<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 17, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
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> <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]
------------------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Each Class of to be Price Offering Registration
Securities to be Registered Registered(1) Per Unit(1)(2) Price(1)(2) Fee(3)
<CAPTION>
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities(4)(5)............
Preferred Stock(6)(10)...........
Depositary Shares(6)(7)..........
Debt Warrants(8).................
Preferred Stock Warrants(8)...... $950,000,000 100% $950,000,000 $287,879
Common Stock Warrants(8).........
Common Stock, par value $1.50 per
share(6)(9)(10).................
==================================================================================================
</TABLE>
(Footnotes on following page)
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
- ---------------
(1) Not specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3. In no event will the aggregate
initial offering price of the Debt Securities, Preferred Stock, Depositary
Shares, Debt Warrants, Preferred Stock Warrants, Common Stock and Common
Stock Warrants issued under this registration statement exceed $950,000,000
or the equivalent thereof in one or more foreign currencies or composite
currencies, including European currency units. Securities registered hereby
may be sold separately, together or in units with other securities
registered hereunder. Pursuant to Rule 429 under the Securities Act of
1933, as amended, the Prospectus included in this Registration Statement is
a combined prospectus and also relates to the Registration Statement on
Form S-3 (No. 33-52571) previously filed by the Registrant and declared
effective on March 18, 1994. The Prospectus included in this Registration
Statement also relates to its remaining unsold securities having an
aggregate offering price of $550,000,000 which were previously registered
by the Registrant under Registration Statement No. 33-52571.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(o). The proposed maximum offering price per unit will be
determined from time to time by the Registrant in connection with the
issuance by the Registrant of the securities registered hereunder.
(3) Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus included in this Registration Statement also relates to the
remaining unsold securities having an aggregate offering price of
$550,000,000 which were previously registered by the Registrant under
Registration Statement No. 33-52571. A registration fee of $189,655
associated with such securities was previously paid at the time of filing
of Registration Statement No. 33-52571 (Based on the fee rate in effect at
that time of 1/29 of 1%).
(4) If any Debt Securities are issued at an original issue discount, then such
greater amount as may result in the initial offering prices for Debt
Securities and Debt Warrants.
(5) In addition to any Debt Securities that may be issued directly under the
registration statement, there are being registered hereunder an
indeterminate amount of Debt Securities as may be issued upon exchange of
Preferred Stock, for which no separate consideration will be received.
(6) In addition to any Preferred Stock, Depositary Shares or Common Stock that
may be issued directly under this registration statement, there are being
registered hereunder an indeterminate number of Preferred Stock, Depositary
Shares or Common Stock as may be issued upon conversion, either at the
option of the holder or the Registrant, of Debt Securities, Preferred Stock
or Depositary Shares, as the case may be, for which no separate
consideration will be received.
(7) Such indeterminate number of Depositary Shares to be evidenced by
Depositary Receipts issued pursuant to a Deposit Agreement. In the event
the Registrant elects to offer to the public fractional interests in shares
of the Preferred Stock registered hereunder, Depositary Receipts will be
distributed to those persons purchasing such fractional interests and the
shares of Preferred Stock will be issued to the Depositary under the
Deposit Agreement.
(8) Debt Warrants, Preferred Stock Warrants and Common Stock Warrants
(collectively, "Securities Warrants") entitling the holder to purchase Debt
Securities, Preferred Stock and Common Stock, respectively, may be sold
separately or as units with Debt Securities, Preferred Stock or Common
Stock. The Securities Warrants will represent rights to purchase only Debt
Securities, Preferred Stock and Common Stock covered by this Registration
Statement.
(9) Includes Preferred Stock Purchase Rights. Prior to the occurrences of
certain events, the Rights will not be exercisable or evidenced separately
from the Common Stock.
(10) Such indeterminate amount of Capital Securities, which may consist of
common stock, perpetual preferred stock or other securities acceptable to
the Registrant's primary federal banking regulator as may be issued upon
conversion, either at the option of the holder or the Registrant, of Debt
Securities or Preferred Stock issued under this Registration Statement.
<PAGE> 3
SUBJECT TO COMPLETION -- DATED OCTOBER 17, 1997
PROSPECTUS
- -----------------
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.
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.
<PAGE> 4
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
and June 30, 1997;
3. Current Reports on Form 8-K dated January 16, 1997, April 17, 1997
and July 17, 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.
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
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<PAGE> 5
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 June 30, 1997, the Corporation had total assets of $66.1 billion,
total deposits of $43.0 billion and total stockholders' equity of $4.7 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>
SIX MONTHS ENDED
JUNE 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.... 2.31x 2.32x 2.24x 2.08x 1.90x 2.44x 2.17x
Including Interest on Deposits.... 1.52 1.48 1.44 1.42 1.41 1.38 1.22
Earnings to Combined Fixed Charges and
Preferred Stock Dividend
Requirements:
Excluding Interest on Deposits.... 2.18 2.17 2.09 1.96 1.79 2.13 2.00
Including Interest on Deposits.... 1.49 1.44 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. 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
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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 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 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
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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;
(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;
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<PAGE> 8
(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;
(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);
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(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.)
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
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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 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.)
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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.)
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
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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) through (v) in the
immediately succeeding sentence do not include Additional Senior Obligations in
the definition of Senior Indebtedness of the Corporation. Additional
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Senior Obligations was 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) Subordinated Floating Rate Notes Due 2001, issued under a Fiscal and Paying
Agency Agreement, dated as of February 10, 1986, between the Corporation and
Bankers Trust Company, as fiscal agent; (ii) 6 7/8% Subordinated Notes Due 2003,
issued under the Subordinated Indenture on June 30, 1993; (iii) 6 5/8%
Subordinated Notes Due 2005, issued under the Subordinated Indenture on November
22, 1993; and (iv) 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 any series of shares of Preferred Stock 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,
which amount gives effect to the redemption of the 8.6% Cumulative Preferred
Stock, Series E, which the Corporation effected in September 1997 for $230
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 Federal Reserve Board (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 September 30, 1997 consisted of
300,000,000 authorized shares, par value $1.50 per share, of which there were
144,534,999 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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<PAGE> 24
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
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<PAGE> 25
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
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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.
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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 is named in the 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
October 14, 1997, Mr. Spiess had a direct or indirect interest in 28,177 shares
of the Corporation's Common
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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 October 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.
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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.
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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 June 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 June 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 June 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 June 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>
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)
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<PAGE> 31
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the 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.
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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 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
16th day of October, 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
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 October 16, 1997
........................................ Director
(CHARLES K. GIFFORD)
WILLIAM M. CROZIER, JR.* Chairman of the Board of October 16, 1997
........................................ Directors and Director
(WILLIAM M. CROZIER, JR.)
HENRIQUE DE CAMPOS MEIRELLES* President and Chief Operating Of- October 16, 1997
........................................ ficer and Director
(HENRIQUE DE CAMPOS MEIRELLES)
SUSANNAH M. SWIHART* Executive Vice President, Chief October 16, 1997
........................................ Financial Officer and Treasurer
(SUSANNAH M. SWIHART) (Chief Financial Officer)
ROBERT T. JEFFERSON* Comptroller October 16, 1997
........................................ (Chief Accounting Officer)
(ROBERT T. JEFFERSON)
</TABLE>
II-4
<PAGE> 33
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ --------------------------------- ------------------
<S> <C> <C>
WAYNE A. BUDD* Director October 16, 1997
........................................
(WAYNE A. BUDD)
JOHN A. CERVIERI, JR.* Director October 16, 1997
........................................
(JOHN A. CERVIERI, JR.)
WILLIAM F. CONNELL* Director October 16, 1997
........................................
(WILLIAM F. CONNELL)
GARY L. COUNTRYMAN* Director October 16, 1997
........................................
(GARY L. COUNTRYMAN)
ALICE F. EMERSON* Director October 16, 1997
........................................
(ALICE F. EMERSON)
THOMAS J. MAY* Director October 16, 1997
........................................
(THOMAS J. MAY)
Director , 1997
........................................
(DONALD F. MCHENRY)
PAUL C. O'BRIEN* Director October 16, 1997
........................................
(PAUL C. O'BRIEN)
THOMAS R. PIPER* Director October 16, 1997
........................................
(THOMAS R. PIPER)
FRANCENE S. RODGERS* Director October 16, 1997
........................................
(FRANCENE S. RODGERS)
JOHN W. ROWE* Director October 16, 1997
........................................
(JOHN W. ROWE)
</TABLE>
II-5
<PAGE> 34
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ --------------------------------- ------------------
<S> <C> <C>
GLEN P. STREHLE* Director October 16, 1997
........................................
(GLEN P. STREHLE)
WILLIAM C. VAN FAASEN* Director October 16, 1997
........................................
(WILLIAM C. VAN FAASEN)
THOMAS B. WHEELER* Director October 16, 1997
........................................
(THOMAS B. WHEELER)
ALFRED M. ZEIEN* Director October 16, 1997
........................................
(ALFRED M. ZEIEN)
</TABLE>
*By: /s/ GARY A. SPIESS
....................................
(GARY A. SPIESS)
ATTORNEY-IN-FACT
II-6
<PAGE> 1
================================================================================
BANKBOSTON CORPORATION
(a Massachusetts corporation)
Senior Debt Securities, Subordinated Debt
Securities, Preferred Stock,
Depositary Shares Representing Preferred Stock,
Common Stock and Warrants to Purchase Debt
Securities, Preferred Stock or Common Stock
UNDERWRITING AGREEMENT
Dated: ____________, 199_
================================================================================
<PAGE> 2
BANKBOSTON CORPORATION
(a Massachusetts corporation)
Senior Debt Securities, Subordinated Debt
Securities, Preferred Stock,
Depositary Shares representing Preferred Stock,
Common Stock and Warrants to Purchase Debt
Securities, Preferred Stock or Common Stock
UNDERWRITING AGREEMENT
___________, 199_
To the [Underwriter[s]
named in Exhibit A]
[Representative[s] named
in Exhibit A of the
Underwriters named in
Exhibit A]
Dear Sirs:
BankBoston Corporation, a Massachusetts corporation (the "Company"),
proposes to issue and sell from time to time, either together or separately,
certain of its (i) senior debt securities (the "Senior Debt Securities") and/or
(ii) subordinated debt securities (the "Subordinated Debt Securities", and
together with the Senior Debt Securities, the "Debt Securities"), and/or (iii)
preferred stock (the "Preferred Shares"), and/or (iv) depositary shares which
represent fractional interests in the Preferred Shares (the "Depositary Shares")
and/or (v) common stock, par value $1.50 per share ("Common Stock"), and/or (vi)
warrants (the "Warrants") to purchase Debt Securities, Preferred Shares or
Common Stock in one or more offerings on terms determined at the time of sale
and set forth in a terms agreement in the form of Exhibit A hereto (the "Terms
Agreement"). The Subordinated Debt Securities may be convertible into or
exchangeable for Capital Securities of the Company (as defined below) and the
Preferred Shares may be convertible into Capital Securities or other preferred
stock of the Company or exchangeable for Capital Securities or Debt Securities,
in each case as set forth in the applicable Terms Agreement relating thereto. As
used herein, "Capital Securities" means any securities issued by the Company
2
<PAGE> 3
which consist of (i) Common Stock, (ii) perpetual preferred stock or (iii) other
capital securities of the Company acceptable to the Company's primary federal
regulator. Capital Securities may have such terms, rights and preferences as may
be determined by the Company.
The Senior Debt Securities are to be issued under an Indenture dated as of
June 15, 1992, as amended or supplemented (the "Senior Indenture"), between the
Company and Norwest Bank Minnesota, National Association ("Norwest"), as trustee
(the "Senior Trustee"). The Subordinated Debt Securities are to be issued under
an Indenture dated as of June 15, 1992, as amended or supplemented (the
"Subordinated Indenture"), between the Company and Norwest, as trustee (the
"Subordinated Trustee", and together with the Senior Trustee, the "Trustees").
The Senior Indenture and the Subordinated Indenture are collectively referred to
herein as the "Indentures". The Senior Debt Securities and the Subordinated Debt
Securities may have varying designations, maturities, rates and times of payment
of interest, if any, selling prices, redemption terms, if any, exchange terms,
if any, conversion terms and other specific terms as set forth in the applicable
Terms Agreement relating thereto.
The warrants are to be issued under warrant agreements (each a "Warrant
Agreement"), between the Company and a bank or trust company, as warrant agent
(the "Warrant Agent"). The Warrants may have varying designations, expiration
dates, selling prices, redemption terms, if any, exchange terms, if any,
conversion terms and other specific terms as set forth in the applicable Terms
Agreement relating thereto.
Each issue of Preferred Shares may vary as to the specific number of
shares, title, stated value and liquidation preference, issuance price, dividend
rate or rates (or method of calculation), dividend payment dates, redemption or
sinking fund requirements, conversion and exchange provisions and any other
variable terms as set forth in the applicable Terms Agreement relating to such
Preferred Shares. If the Preferred Shares are to be offered in the form of
Depositary Shares, the Preferred Shares will, when issued, be deposited by the
Company against delivery of depositary receipts (the "Depositary Receipts") to
be issued under a deposit agreement (the "Deposit Agreement"), to be entered
into among the Company, a depositary institution (the "Depositary") and the
holders from time to time of the Depositary Receipts issued thereunder. The
Depositary Receipts will evidence the Depositary Shares and each Depositary
Share will represent a fraction of a Preferred Share. The Preferred Shares,
together, if applicable, with the Depositary Shares are hereinafter referred to
as the "Shares".
3
<PAGE> 4
Each issue of Common Stock may vary as to the specific number of shares,
the initial public offering price, the purchase price and other specific terms
as set forth in the applicable Terms Agreement relating thereto.
The Debt Securities, Warrants, Shares and Common Stock, to be issued and
sold as specified in the applicable Terms Agreement, shall collectively be
referred to herein as the "Offered Securities". As used herein, unless the
context otherwise requires, the term "Underwriters" shall mean the firm or firms
specified as Underwriter or Underwriters in the applicable Terms Agreement
relating to the Offered Securities and the term "you" shall mean the Underwriter
or Underwriters, if no underwriting syndicate is purchasing the Offered
Securities, or the representative or representatives of the Underwriters, if an
underwriting syndicate is purchasing the Offered Securities, as specified in the
applicable Terms Agreement.
Whenever the Company determines to make an offering of Offered Securities,
the Company will enter into a Terms Agreement providing for the sale of the
applicable Offered Securities to, and the purchase and offering thereof by, the
Underwriters. The Terms Agreement relating to the Offered Securities shall
specify the type of Offered Securities to be issued, the names of the
Underwriters participating in such offering (subject to substitution as provided
in Section 10 hereof), the number of Offered Securities which each such
Underwriter severally agrees to purchase, the price at which the Offered
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price, the time and place of delivery and payment and other
specific terms. In addition, each Terms Agreement shall specify whether the
Company has agreed to grant to the Underwriters an option to purchase additional
Offered Securities to cover over-allotments, if any, and the amount of Offered
Securities subject to such option (the "Option Securities"). As used herein, the
term "Offered Securities" shall include the Option Securities, if any. The Terms
Agreement may take the form of an exchange of any standard form of written
telecommunication between you and the Company. Each offering of Offered
Securities will be governed by this Agreement, as supplemented by the applicable
Terms Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon the Company and each Underwriter participating in
the offering of such Offered Securities.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File
No. 333- ), including a prospectus, relating to the Offered Securities and
the offering thereof from time to time in accordance with Rule 415 under the
Securities Act of
4
<PAGE> 5
1933, as amended (the "1933 Act"). Such registration statement has been declared
effective by the Commission. As provided in Section 3(a), a prospectus
supplement reflecting the terms of the Offered Securities, the terms of the
offering thereof and the other matters set forth therein has been prepared and
will be filed pursuant to Rule 424 under the 1933 Act. Such prospectus
supplement, in the form first filed after the date of the applicable Terms
Agreement pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement". Such registration statement, as amended at the date of the
applicable Terms Agreement, including the exhibits thereto and the documents
incorporated by reference therein, is herein called the "Registration
Statement", and the basic prospectus included therein relating to all offerings
of securities under the Registration Statement, as supplemented by the
Prospectus Supplement, is herein called the "Prospectus", except that, if such
basic prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424, the term "Prospectus"
shall refer to the basic prospectus as so amended or supplemented and as
supplemented by the Prospectus Supplement, in either case including the
documents filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), that are incorporated by
reference therein.
Section 1. REPRESENTATIONS AND WARRANTIES. (a) The Company represents and
warrants to and agrees with each of the Underwriters that:
(i) The Company meets the requirements for use of Form S-3 under the
1933 Act and as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as
to the Prospectus Supplement and any amendment thereto, (A) the
Registration Statement and any amendments and supplements thereto complied
and will comply in all material respects with the requirements of the 1933
Act and the rules and regulations of the Commission thereunder (the "1933
Act Regulations"), the Trust Indenture Act of 1939, as amended (the "1939
Act"), and the rules and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations"); (B) neither the Registration Statement nor
any amendment or supplement thereto contained or will contain an untrue
statement of a material fact or omitted or will omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and (C) neither the Prospectus nor any amendment or
supplement thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in
5
<PAGE> 6
the light of the circumstances under which they were made, not misleading,
except that this representation and warranty does not apply to statements
or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through you expressly for use in the Registration Statement or the
Prospectus. At the Closing Time, the Indentures will comply in all material
respects with the requirements of the 1939 Act and the 1939 Act
Regulations.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the 1934 Act, and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
and with the other information in the Prospectus, as of the applicable
effective date of the Registration Statement and any amendment thereto, did
not and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading.
(iii) This Agreement has been duly authorized, executed and delivered
by the Company; and upon execution and delivery of each Terms Agreement by
the Company, such Terms Agreement shall have been duly authorized, executed
and delivered by the Company.
(iv) The consolidated financial statements included or incorporated
by reference in the Registration Statement present fairly the consolidated
financial position of the Company and its subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows of the
Company and its subsidiaries for the periods specified. Such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved, except as disclosed in the notes to such financial statements.
The financial statement schedules, if any, included in the Registration
Statement present fairly the information required to be stated therein. The
selected financial data included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
that of the audited consolidated financial statements included or
incorporated by reference in the Registration Statement.
6
<PAGE> 7
(v) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the Commonwealth of Massachusetts with
corporate power and authority under such laws to own, lease and operate its
properties and conduct its business as described in the Prospectus; the
Company is duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended; each of BankBoston, N.A. ("FNBB") and
Rhode Island Hospital Trust National Bank ("Hospital Trust") is a duly
organized and validly existing national banking association under the laws
of the United States, continues to hold a valid certificate to do business
as such and has full power and authority to conduct its business as such
(FNBB and Hospital Trust are referred to collectively as the "Significant
Subsidiaries"); each Significant Subsidiary has the authority under its
jurisdiction of organization to own, lease and operate its properties and
to conduct its business.
(vi) The Company is duly qualified as a foreign corporation, and each
of the Significant Subsidiaries is duly authorized, to transact business
and is in good standing in each jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect on
the Company and its subsidiaries, considered as one enterprise.
(vii) The Company does not have any subsidiaries which are material to
its business, except to the extent that one or more of the Significant
Subsidiaries may be deemed to be so material.
(viii) The Offered Securities conform in all material respects to the
summary descriptions thereof contained or incorporated by reference in the
Prospectus and such summary descriptions conform to the rights set forth in
the instruments defining the same.
(ix) If the Prospectus contains a description of the capitalization of
the Company, (a) the Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus, (b) all of
the outstanding shares of Capital Securities of the Company have been duly
authorized and validly issued and are fully paid and non-assessable, and
(c) none of the outstanding shares of Capital Securities was issued in
violation of the preemptive rights of any stockholder of the Company.
7
<PAGE> 8
(x) If the Offered Securities include Preferred Shares, such
Preferred Shares shall, on the date of the Terms Agreement relating to such
Offered Securities, be duly authorized and, when such Preferred Shares are
duly executed and delivered and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, such Preferred Shares will
have been validly issued, fully paid and non-assessable; subject to the
provisions of Massachusetts General Laws, Chapter 156B, Section 45, no
holder thereof will be subject to personal liability by reason of being
such a holder; such Preferred Shares will not be subject to the.preemptive
rights of any stockholder of the Company; and all corporate action required
to be taken for the authorization, issue and sale of such Preferred Shares
has been, or at the Closing Time will be, validly and sufficiently taken;
and, if the Offered Securities include Preferred Shares that are to be
represented by Depositary Shares, then, upon deposit by the Company of such
Preferred Shares with the Depositary pursuant to the Deposit Agreement and
the execution by the Depositary of the Depositary Receipts evidencing the
Depositary Shares, such Depositary Shares shall represent legal and valid
interests in such Preferred Shares; and, if the Offered Securities include
Preferred Shares that are convertible into Capital Securities or other
preferred stock or exchangeable for Capital Securities or Debt Securities,
then such Preferred Shares shall be convertible into Capital Securities or
other preferred stock or exchangeable for Capital Securities or Debt
Securities in accordance with their terms and the terms of the Certificate
of Vote of Directors establishing a Series of a Class of Stock relating to
such Preferred Shares (the "Certificate of Vote").
(xi) If the Offered Securities include Common Stock, such Common Stock
shall, on the date of the Terms Agreement relating to such Offered
Securities, be duly authorized and, when such Common Stock is duly executed
and delivered and issued and paid for in accordance with this Agreement and
the applicable Terms Agreement, such Common Stock will have been validly
issued, fully paid and non-assessable; subject to the provisions of
Massachusetts General Laws, Chapter 156B, Section 45, no holder thereof
will be subject to personal liability by reason of being such a holder;
such Common Stock will not be subject to the preemptive rights of any
stockholder of the Company; and all corporate action required to be taken
for the authorization, issue and sale of such Common Stock has been, or at
the Closing Time will be, validly and sufficiently taken.
8
<PAGE> 9
(xii) If the Offered Securities include Debt Securities, such Debt
Securities shall, on the date of the Terms Agreement relating to such
Offered Securities, be duly authorized and, when such Debt Securities are
duly executed, authenticated and delivered in the manner provided for in
the applicable Indenture and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, such Debt Securities will
constitute valid and binding obligations of the Company entitled to the
benefits of the applicable Indenture and enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited
by the receivership, conservatorship and supervisory powers of bank
regulatory agencies generally as well as to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and the availability of
equitable remedies; and, if the Offered Securities include Subordinated
Debt Securities that are convertible into or exchangeable for Capital
Securities, then such Subordinated Debt Securities shall be convertible
into or exchangeable for Capital Securities in accordance with their terms
and the terms of the Subordinated Indenture.
(xiii) If the Offered Securities include Warrants, such Warrants
shall, on the date of the Terms Agreement relating to such Offered
Securities, be duly authorized and, when such Warrants are duly executed,
countersigned and delivered in the manner provided for in the Warrant
Agreement and issued and paid for in accordance with this Agreement and the
applicable Terms Agreement, such Warrants will constitute valid and binding
obligations of the Company entitled to the benefits of the Warrant
Agreement and enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by the receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally as well as to bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law) and the availability of equitable remedies; and the
Warrants shall be exercisable for Debt Securities, Preferred Shares or
Common Stock in accordance with their terms and the terms of the Warrant
Agreement.
9
<PAGE> 10
(xiv) If the Offered Securities include Preferred Shares convertible
into Capital Securities or other preferred stock or exchangeable for
Capital Securities and/or Subordinated Debt Securities convertible into or
exchangeable for Capital Securities, the Capital Securities or preferred
stock issuable upon conversion or exchange, as the case may be, of the
Preferred Shares pursuant to their terms and the terms of the Certificate
of Vote and/or the Capital Securities issuable upon conversion or exchange
of the Subordinated Debt Securities pursuant to their terms and the terms
of the Subordinated Indenture, on the date of the Terms Agreement relating
to such Offered Securities, shall be duly authorized and validly reserved
for issuance upon such conversion or exchange by all necessary corporate
action and such Capital Securities or other preferred stock, when issued
upon such conversion or exchange, as the case may be, will be validly
issued, fully paid and non-assessable; subject to the provisions of
Massachusetts General Laws, Chapter 156B, Section 45, no holder thereof
will be subject to personal liability by reason of being such a holder; and
the issuance of such Capital Securities or other preferred stock upon such
conversion or exchange, as the case may be, will not be subject to
preemptive rights.
(xv) If the Offered Securities include Debt Securities or Preferred
Shares exchangeable for Debt Securities, the Indentures have been duly
authorized by the Company, will be substantially in the forms filed as
exhibits to the Registration Statement and, when duly executed and
delivered by the Company and the Trustees, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited
by the receivership, conservatorship and supervisory powers of bank
regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and the availability of
equitable remedies; and the summary descriptions of the Indentures set
forth in the Prospectus conform in all material respects to the provisions
contained in the Indentures.
(xvi) If the Offered Securities include Depositary Shares, the
Deposit Agreement has been duly authorized by the Company, will be
substantially in the form filed as an exhibit to the Registration Statement
and, when duly
10
<PAGE> 11
executed and delivered by the Company and the Depositary, will constitute a
valid and binding obligation of the Company enforceable in accordance with
its terms, except as enforcement thereof may be limited by the
receivership, conservatorship and supervisory powers of bank regulatory
agencies generally as well as bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and the availability of equitable remedies;
and the summary description of the Deposit Agreement set forth in the
Prospectus conforms in all material respects to the provisions contained in
the Deposit Agreement.
(xvii) If the Offered Securities include Warrants, the Warrant
Agreement has been duly authorized by the Company, will be substantially in
the form filed as an exhibit to the Registration Statement and, when duly
executed and delivered by the Company and the Warrant Agent, will
constitute a valid and binding obligation of the Company enforceable in
accordance with its terms, except as enforcement thereof may be limited by
the receivership, conservatorship and supervisory powers of bank regulatory
agencies generally as well as to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and the availability of equitable remedies;
and the summary description of the Warrant Agreement conforms in all
material respects to the provisions contained in the Warrant Agreement.
(xviii) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby and, except for normal recurring dividends
on the Common Stock and the Preferred Shares of the Company, there has not
been (A) any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise, whether or not arising
in the ordinary course of business, (B) any transaction entered into by the
Company or any subsidiary, other than in the ordinary course of business,
that is material to the Company and its subsidiaries, considered as one
enterprise, or (C) any dividend or distribution of any
11
<PAGE> 12
kind declared, paid or made by the Company on its capital stock.
(xix) Neither the Company nor any Significant Subsidiary is in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which it is a
party or by which it may be bound or to which any of its properties may be
subject, except for such defaults that would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise. The execution and delivery of this Agreement,
the applicable Terms Agreement, the Indentures, the Warrant Agreement, any
Certificate of Vote and the Deposit Agreement by the Company, the issuance
and delivery of the Offered Securities, the consummation by the Company of
the transactions contemplated in this Agreement, the applicable Terms
Agreement and in the Registration Statement, and compliance by the Company
with the terms of this Agreement, the applicable Terms Agreement, the
Indentures, the Warrant Agreement, any Certificate of Vote and the Deposit
Agreement have been duly authorized by all necessary corporate action on
the part of the Company and do not and will not result in any violation of
the charter or by-laws of the Company or any Significant Subsidiary, and do
not and will not conflict with, or result in a breach of any of the terms
or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any Significant Subsidiary under (A) any
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any Significant Subsidiary is a party or
by which it may be bound or to which any of its properties may be subject
except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one enterprise or (B)
any existing applicable law, rule, regulation, judgment, order or decree of
any government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any Significant Subsidiary or any
of its properties.
(xx) Each authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act, the 1939
12
<PAGE> 13
Act and the securities or blue sky laws of the various states), which is
required for (A) the valid authorization, issuance, sale and delivery of
the Offered Securities or (B) the execution, delivery or performance of
this Agreement, the applicable Terms Agreement, the Indentures, the Warrant
Agreement, any Certificate of Vote or the Deposit Agreement by the Company
has been received.
(xxi) Except as disclosed in the Prospectus, there is no action, suit
or proceeding before or by any government, governmental instrumentality or
court, domestic or foreign, now pending or, to the knowledge of the
Company, threatened against or affecting the Company or any Significant
Subsidiary that is required to be disclosed in the Prospectus or that, in
the final outcome, could, in the judgment of the Company, result in any
material adverse change in the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise, or that could materially and
adversely affect the properties or assets of the Company and its
subsidiaries, considered as one enterprise, or that could adversely affect
the consummation of the transactions contemplated in this Agreement; the
aggregate liability or loss, if any, resulting from the final outcome of
all pending legal or governmental proceedings to which the Company or any
Significant Subsidiary is a party or which affect any of its properties
that are not described in the Prospectus, including ordinary routine
litigation incidental to its business, would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise.
(xxii) There are no contracts or documents of a character required to
be described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not described and filed
as required.
(xxiii) The Company and the Significant Subsidiaries each has good and
marketable title to all properties and assets described in the Prospectus
as owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Prospectus or (B) are
neither material in amount nor materially significant in relation to the
business of the Company and its subsidiaries, considered as one enterprise;
all of the leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and
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under which the Company or any Significant Subsidiary holds properties
described in the Prospectus, are in full force and effect, and neither the
Company nor any Significant Subsidiary has any notice of any material claim
of any sort that has been asserted by anyone adverse to the rights of the
Company or any Significant Subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of such corporation
to the continued possession of the leased or subleased premises under any
such lease or sublease.
(xxiv) The Company and the Significant Subsidiaries each owns,
possesses or has obtained all material governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations
necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as presently conducted, and neither
the Company nor any Significant Subsidiary has received any notice of
proceedings relating to revocation or modification of any such licenses,
permits, certificates, consents, orders, approvals or authorizations that,
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, could materially adversely affect the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise.
(xxv) The Company and the Significant Subsidiaries each owns or
possesses, or can acquire on reasonable terms, adequate patents, patent
licenses, trademarks, service marks and trade names necessary to carry on
their businesses as presently conducted, and neither the Company nor any of
the Significant Subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any patents, patent
licenses, trademarks, service marks or trade names that, in the aggregate,
if the subject of an unfavorable decision, ruling or finding, could
materially adversely affect the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xxvi) To the best knowledge of the Company, no labor problem exists
with its employees or with employees of the Significant Subsidiaries or is
imminent that could adversely affect the Company and its subsidiaries,
considered as one enterprise, and the Company is not aware of any existing
or imminent labor disturbance by the employees of any of its or the
Significant Subsidiaries' principal suppliers, contractors or customers
that could be expected to
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materially adversely affect the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xxvii) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Offered Securities or the Capital Securities.
(b) Any certificate signed by any duly authorized officer of the Company
or any Significant Subsidiary and delivered to you or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
Section 2. PURCHASE AND SALE. (a) The several commitments of the
Underwriters to purchase Offered Securities pursuant to any Terms Agreement
shall be deemed to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and conditions
herein set forth.
(b) In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
may grant, if so provided in the Terms Agreement applicable to any Offered
Securities, an option to the Underwriters named in such Terms Agreement,
severally and not jointly, to purchase up to the amount of Option Securities set
forth therein at the same price per security (less, in the case of Common Stock,
an amount per share equal to any dividends declared by the Company and payable
on the Offered Securities but not payable on the Option Securities) as is
applicable to the Offered Securities. Such option, if granted, will expire 30
days after the date of the Terms Agreement applicable to the Offered Securities,
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Offered Securities upon notice by you to the Company
setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of delivery (a "Date
of Delivery") shall be determined by you, but shall not be later than seven full
business days and not earlier than two full business days after the exercise of
said option, nor in any event prior to the Closing Time, as hereinafter defined,
unless otherwise agreed upon by you and the Company. If the option is exercised
as to all or any portion of the Option Securities, each of the Underwriters,
acting severally
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<PAGE> 16
and not jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Offered Securities each such
Underwriter has agreed to purchase, as set forth in the applicable Terms
Agreement, bears to the total number of Offered Securities, subject to such
adjustments as you in your discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) Payment of the purchase price for, and delivery of, any Offered
Securities to be purchased by the Underwriters pursuant to the applicable Terms
Agreement shall be made at the office of BankBoston, N.A., 100 Federal Street,
Boston, Massachusetts 02110 or at such other place as shall be agreed upon by
you and the Company in the applicable Terms Agreement, at 10:00 A.M., New York
City time, on the fifth business day (unless postponed in accordance with the
provisions of Section 10) following the date of the applicable Terms Agreement
or at such other time as shall be agreed upon by you and the Company (each such
time and date being referred to as a "Closing Time"). In addition, in the event
that any or all of the Option Securities are purchased by the Underwriters,
payment of the purchase price for, and delivery of certificates representing
such Option Securities, shall be made at the above-mentioned offices of
BankBoston, N.A., or at such other place as shall be agreed upon by you and the
Company, on each Date of Delivery as specified in the notice from you to the
Company. Payment shall be made to the Company by certified or official bank
check or checks in New York Clearing House or similar next day funds payable to
the order of the Company against delivery to you for the respective accounts of
the Underwriters of the Offered Securities to be purchased by them. Such Offered
Securities, certificates for such Offered Securities or Depositary Receipts
evidencing the Depositary Shares, as applicable, shall be in such denominations
and registered in such names as you may request in writing at least two full
business days prior to the applicable Closing Time or Date of Delivery, as the
case may be. Such Offered Securities, certificates or Depositary Receipts, as
applicable, will be made available for examination and packaging by you not
later than 10:00 A.M. on the business day prior to Closing Time or Date of
Delivery, as the case may be.
Section 3. CERTAIN COVENANTS OF THE COMPANY. The Company covenants with
each Underwriter as follows:
(a) (i) If reasonably requested by you in connection with the offering of
the Offered Securities, the Company will prepare a preliminary prospectus
supplement containing such information concerning the Offered Securities as you
and the Company deem appropriate and (ii) immediately following the execution of
each Terms Agreement, the Company will prepare a Prospectus Supplement
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<PAGE> 17
that complies with the 1933 Act and the 1933 Act Regulations and that sets forth
the number or principal amount of Offered Securities covered thereby, the names
of the Underwriters participating in the offering and the number or principal
amount of Offered Securities which each Underwriter severally has agreed to
purchase, the name of each Underwriter, if any, acting as representative in
connection with the offering, the price at which the Offered Securities are to
be purchased by the Underwriters from the Company, the initial public offering
price, the selling concession and reallowance, if any, and such other
information concerning the Offered Securities as you and the Company deem
appropriate in connection with the offering of the Offered Securities. The
Company will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish
to the Underwriters named therein as many copies of any preliminary prospectus
supplement, the Prospectus and the Prospectus Supplement as you shall reasonably
request.
(b) If at any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities any event shall
occur or condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of either
such counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(d), such amendment or supplement as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements.
(c) During the period when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered Securities, the Company
will, subject to Section 3(d), file promptly all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act.
(d) During the period between the date of the applicable Terms Agreement
and the Closing Time, the Company will inform you of its intention to file any
amendment to the Registration Statement, any supplement to the Prospectus or any
document that would as a result thereof be incorporated by reference in the
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<PAGE> 18
Prospectus, will furnish you with copies of any such amendment, supplement or
other document and will not file any such amendment, supplement or other
document in a form to which you or your counsel shall reasonably object.
(e) During the period when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Offered Securities, the Company
will notify you immediately, and confirm the notice in writing, (i) of the
effectiveness of any amendment to the Registration Statement, (ii) of the
mailing or the delivery to the Commission for filing of any supplement to the
Prospectus or any document that would as a result thereof be incorporated by
reference in the Prospectus, (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or the
Prospectus Supplement, (iv) of any request by the Commission for any amendment
to the Registration Statement or any supplement to the Prospectus or for
additional information relating thereto or to any document incorporated by
reference in the Prospectus and (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement, of the
suspension of the qualification of the Offered Securities for offering or sale
in any jurisdiction, or of the institution or threatening of any proceeding for
any of such purposes. The Company will use every reasonable effort to prevent
the issuance of any such stop order or of any order suspending such
qualification and, if any such order is issued, to obtain the lifting thereof at
the earliest possible moment.
(f) The Company has furnished or will furnish to you as many copies of the
Registration Statement as originally filed and of all amendments thereto,
whether filed before or after the Registration Statement becomes effective,
copies of all exhibits and documents filed therewith (including documents
incorporated by reference into the Prospectus pursuant to Item 12 of Form S-3
under the 1933 Act) and copies of all consents and certificates of experts as
you may reasonably request, and has furnished or will furnish to you, for each
other Underwriter, one copy of the Registration Statement as originally filed
and of each amendment thereto (including documents incorporated by reference
into the Prospectus but without exhibits).
(g) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Offered Securities and, if applicable, Capital
Securities into or for which the Subordinated Debt Securities are convertible or
exchangeable and the Capital Securities, other preferred stock or Debt
Securities into which the Preferred Shares are convertible or exchangeable, as
the case may be, for offering and sale under the applicable securities laws of
such states and other jurisdictions as you may designate
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and to maintain such qualifications in effect for a period of not less than one
year from the effective date of the Terms Agreement applicable to such Offered
Securities; PROVIDED, HOWEVER, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Offered Securities have been qualified as above provided.
(h) The Company will make generally available to its security holders as
soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the 1933 Act Regulations) covering (i) a period of
12 months beginning after the effective date of the Registration Statement but
not later than the first day of the Company's fiscal quarter next following such
effective date and (ii) a period of 12 months beginning after the date of the
applicable Terms Agreement but not later than the first day of the Company's
fiscal quarter next following the date of the applicable Terms Agreement.
(i) If and to the extent specified in the applicable Terms Agreement, the
Company will use its best efforts to effect the listing of the Offered
Securities and, if applicable, the Capital Securities, other preferred stock or
Debt Securities issuable upon conversion of or exchange for, as the case may be,
Preferred Shares and/or Capital Securities issuable upon conversion of or
exchange for Subordinated Debt Securities, on the New York Stock Exchange and
the Boston Stock Exchange by the Closing Time with respect to the applicable
Terms Agreement.
(j) For a period of five years after the Closing Time, the Company will
furnish to you copies of all annual reports, quarterly reports and current
reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission, and such other documents,
reports and information as shall be furnished by the Company to its stockholders
generally.
(k) Between the date of the applicable Terms Agreement and the Closing
Time or such other date as is set forth in such Terms Agreement, the Company
will not, without your prior written consent, directly or indirectly, sell,
offer to sell, grant any option for the sale of, or otherwise dispose of, the
securities set forth in such Terms Agreement, other than as set forth in such
Terms Agreement.
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Section 4. PAYMENT OF EXPENSES. The Company will pay and bear all costs and
expenses incident to the performance of its obligations under this Agreement and
any applicable Terms Agreement, including (a) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits), as originally filed and as amended, any preliminary prospectus
supplements and the Prospectus and any amendments or supplements thereto, and
the cost of furnishing copies thereof to the Underwriters, (b) the preparation,
printing and distribution of this Agreement, each Terms Agreement, the
Indentures, the Deposit Agreement, the Warrant Agreement, any Certificate of
Vote, the Offered Securities, any certificates for the Offered Securities and
Depositary Receipts, (c) the issuance and delivery of the Offered Securities to
the Underwriters, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the qualification of the Offered Securities under the
applicable securities laws in accordance with Section 3(g) and any filing for
review of the offering with the National Association of Securities Dealers,
Inc., including filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the Blue Sky Survey
and the Legal Investment Survey, (f) any fees charged by rating agencies for
rating any of the Offered Securities and (g) the fees and expenses incurred in
connection with the listing of the applicable Offered Securities and the Capital
Securities, other preferred stock or Debt Securities issuable upon conversion or
exchange thereof.
If a Terms Agreement is terminated by you in accordance with the provisions
of Section 5 or Section 9(i) hereof, the Company shall reimburse the
Underwriters named in such Terms Agreement for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for such
Underwriters.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. Except as otherwise
provided in the applicable Terms Agreement, the obligations of the Underwriters
to purchase and pay for the Offered Securities pursuant to any Terms Agreement
are subject to the accuracy of the representations and warranties of the Company
contained herein at and as of the date hereof, the date of any such Terms
Agreement, and the Closing Time or contained in certificates of any officer of
the Company or any Significant Subsidiary delivered pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder, and to
the following further conditions:
(a) At the Closing Time, no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or shall be pending or,
to your
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knowledge or the knowledge of the Company, shall be contemplated by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel for the Underwriters.
(b) At the applicable Closing Time, you shall have received a signed
opinion of Gary A. Spiess, General Counsel for the Company, dated as of the
Closing Time, together with signed or reproduced copies of such opinion for each
of the other Underwriters, in form and substance satisfactory to you or your
counsel, to the effect that:
(i) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the Commonwealth of Massachusetts
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus.
(ii) The Company is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which it
owns or leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, considered as one
enterprise.
(iii) Each of FNBB and Hospital Trust is a duly organized and validly
existing national banking association under the laws of the United States,
continues to hold a valid certificate to do business as such and has full
power and authority to conduct its business as such; and each Significant
Subsidiary has the authority under its jurisdiction of organization to own,
lease and operate its properties and to conduct its business.
(iv) Each Significant Subsidiary is duly authorized to transact
business and is in good standing in each jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that would
make such qualification necessary, except to the extent that the failure to
so qualify or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, considered as one enterprise.
(v) The Company is duly registered under the Bank Holding Company
Act of l956, as amended; and each Significant Subsidiary is duly authorized
to conduct such
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banking business in each jurisdiction in which its banking business is
conducted.
(vi) If the Prospectus contains a description of the capitalization
of the Company, (a) the Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus, (b) all of
the outstanding shares of Capital Securities of the Company have been duly
authorized and validly issued and are fully paid and non-assessable, and
(c) none of the outstanding shares of Capital Securities was issued in
violation of the preemptive rights of any stockholder of the Company.
(vii) The Offered Securities conform in all material respects as to
legal matters to the description thereof contained or incorporated by
reference in the Prospectus and such description conforms in all material
respects to the rights set forth in the instruments defining the same.
(viii) All of the outstanding shares of capital stock of each
Significant Subsidiary have been duly authorized and validly issued and are
fully paid and non-assessable; except for directors' qualifying shares, all
of such shares are owned by the Company, directly or through one or more
subsidiaries, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind; and none of such shares
was issued in violation of the preemptive rights of any stockholder of the
Significant Subsidiaries.
(ix) If the Offered Securities include Preferred Shares, such
Preferred Shares have been duly authorized and, when such Preferred Shares
are duly executed and delivered and issued and paid for in accordance with
this Agreement and the applicable Terms Agreement, such Preferred Shares
will have been validly issued, fully paid and non-assessable; subject to
the provisions of Massachusetts General Laws, Chapter 156B, Section 45, no
holder thereof will be subject to personal liability by reason of being
such a holder; such Preferred Shares will not be subject to the preemptive
rights of any stockholder of the Company; and all corporate action required
to be taken for the authorization, issue and sale of such Preferred Shares
has been validly and sufficiently taken; and, if the Offered Securities
include Preferred Shares that are to be represented by Depositary Shares,
then, upon deposit by the Company of such Preferred Shares with the
Depositary pursuant to the Deposit Agreement and the execution by the
Depositary of the Depositary Receipts evidencing the Depositary Shares,
such Depositary Shares shall represent
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legal and valid interests in such Preferred Shares; and, if the Offered
Securities include Preferred Shares that are convertible into Capital
Securities or other preferred stock or exchangeable for Capital Securities
or Debt Securities, then such Preferred Shares are convertible into Capital
Securities or other preferred stock or exchangeable for Capital Securities
or Debt Securities in accordance with their terms and the terms of the
Certificate of Vote.
(x) If the Offered Securities include Common Stock, such Common
Stock shall, on the date of the Terms Agreement relating to such Offered
Securities, be duly authorized and, when such Common Stock is duly executed
and delivered and issued and paid for in accordance with this Agreement and
the applicable Terms Agreement, such Common Stock will have been validly
issued, fully paid and non-assessable; subject to the provisions of
Massachusetts General Laws, Chapter 156B, Section 45, no holder thereof
will be subject to personal liability by reason of being such a holder;
such Common Stock will not be subject to the preemptive rights of any
stockholder of the Company; and all corporate action required to be taken
for the authorization, issue and sale of such Common Stock has been, or at
the Closing Time will be, validly and sufficiently taken.
(xi) If the Offered Securities include Debt Securities, such Debt
Securities have been duly authorized and, when such Debt Securities are
duly executed, authenticated and delivered in the manner provided for in
the applicable Indenture and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, such Debt Securities will
constitute valid and binding obligations of the Company entitled to the
benefits of the applicable Indenture and enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited
by the receivership, conservatorship and supervisory powers of bank
regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and the availability of
equitable remedies; and, if the Offered Securities include Subordinated
Debt Securities that are convertible into of exchangeable for Capital
Securities, then such Subordinated Debt Securities are convertible into or
exchangeable for Capital Securities in accordance with their terms and the
terms of the Subordinated Indenture.
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(xii) If the Offered Securities include Warrants, such Warrants have
been duly authorized and, when such Warrants are duly executed,
authenticated and delivered in the manner provided for in the Warrant
Agreement and issued and paid for in accordance with this Agreement and the
applicable Terms Agreement, such Warrants will constitute valid and binding
obligations of the Company entitled to the benefits of the Warrant
Agreement and enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by the receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally as well as to bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law) and the availability of equitable remedies; and the
Warrants are exercisable for Debt Securities, Preferred Shares or Common
Stock in accordance with their terms and the terms of the Warrant
Agreement.
(xiii) If the Offered Securities include Preferred Shares convertible
into Capital Securities or other preferred stock or exchangeable for
Capital Securities and/or Subordinated Debt Securities convertible into or
exchangeable for Capital Securities, the Capital Securities or other
preferred stock issuable upon conversion or exchange, as the case may be,
of the Preferred Shares pursuant to their terms and the terms of the
Certificate of Vote and/or the Capital Securities issuable upon conversion
of or exchange for the Subordinated Debt Securities pursuant to their terms
and the terms of the Subordinated Indenture, have been duly authorized and
validly reserved for issuance upon such conversion by all necessary
corporate action and such Capital Securities or other preferred stock, when
issued upon such conversion, will be validly issued, fully paid and
non-assessable; subject to provisions of Massachusetts General Laws,
Chapter 156B, Section 45, no holder thereof will be subject to personal
liability by reason of being such a holder; and the issuance of such
Capital Securities or other preferred stock upon such conversion or
exchange, as the case may be, will not be subject to preemptive rights.
(xiv) If the Offered Securities include Debt Securities or Preferred
Shares exchangeable for Debt Securities, the applicable Indenture has been
duly authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the applicable Trustee,
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constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforcement
thereof may be limited by the receivership, conservatorship and supervisory
powers of bank regulatory agencies generally as well as bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and the
availability of equitable remedies; and the Indenture has been duly
qualified under the 1939 Act.
(xv) If the Offered Securities include Depositary Shares, the
Deposit Agreement has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery thereof by
the Depositary, constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement thereof may
be limited by the receivership, conservatorship and supervisory powers of
bank regulatory agencies generally as well as bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights or by general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law) and the availability of equitable remedies.
(xvi) If the Offered Securities include Warrants, the Warrant
Agreement has been duly authorized, executed and delivered by the Company
and, assuming due authorization, execution and delivery thereof by the
Warrant Agent, constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement thereof may
be limited by the receivership, conservatorship and supervisory powers of
bank regulatory agencies generally as well as to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and the availability of
equitable remedies.
(xvii) This Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by the Company.
(xviii) Each authorization, approval, consent or license of any
government, governmental instrumentality or court,
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domestic or foreign (other than under the 1933 Act, the 1939 Act and the
securities or blue sky laws of the various states), which is required for
(A) the valid authorization, issuance, sale and delivery of the Offered
Securities or (B) the execution, delivery or performance of this Agreement,
the applicable Terms Agreement, the applicable Indenture, the Warrant
Agreement, any Certificate of Vote or the Deposit Agreement, as applicable,
by the Company has been received.
(xix) Such counsel does not know of any statutes or regulations, or
any pending or threatened legal or governmental proceedings, required to be
described in the Prospectus that are not described as required, nor of any
contracts or documents of a character required to be described or referred
to in the Prospectus or to be filed as exhibits to the Registration
Statement that are not described, referred to or filed as required.
(xx) The descriptions in the Prospectus of the statutes,
regulations, legal or governmental proceedings, contracts and other
documents therein described are accurate and fairly discuss in all material
respects the information required to be shown.
(xxi) Except with respect to undertakings or agreements with bank
regulatory authorities, the disclosure with respect to which is addressed
in clause (xxv) below, to the knowledge of such counsel, no default exists
in the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, loan agreement,
note, lease or other agreement or instrument that is described or referred
to in the Prospectus or filed as an exhibit to the Registration Statement.
(xxii) The execution and delivery of this Agreement, the applicable
Terms Agreement, the applicable Indenture, the Warrant Agreement, any
Certificate of Vote and the Deposit Agreement, as applicable, by the
Company, the issuance and delivery of the Offered Securities and the
consummation by the Company of the transactions contemplated in this
Agreement, the applicable Terms Agreement and in the Registration Statement
and compliance by the Company with the terms of this Agreement, the
applicable Terms Agreement, the applicable Indenture, the Warrant
Agreement, any Certificate of Vote and the Deposit Agreement, as
applicable, do not and will not result in any violation of the charter or
by-laws of the Company or any Significant Subsidiary, and do not and will
not conflict with, or result
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in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any Significant
Subsidiary under (A) any indenture, mortgage or loan agreement, or any
other agreement or instrument known to such counsel, to which the Company
or any Significant Subsidiary is a party or by which it may be bound or to
which any of its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not have
a material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise), (B) any existing applicable
law, rule or regulation (other than the securities or blue sky laws of the
various states, as to which such counsel need express no opinion), or (C)
any judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any Significant Subsidiary or any of its properties.
(xxiii) The Registration Statement is effective under the 1933 Act,
and to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or are
contemplated under the 1933 Act.
(xxiv) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or
supplement thereto (except for the financial statements and other financial
or statistical data included therein or omitted therefrom, as to which such
counsel need express no opinion), as of their respective effective or issue
dates and as of the date of the applicable Terms Agreement, appear on their
face to have been appropriately responsive in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations.
(xxv) The documents incorporated by reference in the Prospectus
(except for the financial statements and other financial or statistical
data included therein or omitted therefrom, as to which such counsel need
express no opinion, and except to the extent that any statement therein is
modified or superseded in the Prospectus), as of the dates they were filed
with the Commission and as of the date of the applicable Terms Agreement,
appear on their face to have been appropriately responsive in all material
respects to
27
<PAGE> 28
the requirements of the 1934 Act and the 1934 Act Regulations.
(xxvi) Such counsel has participated in the preparation of the
Registration Statement and the Prospectus and is familiar with or has
participated in the preparation of the documents incorporated by reference
therein and no facts have come to the attention of such counsel to lead him
to believe (A) that the Registration Statement or any amendment thereto
(except for the financial statements and other financial or statistical
data included therein or omitted therefrom, as to which such counsel need
express no opinion), on the original effective date of the Registration
Statement, on the effective date of the most recent post-effective
amendment thereto, if any, on the date of the filing of any annual report
on Form 10-K after the filing of the Registration Statement, on the date of
this Agreement, on the date of the applicable Terms Agreement, on the date
any such amendment became effective after the date of this Agreement or the
date of the applicable Terms Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or (B)
that the Prospectus or any amendment or supplement thereto (except for the
financial statements and other financial or statistical data included
therein or omitted therefrom, as to which such counsel need express no
opinion), at the time the Prospectus Supplement was issued, at the time any
such amended or supplemented Prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (C) that the documents incorporated by reference in the
Prospectus (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which such
counsel need express no opinion, and except to the extent that any
statement therein is modified or superseded in the Prospectus), as of the
dates they were filed with the Commission, contained an untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
Such opinion shall be to such further effect with respect to other legal
matters relating to this Agreement, the Terms Agreement and the sale of the
Offered Securities pursuant to this Agreement as counsel for the Underwriters
may reasonably request. Such opinion shall be limited to Massachusetts and
federal law.
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<PAGE> 29
In giving such opinion, such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the Commonwealth of Massachusetts
and the federal law of the United States, upon opinions of other counsel, who
shall be counsel satisfactory to counsel for the Underwriters, in which case the
opinion shall state that such counsel is entitled to so rely. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and the Significant Subsidiaries and certificates of public officials.
(c) At the applicable Closing Time, you shall have received the favorable
opinion of Brown & Wood LLP, counsel for the Underwriters, dated as of the
Closing Time, together with signed or reproduced copies of such opinion for each
of the other Underwriters, to the effect that the opinion delivered pursuant to
Section 5(b) appears on its face to be appropriately responsive to the
requirements of this Agreement and the applicable Terms Agreement except,
specifying the same, to the extent waived by you, and with respect to the
incorporation and legal existence of the Company, the Offered Securities, this
Agreement, the Registration Statement, the Prospectus and such other related
matters as you may require. In giving such opinion, such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of the
State of New York and the federal law of the United States, upon the opinions of
counsel satisfactory to you. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and the Significant
Subsidiaries and certificates of public officials.
(d) At the applicable Closing Time there shall not have been, since the
date of the applicable Terms Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition (financial or otherwise) or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and you
shall have received a certificate of the Chairman, the Chief Executive Officer,
the President, a Vice President or a Vice Chairman, and the Chief Financial
Officer and Treasurer, the Executive Director, Global Treasury or the
Comptroller of the Company, dated as of such Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the representations and
warranties of the Company contained in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of such
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be
29
<PAGE> 30
complied with or satisfied at or prior to such Closing Time, and (iv) to the
best knowledge of such person, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission.
(e) Coopers & Lybrand L.L.P. shall have furnished to you a letter or
letters (in each case in form and.substance satisfactory to you), together with
signed or reproduced copies of such letter or letters for each of the other
Underwriters, if any, making the statements contained in paragraphs (1) and (2)
as follows:
(1) At the date of the applicable Terms Agreement, a letter relating
to the Company (the "Terms Agreement Letter"), to the effect that:
(a) They are independent public accountants with respect to the
Company within the meaning of the 1933 Act and the applicable
published 1933 Act Regulations.
(b) In their opinion, the audited financial statements and the
related financial statement schedules included or incorporated by
reference in the Company's most recently filed annual report on Form
10-K comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
with respect to Registration Statements on Form S-3 and the 1934 Act
and the 1934 Act Regulations with respect to annual reports on Form
10-K.
(c) On the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the minutes of all meetings of the stockholders and
directors of the Company and of FNBB and the minutes of meetings of
the Executive, Audit, Compensation, and Board Governance Committees
of the Board of Directors of the Company from the date of the latest
audited consolidated financial statements of the Company, a reading of
the unaudited consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in each of the
Company's quarterly reports on Form 10-Q filed prior to the date of
the applicable Terms Agreement and subsequent to the Form 10-K
described in (b) above, a reading of the most recent consolidated
financial statement of the Company, and inquiries of certain officials
of the Company and its subsidiaries responsible for financial and
30
<PAGE> 31
accounting matters, all such inquiries and procedures being carried
out to a specified date not more than five business days prior to the
date of the Terms Agreement Letter, nothing came to their attention
that caused them to believe that:
(i) the unaudited consolidated financial statements included
or incorporated by reference in each quarterly report on Form
10-Q do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the 1934
Act Regulations with respect to Form 10-Q; or
(ii) such unaudited consolidated financial statements are
not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of audited
consolidated financial statements referred to above, except as
disclosed in the notes to such unaudited consolidated financial
statements or as otherwise described in such Terms Agreement
Letter; or
(iii) there was any increase at the specified date in the
consolidated notes payable of the Company and its consolidated
subsidiaries or any increase in the number of shares of Capital
Securities outstanding of the Company, or any decrease in the
stockholder's equity of the Company, in each case as compared
with the most recent balance sheet included or incorporated by
reference in the Registration Statement, except in each case for
changes, decreases or increases that the Registration Statement
discloses have occurred or may occur, or which are disclosed in
the Terms Agreement Letter;
(iv) for the period from the date of the latest consolidated
balance sheet of the Company and its subsidiaries included or
incorporated by reference in the Prospectus to such specified
date, there was any decrease in the net interest revenue or net
income, in each case as compared with the comparable period in
the preceding year, except in each case for any decreases that
the Registration Statement discloses have occurred or may occur,
or which are disclosed in the Terms Agreement Letter.
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<PAGE> 32
(d) Such letter shall further state that, in addition to their
examinations, inspections, inquiries and other procedures referred to
therein, they have performed such other procedures, specified by you,
not constituting an audit, as they have agreed to perform and report
on with respect to certain amounts, percentages, numerical data and
other financial information in the most recently filed Form 10-K, each
Form 10-Q incorporated by reference in the Registration Statement, the
Registration Statement, the Prospectus and the exhibits to the
Registration Statement or in other documents incorporated by reference
in the Prospectus, and have compared certain of such amounts,
percentages, numerical data and financial information with, and have
found such items to be in agreement with or derived from, the detailed
accounting and financial records of the Company and its subsidiaries.
(2) At the Closing Time, a letter dated the Closing Time (the "Closing
Letter"), to the effect that they reaffirm as of the date of the Closing
Letter (and as though made on the date of the Closing Letter) all
statements made in the Terms Agreement Letter, except that the inquiries
and procedures specified therein shall have been carried out to a specified
date not more than five days prior to the date of the Closing Letter.
(e) Between the date of the applicable Terms Agreement and the
Closing Time, (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization," as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
1933 Act and (ii) no such organization shall have given any notice of
any intended or potential downgrading or of any surveillance or
review, with possible negative implications, of its rating of any of
the Company's debt securities or preferred stock.
(f) On or prior to the Closing Time, the Offered Securities shall
have been duly authorized for listing on such exchange, if any, as is
specified in the applicable Terms Agreement.
(g) At the Closing Time, counsel for the Underwriters shall have
been furnished with all such documents, certificates and opinions as
they may require for the purpose of enabling them to pass upon the
issuance and sale of the Offered Securities as herein contemplated and
related
32
<PAGE> 33
proceedings, or in order to evidence the accuracy and completeness of
any of the representations, warranties or statements of the Company,
the performance of any of the covenants of the Company, or the
fulfillment of any of the conditions herein contained; and all
proceedings taken by the Company at or prior to the Closing Time in
connection with the authorization, issuance and sale of the Offered
Securities as herein contemplated shall be satisfactory in form and
substance to you and counsel for the Underwriters.
(h) In the event the Underwriters exercise their option provided
in a Terms Agreement as set forth in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company hereunder shall be true and
correct as of each Date of Delivery, and you shall have received:
(1) A certificate, dated such Date of Delivery, of the
Chairman, the Chief Executive Officer, the President, a Vice
President or a Vice Chairman, and the Chief Financial Officer and
Treasurer, the Executive Director, Global Treasury or the
Comptroller of the Company, in their capacities as such,
confirming that the certificate delivered at Closing Time
pursuant to Section 5(d) hereof remains true and correct as of
such Date of Delivery.
(2) The favorable opinion of Gary A. Spiess, General Counsel
for the Company, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise substantially to the same
effect as the opinion required by Section 5(b) hereof.
(3) The favorable opinion of Brown & Wood LLP, counsel for
the Underwriters, dated such Date of Delivery, relating to the
Option Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(4) A letter from Coopers & Lybrand L.L.P. in form and
substance satisfactory to you and dated such Date of Delivery,
substantially the same in scope and substance as the Closing
Letter furnished to you pursuant to Section 5(e)(2) hereof,
except that the "specified date" in the letter shall be a date
not more than five days prior to such Date of Delivery.
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<PAGE> 34
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, the applicable Terms Agreement may be
terminated by you by notice to the Company at any time at or prior to the
applicable Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof. Notwithstanding
any such termination, the provisions of Sections 6, 7 and 8 shall remain in
effect.
Section 6. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), and all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein
not misleading or arising out of an untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, or
any preliminary prospectus supplement, or the Prospectus (or any amendment
or supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
fees and disbursements of counsel chosen by you), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or (ii)
above;
34
<PAGE> 35
PROVIDED, HOWEVER, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus, or any preliminary prospectus
supplement, or the Prospectus (or any amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 6(a), as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus, or any preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus, or any
preliminary prospectus supplement or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
Section 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances under which the indemnity provided for in Section
6 is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the Underwriters shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by the Company and
one or more of the Underwriters, as incurred, in such proportions that (a) the
35
<PAGE> 36
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount appearing on the cover page of the Prospectus bears to
the initial public offering price appearing thereon and (b) the Company is
responsible for the balance; PROVIDED, HOWEVER, that (i) in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Offered Securities purchased by such
Underwriter hereunder and under the applicable Terms Agreement and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
The representations, warranties, indemnities, agreements and other statements of
the Company or its officers set forth in or made pursuant to this Agreement and
any Terms Agreement shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Company or any
Underwriter or controlling person and shall survive delivery of and payment for
the Offered Securities.
Section 9. TERMINATION OF AGREEMENT.
(a) This Agreement may be terminated for any reason at any time by either
the Company or you upon the giving of thirty days' written notice of such
termination to the other party hereto. You may also terminate a Terms Agreement,
immediately upon notice to the Company, at any time at or prior to the
applicable Closing Time (i) if there shall have been, since the date of such
Terms Agreement or since the respective dates as of which information is given
in the Registration Statement, any material adverse change in the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business or (ii) if there shall have occurred
any outbreak or escalation of existing hostilities or other national or
international calamity or crisis the effect of which on the financial markets of
the United States is such as to make it, in your reasonable judgment,
impracticable to market the Offered Securities or to enforce contracts for the
sale of the Offered Securities or (iii) if trading in any securities of the
Company has been suspended by the Commission or the National
36
<PAGE> 37
Association of Securities Dealers, Inc., or if trading generally on the New York
Stock Exchange, the Boston Stock Exchange or in the over-the-counter market has
been suspended, or minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities have been required, by such
exchanges or by order of the Commission, any exchange on which such securities
are listed or any other governmental authority with appropriate jurisdiction
over such matters or (iv) if a banking moratorium has been declared by either
federal or New York authorities.
(b) If this Agreement or any Terms Agreement is terminated pursuant to
this Section, such termination shall be without liability of any party to any
other party, except to the extent provided in Section 4. Notwithstanding any
such termination (i) the covenants set forth in Section 3(b), (c) and (e) with
respect to any offering of Offered Securities shall remain in effect so long as
any Underwriter owns any such Offered Securities purchased from the Company
pursuant to the applicable Terms Agreement and during the period when the
Prospectus is required to be delivered in connection with sales of the Offered
Securities and (ii) the covenants set forth in Section 3(g), (h), (j) and, if
applicable, (k), the provisions of Section 4, the indemnity agreement set forth
in Section 6, the contribution provisions set forth in Section 7 and the
provisions of Sections 8 and 13 shall remain in effect.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters participating in an offering of Offered Securities shall fail
at the applicable Closing Time to purchase the Offered Securities which it or
they are obligated to purchase hereunder and under the applicable Terms
Agreement (the "Defaulted Securities"), you shall have the right, within 36
hours thereafter, to make arrangements for one or more of the nondefaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, you have not completed such arrangements
within such 36-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Offered Securities to be purchased pursuant to such Terms
Agreement, the nondefaulting Underwriters named in such Terms Agreement
shall be obligated to purchase the full amount thereof in the proportions
that their respective underwriting obligations bear to the underwriting
obligations of all nondefaulting Underwriters, or
37
<PAGE> 38
(b) if the number of Defaulted Securities exceeds 10% of the Offered
Securities to be purchased pursuant to such Terms Agreement, the applicable
Terms Agreement shall terminate without liability on the part of any
nondefaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default that does not result in the termination of
the applicable Terms Agreement, either you or the Company shall have the right
to postpone the applicable Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
Section 11. NOTICES. All notices and other communications under this
Agreement and any Terms Agreement shall be in writing and shall be deemed to
have been duly given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to _______, or
in respect of any Terms Agreement, to such other person and place as may be
specified therein; notices to the Company shall be directed to it at BankBoston
Corporation, 100 Federal Street, 01-25-01, Boston, Massachusetts 02110,
attention of Gary A. Spiess, General Counsel.
Section 12. PARTIES. This Agreement herein set forth and any Terms
Agreement is made solely for the benefit of any Underwriter which becomes a
party to a Terms Agreement, the Company and, to the extent expressed, any person
controlling the Company or any such Underwriter, and the directors of the
Company, its officers who have signed the Registration Statement, and their
respective executors, administrators, successors and assigns and, subject to the
provisions of Section 10, no other person shall acquire or have any right under
or by virtue of this Agreement. The term "successors and assigns" shall not
include any purchaser, as such purchaser, from any Underwriter of the Offered
Securities. All of the obligations of any Underwriters hereunder and under any
Terms Agreement are several and not joint.
Section 13. GOVERNING LAW AND TIME. This Agreement and each Terms Agreement
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in said State.
Specified times of day refer to New York City time.
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<PAGE> 39
Section 14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
--------------------------------
39
<PAGE> 40
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement between the Company and each Underwriter in
accordance with its terms.
Very truly yours,
BANKBOSTON CORPORATION
By __________________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
40
<PAGE> 41
Exhibit A
BANKBOSTON CORPORATION
[Title of Securities]
TERMS AGREEMENT
Dated: , 199_
To: BankBoston Corporation
100 Federal Street
Boston, Massachusetts 02110
Re: Underwriting Agreement dated , 199_.
Dear Sirs:
We (the "Representative[s]") understand that BankBoston Corporation, a
Massachusetts corporation (the "Company"), proposes to issue and sell [[$
aggregate principal amount] of its [senior debt securities] [and] [subordinated
[convertible or exchangeable] debt securities] (the "Debt Securities")] [and]
[_______ shares of its [convertible] [exchangeable] preferred stock (the
"Preferred Shares")] [_____ depositary shares (the "Depositary Shares") each
representing ____ of a share of ____ preferred stock] [and] [____ shares of its
common stock, par value $1.50 per share ("Common Stock")]. This Agreement is the
Terms Agreement referred to in the underwriting agreement dated ____________,
199_ (the "Underwriting Agreement"). Subject to the terms and conditions set
forth herein or incorporated by reference herein, the Underwriters named below
(the "Underwriters") offer to purchase, severally and not jointly, the
respective [amounts of [Debt Securities] [and] [Preferred Shares] [Depositary
Shares]] [numbers of shares of Common Stock] set forth below.
<TABLE>
<CAPTION>
Principal Principal Principal Number
Amount of Amount of Amount of of Shares
Name of Debt Preferred Depositary of Common
Underwriter Securities Shares Shares Stock
- ----------- ---------- --------- ---------- ---------
<S> <C> <C> <C> <C>
---------- --------- ---------- ---------
Total $ $ $
---------- --------- ---------- ---------
</TABLE>
<PAGE> 42
DEBT SECURITIES
Title of Debt Securities:
Principal amount to be issued: $
Senior or Subordinated:
Currency:
Current ratings:
Interest rate or formula: %
Interest payment dates:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
Initial public offering price: % of the principal amount, plus accrued
interest, if any, [or amortized original issue discount, if any,]
from , 19 .
Purchase price: % of the principal amount, plus accrued interest, if any,
[or amortized original issue discount, if any,] from ,
19 (payable in next day funds).
Listing requirement: [None] [NYSE] [BSE]
Convertible:
Conversion provisions:
Exchangeable:
Exchange provisions:
Closing date and location:
Additional representations, if any:
Lock-up provisions:
Number of Option Securities, if any:
Other terms and conditions:
2
<PAGE> 43
PREFERRED SHARES
Title of Preferred Shares:
Principal amount to be issued: $
Currency:
Annual cash dividend rate: % Payable:
Liquidation preference per Share:
Initial public offering price: %, plus accrued interest or amortized
original issue discount, if any, from __________, 19__.
Purchase Price: %, plus accrued interest or amortized original issue
discount, if any, from _____________, 19__ (payable in next day funds).
Listing Requirement: [None] [NYSE] [BSE]
Convertible:
Initial Conversion price: $____ per share of [Common Stock] [Preferred
Stock] [Capital Securities].
Other conversion provisions:
Exchangeable:
Exchange Provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
Other terms and conditions:
DEPOSITARY SHARES
Title of Depositary Shares:
3
<PAGE> 44
Principal amount to be issued: $
Currency:
Fractional amount of Preferred Shares represented by each Depositary Share:
Initial public offering price per Depositary Share: % of the principal
amount, plus accrued interest [or amortized original issue discount], if
any, from ____________, 19__.
Purchase price per Depository Share:
(amount equal to the initial public offering price set forth above, less
$________ per Depositary Share).
Annual cash dividend amount: $ Payable:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Sinking fund requirements:
Number of Option Securities, if any:
Other terms and conditions:
COMMON STOCK
Initial public offering price per share:
Purchase Price per share:
Listing Requirement: [NYSE] [BSE]
Closing date and location:
Additional representations, if any:
Lock-up provisions:
Number of Option Securities, if any:
Purchase Price per Option Security:
Other terms and conditions:
4
<PAGE> 45
WARRANTS
Title of Warrants:
Number to be issued:
Currency:
Initial public offering price per Warrant: $
Purchase price per Warrant: $
Listing requirement: [None] [NYSE] [BSE]
Exercisable for:
Exercise price:
Exercise provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Other terms and conditions:
Each Underwriter severally agrees, subject to the terms and provisions of
the above referenced Underwriting Agreement, which is incorporated herein in its
entirety and made a part hereof, to purchase the [principal amount] [number of
shares] of Offered Securities set forth opposite its name and a proportionate
share of Option Securities to the extent any are purchased.
This Agreement shall be governed by the laws of the State of New York
applicable to agreements made and to be performed in said State.
If the foregoing is in accordance with your understanding of the agreement
among the Underwriters and the Company, please sign and return to the
undersigned a counterpart hereof, whereupon this instrument, along with all
counterparts and together with the Underwriting Agreement, shall be a binding
agreement among the Underwriters named herein and the Company in accordance with
its terms and the terms of the Underwriting Agreement.
5
<PAGE> 46
Very truly yours,
[Representatives[s]]
By:_________________________________
Acting on behalf of themselves and
the other named Underwriters
Confirmed and accepted as of
the date first above written:
BANKBOSTON CORPORATION
By: ____________________________
Name:
Title:
6
<PAGE> 1
================================================================================
BANKBOSTON CORPORATION
and
---------------------,
as Warrant Agent
WARRANT AGREEMENT
Dated as of ____________, 199_
================================================================================
<PAGE> 2
TABLE OF CONTENTS*
Page
----
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES.................. 2
SECTION 1.01. Issuance of Warrants......................................... 2
SECTION 1.02. Execution and Delivery of Warrant
Certificates............................................ 2
SECTION 1.03. Issuance of Warrant Certificates............................. 4
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS............ 5
SECTION 2.01. Warrant Price................................................ 5
SECTION 2.02. Duration of Warrants......................................... 5
SECTION 2.03. Exercise of Warrants......................................... 5
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES.................... 7
SECTION 3.01. No Rights as Warrant Securityholders
Conferred by Warrants or Warrant
Certificates............................................ 7
SECTION 3.02. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates............................................ 7
SECTION 3.03. Holder of Warrant Certificate May Enforce
Rights.................................................. 8
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES............. 8
SECTION 4.01. Exchange and Transfer of Warrant
Certificates............................................ 8
SECTION 4.02. Treatment of Holders of Warrant
Certificates. .......................................... 9
SECTION 4.03. Cancellation of Warrant Certificates......................... 9
- --------
* The Table of Contents is not part of the Warrant Agreement.
i
<PAGE> 3
Page
----
ARTICLE V.
CONCERNING THE WARRANT AGENT...................... 10
SECTION 5.01. Warrant Agent................................................ 10
SECTION 5.02. Conditions of Warrant Agent's Obligations. .................. 10
SECTION 5.03. Resignation and Appointment of Successor. ................... 12
SECTION 5.04. Payment of Taxes............................................. 13
ARTICLE VI.
MISCELLANEOUS............................. 14
SECTION 6.01. Amendment.................................................... 14
SECTION 6.02. Notices and Demands to the Company
and Warrant Agent....................................... 14
SECTION 6.03. Addresses.................................................... 14
SECTION 6.04. Applicable Law............................................... 14
SECTION 6.05. Delivery of Prospectus....................................... 14
SECTION 6.06. Obtaining of Governmental Approvals.......................... 14
SECTION 6.07. Persons Having Rights under Warrant
Agreement............................................... 15
SECTION 6.08. Headings..................................................... 15
SECTION 6.09. Counterparts................................................. 15
SECTION 6.10. Inspection of Agreement...................................... 15
[SECTION 6.11. Adjustment of Number of [Preferred Shares]
[Shares of Common Stock]; Notices....................... 15
SECTION 6.12. Fractional Shares............................................ 22
ii
<PAGE> 4
THIS WARRANT AGREEMENT dated as of _____________, 199_ between BankBoston
Corporation, a corporation duly organized and existing under the laws of the
Commonwealth of Massachusetts (herein called the "Company") and _____________, a
______________ organized and existing under the laws of _________________, as
Warrant Agent (hereinafter called the "Warrant Agent").
WHEREAS, the Company proposes to issue and sell from time to time, either
jointly or separately, certain of its (i) senior debt securities (the "Senior
Debt Securities"), and/or (ii) subordinated debt securities (the "Subordinated
Debt Securities", and, together with the Senior Debt Securities, the "Debt
Securities"), and/or (iii) preferred stock (the "Preferred Shares"), and/or (iv)
depositary shares which represent fractional interest in the Preferred Shares
(the "Depositary Shares"), and/or (v) common stock, par value $1.50 per share
("Common Stock"), and/or, (vi) warrants (the "Warrants") to purchase Debt
Securities, Preferred Shares or Common Stock in one or more offerings on terms
determined at the time of sale; and
WHEREAS, the Company has prepared and filed with the Securities and
Exchange Commission a registration statement on Form S-3 (File No. 33- ),
including a prospectus, relating to the securities described above and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"); and
[IF DEBT SECURITIES - WHEREAS, the Company has entered into an indenture
dated as of June 15, 1992 (the "Indenture"), with Norwest Bank Minnesota,
National Association, as trustee (such trustee, and any successor to such
trustee, to be herein called the "Trustee"), as amended by the First
Supplemental Indenture, dated as of June 24, 1993, providing for the issuance
from time to time of its [Senior] [Subordinated] Debt Securities to be issued in
one or more series as provided in the Indenture; and]
[IF PREFERRED SHARES - WHEREAS, the Company has established a series of
Preferred Shares in accordance with the terms of the Certificate of Vote of
Directors Establishing a Series of a Class of Stock relating to such Preferred
Shares (the "Certificate of Vote"); and]
[IF WARRANTS ATTACHED - WHEREAS, the Company proposes to sell the [Debt
Securities] [Preferred Shares] [Common Stock] now being offered (the "Offered
Securities" ) with warrant certificates evidencing one or more warrants (the
"Warrants" or, individually, a "Warrant") representing the right to purchase the
[Debt Securities] [Preferred Shares] [Common Stock] purchasable through exercise
of the Warrants (the "Warrant Securities"), such warrant certificates and other
warrant certificates issued
<PAGE> 5
pursuant to this Agreement being herein called the "Warrant Certificates"; and]
[IF WARRANTS ALONE - WHEREAS, the Company proposes to sell warrant
certificates evidencing one or more warrants (the "Warrants" or, individually, a
"Warrant") representing the right to purchase the [Debt Securities][Preferred
Shares][Common Stock] purchasable through exercise of Warrants] (the "Warrant
Securities"), such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the "Warrant Certificates"; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, exchange, exercise and replacement of the Warrant Certificates, and in
this Warrant Agreement wishes to set forth, among other things, the form and
provisions of the Warrant Certificates and the terms and conditions on which
they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION
AND DELIVERY OF WARRANT CERTIFICATES.
SECTION 1.01. ISSUANCE OF WARRANTS. [IF OFFERED SECURITIES WITH WARRANTS
ATTACHED] - Warrants shall be [initially] issued in connection with the issuance
of the Offered Securities [but shall be separately transferable on and after
_____, 199_ (the "Detachable Date")][and shall not be separately transferable].
Warrant Certificates shall be [initially] issued in units with the Offered
Securities and each Warrant Certificate included in such a unit shall evidence
________ Warrants for each [share of Offered Securities] [$________ principal
amount of Offered Securities or its equivalent in a foreign currency or
composite currency] included in such unit.] [IF WARRANTS ALONE - Upon issuance
each Warrant Certificate shall evidence one or more Warrants.] Each Warrant
evidenced thereby shall represent the right, subject to the provisions contained
herein and therein, to purchase [________ shares of Warrant Securities] [a
Warrant Security in the principal amount of $_________ or its equivalent in a
foreign currency or composite currency].
SECTION 1.02. EXECUTION AND DELIVERY OF WARRANT CERTIFICATES. Each Warrant
Certificate, whenever issued, shall
2
<PAGE> 6
be in [bearer] [registered] form substantially in the form set forth in Exhibit
A hereto, shall be dated as of its issue date and may have such letters, numbers
or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the officers of the Company
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Warrant Certificates may be listed or authorized for
trading, or to conform to usage. The Warrant Certificates shall be signed on
behalf of the Company by its Chairman of the Board, the Chief Executive Officer,
President, Chief Financial Officer and Treasurer, Executive Director, Global
Treasury or Comptroller, and attested by its Clerk or any of its Assistant
Clerks, under its corporate seal. Such signatures may be manual or facsimile
signatures of such authorized officers and may be imprinted or otherwise
reproduced on the Warrant Certificates. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the Warrant Agent. Such signature by the Warrant Agent upon any
Warrant Certificate executed by the Company shall be conclusive evidence that
the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any of the Warrant
Certificates either manually or by facsimile signature shall cease to be such
officer before the Warrant Certificates so signed shall have been countersigned
and delivered by the Warrant Agent, such Warrant Certificates nevertheless may
be countersigned and delivered as though the person who signed such Warrant
Certificates had not ceased to be such officer of the Company, and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not such officer.
Pending the preparation of definitive Warrant Certificates, the Company may
execute, and upon the order of the Company the Warrant Agent shall authenticate
and deliver, temporary Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially of the tenor of
the definitive Warrant Certificates in lieu of which they are
3
<PAGE> 7
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Warrant Certificates may determine, as
evidenced by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay. After
the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or _________], without charge to the holder. Upon surrender
for cancellation of any one or more temporary Warrant Certificates, the Company
shall execute and the Warrant Agent shall authenticate and deliver in exchange
therefor definitive Warrant Certificates representing the same aggregate number
of Warrants. Until so exchanged, the temporary Warrant Certificates shall in all
respects be entitled to the same benefits under this Agreement as definitive
Warrant Certificates.
[IF BEARER WARRANTS - The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean [IF OFFERED SECURITIES WITH WARRANTS
WHICH ARE NOT IMMEDIATELY DETACHABLE - , prior to the Detachable Date, the
[bearer] [registered owner] of the Offered Security to which such Warrant
Certificate was initially attached, and after such Detachable Date] the bearer
of such Warrant Certificate.]
[IF REGISTERED WARRANTS - The term "holder" or "holder of a Warrant
Certificate" as used herein shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose [IF OFFERED SECURITIES WITH WARRANTS WHICH ARE
NOT IMMEDIATELY DETACHABLE - or upon the register of the Offered Securities
prior to the Detachable Date.] The Company will, or will cause the registrar of
the Offered Securities to, make available at all times to the Warrant Agent such
information as to holders of the Offered Securities with Warrants as may be
necessary to keep the Warrant Agent's records up to date.]
SECTION 1.03. ISSUANCE OF WARRANT CERTIFICATES. Warrant Certificates
evidencing the right to purchase [___ shares] [an aggregate principal amount not
exceeding $_________] of Warrant Securities or its equivalent in a foreign
currency or composite currency (except as provided in Sections 2.03(c), 3.02 and
4.01) may be executed by the Company and delivered to the Warrant Agent upon the
execution of this Warrant Agreement or from time to time thereafter. The Warrant
Agent shall, upon receipt of Warrant Certificates duly executed on behalf of the
Company, countersign Warrant Certificates evidencing Warrants representing the
right
4
<PAGE> 8
to purchase [____ shares] [up to $___________ aggregate principal amount] of
Warrant Securities or its equivalent in a foreign currency or composite currency
and shall deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate is
issued in exchange or substitution for one or more previously countersigned
Warrant Certificates [IF REGISTERED WARRANTS - or in connection with their
transfer], as hereinafter provided.
ARTICLE II.
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS.
SECTION 2.01. WARRANT PRICE. [On__________, 199_] the exercise price of
each Warrant is [$]___________. [During the period from __________, 199_ through
and including _________, 199_, the exercise price of each Warrant will be
[$]________ plus [accreted original issue discount] [accrued interest] from
______, 199_. On _______, 199_ the exercise price of each Warrant will be
[$]_________. During the period from ____________, 199_ through and including
__________, 199_, the exercise price of each Warrant will be [$]_______________
plus [accreted original issue discount] [accrued interest] from ___________,
199_; [in each case the original issue discount will be accreted at a __% annual
rate, computed on a [semiannual] [annual] basis using a 360-day year consisting
of twelve 30-day months;] [in each case accrued interest will be computed at a
rate equal to __%]]. Such purchase price of Warrant Securities may be
denominated in U.S. dollars or its equivalent in a foreign currency or composite
currency and may be determined in reference to an index and is referred to in
this Agreement as the "Warrant Price." [The original issue discount for each
$1,000 principal amount of Warrant Securities (or its equivalent thereof in a
foreign currency or composite currency) is [$]_____________.]
SECTION 2.02. DURATION OF WARRANTS. Each Warrant evidenced by a Warrant
Certificate may be exercised in whole at any time, as specified herein, on or
after [the date thereof] [_____________, 19__] and at or before the close of
business on _____________, 19__ (the "Expiration Date"). Each Warrant not
exercised at or before the close of business on the Expiration Date shall become
void, and all rights of the holder of the Warrant Certificate evidencing such
Warrant and under this Agreement shall cease.
SECTION 2.03. EXERCISE OF WARRANTS. (a) During the period specified in
Section 2.02, any whole number of Warrants, if the
5
<PAGE> 9
Warrant Certificate evidencing the same shall have been countersigned by the
Warrant Agent, may be exercised by providing certain information set forth on
the reverse side of the Warrant Certificate and by paying in full, [in cash or
by certified check or official bank check or by bank wire transfer, in each
case,] [by bank wire transfer] in immediately available funds, the Warrant Price
for each Warrant exercised, to the Warrant Agent at its corporate trust office,
____________________ [or at ________________________], provided that such
exercise is subject to receipt within five Business Days (as defined in Section
6.11(f) hereof) of such [payment] [wire transfer] by the Warrant Agent of the
Warrant Certificate with the form of election to purchase Warrant Securities set
forth on the reverse side of the Warrant Certificate properly completed and duly
executed. The date on which payment in full of the Warrant Price is received by
the Warrant Agent shall, subject to receipt of the Warrant Certificate as
aforesaid, be deemed to be the date on which the Warrant is exercised. The
Warrant Agent shall deposit all funds received by it in payment of the Warrant
Price in the account of the Company maintained with it for such purpose and
shall advise the Company by telephone at the end of each day on which a
[payment] [wire transfer] for the exercise of Warrants is received of the amount
so deposited to its account. The Warrant Agent shall promptly confirm such
telephonic advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company [and the Trustee under the Indenture] of (i) the
number of Warrants exercised in accordance with the terms and conditions of this
Agreement and the Warrant Certificates, (ii) the instructions of each holder of
the Warrant Certificates evidencing such Warrants with respect to delivery of
the Warrant Securities to which such holder is entitled upon such exercise,
(iii) delivery of Warrant Certificates evidencing the balance, if any, of the
Warrants remaining after such exercise, and (iv) such other information as the
Company [or the Trustee] shall reasonably require.
(c) As soon as practicable after the exercise of any Warrant or Warrants,
the Company shall issue[, pursuant to the Indenture, in authorized denominations
to or upon the order of the holder of the Warrant Certificate evidencing such
Warrant or Warrants,] the Warrant Security or Warrant Securities to which such
holder is entitled, in fully registered form, registered in such name or names
as may be directed by such holder; and, if fewer than all of the Warrants
evidenced by such Warrant Certificate were exercised, the Company shall execute,
and an authorized officer of the Warrant Agent shall manually countersign and
deliver to or upon the order of such holder, a
6
<PAGE> 10
new Warrant Certificate evidencing the number of Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities; and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Securities until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES.
SECTION 3.01. NO RIGHTS AS WARRANT SECURITYHOLDERS CONFERRED BY WARRANTS OR
WARRANT CERTIFICATES. No Warrant Certificate or Warrant evidenced thereby shall
entitle the holder thereof to any of the rights of a holder of the Warrant
Securities, including, without limitation, the right [to vote or] to receive
payments of [dividends or distributions of any kind] [principal of (and premium,
if any,) or interest, if any, on the Warrant Securities or to enforce any of the
covenants in the Indenture].
SECTION 3.02. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT CERTIFICATES.
Upon receipt by the Company and the Warrant Agent of evidence reasonably
satisfactory to them of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity reasonably satisfactory
to them and, in the case of mutilation, upon surrender thereof to the Warrant
Agent for cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of the
lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant
Certificate of the same tenor and evidencing a like number of Warrants. Upon the
issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant to this Section
in lieu of any lost, stolen or destroyed Warrant Certificate shall represent an
additional contractual obligation of the Company,
7
<PAGE> 11
whether or not the lost, stolen or destroyed Warrant Certificate shall be at any
time enforceable by anyone, and shall be entitled to the benefits of this
Warrant Agreement equally and proportionately with any and all other Warrant
Certificates duly executed and delivered hereunder. The provisions of this
Section are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates.
SECTION 3.03. HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Warrant Agreement, any holder of a
Warrant Certificate, without the consent of the Warrant Agent, [the Trustee,]
the holder of any Warrant Securities or the holder of any other Warrant
Certificate, may, in his own behalf and for his own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, his right to exercise the
Warrant or Warrants evidenced by his Warrant Certificate in the manner provided
in his Warrant Certificate and in this Warrant Agreement.
ARTICLE IV.
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES.
SECTION 4.01. EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. [IF OFFERED
SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ALONE -
Upon] [IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE
Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which the Warrant
Certificate was initially attached, and only for the purposes of effecting or in
conjunction with an exchange or transfer of such Offered Security. On or prior
to the Detachable Date, each transfer of the Offered Security on the register of
the Offered Securities shall operate also to transfer the related Warrant
Certificates. After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent or [__________], Warrant Certificates may be
exchanged for other Warrant Certificates in denominations evidencing Warrants,
each Warrant entitling the holder thereof to purchase [_____ shares]
[$_____________ principal amount of Warrant Securities or its equivalent in a
foreign currency or composite currency] at the Warrant Price [IF REGISTERED
WARRANTS - or may be transferred in whole or in part] [IF BEARER OR REGISTERED
WARRANTS - provided that such other Warrant Certificates evidence the same
aggregate number of Warrants as the Warrant Certificates so surrendered.] [IF
REGISTERED WARRANTS - The Warrant Agent shall keep, at its corporate trust
office [or at __________], books in which,
8
<PAGE> 12
subject to such reasonable regulations as it may prescribe, it shall register
Warrant Certificates in accordance with Section 1.02 and transfers of
outstanding Warrant Certificates, upon surrender of the Warrant Certificates to
the Warrant Agent at its corporate trust office [or at ______] for transfer,
properly endorsed or accompanied by appropriate instruments of transfer and
written instructions for transfer, all in form satisfactory to the Company and
the Warrant Agent.] No service charge shall be made for any exchange or transfer
of Warrant Certificates, but the Company may require payment of a sum sufficient
to cover any stamp or other tax or other governmental charge that may be imposed
in connection with any such exchange or transfer. Whenever any Warrant
Certificates are so surrendered for exchange or transfer an authorized officer
of the Warrant Agent shall countersign and deliver to the person or persons
entitled thereto a Warrant Certificate or Warrant Certificates duly authorized
and executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or transfer which will result in the issuance of
a Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange or transfer of Warrant Certificates shall be the valid obligations of
the Company, evidencing the same obligations, and entitled to the same benefits
under this Warrant Agreement, as the Warrant Certificates surrendered for such
exchange or transfer.
SECTION 4.02. TREATMENT OF HOLDERS OF WARRANT CERTIFICATES. [IF OFFERED
SECURITIES WITH BEARER WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE - Subject
to Section 4.01, each] [IF OFFERED SECURITIES WITH BEARER WARRANTS WHICH ARE
IMMEDIATELY DETACHABLE OR BEARER WARRANTS ALONE - Each] Warrant Certificate
shall be transferable by delivery and shall be deemed negotiable and the bearer
of each Warrant Certificate may be treated by the Company, the Warrant Agent and
all other persons dealing with such bearer as the absolute owner thereof for any
purpose and as the person entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.] [IF
REGISTERED WARRANTS ALONE OR REGISTERED WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE - Every holder of a Warrant Certificate, by accepting the same,
consents and agrees with the Company, the Warrant Agent and with every
subsequent holder of such Warrant Certificate that until the Warrant Certificate
is transferred on the books of the Warrant Agent [or the register of the Offered
Securities prior to the Detachable Date], the Company and the Warrant Agent may
treat the registered holder as the absolute owner thereof for any purpose and as
the person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.]
9
<PAGE> 13
SECTION 4.03. CANCELLATION OF WARRANT CERTIFICATES. Any Warrant Certificate
surrendered for exchange, transfer or exercise of the Warrants evidenced thereby
shall, if surrendered to the Company, be delivered to the Warrant Agent, and all
Warrant Certificates surrendered or so delivered to the Warrant Agent shall be
promptly cancelled by the Warrant Agent and shall not be reissued and, except as
expressly permitted by this Warrant Agreement, no Warrant Certificate shall be
issued hereunder in exchange or in lieu thereof. The Warrant Agent shall deliver
to the Company from time to time or otherwise dispose of cancelled Warrant
Certificates in a manner satisfactory to the Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT.
SECTION 5.01. WARRANT AGENT. The Company hereby appoints ____________ as
Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth; and
____________ hereby accepts such appointment. The Warrant Agent shall have the
powers and authority granted to and conferred upon it in the Warrant
Certificates and hereby and such further powers and authority to act on behalf
of the Company as the Company may hereafter grant to or confer upon it. All of
the terms and provisions with respect to such powers and authority contained in
the Warrant Certificates are subject to and governed by the terms and provisions
hereof.
SECTION 5.02. CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees to pay the
Warrant Agent promptly the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including reasonable counsel fees)
incurred by the Warrant Agent in connection with the services rendered hereunder
by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent
for, and to hold it harmless against, any loss, liability, or expense incurred
without negligence or bad faith on the part of the Warrant Agent, arising out of
or in connection with its acting as such Warrant Agent hereunder, as well as the
costs and expenses of defending against any claim or liability in the premises.
10
<PAGE> 14
(b) AGENT FOR THE COMPANY. In acting under this Warrant Agreement and in
connection with the Warrants, the Warrant Agent is acting solely as agent of the
Company and does not assume any obligation or relationship of agency or trust
with any of the owners or holders of the Warrants.
(c) DOCUMENTS. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificates, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(d) CERTAIN TRANSACTIONS. The Warrant Agent, and its officers, directors
and employees, may become the owner of, or acquire any interest in, any
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee or
body of holders of Warrant Securities or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. [Nothing in this Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under the Indenture.]
(e) NO LIABILITY FOR INTEREST. The Warrant Agent shall not be under any
liability for interest on any monies at any time received by it pursuant to any
of the provisions of this Warrant Agreement or of the Warrants.
(f) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall not incur any
liability with respect to the validity of any of the Warrants.
(g) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent shall not be
responsible for any of the recitals or representations herein or in the Warrant
Certificates contained (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(h) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be obligated to
perform such duties as are herein and in the Warrant Certificates specifically
set forth and no implied duties or obligations shall be read into this Agreement
or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall
not be under any obligation to take any action hereunder which may tend to
involve it in any expense or liability, the payment of which within a reasonable
time is not, in its reasonable opinion, assured to it. The Warrant Agent shall
not be
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accountable or under any duty or responsibility for the use by the Company of
any of the Warrant Certificates authenticated by the Warrant Agent and delivered
by it to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent shall
have no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the Warrant
Certificates or in the case of the receipt of any written demand from a holder
of a Warrant Certificate with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to initiate
or attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 6.02 hereof, to make any demand upon the Company.
SECTION 5.03. RESIGNATION AND APPOINTMENT OF SUCCESSOR. (a) The Company
agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation will become effective; provided that such date
shall not be less than three months after the date on which such notice is given
unless the Company agrees to accept less notice. The Warrant Agent hereunder may
be removed at any time by the filing with it of an instrument in writing signed
by or on behalf of the Company and specifying such removal and the date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company authorized under the laws of the
jurisdiction of its organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. The obligations
of the Company under Section 5.02(a) shall continue to the extent set forth
therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or shall file a petition
seeking relief under Title 11 of the United States Code, as now constituted or
hereafter amended, or under any other applicable Federal or State bankruptcy law
or similar law or make an assignment for the benefit of its creditors or consent
to the appointment of a receiver or custodian of all or any substantial part of
its property or assets, or shall admit in writing its inability to pay or meet
its debts as they mature, or if a receiver or
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<PAGE> 16
custodian of it or of all or any substantial part of its property or assets
shall be appointed, or if an order of any court shall be entered for relief
against it under the provisions of Title 11 of the United States Code, as now
constituted or hereafter amended, or under any other applicable Federal or State
bankruptcy or similar law, or if any public officer shall have taken charge or
control of the Warrant Agent or of its property or affairs, for the purpose of
rehabilitation, conservation or liquidation, it shall be disqualified from
serving as Warrant Agent and a successor Warrant Agent, qualified as aforesaid,
shall be appointed by the Company by an instrument in writing, filed with the
successor Warrant Agent. Upon the appointment as aforesaid of a successor
Warrant Agent and acceptance by the successor Warrant Agent of such appointment,
the Warrant Agent so disqualified shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without further act, deed or conveyance, shall become vested with all
authority, rights, powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive, all monies, securities and
other property on deposit with or held by such predecessor, as Warrant Agent
hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged
or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this Warrant
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
SECTION 5.04. PAYMENT OF TAXES. The Company will pay all stamp and other
duties, if any, to which, under the laws of the United States of America, this
Warrant Agreement or the original issuance of the Warrant Certificates may be
subject.
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ARTICLE VI.
MISCELLANEOUS.
SECTION 6.01. AMENDMENT. This Warrant Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Warrant
Agreement as the Company and the Warrant Agent may deem necessary or desirable;
provided that such action shall not adversely affect the interests of the
holders of the Warrant Certificates.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT. If the
Warrant Agent shall receive any notice or demand addressed to the Company by the
holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice of demand to
the Company.
SECTION 6.03. ADDRESSES. Any communications from the Company to the Warrant
Agent with respect to this Warrant Agreement shall be addressed to
_____________, Attention: ____________, and any communications from the Warrant
Agent to the Company with respect to this Warrant Agreement shall be addressed
to BankBoston Corporation, 100 Federal Street, 01-25-01, Boston, Massachusetts
02110, Attention: General Counsel (or such other address as shall be specified
in writing by the Warrant Agent or by the Company).
SECTION 6.04. APPLICABLE LAW. The validity, interpretation and performance
of this Warrant Agreement and each Warrant Certificate issued hereunder and of
the respective terms and provisions thereof shall be governed by the laws of The
Commonwealth of Massachusetts.
SECTION 6.05. DELIVERY OF PROSPECTUS. The Company will furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus.
SECTION 6.06. OBTAINING OF GOVERNMENTAL APPROVALS. The Company will from
time to time take all action which may be necessary to obtain and keep effective
any and all permits,
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consents and approvals of governmental agencies and authorities and securities
acts filings under United States Federal and State laws (including, without
limitation, maintenance of the effectiveness of a registration statement in
respect of the Warrants and Warrant Securities under the Securities Act of
1933), which may be or become requisite in connection with the issuance, sale,
transfer, and delivery of the Warrant Certificates, the exercise of the
Warrants, the issuance, sale, transfer and delivery of the Warrant Securities
issued upon exercise of the Warrants or upon the expiration of the period during
which the Warrants are exercisable.
SECTION 6.07. PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing in
this Warrant Agreement expressed or implied and nothing that may be inferred
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the Company, the Warrant
Agent and the holders of the Warrant Certificates any right, remedy or claim
under or by reason of this Warrant Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements in this Warrant Agreement contained shall
be for the sole and exclusive benefit of the Company and the Warrant Agent and
their successors and of the holders of the Warrant Certificates.
SECTION 6.08. HEADINGS. The descriptive headings of the several Articles
and Sections of this Warrant Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 6.09. COUNTERPARTS. This Warrant Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
SECTION 6.10. INSPECTION OF AGREEMENT. A copy of this Warrant Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
[SECTION 6.11. ADJUSTMENT OF NUMBER OF [PREFERRED SHARES] [SHARES OF COMMON
STOCK]; NOTICES. The number of [Preferred Shares] [shares of Common Stock]
purchasable upon the exercise of each Warrant (the "Exercise Rate") is subject
to adjustment from time to time as provided in this Section.
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<PAGE> 19
(a) DIVIDENDS OR DISTRIBUTIONS IN [PREFERRED SHARES] [SHARES OF COMMON
STOCK]. In case the Company shall pay or make a dividend or other distribution
on [any class or series of Preferred Shares for which Warrants may be exercised]
[its Common Stock] in [such Preferred Shares] [shares of its Common Stock], the
Exercise Rate in effect at the opening of business on the day following the date
fixed for the determination of stockholders entitled to receive such dividend or
other distribution shall be increased by dividing such Exercise Rate by a
fraction of which the numerator shall be the number of shares of [such Preferred
Shares] [Common Stock] outstanding at the close of business on the date fixed
for such determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or other
distribution, such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination. For the
purposes of this paragraph (a), the number of shares of [Preferred Shares]
[Common Stock] at any time outstanding shall not include shares held in the
treasury of the Company. The Company will not pay any dividend or make any
distribution on shares of [Preferred Shares] [Common Stock] held in the treasury
of the Company.
(b) RIGHTS OR WARRANTS. In case the Company shall issue rights or warrants
to all holders of [a class or series of its Preferred Shares for which Warrants
may be exercised] [shares of its Common Stock] entitling them to subscribe for
or purchase shares of [such Preferred Shares] [Common Stock] at a price per
share less than the current market price per share (determined as provided in
paragraph (f) of this Section) of [such Preferred Shares] [Common Stock] on the
date fixed for the determination of stockholders entitled to receive such rights
or warrants, the Exercise Rate in effect at the opening of business on the day
following the date fixed for such determination shall be increased by dividing
such Exercise Rate by a fraction of which the numerator shall be the number of
shares of [such Preferred Shares] [Common Stock] outstanding at the close of
business on the date fixed for such determination plus the number of shares of
[such Preferred Shares] [Common Stock] which the aggregate of the offering price
of the total number of shares of [such Preferred Shares] [Common Stock] so
offered for subscription or purchase would purchase at such current market price
and the denominator shall be the number of shares of [such Preferred Shares]
[Common Stock] outstanding at the close of business on the date fixed for such
determination plus the number of shares of [such Preferred Shares] [Common
Stock] so offered for subscription or purchase, such increase to become
effective immediately after the opening of business on the day following the
date fixed for such determination. For the purposes of this paragraph (b), the
number of shares of [Preferred Shares] [Common
16
<PAGE> 20
Stock] at any time outstanding shall not include shares held in the treasury of
the Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of [Preferred Shares] [Common Stock]. The
Company will not issue any rights or warrants in respect of shares of [Preferred
Shares] [Common Stock] held in the treasury of the Company.
(c) SUBDIVISION OR COMBINATION. In case outstanding shares of [a class or
series of its Preferred Shares for which Warrants are exercisable] [Common
Stock] shall be subdivided into a greater number of shares of [such Preferred
Shares] [Common Stock], the Exercise Rate in effect at the opening of business
on the day following the day upon which such subdivision becomes effective shall
be proportionately increased, and, conversely, in case outstanding shares of [a
class or series of its Preferred Shares for which Warrants are exercisable]
[Common Stock] shall each be combined into a smaller number of shares of [such
Preferred Shares] [Common Stock], the Exercise Rate in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately reduced, such increase or reduction, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(d) DIVIDEND OR DISTRIBUTION OF ASSETS. In case the Company shall, by
dividend or otherwise, distribute to all holders of [a class or series of its
Preferred Shares for which Warrants are exercisable] [shares of its Common
Stock] evidences of its indebtedness or assets (including securities, but
excluding any rights or warrants referred to in paragraph (b) of this Section,
any dividend or distribution paid in cash out of the retained earnings of the
Company and any dividend or distribution referred to in paragraph (a) of this
Section), the Exercise Rate shall be adjusted so that the same shall equal the
price determined by dividing the Exercise Rate in effect immediately prior to
the close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator shall
be the current market price per share (determined as provided in paragraph (f)
of this Section) of [such Preferred Shares] [Common Stock] on the date fixed for
such determination less the then fair-market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a Board
Resolution filed with the Warrant Agent and any other Registrar) of the portion
of the assets or evidences of indebtedness so distributed applicable to one
share of [such Preferred Shares] [Common Stock] and the denominator shall be
such current market price per share of [such Preferred Shares] [Common Stock],
such
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<PAGE> 21
adjustment to become effective immediately prior to the opening of business on
the day following the date fixed for the determination of stockholders entitled
to receive such distribution.
(e) RECLASSIFICATION. The reclassification of [a class or series of its
Preferred Shares for which Warrants are exercisable] [the Company's Common
Stock] into securities other than such [Preferred Shares] [Common Stock] (other
than any reclassification upon a consolidation or merger to which paragraph (1)
of this Section applies) shall be deemed to involve (i) a distribution of such
securities other than such [Preferred Shares] [Common Stock] to all holders of
[such Preferred Shares] [Common Stock] (and the effective date of such
reclassification shall be deemed to be "the date fixed for the determination of
stockholders entitled to receive such distribution" and "the date fixed for such
determination" within the meaning of paragraph (d) of this Section), and (ii) a
subdivision or combination, as the case may be, of the number of shares of [such
Preferred Shares] [Common Stock] outstanding immediately prior to such
reclassification into the number of shares of [such Preferred Shares] [Common
Stock] outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "The day upon which such subdivision
becomes effective" or "The day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (c) of this Section).
(f) CURRENT MARKET PRICE. For the purpose of any computation under
paragraphs (b) and (d) of this Section, the current market price per share of
[Preferred Shares] [Common Stock] on any date shall be deemed to be the average
of the daily closing prices for the 15 consecutive Business Days selected by the
Company commencing not less than 20 nor more than 30 Business Days before the
day in question. The closing price for each day shall be the last reported sales
price regular way or, in case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way, in either case
on the New York Stock Exchange or, if such [Preferred Shares are] [Common Stock
is] not listed or admitted to trading on such Exchange, on the principal
national securities exchange on which such [Preferred Shares are] [Common Stock
is] listed or admitted to trading or, if not listed or admitted to trading on
any national securities exchange, on the National Association of Securities
Dealers Automated Quotations National Market System or, if such [Preferred
Shares are] [Common Stock is] not listed or admitted to trading on any national
securities exchange or quoted on such National Market System, the average of the
closing bid and asked prices in the over-the-counter market as furnished
18
<PAGE> 22
by any New York Stock Exchange member firm selected from time to time by the
Company for the purpose. In the event that no such market trading exists, the
current market price will be determined by three independent nationally
reorganized investment banking firms selected by the Company in such manner as
the Board of Directors deems appropriate. "Business Day" means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions where Warrants may be surrendered for exercise are authorized or
obligated by law or executive order to close.
(g) ADJUSTMENTS FOR TAX PURPOSES. The Company may make such adjustments in
the Exercise Rate, in addition to those required by paragraphs (a), (b), (c) and
(d) of this Section, as it considers to be advisable in order that any event
treated for federal income tax purposes as a dividend of stock or stock rights
shall not be taxable to the recipients.
(h) NO ADJUSTMENT BELOW PAR VALUE. Notwithstanding the provisions of this
Section, the Exercise Rate shall not be increased such that the price paid per
share would be less than the par value thereof as a result of any adjustment
made hereunder unless, under applicable law then in effect, Warrants may be
exercised, at such lower Exercise Rate, for legally issued, fully paid and
nonassessable shares of [Preferred Shares] [Common Stock].
(i) PERMITTED DISTRIBUTIONS. The granting of the right to purchase shares
of [Preferred Shares] [Common Stock] (whether from treasury shares or
otherwise), pursuant to (i) any dividend or interest reinvestment plan or
[Preferred Shares] [Common Stock] purchase plan providing for the reinvestment
of dividends or interest payable on securities of the Company and/or the
investment of periodic optional payments; and (ii) any stock option plans and/or
employee benefit or similar plans shall not be deemed to constitute an issue of
rights or warrants by the Company.
(j) NO ADJUSTMENTS NECESSARY. No adjustment in the Exercise Rate shall be
required unless such adjustment would require an increase or decrease of at
least one percent in such Exercise Rate, PROVIDED, HOWEVER, that any adjustment
which by reason of this paragraph (j) is not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section shall be made to the nearest cent or to the
nearest 1/100 of a share, as the case may be.
(k) NOTICE OF ADJUSTMENT. Whenever the Exercise Rate is adjusted as herein
provided, the Company shall forthwith (i)
19
<PAGE> 23
compute the adjusted Exercise Rate in accordance herewith and prepare a
certificate signed by an officer of the Company setting forth the adjusted
Exercise Rate and showing in reasonable detail the facts upon which such
adjustment is based, and such certificate shall forthwith be filed with the
Warrant Agent and any other Registrar and (ii) cause a notice stating that such
adjustment has been effected and the adjusted Exercise Rate to be mailed to the
holders of Warrants at their last addresses as they shall appear on the Warrant
Register.
(l) SUCCESSOR COMPANY. In case of any reclassification or change of
outstanding shares of [the class or series of Preferred Shares issuable upon
exercise of the Warrants] [Common Stock] (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), or in case of any merger or
consolidation of the Company with one or more other corporations (other than a
merger or consolidation in which the Company is the continuing corporation and
which does not result in any reclassification or change of outstanding shares of
[the class or series of Preferred Shares issuable upon exercise of the Warrants]
[Common Stock]), or in case of the merger of the Company into another
corporation, or in case of any sale or conveyance to another corporation of the
property of the Company as an entirety or substantially as an entirety, the
holder of Warrants of each series then outstanding shall have the right to
exercise such Warrant for the kind and amount of shares of capital stock or
other securities and property, including cash, receivable upon reclassification,
change, consolidation, merger, sale or conveyance by a holder of the number of
shares of [such class or series of Preferred Shares] [Common Stock] for which
such Warrant might have been exercised immediately prior to such
reclassification, change consolidation, merger, sale or conveyance. In any such
case, the Company, or such successor or purchasing corporation, as the case may
be, shall execute and deliver to the Warrant Agent a supplemental Warrant
Agreement containing provisions to the effect set forth above and providing
further for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section. The above
provisions shall similarly apply to successive reclassifications, changes,
consolidation, mergers, sales and conveyances.
(m) COMPANY TO RESERVE CAPITAL SECURITIES. The Company shall at all times
reserve and keep available out of the aggregate of its authorized but unissued
shares or its issued shares held in its treasury, or both, for the purpose of
effecting the exercise of the Warrants, such full number of its duly authorized
shares of [Preferred Shares] [Common Stock] as
20
<PAGE> 24
shall from time to time be sufficient to effect the exercise of all outstanding
Warrants.
If any shares of [Preferred Shares] [Common Stock] reserved or to be
reserved for the purpose of exercise of Warrants hereunder require registration
with or approval of any governmental authority under any Federal or State law
before such shares may be validly delivered upon exercise, then the Company
covenants that it will in good faith and as expeditiously as possible endeavor
to secure registration or approval, as the case may be.
The Company covenants that all shares of [Preferred Shares] [Common Stock]
which may be delivered upon exercise of Warrants shall upon delivery be fully
paid and nonassessable by the Company, subject to Massachusetts General Laws
Chapter 156B, Section 45, and, except for taxes in connection with the exercise
of the Warrants, free from all taxes, liens and charges with respect to the
issue or delivery thereof.
(n) COMPANY TO GIVE NOTICE OF CERTAIN EVENTS. In the event
(1) that the Company shall pay any dividend or make any distribution
to the holders of shares of [Preferred Shares issuable upon exercise of the
Warrants] [Common Stock] otherwise than in cash charged against
consolidated net earnings or retained earnings of the Company and its
consolidated subsidiaries or in [such Preferred Shares] [shares of Common
Stock]; or
(2) that the Company shall offer for subscription or purchase, pro
rata, to the holders of [Preferred Shares issuable upon exercise of the
Warrants] [Common Stock] any additional shares of stock of any class or any
securities exercisable for or exchangeable for stock of any class; or
(3) of any reclassification or change of outstanding shares of [the
class or series of Preferred Shares issuable upon the exercise of the
Warrants] [Common Stock] (other than a change in par value, or from par
value to no par value, or from no par combination), or of any merger of
consolidation of the Company with, or merger of the Company into, another
corporation (other than a merger or consolidation in which the Company is
the continuing corporation and which does not result in reclassification or
change of outstanding shares of [Preferred Shares issuable upon exercise of
the Warrants] [Common Stock]), or of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially
as an entirety; or
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(4) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
then, and in any one or more of such events, the Company will file with the
Warrant Agent and any other Registrar written notice thereof at least twenty
days (or ten days in any case specified in clause (1) or (2) above) prior to (i)
the record date fixed with respect to any of the events specified in (1) and (2)
above and (ii) the effective date of any of the events specified in (3) above;
and shall mail promptly after providing such notice to the Warrant Agent or such
other Registrar a copy of such notice to the holders thereof at their last
addresses as they shall appear upon the Warrant Register. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
(o) COMPANY DETERMINATION FINAL. Any determination that the Company or the
Board of Directors must make pursuant to this Section is conclusive.
(p) WARRANT AGENT'S ADJUSTMENT DISCLAIMER. The Warrant Agent has no duty
to determine when an adjustment under this Section should be made, how it should
be made or what it should be. The Warrant Agent has no duty to determine whether
a supplemental warrant agreement under paragraph (l) need be entered into or
whether any provisions of any supplemental warrant agreement are correct. The
Warrant Agent shall not be accountable for and makes no representation as to the
validity or value of any securities or assets issued upon exercise of Warrants.
The Warrant Agent shall not be responsible for the Company's failure to comply
with this Section.
(q) ADJUSTMENTS AND WARRANT CERTIFICATES. Irrespective of any adjustments
in the number or kind of shares purchasable upon the exercise of the Warrants,
Warrant Certificates theretofore or thereafter issued may continue to express
the same number and kind of shares per Warrant as are stated on the Warrant
Certificates initially issuable pursuant to this Agreement.
(r) SUBSEQUENT EVENT. After an adjustment to the Exercise Rate under this
Section, any subsequent event requiring an adjustment under this Section shall
cause an adjustment to the Exercise Rate as so adjusted.
SECTION 6.12. FRACTIONAL SHARES. The Company shall not be required to
deliver fractions of shares of [Preferred Shares] [Common Stock] upon exercises
of Warrants. If more than one Warrant shall be surrendered for exercise at one
time by the same
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holder, the number of full shares which shall be deliverable upon exercise
thereof shall be computed on the basis of the aggregate of the Warrants so
surrendered instead of any fractional share of [Preferred Shares] [Common Stock]
which would otherwise be issuable upon exercise of any Warrant or Warrants (or
specified portions thereof). The Company shall pay a cash adjustment in respect
of such fraction in an amount equal to the same fraction of the market price per
share of [Preferred Shares] [Common Stock] (as determined in accordance with
Section 6.11(f) or in any other manner prescribed by the Board of Directors) at
the close of business on the last Business Day prior to the Date of Exercise.]
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IN WITNESS WHEREOF, BankBoston Corporation has caused this Warrant
Agreement to be signed by one of its duly authorized officers, and its corporate
seal to be affixed hereunto, and the same to be attested by its Clerk or one of
its Assistant Clerks; and ___________________ has caused this Warrant Agreement
to be signed by one of its duly authorized officers, and its corporate seal to
be affixed hereunto, and the same to be attested by its Secretary or one of its
Assistant Secretaries, all as of the day and year first above written.
BANKBOSTON CORPORATION
By
--------------------------------
Attest:
- -------------------------
[Warrant Agent]
By
--------------------------------
Attest:
- -------------------------
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EXHIBIT A
(Form of Warrant Certificate)
[Front Face of Warrant Certificate]
[Form of Legend if Prior to ______ this
Offered Securities Warrant cannot be
with Warrants which transferred or exchanged
are not immediately unless attached to a
detachable: [Title of Offered
Securities].]
[Form of Legend if Prior to ________ this
Warrants are not Warrant cannot be
immediately exercisable: exercised in whole or in
part.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
BANKBOSTON CORPORATION
PURCHASE WARRANT
FOR [Title of Warrant Securities]
VOID AFTER THE CLOSE OF BUSINESS IN BOSTON, MASSACHUSETTS ON
___________, 199_.
[No.] Warrants
This certifies that [the bearer is the] [__________ or registered assigns
is the registered] owner of the above indicated number of Warrants, each Warrant
entitling such [bearer] [owner] to purchase, at any time [after the close of
business on ___________, 199_ and] on or before the close of business on
____________, 199_, [$]__________ [principal amount] [shares] of [Title of
Warrant Securities] (the "Warrant Securities") of BankBoston Corporation (the
"Company"), issued and to be issued [under the Indenture (as hereinafter
defined)] [by the Company], on the following basis: [on __________, 199_,] the
exercise price of each Warrant is [$]_______________, [during the period from
_________, 199_, through and including ___________, 199_, the exercise price of
each Warrant will be [$]___________ plus [accreted original issue discount]
[accrued interest] from __________, 199_, on ______________, 199_, the exercise
price of each Warrant will be [$]__________, during the period from __________,
199_, through and including _____________, 199_, the exercise price of each
Warrant will be
<PAGE> 29
[$]________ plus [accreted original issue discount] [accrued interest] from
__________, 199_, [in each case, the original issue discount will be accreted at
a _ % annual rate, computed on a [semiannual] [annual] basis, using a 360-day
year consisting of twelve 30-day months;] [in each case accrued interest will be
computed at a rate equal to __%]] (the "Warrant Price")]. [The original issue
discount for each [$]_________ principal amount of Warrant Securities is
[$]__________]. The [bearer] [owner] may exercise the Warrants evidenced hereby
by providing certain information set forth on the back hereof and by paying in
full, in lawful money of _______, [in cash or by certified check or official
bank check or by bank wire transfer, in each case,] [by bank wire transfer] in
immediately available funds, the Warrant Price for each Warrant exercised to the
Warrant Agent (as hereinafter defined) and by surrendering this Warrant
Certificate, with the purchase form on the back hereof duly executed, at the
corporate trust office of [name of Warrant Agent] or its successor as warrant
agent (the "Warrant Agent"), currently at the address specified on the reverse
hereof [or __________,] and upon compliance with and subject to the conditions
set forth herein and in the Warrant Agreement (as hereinafter defined).
Any whole number of Warrants evidenced by this Warrant Certificate may be
exercised to purchase Warrant Securities in registered form in [denominations of
[$]___________ and any integral multiples thereof] [any number of whole shares].
Upon any exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the [registered owner] [bearer] hereof a
new Warrant Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the Warrant
Agreement dated as of _____________, 19 _ (the "Warrant Agreement"), between the
Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
[registered owner] [bearer] of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office of the Warrant Agent [and at ___________].
[The Warrant Securities to be issued and delivered upon the exercise of the
Warrants evidenced by this Warrant Certificate will be issued [by the Company
pursuant to the Certificate of Vote applicable to such Warrant Securities]
[under and in accordance with an Indenture dated as of June 15, 1992 (the
"Indenture"), between the Company and Norwest Bank Minnesota, National
Association, as trustee (such trustee, and any successor to such trustee, as
amended by the First Supplemental Indenture,
2
<PAGE> 30
dated as of June 24, 1993, to be herein called the "Trustee") and will be
subject to the terms and provisions contained in the Indenture. Copies of the
Indenture, including the form of the Warrant Securities, are on file at the
corporate trust office of the Trustee [and at ________________]].]
[IF OFFERED SECURITIES WITH BEARER WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE - Prior to ________, 19__ this Warrant Certificate may be exchanged
or transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. After such date, this Warrant Certificate, and all rights
hereunder, may be transferred by delivery and the Company and the Warrant Agent
may treat the bearer hereof as the owner for all purposes.]
[IF OFFERED SECURITIES WITH BEARER WARRANTS WHICH ARE IMMEDIATELY
DETACHABLE OR BEARER WARRANTS ALONE - This Warrant Certificate, and all rights
hereunder, may be transferred by delivery and the Company and the Warrant Agent
may treat the bearer hereof as the owner for all purposes.
[IF OFFERED SECURITIES WITH REGISTERED WARRANTS WHICH ARE NOT IMMEDIATELY
DETACHABLE - Prior to __________, 19__ this Warrant Certificate may be exchanged
or transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. After such date, this [IF OFFERED SECURITIES WITH
REGISTERED WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR REGISTERED WARRANTS
ALONE - This] Warrant Certificate may be transferred when surrendered at the
corporate trust office of the Warrant Agent [or ____________] by the registered
owner or his assigns, in person or by an attorney duly authorized in writing, in
the manner and subject to the limitations provided in the Warrant Agreement.]
[IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -
Except as provided in the immediately preceding paragraph, after] [IF OFFERED
SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ALONE -
After] countersignature by the Warrant Agent and prior to the expiration of this
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent for Warrant Certificates representing the same
aggregate number of Warrants.
This Warrant Certificate shall not entitle the [registered owner] [bearer]
hereof to any of the rights of a registered owner
3
<PAGE> 31
of the Warrant Securities, including, without limitation, the right [to vote or]
to receive payments of [dividends or distributions of any kind] [principal of
(and premium, if any) or interest, if any, on the Warrant Securities or to
enforce any of the covenants of the Indenture.]
This Warrant Certificate shall not be valid or obligatory for any purpose
until countersigned by the Warrant Agent.
Dated as of __________, 19__
BANKBOSTON CORPORATION
By
---------------------------------
Attest:
- --------------------------
Countersigned:
- --------------------------
As Warrant Agent:
By
------------------------
Authorized Signature
4
<PAGE> 1
================================================================================
BANKBOSTON CORPORATION,
________________________, as Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_________________
DEPOSIT AGREEMENT
_________________
Dated as of ____________ , ___199_
================================================================================
<PAGE> 2
<TABLE>
TABLE OF CONTENTS
<CAPTION>
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ARTICLE I
Definitions..................................................................................................... 1
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer,
Surrender and Redemption of Receipts
------------------------------------
SECTION 2.01. Form and Transfer of Receipts.................................................................... 3
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof.......................... 4
SECTION 2.03. Registration of Transfer of Receipts............................................................. 5
SECTION 2.04. Split-ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Stock............ 5
SECTION 2.05. Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts.............. 7
SECTION 2.06. Lost Receipts, etc............................................................................... 7
SECTION 2.07. Cancellation and Destruction of Surrendered Receipts............................................. 7
[SECTION 2.08. Conversion Rights................................................................................ 7]
[SECTION 2.09. Redemption or Exchange of Stock..................................................................10]
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
-----------------------------------
SECTION 3.01. Filing Proofs, Certificates and Other Information................................................ 12
SECTION 3.02. Payment of Taxes or Other Governmental Charges................................................... 12
SECTION 3.03. Warranty as to Stock............................................................................. 13
SECTION 3.04. Warranty as to Receipts.......................................................................... 13
SECTION 3.05. Warranty as to Capital Securities or Other Preferred Stock....................................... 13
SECTION 3.06. Warrant as to Debt Securities.................................................................... 13
</TABLE>
i
<PAGE> 3
<TABLE>
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ARTICLE IV
The Deposited Securities; Notices
---------------------------------
SECTION 4.01. Cash Distributions............................................................................... 14
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or Privileges................................. 14
SECTION 4.03. Subscription Rights, Preferences or Privileges................................................... 15
SECTION 4.04. Notice of Dividends, etc.; Fixing Record Date for Holders of Receipts............................ 16
SECTION 4.05. Voting Rights.................................................................................... 17
SECTION 4.06. Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, etc............. 17
SECTION 4.07. Delivery of Reports.............................................................................. 18
SECTION 4.08. Lists of Receipt Holders......................................................................... 18
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
-------------------------------------
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar................. 18
SECTION 5.02. Prevention of or Delay in Performance by the Depositary, the Depositary's Agents, the
Registrar or the Company.................................................................... 19
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the Registrar and the Company............ 20
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor Depositary................... 21
SECTION 5.05. Corporate Notices and Reports.................................................................... 22
SECTION 5.06. Indemnification by the Company................................................................... 22
SECTION 5.07. Charges and Expenses............................................................................. 22
ARTICLE VI
Amendment and Termination
-------------------------
SECTION 6.01. Amendment........................................................................................ 23
SECTION 6.02. Termination...................................................................................... 23
</TABLE>
ii
<PAGE> 4
<TABLE>
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ARTICLE VII
Miscellaneous
-------------
SECTION 7.01. Counterparts..................................................................................... 24
SECTION 7.02. Exclusive Benefit of Parties..................................................................... 24
SECTION 7.03. Invalidity of Provisions......................................................................... 24
SECTION 7.04. Notices.......................................................................................... 24
SECTION 7.05. Depositary's Agents.............................................................................. 25
SECTION 7.06. Holders of Receipts Are Parties.................................................................. 25
SECTION 7.07. Governing Law.................................................................................... 25
SECTION 7.08. Inspection of Deposit Agreement.................................................................. 26
SECTION 7.09. Headings......................................................................................... 26
Form of Depositary Shares
-------------------------
Form of Face of Receipt......................................................................................... A-1
Form of Reverse of Receipt...................................................................................... A-2
</TABLE>
iii
<PAGE> 5
DEPOSIT AGREEMENT dated as of ________________ ___, 199_, among BANKBOSTON
CORPORATION, a Massachusetts corporation (the "Company"),
_______________________, a _________________ _____________________, and the
holders from time to time of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of [specify designation of series of
preferred stock], of BANKBOSTON CORPORATION with the Depositary for the purposes
set forth in this Deposit Agreement and for the issuance hereunder of Receipts
evidencing Depositary Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Capital Securities" means any securities issued by the Company which
consist of any one of the following: (i) Common Stock, (ii) Perpetual Preferred
Stock, or (iii) other capital securities of the Company acceptable to the
Company's Primary Federal Regulator. Capital Securities may have such terms,
rights and preferences as may be determined by the Company.
"Certificate" shall mean the Certificate of Vote of Directors Establishing
a Series of a Class of Stock filed with the Secretary of State of the
Commonwealth of Massachusetts establishing the Stock as a series of preferred
stock of the Company.
"Common Stock" shall mean the common stock, par value $1.50 per share, of
the Company or any security into which the Common Stock may have been changed.
"Company" shall mean BankBoston Corporation, a Massachusetts corporation,
and its successors.
<PAGE> 6
"Debt Securities" shall mean the senior or subordinated debt securities of
the Company issued in one or more series pursuant to the Indentures.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean ______________________, and any successor as
Depositary hereunder.
"Depositary Shares" shall mean Depositary shares, each representing
[specify fraction] of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the principal office of the Depositary, at
which at any particular time its depositary receipt business shall be
administered.
"Indentures" shall mean the Indentures relating to the Debt Securities of
the Company, each dated as of June 15, 1992, as amended or supplemented from
time to time, and each between the Company and Norwest Bank Minnesota, National
Association, as trustee.
"Perpetual Preferred Stock" means any stock of any class or series of the
Company which has a preference over Common Stock in respect of dividends or of
amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not mandatorily redeemable
or repayable by the Company, or redeemable or repayable as the option of the
holder of such stock, otherwise than in shares of Common Stock or Perpetual
Preferred Stock of another class of series or with the proceeds of the sale of
Common Stock or Perpetual Preferred Stock.
"Primary Federal Regulator" means the Company's primary federal banking
regulator (which at the date of this Agreement is the Board of Governors of the
Federal Reserve System), or any successor body or institution performing
substantially the same regulatory function with respect to the Company and the
adequacy of its capital as said Board of Governors performs on the date hereof.
"Receipt" shall mean one of the Depositary Receipts, substantially in the
form set forth as Exhibit A hereto, issued hereunder, whether in definitive or
temporary form and evidencing
2
<PAGE> 7
the number of Depositary Shares held of record by the record holder of such
Depositary Shares.
"record holder" or "holder" as applied to a Receipt shall mean the person
in whose name a Receipt is registered on the books of the Depositary maintained
for such purpose.
"Registrar" shall mean the Depositary or such other bank or trust company
which shall be appointed to register ownership and transfers of Receipts as
herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's __________ Preferred Stock,
Series ____, $_______ liquidation preference per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. FORM AND TRANSFER OF RECEIPTS. Definitive Receipts shall be
engraved or printed or lithographed on steel-engraved borders, with appropriate
insertions, modifications and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written order of
the Company or any holder of Stock, as the case may be, delivered in compliance
with Section 2.02, shall execute and deliver temporary Receipts which are
printed, lithographed, typewritten, mimeographed or otherwise substantially of
the tenor of the definitive Receipts in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Company and
the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at an office described in the penultimate paragraph of
Section 2.02, without charge to the holder. Upon surrender for cancellation of
any one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge therefor.
Until so exchanged, the temporary Receipts shall in all respects
3
<PAGE> 8
be entitled to the same benefits under this Agreement, and with respect to the
Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized officer of the Depositary; PROVIDED, that such signature may be
a facsimile if a Registrar for the Receipts (other than the Depositary) shall
have been appointed and such Receipts are countersigned by a duly authorized
officer of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it shall
have been executed manually by a duly authorized officer of the Depositary or,
if a Registrar for the Receipts (other than the Depositary) shall have been
appointed, by manual or facsimile signature of a duly authorized officer of the
Depositary and countersigned by a duly authorized officer of such Registrar. The
Depositary shall record on its books each Receipt so signed and delivered as
hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; PROVIDED, HOWEVER, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.03, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02 DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF RECEIPTS IN
RESPECT THEREOF. Subject to the terms and conditions of this Deposit Agreement,
the Company or any holder of Stock may from time to time deposit shares of the
Stock under
4
<PAGE> 9
this Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly endorsed or accompanied, if
required by the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with all such
certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement, and together with a written order of the
Company or such holder, as the case may be, directing the Depositary to execute
and deliver to, or upon the written order of, the person or persons stated in
such order a Receipt or Receipts for the number of Depositary Shares
representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's office
or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section, together with the
other documents required as above specified, and upon recordation of the Stock
on the books of the Company in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver, to or upon the order of the person or persons named in the
written order delivered to the Depositary referred to in the first paragraph of
this Section, a Receipt or Receipts for the number of Depositary Shares
representing the Stock so deposited and registered in such name or names as may
be requested by such person or persons. The Depositary shall execute and deliver
such Receipt or Receipts at the Depositary's Office or such other offices, if
any, as the Depositary may designate. Delivery at other offices shall be at the
risk and expense of the person requesting such delivery.
SECTION 2.03. REGISTRATION OF TRANSFER OF RECEIPTS. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any surrender thereof by the
holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon, the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION 2.04. SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF RECEIPTS
AND WITHDRAWAL OF STOCK. Upon surrender of a Receipt or Receipts at the
Depositary's Office or at such other offices as it may designate for the purpose
of effecting a
5
<PAGE> 10
split-up or combination of such Receipt or Receipts, and subject to the terms
and conditions of this Deposit Agreement, the Depositary shall execute and
deliver a new Receipt or Receipts in the authorized denomination or
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing any number of whole shares
of Stock may withdraw the Stock and all money and other property, if any,
represented thereby by surrendering such Receipt or Receipts, at the
Depositary's Office or at such other offices as the Depositary may designate for
such withdrawals. Thereafter, without unreasonable delay, the Depositary shall
deliver to such holder or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all money and
other property, if any, represented by the Receipt or Receipts so surrendered
for withdrawal, but holders of such whole shares of Stock will not thereafter be
entitled to deposit such Stock hereunder or to receive Depositary Shares
therefor. If a Receipt delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares in excess of
the number of Depositary Shares representing the number of whole shares of Stock
to be so withdrawn, the Depositary shall at the same time, in addition to such
number of whole shares of Stock and such money and other property, if any, to be
so withdrawn, deliver to such holder, or upon his order, a new Receipt
evidencing such excess number of Depositary Shares. Delivery of the Stock and
money and other property being withdrawn may be made by the delivery of such
certificates, documents of title and other instruments as the Depositary may
deem appropriate.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the record holder of the Receipt or
Receipts being surrendered for withdrawal of Stock, such holders shall execute
and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such
holder for withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any, represented
by Receipts surrendered for withdrawal shall be made by the Depositary at the
Depositary's Office, except that, at the request, risk and expense of the holder
surrendering such Receipt or Receipts and for the account of the holder thereof,
such delivery may be made at such other place as may be designated by such
holder.
6
<PAGE> 11
SECTION 2.05. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SURRENDER
AND EXCHANGE OF RECEIPTS. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against Stock
may be suspended, the registration of transfer of Receipts may be refused and
the registration of transfer, surrender or exchange of outstanding Receipts may
be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.06. LOST RECEIPTS, ETC. In case any receipt shall be mutilated,
destroyed, lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss or theft of
such Receipt, of the authenticity thereof and of his or her ownership thereof
and (ii) the furnishing of the Depositary with reasonable indemnification
satisfactory to it.
SECTION 2.07. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
[SECTION 2.08. CONVERSION RIGHTS. Receipts may be surrendered with written
instructions to the Depositary to instruct the Company to cause the conversion
of any specified number of whole or fractional shares of Stock represented by
the Depositary Shares evidenced by such Receipts into the number of whole shares
of Capital Securities or other preferred stock
7
<PAGE> 12
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 Company from time to
time as provided in the Certificate. Subject to the terms and conditions of this
Deposit Agreement and the Certificate, a holder of a Receipt or Receipts
evidencing Depositary Shares representing whole or fractional shares of Stock
may surrender such Receipt or Receipts to the Depositary at the Depositary's
Office or to such office or to such Depositary's Agents as the Depositary may
designate for such purpose, together with (i) a notice of conversion thereof
duly completed and executed (a "Notice of Conversion"), and (ii) any payment in
respect of dividends required by the fourth paragraph of this Section 2.08,
thereby directing the Depositary to instruct the Company to cause the conversion
of the number of shares or fractions thereof of underlying Stock specified in
such Notice of Conversion into whole shares of Capital Securities or other
preferred stock. In the event that a holder delivers to the Depositary for
conversion a Receipt or Receipts which in the aggregate are convertible into
less than one whole share of Capital Securities or other preferred stock or any
number of whole shares of Capital Securities or other preferred stock plus an
excess constituting less than one whole share of Capital Securities or other
preferred stock, the holder shall receive payment in lieu of such fractional
shares of Capital Securities or other preferred stock otherwise issuable in
accordance with the last paragraph of this Section 2.08. If more than one
Receipt shall be delivered for conversion at one time by the same holder, the
number of whole shares of Capital Securities or other preferred stock issuable
upon conversion thereof shall be computed on the basis of the aggregate number
of Receipts so delivered.
Upon receipt by the Depositary of a Receipt or Receipts, together with a
Notice of Conversion, duly completed and executed, directing the Depositary to
instruct the Company to cause the conversion of a specified number of shares or
fractions thereof of Stock, the Depositary shall, on the date of receipt of such
Notice of Conversion, instruct the Company (i) to cause the conversion of the
Depositary Shares evidenced by the Receipts so surrendered for conversion as
specified in the written Notice of Conversion to the Depositary and (ii) to
cause the delivery to the holder or holders of such Receipts of a certificate or
certificates evidencing the number of whole shares of Capital Securities or
other preferred stock, and the amount of money, if any, to be delivered to the
holders of Receipts surrendered for conversion in payment of any fractional
shares of Capital Securities or other preferred stock otherwise issuable. The
Company shall, as promptly as practicable after receipt thereof, cause the
delivery to such holder or holders of (i) a certificate
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or certificates evidencing the number of whole shares of Capital Securities or
other preferred stock into which the Stock represented by the Depositary Shares
evidenced by such Receipt or Receipts has been converted, and (ii) any money or
other property to which the holder or holders are entitled. The person or
persons in whose name or names any certificate or certificates for shares of
Capital Securities or other preferred stock shall be issuable upon such
conversion shall be deemed to have become the holder or holders of record of the
shares represented thereby at the close of business on the date such Receipt or
Receipts shall have been surrendered to and a Notice of Conversion received by
the Depositary, unless the stock transfer books of the Company shall be closed
on that date, in which event such person or persons shall be deemed to have
become such holder or holders of record on the next succeeding day on which such
stock transfer books are open. Upon such conversion, the Depositary (i) shall
deliver to the holder a Receipt evidencing the number of Depositary Shares, if
any, which such holder has elected not to convert in excess of the number of
Depositary Shares representing Stock which has been so converted, (ii) shall
cancel the Depositary Shares evidenced by Receipts surrendered for conversion
and (iii) shall deliver for cancellation to the transfer agent for the Stock the
shares of Stock represented by the Depositary Shares evidenced by the Receipts
so surrendered and so converted.
If any Stock shall be called by the Company for redemption or exchange, the
Depositary Shares representing such Stock may be converted into Capital
Securities or other preferred stock as provided in this Deposit Agreement until
and including, but not after, the close of business on the Redemption Date or
the Exchange Date (each as defined below) unless the Company shall default in
making payment of the amount payable upon such redemption. Upon receipt by the
Depositary of a Receipt or Receipts representing any Stock called for redemption
or exchange, together with a properly completed and executed Notice of
Conversion, the shares of Stock held by the Depositary represented by such
Depositary Shares for which conversion is requested shall be deemed to have been
received by the Company for conversion.
Upon any conversion of the Stock underlying the Depositary Shares, no
allowance, adjustment or payment shall be made with respect to accrued dividends
upon such Stock except that if any holder of a Receipt surrenders such Receipt
with instructions to the Depositary for conversion of the underlying Stock
evidenced thereby during the period between the opening of business on any
dividend record date and the close of business on the corresponding dividend
payment date (except shares called for redemption or exchange on a Redemption
Date or Exchange Date
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during such period), such Receipt must be accompanied by a payment equal to the
dividend thereon, if any, which the holder of record of such Receipt is entitled
to receive on such dividend payment date in respect of the underlying Stock to
be converted.
Upon the conversion of any shares of Stock for which a Notice of Conversion
has been received by the Depositary, all dividends in respect of such Depositary
Shares shall cease to accrue, such Depositary Shares shall be deemed no longer
outstanding, all rights of the holder of the Receipt with respect to such
Depositary Shares (except the right to receive the Capital Securities or other
preferred stock, any cash payable with respect to any fractional shares of
Capital Securities or other preferred stock as provided herein and any cash
payable on account of accrued dividends in respect of the Stock so converted and
any Receipts evidencing Depositary Shares not so converted) shall terminate, and
the Receipt evidencing such Depositary Shares shall be cancelled in accordance
with Section 2.07 hereof.
No fractional shares of Capital Securities or other preferred stock shall
be issuable upon conversion of Stock underlying the Depositary Shares. If,
except for the provisions of this Section 2.08 and the Certificate, any holder
of Receipts surrendered with instructions to the Depositary for conversion of
the underlying Stock would be entitled to a fractional share of Capital
Securities or other preferred stock upon such conversion, the Company shall
cause to be delivered to such holder an amount in cash for such fractional share
determined in accordance with the Certificate.]
SECTION 2.09. REDEMPTION OR EXCHANGE OF STOCK. Whenever the Company shall
be permitted and shall elect to redeem or exchange shares of Stock in accordance
with the provisions of the Certificate, it shall (unless otherwise agreed to in
writing with the Depositary) give or cause to be given to the Depositary not
less than 10 days' and not more than 60 days' notice of the date of such
proposed redemption or exchange of Stock and of the number of such shares held
by the Depositary to be so redeemed or exchanged and (i) the applicable
redemption price or (ii) the class and stated value or tenor and aggregate
principal amount of Capital Securities or Debt Securities to be issued in
exchange, as set forth in the Certificate, which notice shall be accompanied by
a certificate from the Company stating that such redemption or exchange of Stock
is in accordance with the provisions of the Certificate. On the date of such
redemption or exchange, provided that the Company shall then have paid or caused
to be paid in full to the Depositary the redemption price of the Stock to be
redeemed or the Capital Securities or Debt Securities to be issued in exchange
for stock to be exchanged, plus an amount equal to any accrued and unpaid
dividends thereon
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to the date fixed for redemption or exchange, in accordance with the provisions
of the Certificate, the Depositary shall redeem the number of Depositary Shares
representing such Stock. The Depositary shall mail notice of the Company's
redemption or exchange of Stock and the proposed simultaneous redemption or
exchange of the number of Depositary Shares representing the Stock to be
redeemed or exchanged by first-class mail, postage prepaid, not less than 10 and
not more than 60 days prior to the date fixed for redemption or exchange of such
Stock and Depositary Shares (the "Redemption Date" or the "Exchange Date",
respectively), to the record holders of the Receipts evidencing the Depositary
Shares to be so redeemed or exchanged, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice of redemption or exchange of Depositary Shares to one or more such
holders nor any defect in any notice of redemption or exchange of Depositary
Shares to one or more such holders shall affect the sufficiency of the
proceedings for redemption or exchange as to the other holders. Each such notice
shall state: (i) the Redemption Date or Exchange Date; (ii) the number of
Depositary Shares to be redeemed or exchanged and, if less than all the
Depositary Shares held by any such holder are to be redeemed or exchanged, the
number of such Depositary Shares held by such holder to be so redeemed or
exchanged; (iii) (a) the redemption price or (b) the class and stated value or
tenor and aggregate principal amount of Capital Securities or Debt Securities to
be issued in exchange; (iv) the place or places where Receipts evidencing
Depositary Shares are to be surrendered for payment of the redemption price; (v)
the then current conversion price; and (vi) that dividends in respect of the
Stock represented by the Depositary Shares to be redeemed or exchanged will
cease to accrue on such Redemption Date or Exchange Rate. In case less than all
the outstanding Depositary Shares are to be redeemed or exchanged, the
Depositary Shares to be so redeemed or exchanged shall be selected by the
Depositary by lot or pro rata (as nearly as may be) or by any other method, in
each case, as determined by the Company in its sole discretion to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to provide the funds
or Capital Securities or Debt Securities necessary to redeem or exchange the
Stock evidenced by the Depositary Shares called for redemption or exchange) (i)
dividends on the shares of Stock so called for Redemption or exchange shall
cease to accrue from and after such date, (ii) the Depositary Shares being
redeemed or exchanged from such proceeds shall be deemed no longer to be
outstanding, (iii) all rights of the Holders of Receipts evidencing such
Depositary Shares (except the right to receive the Redemption Price) shall, to
the extent of such Depositary Shares, cease and terminate, and
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(iv) upon surrender in accordance with such redemption or exchange notice of the
Receipts evidencing any such Depositary Shares called for redemption or exchange
(properly endorsed or assigned for transfer, in the Depositary or applicable law
shall so require), such Depositary Shares shall be redeemed or exchanged by the
Depositary at a redemption price per Depositary Share equal to [specify
fraction] of the redemption price per share or market value of Capital
Securities or Debt Securities per Depositary Share paid in respect of the shares
of Stock so redeemed or exchanged plus all money and other property, if any,
represented by such Depositary Shares, including all amounts paid by the Company
in respect of dividends which on the Redemption Date or Exchange Date have
accumulated on the shares of Stock to be so redeemed or exchanged and have not
therefore been paid.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption or exchange, the Depositary will deliver to the holder of
such Receipt upon its surrender to the Depositary, together with the redemption
payment or Capital Securities or Debt Securities issued upon exchange, a new
Receipt evidencing the Depositary Shares evidenced by such prior receipt and not
called for redemption or exchange.
ARTICLE III
CERTAIN OBLIGATIONS OF
HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any holder
of a Receipt may be required from time to time to file such proof of residence,
or other matters or other information, to execute such certificates and to make
such representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company may withhold
the delivery, or delay the registration of transfer, redemption or exchange, of
any Receipt or the withdrawal or conversion of the Stock represented by the
Depositary Shares evidenced by any Receipt or the distribution of any dividend
or other distribution or the sale of any rights or of the proceeds thereof until
such proof or other information is filed or such certificates are executed or
such representations and warranties are made.
SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. Holders of
Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.07. Registration of transfer of
any Receipt or any withdrawal of Stock and all money or other property, if any,
represented by the Depositary Shares evidenced
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by such Receipt may be refused until any such payment due is made, and any
dividends, interest payments or other distributions may be withheld or any part
of or all the Stock or other property represented by the Depositary Shares
evidenced by such Receipt and not theretofore sold may be sold for the account
of the holder thereof (after attempting by reasonable means to notify such
holder prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any payment of
such charges or expenses, the holder of such Receipt remaining liable for any
deficiency.
SECTION 3.03. WARRANTY AS TO STOCK. The Company hereby represents and
warrants that the Stock, when issued, will be duly authorized, validly issued,
fully paid and nonassessable, subject to Massachusetts General Laws, Chapter
156B, Section 45. Such representation and warranty shall survive the deposit of
the Stock and the issuance of Receipts.
SECTION 3.04. WARRANTY AS TO RECEIPTS. The Company hereby represents and
warrants that the Receipts, when issued, will represent legal and valid
interests in the Stock. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
SECTION 3.05. WARRANTY AS TO CAPITAL SECURITIES OR OTHER PREFERRED STOCK.
The Company hereby represents and warrants that the Capital Securities or other
preferred stock issued upon conversion of the Stock, when issued, will be duly
authorized, validly issued, fully paid and nonassessable, subject to
Massachusetts General Laws, Chapter 156B, Section 45. Such representation and
warranty shall survive the conversion of the Stock into such Capital Securities
or other preferred stock.
SECTION 3.06. WARRANT AS TO DEBT SECURITIES. The Company hereby represents
and warrants that (i) Debt Securities issued upon exchange of the Stock, when
issued, will be duly authorized and, when such Debt Securities are duly
executed, authenticated and delivered in the manner provided for in the
applicable Indenture, such Debt Securities will constitute valid and binding
obligations of the Company entitled to the benefits of the applicable Indenture
and enforceable against the Company in accordance with their terms, and (ii) the
applicable Indenture has been duly authorized by the Company and constitutes a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except in each case as enforcement thereof may be
limited by the receivership, conservatorship and supervisory powers of bank
regulatory agencies generally as well as bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting enforcement of creditors' rights
generally and except as
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enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law) and the
availability of equitable remedies. Such representation and warranty shall
survive the exchange of the Stock for such Debt Securities.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall receive any
cash dividend or other cash distribution on Stock, the Depositary shall, subject
to Sections 3.01 and 3.02, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.04 such amounts of such dividend or
distribution as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such holders;
PROVIDED, HOWEVER, that in case the Company or the Depositary shall be required
to withhold and shall withhold from any cash dividend or other cash distribution
in respect of the Stocks an amount on account of taxes, the amount made
available for distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next sum received by the Depositary for distribution to record
holders of Receipts then outstanding.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH, RIGHTS, PREFERENCES OR
PRIVILEGES. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.01 and 3.02, distribute to record holders of Receipts on
the record date fixed pursuant to Section 4.04 such amounts of the securities or
property received by it as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the Depositary may, with
the approval of the
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Company, adopt such method as it deems equitable and practicable for the purpose
of effecting such distribution, including the sale (at public or private sale)
of the securities or property thus received, or any part thereof, at such place
or places and upon such terms as it may deem proper. The net proceeds of any
such sale shall, subject to Sections 3.01 and 3.02, be distributed or made
available for distribution, as the case may be, by the Depositary to record
holders of Receipts as provided by Section 4.01 in the case of a distribution
received in cash. The Company shall not make any distribution of such securities
or property to the Depositary and the Depositary shall not make any distribution
of such securities or property to the holders of Receipts unless the Company
shall have provided an opinion of counsel stating that such securities or
property have been registered under the Securities Act or do not need to be
registered in connection with such distributions.
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Company; PROVIDED,
HOWEVER, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) if and to the extent so instructed by holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
then the Depositary, in its discretion (with approval of the Company, in any
case where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or the
terms of such rights, preferences or privileges permit such transfer, sell such
rights, preferences or privileges at public or private sale, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Sections 3.01 and 3.02, be distributed by the Depositary
to the record holders of Receipts entitled thereto as provided by Section 4.01
in the case of a distribution received in cash.
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If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company agrees with the Depositary that it will file
promptly a registration statement pursuant to such Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such registration statement shall have become
effective, or unless the offering and sale of such securities to such holders
are exempt from registration under the provisions of the Securities Act, and the
Company shall have provided to the Depositary an opinion of counsel to such
effect.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company agrees with the Depositary that the Company will use its reasonable
best efforts to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. NOTICE OF DIVIDENDS, ETC.; FIXING RECORD DATE FOR HOLDERS OF
RECEIPTS. Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of any meeting at which holders
of Stock are entitled to vote or of which holders of Stock are entitled to
notice, or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
or otherwise in accordance with the terms of the Stock) for the determination of
the holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to notice of such meeting or for any other
appropriate reasons.
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SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any meeting at which
the holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting and
(ii) a statement that the holders may, subject to any applicable restrictions,
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Stock represented by their respective Depositary Shares (including
an express indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company) and a brief statement
as to the manner in which such instructions may be given. Upon the written
request of the holders of Receipts on the relevant record date, the Depositary
shall endeavor insofar as practicable to vote or cause to be voted, in
accordance with the instructions set forth in such requests, the maximum number
of whole shares of Stock represented by the Depositary Shares evidenced by all
Receipts as to which any particular voting instructions are received. The
Company hereby agrees to take all reasonable action which may be deemed
necessary by the Depositary in order to enable the Depositary to vote such Stock
or cause such Stock to be voted. In the absence of specific instructions from
the holder of a Receipt, the Depositary will not vote (but, at its discretion,
may appear at any meeting with respect to such Stock unless directed to the
contrary by the holders of all the Receipts) to the extent of the Stock
represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. CHANGES AFFECTING DEPOSITED SECURITIES AND RECLASSIFICATIONS,
RECAPITALIZATIONS, ETC. Upon any change in par or stated value, split-up,
combination or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger or consolidation affecting the Company
or to which it is a party, the Depositary may in its discretion with the
approval of, and shall upon the instructions of, the Company, and (in either
case) in such manner as the Depositary may deem equitable, (i) make such
adjustments as are certified by the Company in the fraction of an interest
represented by one Depositary Share in one share of Stock as may be necessary
fully to reflect the effects of such change in par or stated value, split-up,
combination or other reclassification of Stock, or of such recapitalization,
reorganization, merger or consolidation and (ii) treat any securities which
shall be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securities so received in exchange for or
upon conversion or in respect of such Stock. In any such case the Depositary may
in its discretion, with the approval of the Company, execute and deliver
additional Receipts or may call for the surrender of all outstanding Receipts to
be exchanged for new
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Receipts specifically describing such new deposited securities. Anything to the
contrary herein notwithstanding, holders of Receipts shall have the right from
and after the effective date of any such change in par or stated value,
split-up, combination or other reclassification of the Stock or any such
recapitalization, reorganization, merger or consolidation to surrender such
Receipts to the Depositary with instructions to convert, exchange or surrender
the Stock represented thereby only into or for, as the case may be, the kind and
amount of shares of stock and other securities and property and cash into which
the Stock represented by such Receipts might have been converted or for which
such Stock might have been exchanged or surrendered immediately prior to the
effective date of such transaction.
SECTION 4.07. DELIVERY OF REPORTS. The Depositary shall furnish to holders
of Receipts any reports and communications received from the Company which are
received by the Depositary as the holder of Stock.
SECTION 4.08. LISTS OF RECEIPT HOLDERS. Promptly upon request from time to
time by the Company, the Depositary shall furnish to it a list, as of the most
recent practicable date, of the names, addresses and holdings of Depositary
Shares of all record holders of Receipts.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE COMPANY
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY THE
DEPOSITARY; REGISTRAR. Upon execution of this Deposit Agreement, the Depositary
shall maintain at the Depositary's Office, facilities for the execution and
delivery, registration and registration of transfer, surrender and exchange of
Receipts, and at the offices of the Depositary's Agents, if any, facilities for
the delivery, registration of transfer, surrender and exchange of Receipts, all
in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of Receipts;
PROVIDED that any such holder requesting to exercise such right shall certify to
the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
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The Depositary may close such books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Company, appoint a Registrar
for registration of the Receipts or the Depositary Shares evidenced thereby. If
the Receipts or the Depositary Shares evidenced thereby or the Stock represented
by such Depositary Shares shall be listed on one or more national stock
exchanges, the Depositary will appoint a Registrar (acceptable to the Company)
for registration of such Receipts or Depositary Shares in accordance with any
requirements of such exchange. Such Registrar (which may be the Depositary if so
permitted by the requirements of any such exchange) may be removed and a
substitute registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, such Depositary Shares or such stock
are listed on one or more other stock exchanges, the Depositary will, at the
request of the Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts, such
Depositary Shares or such stock as may be required by law or applicable stock
exchange regulation.
SECTION 5.02. PREVENTION OF OR DELAY IN PERFORMANCE BY THE DEPOSITARY, THE
DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Articles of Organization, as amended (including the
Certificate) or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from, or subjected to
any penalty on account of, doing or performing any act or thing which the terms
of this Deposit Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, any Registrar or the Company incur liability
to any holder of a Receipt (i) by reason of any nonperformance or delay, caused
as aforesaid, in the performance of any act or thing which the terms of this
Deposit Agreement shall provide shall or may be done or performed, or (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement except, in the case of any such exercise or failure to
exercise discretion not caused as aforesaid, if caused by the negligence or
willful misconduct of the party charged with such exercise or failure to
exercise.
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SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE
REGISTRAR AND THE COMPANY. Neither the Depositary nor any Depositary's Agent nor
any Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement to holders of Receipts other than for its
negligence, willful misconduct or bad faith.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be under, any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its opinion may involve it in expense or liability
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information from any
person presenting Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such information. The
Depositary, any Depositary's Agent, any Registrar and the Company may each rely
and shall each be protected in acting upon any written notice, request,
direction or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the shares of stock or for the manner or effect of
any such vote made, as long as any such action or non-action is in good faith.
The Depositary undertakes, and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set forth in this
Agreement, and no implied covenants or obligations shall be read into this
Agreement against the Depositary or any Registrar. The Depositary will indemnify
the Company and hold it harmless from any loss, liability or expense (including
the reasonable costs and expenses of defending itself) which may arise out of
acts performed or omitted by the Depositary or the Depositary's Agents in
connection with this Agreement due to its or their negligence, willful
misconduct or bad faith. The indemnification obligations of the Depositary set
forth in this Section 5.03 shall survive any termination of this Agreement and
any succession of any Depositary. The Depositary, the Depositary's Agents, and
any Registrar may own and deal in any class of securities of the Company and its
affiliates and in Receipts. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates.
20
<PAGE> 25
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by delivering notice of its election to do so to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor, and shall deliver to such successor a list of the record holders
of all outstanding Receipts and such records, books and other information in its
possession relating thereto. Any successor Depositary shall promptly mail notice
of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
21
<PAGE> 26
SECTION 5.05. CORPORATE NOTICES AND REPORTS. The Company agrees
that it will transmit to the record holders of Receipts, in each case at the
addresses furnished to it pursuant to Section 4.08, all notices and reports
(including without limitation financial statements) required by law or by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed, to be furnished to the record holders of
Receipts. Such transmission will be at the Company's expense.
SECTION 5.06. INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify the Depositary, any Depositary's Agent and any Register against, and
hold each of them harmless from, any loss, liability or expense (including
the reasonable costs and expenses of defending itself) which may arise out of
acts performed or omitted in connection with this Agreement and the Receipts
by the Depositary, any Registrar or any of their respective agents (including
any Depositary's Agent), except for any liability arising out of negligence,
willful misconduct or bad faith on the respective parts of any such person or
persons. The obligations of the Company set forth in this Section 5.06 shall
survive any succession of any Depositary, Registrar or Depositary's Agent.
SECTION 5.07. CHARGES AND EXPENSES. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depository arrangements. The Company shall pay all charges of
the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Depositary Shares, all withdrawals of shares of the
Stock by owners of Depositary Shares, and any redemption or exchange of the
Stock at the option of the Company. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Depositary Shares.
If, at the request of a holder of Receipts, the Depositary incurs charges or
expenses for which it is not otherwise liable hereunder, such holder will be
liable for such charges and expenses. All other charges and expenses of the
Depositary and Depositary's Agent hereunder and of any Registrar (including, in
each case, reasonable fees and expenses of counsel) incident to the performance
of their respective obligations hereunder will be paid upon consultation and
agreement between the Depositary and the Company as to the amount and nature of
such charges and expenses. The Depositary shall present its statement for
charges and expenses to the Company at such intervals as the Company and the
Depositary may agree.
22
<PAGE> 27
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. AMENDMENT. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable; PROVIDED, HOWEVER, that no such amendment
(other than any change in the fees of any Depositary, Registrar or Transfer
Agent, which shall go into effect not sooner than three months after notice
thereof to the holders of the Receipts) which shall materially and adversely
alter the rights of the holders of Receipts shall be effective unless such
amendment shall have been approved by the holders of at least a majority of the
Depositary Shares Lien outstanding. Every holder of an outstanding Receipt at
the time any such amendment becomes effective shall be deemed, by continuing to
hold such receipt, to consent and agree to such amendment and to be bound by the
Depositary Agreement as amended thereby.
SECTION 6.02. TERMINATION This Agreement may be terminated by the
Company at any time upon not less than 60 days prior written notice to the
Depositary, in which case, upon a day that is not later than 30 days after the
date of such notice, the Depositary shall deliver or make available for delivery
to such record holder, upon surrender of the Receipt or Receipts held by such
record holder, such number of whole or fractional shares of stock represented by
such Receipt or Receipts. If the record holder of any Receipt or Receipts shall
not have so surrendered such Receipt or Receipts in exchange for whole or
fractional shares of Stock on or prior to the effective date of termination of
this Agreement, such record holder shall for all purposes, including the payment
of dividends, be deemed to be a record holder of the appropriate number of whole
or fractional shares of Stock previously represented by such Receipt or Receipts
and shall thereafter surrender to the Company such Receipt or Receipts in
exchange for whole or fractional shares of Stock.
This Agreement shall automatically terminate after [(i) all
outstanding Depositary Shares have been redeemed pursuant to Section 3.09, (ii)
each share of Stock shall have been converted into or exchanged for, as the case
may be, shares of Capital Securities, other preferred stock or Debt securities
and (iii)] there shall have been made a final distribution in respect of the
Stock in connection with any liquidation, dissolution or winding up of the
Company and such distribution shall have been distributed to the holders of
Depositary Shares pursuant to Section 4.01 or 4.02, as applicable.
23
<PAGE> 28
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, and Depositary's Agent and any Registrar under
Sections 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be executed
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall
constitute one and the same instrument.
SECTION 7.02. EXCLUSIVE BENEFIT OF PARTIES. This Deposit Agreement
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.03. INVALIDITY OF PROVISIONS. In case any one or more of
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. NOTICES. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail, or by telegram
or facsimile transmission confirmed by letter, addressed to the Company at
BankBoston Corporation
100 Federal Street, Mail Stop 01-25-01
Boston, Massachusetts 02110
Attention: Clerk
Facsimile No.: (617) 434-6525
or at any other address of which the Company shall have notified the Depositary
in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by
24
<PAGE> 29
mail, or by telegram or facsimile transmission confirmed by letter, addressed
to the Depositary at the Depositary's Office, at ____________________, or at
any other address of which the Depositary shall have notified the Company in
writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to such record holder at
the address of such record holder as it appears on the books of the Depositary,
or if such holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail or by telegram or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or facsimile transmission) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram or
facsimile transmission received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or facsimile transmission shall
not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. DEPOSITARY'S AGENTS. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents. The Depositary will notify the Company of any such action.
The Company hereby also appoints the Depositary as Registrar and
Transfer Agent in respect of the Receipts and the Depositary hereby accepts
such appointments.
SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES. The holders of
Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.07. GOVERNING LAW. This Deposit Agreement and the
Receipts and all Receipts hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the laws of the
Commonwealth of Massachusetts
25
<PAGE> 30
SECTION 7.08. INSPECTION OF DEPOSIT AGREEMENT. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at the
Depositary's Office and the respective offices of the Depositary's Agents, if
any, by any holder of a Receipt.
SECTION 7.09. HEADINGS. The headings of articles and sections in
this Deposit Agreement, and in the form of the Receipt set forth in Exhibit A
hereto have been inspected for convenience only and are not to be regarded as a
part of this Deposit Agreement or the Receipts or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Agreement as of the day and year first above and forth, and all
holders of Receipts shall become parties hereto by and upon acceptance by them
of delivery of Receipts issued in accordance with the terms hereof.
Attested By BANKBOSTON CORPORATION
________________________ By____________________
[SEAL]
Attested By [Name of Depositary]
________________________ By____________________
[SEAL]
26
<PAGE> 31
EXHIBIT A
[FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
CERTIFICATE FOR _______________ DEPOSITARY SHARES
TDR
DEPOSITORY RECEIPT FOR DEPOSITARY SHARES
REPRESENTING [TITLE OF] PREFERRED STOCK OF
BANKBOSTON CORPORATION
CUSIP ______
INCORPORATED UNDER THE LAWS OF SEE REVERSE FOR CERTAIN
THE COMMONWEALTH OF MASSACHUSETTS DEFINITIONS
___________, as Depositary ("The "Depositary"), hereby certifies that
is the registered owner of DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing (specify fraction) of
one share of ____ Preferred Stock "the "Stock"), of BankBoston Corporation, a
Massachusetts corporation (the "Corporation"), on deposit with the Depositary,
subject to the terms and entitled to the benefits of the Deposit Agreement
deposited as of _________, 199_ (the "Deposit Agreement"), between the
Corporation and the Depositary. By accepting this Depositary Receipt the holder
hereof becomes a party to and agrees to be bound by all the terms and conditions
of the Deposit Agreement. This Depositary Receipt shall not be valid or,
obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if executed in facsimile by the
Depositary, countersigned by a Registrar in respect of the Depositary Receipts
by a duly authorized officer thereof.
Dated: [Countersigned:
- ---------------------------------- -----------------------------------
Depositary Registrar
By By
Authorized Officer Authorized Officer]
A-1
<PAGE> 32
[FORM OF REVERSE OF RECEIPT]
BANKBOSTON CORPORATION
BANKBOSTON CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH RECEIPT
HOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF
THE CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING A SERIES OF A CLASS OF STOCK
OF THE [TITLE OF] PREFERRED STOCK OF BANKBOSTON CORPORATION. ANY SUCH REQUEST
IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
_________________
For value received, _______________ hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
____________________ ____________________ ____________________
____________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING
POSTAL ZIP CODE OF ASSIGNEE
____________________ ____________________ ____________________
___________________________________ Depositary Shares represented by the within
Receipt, and do(es) hereby irrevocably constitute and appoint _________________
Attorney to transfer the said Depositary Shares on the books of the within
named Depositary with full power of substitution in the premises.
Dated ______________
________________________________________
NOTICE: The signature to the assignment
must correspond with the name as written
upon the face of this Receipt in every
particular, without alteration or
enlargement or any change whatever.
SIGNATURE GUARANTEED
____________________
A-2
<PAGE> 1
EXHIBIT 5
October 14, 1997
BankBoston Corporation
100 Federal Street
Boston, Massachusetts 02110
Re: BANKBOSTON CORPORATION REGISTRATION STATEMENT ON FORM S-3 RELATING TO
$950,000,000 OF DEBT AND EQUITY SECURITIES, INCLUDING SENIOR AND SUBORDINATED
DEBT SECURITIES, PREFERRED STOCK, COMMON STOCK, WARRANTS TO PURCHASE DEBT
SECURITIES, PREFERRED STOCK AND COMMON STOCK, AND CAPITAL SECURITIES.
Ladies and Gentlemen:
This opinion is rendered to you in connection with the filing by
BankBoston Corporation, a Massachusetts corporation, (the "Corporation") of its
Registration Statement on Form S-3 (the "Registration Statement") with the
Securities and Exchange Commission relating to the registration of
$950,000,000 in the aggregate of debt and equity securities, including
(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 forms of depositary shares evidenced by depositary
receipts (the "Depositary Shares"), and warrants to purchase shares of
the Preferred Stock (the "Preferred Stock Warrants");
(iii) shares of common stock, par value $1.50 per share (the "Common
Stock") and warrants to purchase 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 being collectively referred to herein as the "Securities");
(iv) an indeterminate number of (a) shares of Preferred Stock (the
"Additional Preferred Stock"), (b) shares of common stock, perpetual
Preferred Stock or other capital securities of the Corporation
acceptable to the Corporation's primary federal banking regulator
(collectively, the "Capital Securities") as may be
<PAGE> 2
issuable in exchange for or upon conversion of the Preferred Stock or
the Subordinated Securities, (c) Debt Securities (the "Additional Debt
Securities") as may be issuable in exchange for the Preferred Stock and
(d) shares of Common Stock (the "Additional Common Stock") which may be
issuable upon conversion or exchange of the Preferred Stock or Debt
Securities;
for one or more offerings to be made on a continuous or delayed basis pursuant
to the provisions of Rule 415. In connection with the filing of such
Registration Statement, I have been asked to give my opinion, in my capacity as
General Counsel of the Corporation, as to the legality of the Securities, the
Additional Preferred Stock, the Capital Securities, the Additional Debt
Securities and the Additional Common Stock being registered (collectively, the
"Registered Securities").
In rendering this opinion as General Counsel of the Corporation, I and
attorneys in my office acting under my direction have participated with the
Corporation and its officers in the preparation, review and filing of the
Registration Statement and the related prospectus (the "Prospectus"), have
examined the indenture dated as of June 15, 1992 between the Corporation and
Norwest Bank Minnesota, National Association ("Norwest") relating to the Senior
Securities (the "Senior Indenture") and the indenture dated as of June 15, 1992
between the Corporation and Norwest relating to the Subordinated Securities, as
amended by the First Supplemental Indenture dated June 24, 1993 (together the
"Subordinated Indenture"; and collectively with the Senior Indenture, the
"Indentures"), have examined the other exhibits to the Registration Statement,
have examined other corporate documents and records, have made such examination
of law, and have discussed with the officers and directors of the Corporation,
its subsidiaries and Norwest such questions of fact as we have deemed necessary
or appropriate. We have also relied upon the certificates and statements of such
officers and directors and of Norwest as to factual matters and have assumed the
genuineness of all signatures not known to us as well as the authenticity of all
documents submitted to us as copies.
Based upon and subject to the foregoing and subject to certain proposed
additional proceedings being taken as now contemplated prior to the issuance of
the Registered Securities, and subject to the terms of the Registered Securities
being otherwise in compliance with then applicable law, it is my opinion that:
(i) The Preferred Stock, Depositary Shares and Common Stock to be
issuable under the Registration Statement will have been duly authorized
and reserved and upon their issuance and sale in the manner referred to
in the Registration Statement will be duly issued, fully paid and
non-assessable, except as provided by Section 45 of Chapter 156B of the
Massachusetts General Laws ("MGL C.156B Section 45");
(ii) The Debt Securities, Debt Warrants, Preferred Stock Warrants and
Common Stock Warrants, upon their issuance and sale in the manner
referred to in the Registration Statement, will be duly executed,
authenticated, issued and delivered
<PAGE> 3
and will constitute valid and legally binding obligations of the
Corporation enforceable in accordance with their terms, subject to bank
regulatory, bankruptcy insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors rights or to general equity principles (regardless
of whether such matters are considered in a proceeding in equity or at
law) (collectively the "Limitations on Enforceability");
(iii) To the extent provided in the applicable Prospectus Supplement
(the "Prospectus Supplement"), the Preferred Stock may be convertible
into Additional Preferred Stock or exchangeable for Additional Debt
Securities or Additional Common Stock, in accordance with the terms
thereof and of the applicable Certificate of Vote of Directors
Establishing a Series of a Class of Stock ("Certificate of Vote") and
the Debt Securities may be convertible into or exchangeable for
Additional Preferred Stock or Additional Common Stock; and
(a) any Additional Preferred Stock or Additional Common Stock
initially issuable upon conversion or exchange of the Preferred
Stock or Debt Securities will have been duly authorized and
reserved and when issued upon such conversion, will be duly
issued, fully paid and non-assessable, except as provided by
MGL C.156B Section 45;
(b) any Additional Debt Securities initially issuable in exchange
for the Preferred Stock, when issued upon such exchange, will be
duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the
Corporation enforceable in accordance with their terms, subject
to the Limitations on Enforceability; and
(iv) To the extent provided in the applicable Prospectus Supplement, the
Subordinated Securities and the Preferred Stock may be convertible into
or exchangeable for Capital Securities, in accordance with the terms
thereof, and the terms of the Subordinated Indenture or the Certificate
of Vote, as applicable; and any Capital Securities initially issuable
upon conversion of, or exchange for, the Subordinated Securities or the
Preferred Stock,
(a) to the extent such Capital Securities consist of common
stock, perpetual preferred stock or other equity securities of
the Corporation, will have been duly authorized and reserved and
when issued upon such conversion or exchange, will be duly
issued, fully paid and non-assessable, except as provided by
MGL C. 156B Section 45; and
(b) to the extent such Capital Securities consist of debt
securities of the Corporation, will have been duly executed,
authenticated, issued and delivered and, when issued upon such
conversion or exchange, will constitute valid and legally binding
obligations of the Corporation
<PAGE> 4
enforceable in accordance with their terms, subject to the
Limitations on Enforceability.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of my name in the Registration Statement,
the related Prospectus and any Prospectus Supplement relating thereto.
Very truly yours,
/s/ GARY A. SPIESS
Gary A. Spiess
General Counsel
<PAGE> 1
Exhibit
23(a)
Consent of Independent Accountants
The Board of Directors
BankBoston Corporation
We consent to the incorporation by reference, in this 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 on 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.
Boston, Massachusetts
October 14, 1997
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Power of
Attorney has been signed by the following persons in the capacities and on the
dates indicated. By so signing, each of the undersigned, in his or her capacity
as a director or officer, or both, as the case may be, of BankBoston Corporation
(the "Corporation"), does hereby appoint Charles K. Gifford, William M. Crozier,
Jr., Henrique de Campos Meirelles, Susannah Swihart, Kathleen M. McGillycuddy,
Robert T. Jefferson and Gary A. Spiess, and each of them severally, or if more
than one acts, a majority of them, his or her true and lawful attorneys or
attorney to execute in his or her name, place and stead, in his or her capacity
as a director or officer or both, as the case may be, of the Corporation, the
Registration Statement on Form S-3 to be filed with the Securities and Exchange
Commission (the "Commission") with respect to the shelf registration of
$1,500,000,000 of debt and equity securities to be offered by the Corporation
from time to time and all instruments necessary or incidental in connection
therewith, and to file the same with the Commission. Each of said attorneys
shall have full power and authority to do and perform in the name and on behalf
of each of the undersigned, in any and all capacities, every act whatsoever
requisite or necessary to be done in the premises as fully and to all intents
and purposes as each of the undersigned might or could do in person, hereby
ratifying and approving the acts of said attorneys and each of them.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Chief Executive Officer and
Director
/S/ CHARLES K. GIFFORD (Chief Executive Officer) July 24, 1997
- ------------------------------------
(Charles K. Gifford)
Chairman of the Board of
/S/ WILLIAM M. CROZIER, JR. Directors and Director July 24, 1997
- ------------------------------------
(William M. Crozier, Jr.)
President and Chief Operating
/S/ HENRIQUE DE CAMPOS MEIRELLES Officer and Director July 24, 1997
- ------------------------------------
(Henrique de Campos Meirelles)
Chief Financial Officer
/S/ SUSANNAH M. SWIHRT (Chief Financial Officer) July 24, 1997
- ------------------------------------
(Susannah M. Swihart)
/S/ ROBERT T. JEFFERSON Comptroller July 24, 1997
- ------------------------------------ (Chief Accounting Officer)
(Robert T. Jefferson)
</TABLE>
<PAGE> 2
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/S/ WAYNE A. BUDD Director July 24, 1997
- ------------------------------------
(Wayne A. Budd)
/S/ JOHN A. CERVIERI JR. Director July 24, 1997
- ------------------------------------
(John A. Cervieri Jr.)
/S/ WILLIAM F. CONNELL Director July 24, 1997
- ------------------------------------
(William F. Connell)
/S/ GARY L. COUNTRYMAN Director July 24, 1997
- ------------------------------------
(Gary L. Countryman)
/S/ ALICE F. EMERSON Director July 24, 1997
- ------------------------------------
(Alice F. Emerson)
/S/ THOMAS J. MAY Director July 24, 1997
- ------------------------------------
(Thomas J. May)
- ------------------------------------ Director , 1997
(Donald F. McHenry)
/S/ PAUL C. O'BRIEN Director July 24, 1997
- ------------------------------------
(Paul C. O'Brien)
/S/ THOMAS R. PIPER Director July 24, 1997
- ------------------------------------
(Thomas R. Piper)
/S/ FRANCENE S. RODGERS Director July 24, 1997
- ------------------------------------
(Francene S. Rodgers)
/S/ JOHN W. ROWE Director July 24, 1997
- ------------------------------------
(John W. Rowe)
/S/ GLENN P. STREHLE Director July 24, 1997
- ------------------------------------
(Glenn P. Strehle)
/S/ WILLIAM C. VAN FAASEN Director July 24, 1997
- ------------------------------------
(William C. Van Faasen)
/S/ THOMAS B. WHEELER Director July 24, 1997
- ------------------------------------
(Thomas B. Wheeler)
/S/ ALFRED M. ZEIEN Director July 24, 1997
- ------------------------------------
(Alfred M. Zeien)
</TABLE>
<PAGE> 1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
-----------------------------
___ CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b) (2)
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A U.S. NATIONAL BANKING ASSOCIATION 41-1592157
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national Identification No.)
bank)
SIXTH STREET AND MARQUETTE AVENUE
Minneapolis, Minnesota 55479
(Address of principal executive offices) (Zip code)
Stanley S. Stroup, General Counsel
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479
(612) 667-1234
(Agent for Service)
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BANKBOSTON CORPORATION
(Exact name of obligor as specified in its charter)
MASSACHUSETTS 04-2471221
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110
(Address of principal executive offices) (Zip code)
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DEBT SECURITIES
(Title of the indenture securities)
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Item 1. GENERAL INFORMATION. Furnish the following information as to the
trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency
Treasury Department
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
The Board of Governors of the Federal Reserve System
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor is
not in default as provided under Item 13.
Item 15. FOREIGN TRUSTEE. Not applicable.
Item 16. LIST OF EXHIBITS. List below all exhibits filed as a part of this
Statement of Eligibility. Norwest Bank
incorporates by reference into this Form T-1 the
exhibits attached hereto.
Exhibit 1. a. A copy of the Articles of Association of the
trustee now in effect.*
Exhibit 2. a. A copy of the certificate of authority of the
trustee to commence business issued June 28, 1872,
by the Comptroller of the Currency to The
Northwestern National Bank of Minneapolis.*
b. A copy of the certificate of the Comptroller of
the Currency dated January 2, 1934, approving the
consolidation of The Northwestern National Bank of
Minneapolis and The Minnesota Loan and Trust
Company of Minneapolis, with the surviving entity
being titled Northwestern National Bank and Trust
Company of Minneapolis.*
c. A copy of the certificate of the Acting
Comptroller of the Currency dated January 12,
1943, as to change of corporate title of
Northwestern National Bank and Trust Company of
Minneapolis to Northwestern National Bank of
Minneapolis.*
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d. A copy of the letter dated May 12, 1983 from the
Regional Counsel, Comptroller of the Currency,
acknowledging receipt of notice of name change
effective May 1, 1983 from Northwestern National
Bank of Minneapolis to Norwest Bank Minneapolis,
National Association.*
e. A copy of the letter dated January 4, 1988 from
the Administrator of National Banks for the
Comptroller of the Currency certifying approval of
consolidation and merger effective January 1, 1988
of Norwest Bank Minneapolis, National Association
with various other banks under the title of
"Norwest Bank Minnesota, National Association."*
Exhibit 3. A copy of the authorization of the trustee to exercise
corporate trust powers issued January 2, 1934, by the
Federal Reserve Board.*
Exhibit 4. Copy of By-laws of the trustee as now in effect.*
Exhibit 5. Not applicable.
Exhibit 6. The consent of the trustee required by Section 321(b)
of the Act.
Exhibit 7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.**
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
* Incorporated by reference to exhibit number 25 filed with
registration statement number 33-66026.
** Incorporated by reference to exhibit number 25 filed with
registration statement number 333-25301.
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, Norwest Bank Minnesota, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Minneapolis and State of Minnesota on the 15th day of October, 1997.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ Jane Y. Schweiger
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Jane Y. Schweiger
Corporate Trust Officer
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EXHIBIT 6
October 15, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, the undersigned hereby consents that reports of examination of the
undersigned made by Federal, State, Territorial, or District authorities
authorized to make such examination may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ Jane Y. Schweiger
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Jane Y. Schweiger
Corporate Trust Officer
