, are
declared by the Board of Directors of the Corporation out of funds legally
available therefor, the holders of Common Stock are entitled to share equally,
share for share, in such dividends. The payment of dividends on the Common Stock
is subject to the prior payment of dividends on the Preferred Stock.
STOCKHOLDER RIGHTS PLAN
On June 28, 1990, the Board of Directors of the Corporation adopted a
stockholder rights program providing for a dividend of one Preferred Stock
Purchase Right for each outstanding share of Common Stock of the Corporation
(the "Rights"). The dividend was distributed on July 12, 1990 to stockholders of
record on that date. Holders of shares of Common Stock issued subsequent to that
date receive the Rights with their shares. The Rights trade automatically with
shares of Common Stock and become exercisable only under certain circumstances
as described below. The Rights are designed to protect the interests of the
Corporation and its stockholders against coercive takeover tactics. The purpose
of the Rights is to encourage potential acquirors to negotiate with the
Corporation's Board of Directors prior to attempting a takeover bid and to
provide the Board with leverage in negotiating on behalf of all stockholders the
terms of any proposed takeover. The Rights may have certain anti-takeover
effects. The Rights should not, however, interfere with any merger or other
business combination approved by the Board of Directors.
Until a Right is exercised, the holder of a Right, as such, will have no
rights as a stockholder of the Corporation including, without limitation, the
right to vote or receive dividends. Upon becoming exercisable, each Right will
entitle the holder thereof to purchase from the Corporation a unit equal to one
one-thousandth of a share of Junior Participating Preferred Stock, Series D at a
purchase price of $50 per unit, subject to adjustment. In general, the Rights
will become exercisable upon the earlier of (i) ten days following a public
announcement by the Corporation that a person or group has acquired beneficial
ownership of 15% or more of the Corporation's Common Stock or voting securities
representing 15% or more of the total voting power of the Corporation (the
"Stock Acquisition Date") or (ii) ten business days (or such later date as the
Board of Directors may determine) after the commencement of a tender offer or
exchange offer that would result in a person or group beneficially owning 15% or
more of the Corporation's outstanding Common Stock or voting securities
representing 15% or more of the total voting power of the Corporation.
Generally, in the event that a person or group becomes the beneficial owner
of 15% or more of the Corporation's outstanding Common Stock or voting
securities representing 15% or more of the total voting power of the Corporation
(other than pursuant to an offer for all outstanding shares of Common Stock and
other voting securities which the Board of Directors determines to be fair to
stockholders and otherwise in the best interests of the Corporation) (a "Flip-In
Event"), each Right, other than Rights owned by the acquiror, will thereafter
entitle the holder thereof to receive, upon exercise of the Right, Common Stock
having a value
22
<PAGE> 24
equal to two times the exercise price of the Right. In addition, at any time
after a Flip-In Event, the Board of Directors may exchange the then exercisable
Rights (other than Rights held by the acquiror) for Common Stock at an exchange
ratio of one share of Common Stock for each Right. In the event that, at any
time after the Stock Acquisition Date, the Corporation is acquired in a merger
or other business combination transaction or more than 50% of the Corporation's
assets, cash flow or earning power is sold or transferred (a "Flip-Over Event"),
each Right, other than Rights owned by the acquiror, will thereafter entitle the
holder thereof to receive, upon the exercise of the Right, common stock of the
acquiror having a value equal to two times the exercise price of the Right.
The Rights are redeemable by the Corporation at $.01 per Right at any time
prior to ten days after the Stock Acquisition Date (which period may be extended
at any time while the Rights are still redeemable). The Rights will expire at
the close of business on July 12, 2000, unless earlier redeemed or exchanged.
The foregoing description of the Rights does not purport to be complete and
is qualified in its entirety by the description of the Rights contained in the
Rights Agreement, as amended through December 12, 1995, between the Corporation
and the Bank, as Rights Agent, which is incorporated herein by reference to
Exhibit 1 to the Corporation's Registration Statement on Form 8-A dated July 2,
1990 and Exhibit 4(g) to the Corporation's Annual Report on Form 10-K for the
year ended December 31, 1996.
DESCRIPTION OF CAPITAL SECURITIES
GENERAL
A Prospectus Supplement may provide that Capital Securities will be
issuable in exchange for or upon conversion of Subordinated Securities or
Preferred Stock of any series. "Capital Securities" may consist of common stock,
perpetual preferred stock or, if permitted by the Corporation's primary federal
banking regulator (currently the Board of Governors), other securities of the
Corporation. The Prospectus Supplement relating to a series of Subordinated Debt
Securities or Preferred Stock which are exchangeable for or convertible into
Capital Securities will contain a description of the Capital Securities.
TENDER OFFER RULES
Rules 13e-4 and 14e-1 of the Commission's rules and regulations relating to
tender offers by issuers, as currently in effect and interpreted, may be
applicable to exchanges or conversions such as that of Capital Securities for
Subordinated Securities or Preferred Stock of any series. If, at the time of any
such exchange or conversion, Rule 13e-4 or Rule 14e-1 (or any successor rule or
rules) applies to such transactions, the Corporation will comply with such rule
(or any successor rule or rules) and will afford holders of such Subordinated
Securities or Preferred Stock all rights and will make all filings required by
such rule (or successor rule or rules).
DESCRIPTION OF SECURITIES WARRANTS
The Corporation may issue, together with any Debt Securities or Preferred
Stock or Common Stock offered by any Prospectus Supplement or separately,
Securities Warrants for the purchase of other Debt Securities or Preferred Stock
or Common Stock. The Securities Warrants are to be issued under warrant
agreements (each a "Securities Warrant Agreement") to be entered into between
the Corporation and a bank or trust company, as warrant agent ("Securities
Warrant Agent"), all as set forth in the Prospectus Supplement relating to the
particular issue of Securities Warrants. The form of Securities Warrant
Agreement, including the form of certificates representing the Securities
Warrants ("Securities Warrant Certificates"), reflecting the alternative
provisions to be included in the Securities Warrant Agreements that will be
entered into with respect to particular offerings of Securities Warrants, is
filed as an exhibit to the Registration Statement. The following summaries of
certain provisions of the Securities Warrant Agreement and the Securities
Warrant Certificates do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all the provisions of the
Securities Warrant Agreement and the Securities Warrant Certificates,
respectively, including the definitions therein of certain terms. Wherever
defined terms
23
<PAGE> 25
of the Securities Warrant Agreement are referred to, it is intended that such
defined terms shall be incorporated herein by reference.
GENERAL
The Prospectus Supplement relating to the particular issue of Securities
Warrants offered thereby will describe the terms of the offered Securities
Warrants, the Securities Warrant Agreement relating to the offered Securities
Warrants and the Securities Warrant Certificates representing the offered
Securities Warrants, including the following: (1) if the Securities Warrants are
offered for separate consideration, the offering price and the Currency for
which Securities Warrants may be purchased; (2) the designation, aggregate
principal amount, Currency and terms of the series of Debt Securities
purchasable upon exercise of the offered Securities Warrants; (3) the
designation, number, stated value and terms (including, without limitation,
liquidation, dividend, conversion and voting rights) of the series of Preferred
Stock purchasable upon exercise of Preferred Stock Warrants and the price at
which such number of shares of Preferred Stock of such series may be purchased
upon such exercise; (4) the number of shares of Common Stock purchasable upon
exercise of Common Stock Warrants and the price at which such number of shares
of Common Stock may be purchased upon such exercise; (5) the date, if any, on
and after which the offered Securities Warrants and the related Debt Securities
and/or Preferred Stock and/or Common Stock will be separately transferable; (6)
the date on which the right to exercise the offered Securities Warrants shall
commence and the date ("Expiration Date") on which such right shall expire; (7)
a discussion of the specific U.S. federal income tax, accounting and other
considerations applicable to the Securities Warrants; (8) whether the offered
Securities Warrants represented by the Securities Warrant Certificates will be
issued in registered or bearer form, and if registered, where they may be
transferred and registered; and (9) any other terms of the offered Securities
Warrants.
Securities Warrant Certificates will be exchangeable on the terms specified
in the Prospectus Supplement for new Securities Warrant Certificates of
different denominations and Securities Warrants may be exercised at the
corporate trust office of the Securities Warrant Agent or any other office
indicated in the Prospectus Supplement relating thereto. Prior to the exercise
of their Securities Warrants, holders of Securities Warrants will not have any
of the rights of holders of the Debt Securities or Preferred Stock or Common
Stock purchasable upon such exercise, including the right in the case of Debt
Warrants to payments of principal of or any premium or interest, if any, on the
Debt Securities purchasable upon such exercise, or to enforce covenants in the
Indentures and in the case of Preferred Stock Warrants and Common Stock
Warrants, the right to receive payments of dividends or distributions of any
kind, if any, on the Preferred Stock and Common Stock, respectively, purchasable
upon exercise or to exercise any applicable right to vote.
EXERCISE OF WARRANTS
Each Securities Warrant will entitle the holder to purchase such principal
amount of Debt Securities or such number of shares of Preferred Stock or Common
Stock, as the case may be, at such exercise price as shall in each case be set
forth in, or be determinable from, the Prospectus Supplement relating to the
Securities Warrants, by payment of such exercise price in full in the Currency
and in the manner specified in the Prospectus Supplement. Securities Warrants
may be exercised at any time up to the close of business on the Expiration Date
(or such later date to which such Expiration Date may be extended by the
Corporation); unexercised Securities Warrants will become void.
Upon receipt at the corporate trust office of the Securities Warrant Agent
or any other office indicated in the Prospectus Supplement of (i) payment of the
exercise price and (ii) the Securities Warrant Certificate properly completed
and duly executed, the Corporation will, as soon as practicable, forward the
Debt Securities or Preferred Stock or Common Stock purchasable upon such
exercise. If less than all of the Securities Warrants represented by such
Warrant Certificate are exercised, a new Securities Warrant Certificate will be
issued for the remaining number of Securities Warrants.
24
<PAGE> 26
PLAN OF DISTRIBUTION
The Corporation may sell Securities through, or through underwriting
syndicates managed or co-managed by, one or more underwriters, including BSI,
for public offering and sale by them or may sell Securities to investors
directly or through agents (which agents may include BSI) that solicit or
receive offers on behalf of the Corporation or through dealers or through a
combination of any such method of sale. Any such underwriter, dealer or agent
involved in the offer and sale of the Securities will be named in the related
Prospectus Supplement.
The Securities may be distributed in one or more transactions from time to
time at a fixed price or prices, which may be changed, from time to time at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Corporation also may, from
time to time, authorize agents of the Corporation acting on a best efforts or
other basis to solicit or receive offers to purchase the Securities upon the
terms and conditions as are set forth in the Prospectus Supplement. In
connection with the sale of Securities, underwriters may be deemed to have
received compensation from the Corporation in the form of underwriting discounts
or commissions and may also receive commissions from purchasers of Securities
for whom they may act as agent. Underwriters may sell Securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agent.
Any underwriting compensation paid by the Corporation to underwriters or
agents in connection with the offering of the Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the Prospectus Supplement. Underwriters, dealers and agents
participating in the distribution of the Securities (including agents only
soliciting or receiving offers to purchase Securities on behalf of the
Corporation) may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the Securities may
be deemed to be underwriting discounts and commissions, under the Securities
Act. Underwriters, dealers and agents may be entitled, under agreements entered
into with the Corporation, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the Securities Act.
BSI is a wholly-owned subsidiary of the Corporation. Accordingly, the
distribution of Securities will conform to the requirements set forth in Rule
2720 of the Conduct Rules of the National Association of Securities Dealers,
Inc.
Unless otherwise specified in the related Prospectus Supplement, each
series of Securities will be a new issue with no established trading market,
other than the Common Stock and the Adjustable Rate Cumulative Preferred Stock,
Series A, B and C and the 7 7/8% Cumulative Preferred Stock, Series F of the
Corporation which are listed on the NYSE and the BSE. Any shares of Common Stock
or of the series of Preferred Stock referred to in this paragraph sold pursuant
to a Prospectus Supplement will be listed on the NYSE and the BSE, subject to
official notice of issuance. The Corporation may elect to list any other series
of Securities on an exchange, but is not obligated to do so.
Certain of the underwriters, dealers or agents participating in the
distribution of the Securities, or affiliates thereof, may be customers of,
engage in transactions with and perform services for the Corporation in the
ordinary course of business. In connection with any particular distribution of
Securities, the Corporation may enter into swaps or other hedging transactions
with, or arranged by, an underwriter, dealer or agent participating in such
distribution or an affiliate thereof. Such underwriter, dealer, agent or
affiliate may receive compensation, trading gain or other benefits from such
transaction.
LEGAL OPINIONS
The validity of the Securities offered hereby will be passed upon for the
Corporation by Gary A. Spiess, General Counsel of the Corporation and for the
Underwriters by Brown & Wood LLP , New York, New York. Brown & Wood LLP will
rely as to all matters of Massachusetts law on the opinion of Mr. Spiess. As of
November 14, 1997, Mr. Spiess had a direct or indirect interest in 28,177 shares
of the Corporation's Common
25
<PAGE> 27
Stock and had options to purchase an additional 61,723 shares, of which options
to purchase 47,348 shares will be exercisable within 60 days after November 14,
1997.
EXPERTS
The financial statements contained in and incorporated by reference into
the Corporation's Annual Report on Form 10-K for the fiscal year ended December
31, 1996 have been incorporated herein by reference in reliance upon the report,
set forth therein of Coopers & Lybrand L.L.P., independent accountants, and upon
the authority of said firm as experts in accounting and auditing. The report,
referred to above, includes an explanatory paragraph related to the
Corporation's restatement of its 1995 and 1994 consolidated financial statements
to retroactively reflect the acquisition of BayBanks, Inc., completed in July
1996 and accounted for as a pooling of interests.
Any financial statements and schedules hereafter incorporated or deemed to
be incorporated by reference in this Registration Statement that have been
audited and are the subject of a report by independent accountants will be so
incorporated by reference in reliance upon such reports and upon the authority
of such firms as experts in accounting and auditing to the extent covered by
consents filed with the Commission.
26
<PAGE> 28
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses in connection with the issuance and distribution of the
securities being registered other than underwriting compensation are as follows:
<TABLE>
<S> <C>
SEC registration fee.............................................. $ 287,879
NASD fee.......................................................... 30,500
Rating agency fees................................................ 210,000
Printing and engraving expenses................................... 140,000
Accountants' fees and expenses.................................... 300,000
Trustees' fees and expenses....................................... 20,000
Listing fees...................................................... 60,000
Miscellaneous..................................................... 1,621
----------
Total................................................... $1,050,000
==========
</TABLE>
- ---------------
All the above amounts except the SEC registration fee and NASD fee are
estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 67 of Chapter 156B of the Massachusetts General Laws authorizes a
corporation to indemnify any director, officer, employee or other agent of the
corporation to whatever extent specified in or authorized by (i) the articles of
organization, (ii) a by-law adopted by the stockholders or (iii) a vote adopted
by the holders of a majority of the shares of stock entitled to vote on the
election of directors.
The Registrant's By-laws provide indemnity to the Registrant's Directors
and Officers in such capacity or as directors or officers of a wholly-owned
subsidiary of the Registrant for liability resulting from judgments, fines,
expenses or settlement amounts incurred in connection with any action, including
an action by or in the right of the Registrant, brought against such person in
such capacity. Under Massachusetts law and the By-laws, no indemnification may
be provided for any person with respect to any matter as to which he or she
shall have been adjudicated in any proceeding not to have acted in good faith in
the reasonable belief that his or her action was in the best interest of the
Registrant. The By-laws also provide that, with respect to any matter disposed
of by a compromise payment by such Director or Officer pursuant to a consent
decree or otherwise, no indemnification shall be provided unless such compromise
shall be ordered by a court or shall be approved as being in the best interest
of the Registrant, after notice that it involves such indemnification: (a) by a
disinterested majority of the Directors then in office or (b) by a majority of
the disinterested Directors then in office, provided that there has been
obtained an opinion in writing of independent counsel to the effect that such
person appears to have acted in good faith in the reasonable belief that his or
her action was in the best interests of the Registrant or (c) by the holders of
a majority of the outstanding stock at the time entitled to vote for Directors,
voting as a single class, exclusive of any stock owned by any interested
Director or officer. Under Massachusetts law, a court may uphold indemnification
in connection with a suit in which there is a recovery by or in the right of a
corporation.
The By-laws also provide for indemnification for all other directors of the
Registrant's wholly-owned subsidiaries, and for all other officers of such
wholly-owned subsidiaries to the extent authorized by the Board of Directors, on
the same statutory standard set forth in the preceding paragraph. Where such an
officer is wholly successful in defending the claim, he or she shall be entitled
to indemnification without further authorization of the Board. Directors and
officers of other subsidiaries and joint ventures and employees and agents of
the Registrant and any subsidiaries or joint ventures may be indemnified as
determined by the Board from time to time.
II-1
<PAGE> 29
ITEM 16. EXHIBITS.
<TABLE>
<S> <C>
(1)(a) -- Form of Underwriting Agreement relating to the Securities.*
(4)(c) -- Senior Indenture, between the Corporation and Norwest Bank Minnesota, National
Association ("Norwest"), as Trustee, dated as of June 15, 1992, incorporated
herein by reference to Exhibit 4(c) to the Corporation's Registration Statement
on Form S-3 (Registration Number 33-48418).
(4)(d) -- Subordinated Indenture between the Corporation and Norwest, as Trustee, dated
as of June 15, 1992, incorporated herein by reference to Exhibit 4(d) to the
Corporation's Registration Statement on Form S-3 (Registration Number
33-48418).
(4)(e) -- First Supplemental Indenture between the Corporation and Norwest, as Trustee
dated as of June 24, 1993, incorporated herein by reference to Exhibit 4(e) to
the Corporation's Current Report on Form 8-K dated June 24, 1993 (File No.
1-6522).
(4)(f) -- Form of Securities Warrant Agreement.*
(4)(g) -- Form of Certificates representing the Debt Warrants, Preferred Stock Warrants
and Common Stock Warrants (included in Exhibit (4)(f)).*
(4)(h) -- Form of Deposit Agreement.*
(4)(i) -- Form of Depositary Receipt (included in Exhibit (4)(h)).*
(4)(j) -- Rights Agreement, dated as of June 28, 1990, and as amended through December
12, 1995, between the Corporation and the Bank, as Rights Agent, and the
description of the Rights, incorporated herein by reference to the
Corporation's registration statement on Form 8-A relating to the Rights and to
Exhibit 1 of such registration statement (File No. 1-6522) and Exhibit 4(g) to
the Corporation's Annual Report on Form 10-K for the year ended December 31,
1996 (File No. 1-6522).
(5) -- Opinion of Gary A. Spiess, Esq.*
(12)(a) -- Computation of the Corporation's Consolidated Ratio of Earnings to Fixed
Charges (excluding interest on deposits) incorporated herein by reference to
Exhibit 12(a) to the Corporation's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1997.
(12)(b) -- Computation of the Corporation's Consolidated Ratio of Earnings to Fixed
Charges (including interest on deposits) incorporated herein by reference to
Exhibit 12(b) to the Corporation's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1997.
(12)(c) -- Computation of the Corporation's Consolidated Ratio of Earnings to Combined
Fixed Charges and Preferred Stock Dividend Requirements (excluding interest on
deposits) incorporated herein by reference to Exhibit 12(c) to the
Corporation's Quarterly Report on Form 10-Q for the quarter ended September 30,
1997.
(12)(d) -- Computation of the Corporation's Consolidated Ratio of Earnings to Combined
Fixed Charges and Preferred Stock Dividend Requirements (including interest on
deposits) incorporated herein by reference to Exhibit 12(d) to the
Corporation's Quarterly Report on Form 10-Q for the quarter ended September 30,
1997.
(23)(a) -- Consent of Coopers & Lybrand L.L.P.
(23)(b) -- Consent of Gary A. Spiess, Esq.(included in Exhibit 5).*
(24) -- Power of Attorney of certain officers and directors.*
(25) -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Norwest, as Trustee.*
</TABLE>
* Previously Filed.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes: (1) To file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the
II-2
<PAGE> 30
registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that paragraphs (1)(i) and (1)(ii) herein do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the undersigned
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and (3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 13(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 15 above, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that: (1) for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the time it was
declared effective; and (2) for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 31
SIGNATURES
Pursuant to the requirements of Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Pre-Effective
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Boston, and Commonwealth
of Massachusetts, on the 18th day of November, 1997.
BANKBOSTON CORPORATION
/s/ GARY A. SPIESS
By..................................
(GARY A. SPIESS)
(GENERAL COUNSEL AND CLERK)
Pursuant to the requirements of the Securities Act of 1933, this
Pre-Effective Amendment No. 1 to the Registration Statement has been signed by
the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ --------------------------------- ------------------
<C> <S> <C>
CHARLES K. GIFFORD* Chief Executive Officer and November 18, 1997
........................................ Director
(CHARLES K. GIFFORD)
WILLIAM M. CROZIER, JR.* Chairman of the Board of November 18, 1997
........................................ Directors and Director
(WILLIAM M. CROZIER, JR.)
HENRIQUE DE CAMPOS MEIRELLES* President and Chief Operating Of- November 18, 1997
........................................ ficer and Director
(HENRIQUE DE CAMPOS MEIRELLES)
SUSANNAH M. SWIHART* Executive Vice President, Chief November 18, 1997
........................................ Financial Officer and Treasurer
(SUSANNAH M. SWIHART) (Chief Financial Officer)
ROBERT T. JEFFERSON* Comptroller November 18, 1997
........................................ (Chief Accounting Officer)
(ROBERT T. JEFFERSON)
</TABLE>
II-4
<PAGE> 32
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ --------------------------------- ------------------
<S> <C> <C>
WAYNE A. BUDD* Director November 18, 1997
........................................
(WAYNE A. BUDD)
JOHN A. CERVIERI, JR.* Director November 18, 1997
........................................
(JOHN A. CERVIERI, JR.)
WILLIAM F. CONNELL* Director November 18, 1997
........................................
(WILLIAM F. CONNELL)
GARY L. COUNTRYMAN* Director November 18, 1997
........................................
(GARY L. COUNTRYMAN)
ALICE F. EMERSON* Director November 18, 1997
........................................
(ALICE F. EMERSON)
THOMAS J. MAY* Director November 18, 1997
........................................
(THOMAS J. MAY)
........................................ Director , 1997
(DONALD F. MCHENRY)
PAUL C. O'BRIEN* Director November 18, 1997
........................................
(PAUL C. O'BRIEN)
THOMAS R. PIPER* Director November 18, 1997
........................................
(THOMAS R. PIPER)
FRANCENE S. RODGERS* Director November 18, 1997
........................................
(FRANCENE S. RODGERS)
JOHN W. ROWE* Director November 18, 1997
........................................
(JOHN W. ROWE)
</TABLE>
II-5
<PAGE> 33
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ --------------------------------- ------------------
<S> <C> <C>
GLEN P. STREHLE* Director November 18, 1997
........................................
(GLEN P. STREHLE)
WILLIAM C. VAN FAASEN* Director November 18, 1997
........................................
(WILLIAM C. VAN FAASEN)
THOMAS B. WHEELER* Director November 18, 1997
........................................
(THOMAS B. WHEELER)
ALFRED M. ZEIEN* Director November 18, 1997
........................................
(ALFRED M. ZEIEN)
</TABLE>
*By: /s/ GARY A. SPIESS
....................................
(GARY A. SPIESS)
ATTORNEY-IN-FACT
II-6
<PAGE> 1
Exhibit 23(a)
Consent of Independent Accountants
The Board of Directors
BankBoston Corporation
We consent to the incorporation by reference, in this pre-effective
amendment No. 1 to the registration statement on Form S-3, of our report dated
January 16, 1997 on our audits of the consolidated financial statements of
BankBoston Corporation (formerly known as Bank of Boston Corporation) and
Subsidiaries as of December 31, 1996 and 1995, and for each of the three years
in the period ended December 31, 1996, included in the Corporation's 1996 Annual
Report to Stockholders and in Exhibit 13 to the Corporation's 1996 Annual Report
on Form 10-K. We also consent to the reference to our firm under the caption
"Experts."
The consolidated financial statements of BayBanks, Inc. as of December 31,
1995 and for the years ended December 31, 1995 and 1994, prior to the
restatement for the 1996 pooling of interests, included in the 1995 and 1994
restated consolidated financial statements were audited by other auditors whose
reports expressed unqualified opinions of those financial statements. We audited
the combination of the accompanying consolidated balance sheet as of
December 31, 1995, and the consolidated statements of income, changes in
stockholders' equity and cash flows for the years ended December 31, 1995 and
1994, after restatement for the 1996 pooling of interests; in our opinion, such
consolidated financial statements have been properly combined on the basis
described in Note 2 to the financial statements.
/s/ Coopers & Lybrand L.L.P.
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Coopers & Lybrand L.L.P.
Boston, Massachusetts
November 17, 1997
